Adoption of Katharine

• Decision Date: 06 January 1997
• Docket Number: No. 95-P-1765,95-P-1765
• Parties: ADOPTION OF KATHARINE & another. 1
• Court: Appeals Court of Massachusetts

Page 256

674 N.E.2d 256

42 Mass.App.Ct. 25

ADOPTION OF KATHARINE & another. ¹

No. 95-P-1765.

Appeals Court of Massachusetts Worcester.

Argued Oct. 22, 1996.

Decided Jan. 6, 1997.

Carol A. Erskine, Worcester, for the mother.

Linda S. Fidnick, Amherst, for the father.

Christopher E. Lee, for the Department of Social Services.

Nan Myerson Evans, Boston, for the minor children.

Before ARMSTRONG, PERRETTA and KASS, JJ.

KASS, Justice.

During two pregnancies, the mother ingested cocaine. Her first child, whom we call Katharine, was born prematurely on January 28, 1993, with cocaine in her system. Considerable efforts by social service agencies to assist the parents in abstaining from drugs--the father used cocaine as well--were not successful. Another child, whom we shall call Jeptha, was born on May 6, 1994, also with cocaine in his system.

The mother and father have appealed from a judgment under G.L. c. 119, § 26(4), rendered April 28, 1995, by a judge of the District Court, that the children be placed for adoption without the consent of the biological parents. In summary, the judge found that the mother had displayed neither desire nor will to overcome her cocaine addiction, had failed to avail herself of programs through which she might have resisted drug use, had, indeed, avoided contact with the Department of Social Services (DSS) because she was still using cocaine, and that it was "clear the mother's need for drugs in the future is extremely likely to negatively impact on the rights of the children to a stable and safe environment." As to the father, the judge found that he had not only resisted a DSS service plan directed toward ending his use of cocaine but that the father did not "believe cocaine use a problem." We conclude that the record as developed does not support a judgment that dispenses with consent to adoption, but we are not prepared to say that either child belongs in the unsupervised care of the biological parents.

"It is clear," the trial judge observed, "that if the parents had to cho[o]se between future drug use and the well being of their children, the children would suffer. The rights of the children to a stable and safe environment are greatly at risk in this home. Court, after eight months of court observation of this matter, observes no improvement or any likelihood that current parent unfitness will ever be remedied."

There is a basis in the record for the judge's pessimism about the futures of the parents. Their lives, while under scrutiny of DSS and the court, were marked by a not uncommon complex of social dysfunction, including the father's meager intermittent employment, the repeated failure of both mother and father (perhaps rooted in inability) to keep appointments or arrange for drug screening tests, their substance abuse, and their acute poverty. What is singular about the case is that the record and the judge's findings do not reflect a history of negligent or abusive care of the daughter Katharine, the only child who has been in the parents' care. The observations about the couple's daughter Katharine (Jeptha was removed from their custody at birth) are almost entirely of a cheerful child whose parents have adequately fed and clothed her, provided for her medical care, supervised her, and loved her. Indeed, in February, 1994, at a time when Katharine had lived with her parents for a year and about ten weeks before the birth of Jeptha, a DSS social worker who had conducted an unannounced inspection visit to the parents' home, made a report in which she described Katharine as "very alert ... very happy and healthy ... very neat." The social worker concluded that Katharine was not at risk of abuse or neglect by either parent and recommended that DSS close the case, and the case was closed; it was reopened when routine screening of the new baby for cocaine was positive.

This appeal poses the question, therefore, whether a trial judge may predict abuse and neglect on the basis of other pathology in the lives of the child's parents, notably, in this case, their use of cocaine and, on the basis of that prediction, make an order that separates children from their biological parents.

General Laws c. 119, § 26(4), directs the judge to decide in accordance with the standards of G.L. c. 210, § 3, whether the best interests of a child require dispensing with consent of the biological parents to adoption of the child by others. We look to the considerable case law that has developed under G.L. c. 210, § 3.

Removal of children irrevocably from their biological parents is an exceptionally far reaching exercise of State power. Cf. Lassiter v. Department of Social Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981); M.L.B. v. S.L.J., --- U.S. ----, ----, 117 S.Ct. 555, ----, 136 L.Ed.2d 473 (1996); Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 588-589, 421 N.E.2d 28 (1981); Custody of Two Minors, 396 Mass. 610, 617, 487 N.E.2d 1358 (1986); Petition of Boston Children's Serv. Assn. to Dispense with Consent to Adoption, 20 Mass.App.Ct. 566, 566-567, 481 N.E.2d 516 (1985). In recognition of the constitutionally protected interest of parents in maintaining the natural bond with their children, a judge must find by clear and convincing evidence that a parent is currently unfit to further the child's best interest. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982). Adoption of Carlos, 413 Mass. 339, 348-350, 596 N.E.2d 1383 (1992). Adoption of Stuart, 39 Mass.App.Ct. 380, 381, 656 N.E.2d 916 (1995). Because the determination that must be made is one of constitutional dimension, the cases have emphasized the degree of specificity and adherence to statutory criteria that are required of findings which are sufficient to support the grave conclusion of unfitness. See Custody of Two Minors, 396 Mass. at 619, 487 N.E.2d 1358; Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993); Adoption of Stuart, supra at 381-382, 656 N.E.2d 916.

Parental unfitness, as developed in the case law, means more than ineptitude, ² handicap, ³ character flaw, ⁴ conviction of a crime, ⁵ unusual life style, ⁶ or inability to do as good a job as the child's foster parent. ⁷ Rather, the idea of "parental unfitness" means "grievous shortcomings or handicaps" that put the child's welfare "much at hazard." 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). Endangerment of the child from abuse, neglect, or other activity harmful to the children must be in the picture. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 591-592, 421 N.E.2d 28. At the core of the inquiry is the question of what is in the best interests of the child, although the answer to that question in any given case is bound up with the determination of unfitness. The child's best interests may bear on how much parental deficiency is tolerable, or, conversely, the degree of parental deficiency may determine the child's best interests. Petition of New England Home for Little Wanderers to Dispense with Consent to Adoption, supra at 641, 328 N.E.2d 854 ("the tests are not separate and distinct but cognate and connected").

By the enactment of St.1992, c. 303, § 5, the Legislature enumerated and to some degree modified, the factors that a court is to consider in assessing parental fitness. The 1992 act inserted in G.L. c. 210, § 3(c ), a list of thirteen factors that a court shall consider (not to the exclusion of other relevant factors that it may consider). Of those thirteen factors, the first two are noteworthy in the case before us in terms of what does not pertain to these children. They have not been abandoned (factor [i] ), and they have not been abused or neglected (factor [ii] ). One might categorize the mother's involuntary transfer of cocaine into the bloodstream of her babies during gestation as an act of abuse, ⁸ but even if so characterized (we do not so decide), the act is self limited in that it cannot be repeated as to the child affected. Three of the listed factors are of special pertinence.

The first of those three, subparagraph (v) of § 3(c ) reads as follows:

"the child is younger than four years of age, a court of competent jurisdiction has transferred custody of the child from the child's parents to the department and custody has remained with the department for at least six of the last twelve consecutive months[,] and the child cannot be returned to the custody of his parents at the end of such twelve month period; provided, however, that the parents were offered or received services intended to correct the circumstance and refused or were unable to utilize such services on a regular or consistent basis." (Emphasis supplied.)

Katharine and Jeptha are younger than four years of age and, as of the time the District Court judge made his findings, had remained in the custody of DSS for at least six months. They can be returned to the custody of their parents in the sense that the parents very much desire the children's return and, on the basis of the parents' history with Katharine, they will take good care of the children. From the view of DSS, however, the very circumstance that triggered the removal of the children, the parents' cocaine use, persists, and the parents have refused to use offered services, namely a drug treatment program.

The second pertinent subparagraph of G.L. c. 210, § 3(c ), is subparagraph (vii), and reads as follows:

"because of the lengthy absence of the parent or the parent's inability to meet the needs of the child, the child has formed a strong, positive bond with his substitute caretaker; the bond has existed for a substantial portion of the child's life; the forced removal of the child from the caretaker would likely cause serious psychological harm to the child; and...