Adoption of Jenna

• Decision Date: 08 February 1993
• Docket Number: No. 92-P-702,92-P-702
• Citation: 604 N.E.2d 1325,33 Mass.App.Ct. 739
• Parties: ADOPTION OF JENNA.
• Court: Appeals Court of Massachusetts

Page 1325

604 N.E.2d 1325

33 Mass.App.Ct. 739

ADOPTION OF JENNA.

No. 92-P-702.

Appeals Court of Massachusetts Berkshire.

Argued Oct. 21, 1992.

Decided Dec. 23, 1992.

Further Appellate Review Denied

Feb. 8, 1993.

William D. Barry, Pittsfield, for mother.

Virginia A. Peel, Brockton, for Department of Social Services.

Before ARMSTRONG, SMITH and PORADA, JJ.

PORADA, Justice.

The principal issues presented by the mother in this appeal from the allowance by a Probate and Family Court judge of a petition to dispense with her consent to the adoption of her daughter are whether the referral of the petition to a master by the judge constituted error and whether the evidence was sufficient to support the judge's conclusion that the mother was currently unfit to provide for her child's best interest. For the reasons stated, we affirm the judgment.

We summarize the pertinent procedural background. On June 29, 1989, the Department of Social Services (department) filed a petition to dispense with the need for parental consent to the adoption of Jenna. ¹ On December 8, 1989, at the pretrial conference, the judge appointed a master to hear the case with the consent of the parties, who were represented by counsel. Subsequent to the conference, the mother of the child filed a motion to change counsel and to represent herself. Her motion was allowed. After that, the mother filed an objection to the case proceeding before the attorney who was appointed as master in the case. The hearing began before the master on June 6, 1990. On June 7, counsel was appointed to assist the mother and thereafter represented the mother in the case. The master's hearing continued on June 7, June 22, and September 12, 1990, and was completed on December 18, 1990. During the course of the hearing, the mother did not raise any objection to the case being heard by the master. The master filed his report with the court on January 14, 1991. After a hearing on the department's motion to confirm the report and the mother's objections to the report, the judge allowed the department's motion, entered his own findings, and granted the department's petition on March 6, 1991. From this judgment, the mother appeals.

The mother asserts that the judge's reference of this case to a master was an abuse of discretion and a violation of the State and Federal constitutions. The mother, however, assented to the appointment of a master with facts final at the pretrial conference. Thereafter, when she was given permission to represent herself, she filed an objection to the case proceeding before the attorney who had been appointed as the master, but she never presented the objection to the judge for a ruling. See Marcil v. John Deere Industrial Equip. Co., 9 Mass.App.Ct. 625, 632, 403 N.E.2d 430 (1980). She did not raise the objection during the course of the hearings before the master, include it in her objections to the master's report, or file a motion to strike the master's report. Nor were the arguments against the appointment of a master raised in this appeal ever presented to the judge for his decision. Consequently, the mother has waived her right to claim error. See Burrell v. Whiting, 324 Mass. 243, 245, 85 N.E.2d 619 (1949); Edgar v. Edgar, 406 Mass. 628, 629, 549 N.E.2d 1128 (1990).

We are concerned, nevertheless, that our holding not be misunderstood as approval of the practice of referring such cases to a master. Because the matter has been fully argued and presents an issue of importance which is likely to arise again, we express our views on the issue. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 134, 533 N.E.2d 1356 (1989). Trustees of the Prince Condominium Trust v. Prosser, 412 Mass. 723, 725, 592 N.E.2d 1301 (1992).

Under the provisions of G.L. c. 221, § 57, ² a judge of the Probate and Family Court has the power to appoint a master in civil actions not governed by the Massachusetts Rules of Civil Procedure or the Massachusetts Rules of Domestic Relations Procedure. ³ Even though the power is statutory in origin, the decision to appoint a master is a matter of judicial discretion, which should be exercised "most discriminately and reasonably sparingly." O'Brien v. Dwight, 363 Mass. 256, 280, 294 N.E.2d 363 (1973). Boston Redev. Authy. v. Doherty, 370 Mass. 99, 103, 345 N.E.2d 376 (1976). An appointment of a master may constitute an abuse of discretion where it results in delay and proves burdensome to the litigants, Boston Redev. Authy. v. Doherty, 370 Mass. at 102-105, 345 N.E.2d 376; where the importance and nature of the inquiry is such that it demands the attention and skill of an experienced judge, Shell Oil Co. v. Revere, 383 Mass. 682, 691, 421 N.E.2d 1181 (1981); or where the purpose of the proceeding is best accomplished and the applicable procedures are more consonant with the legislative intent if the evidence is heard and the facts are determined by a judge, Garelick v. Board of Appeals of Franklin, 350 Mass. 289, 290, 214 N.E.2d 60 (1966).

Speedy resolution of issues involving custody of children is essential. "No cases of any kind have a greater claim for expedition at all stages than those involving care and custody of children." Custody of a Minor, 389 Mass. 755, 764 & n. 2, 452 N.E.2d 483 (1983). See also Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 118 n. 7, 461 N.E.2d 186 (1984). As illustrated by this case, reference to a master does not accelerate the process or reduce the time and attention required of the judge. It results in at least two hearings, an evidentiary one before the master and a nonevidentiary one on the report and objections to it before the judge. Mass. Probate Court Rules 20, 21, & 24. Moreover, since the report is considered to be prima facie evidence on matters referred to the master under G.L. c. 221, § 57, the parties are entitled to a trial before a judge at which the report may be supplemented, controlled, or rebutted by other evidence. See Gallagher v. Phinney, 284 Mass. 255, 258, 187 N.E. 612 (1933) (an auditor's report, being prima facie evidence, could be supplemented or rebutted by other evidence). Consequently, reference of these cases to a master is likely to be burdensome to both the litigants and the courts and is unlikely to result in the speedy resolution of these cases.

In addition, there is no doubt that cases involving the termination of parental rights to their children are of great importance. The "loss of a child may be as onerous a penalty as the deprivation of the parents' freedom." Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3, 393 N.E.2d 406 (1979), quoting from Custody of a Minor (No. 1), 377 Mass. 876, 884, 389 N.E.2d 68 (1979). They should not be assigned to a master just because the trial may be protracted. See O'Brien v. Dwight, 363 Mass. at 280, 294 N.E.2d 363. The nature of the inquiry is one that demands the kind of judgment and experience that can best be provided by a Probate Court judge. See Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646, 328 N.E.2d 854 (1975). See also Santosky v. Kramer, 455 U.S. 745, 762, 102 S.Ct. 1388, 1399, 71 L.Ed.2d 599 (1982). Proceedings under G.L. c. 210, § 3, often "involve complex questions of fact and law," Department of Public Welfare v. J.K.B., 379 Mass. at 4, 393 N.E.2d 406, and require the judge to make specific and detailed findings of fact demonstrating that close attention has been paid to the evidence. Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 670, 493 N.E.2d 197 (1986). The determination of parental unfitness and of the child's best interest, required to grant the petition, must be supported by clear and convincing evidence. Santosky v. Kramer, 455 U.S. at 768-770, 102 S.Ct. at 1402-03. Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 698, 467 N.E.2d 861 (1984). Given the nature of the inquiry and the attendant procedures, we believe it would be more consonant with legislative intent if the evidence is heard and the facts are required to be determined by a judge rather than a master. See Garelick v. Board of Appeals of Franklin, 350 Mass. at 290, 214 N.E.2d 60.

For all of these reasons, we conclude that it is an abuse of discretion for a judge of the Probate and Family Court to refer a petition under G.L. c. 210, § 3, to a master. ⁴ Because of our view, we need not reach the constitutional issue.

The mother's attack on the sufficiency of the evidence to support the master's findings and the judge's conclusion that the mother is currently unfit to provide for the child's best interest is without merit. Much of the mother's argument seeks to relitigate the propriety of this case being heard by a master rather than a judge, an issue which we have decided was foreclosed by her actions at the trial level. Her remaining arguments are relegated to the master's reliance on stale information and the master's failure to make certain findings. In his findings, the master noted that the mother fed the child cat food to provide the child...