Adoption of Mary

• Citation: 610 N.E.2d 898,414 Mass. 705
• Parties: ADOPTION OF MARY (and a companion case 1 ).
• Decision Date: 06 April 1993
• Court: United States State Supreme Judicial Court of Massachusetts

Page 898

610 N.E.2d 898

414 Mass. 705

ADOPTION OF MARY (and a companion case ¹).

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Dec. 7, 1992.

Decided April 6, 1993.

Donald P. Whitney, Springfield, for the mother.

M. Francisco Palomo, Northampton, for Department of Social Services.

Carol Booth, Amherst, for the minors.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The mother of two minor children appeals from a judgment of a Probate and Family Court judge dispensing with the need for her consent to the adoption of her children, pursuant to G.L. c. 210, § 3 (1990 ed.). ² The mother, J.B., raises three issues on appeal: (1) whether an investigator's reports, which are admissible in care and protection proceedings in the Probate Court pursuant to G.L. c. 119, § 24 (1990 ed.), are also admissible in the proceedings to dispense with consent; (2) whether the evidence presented supported a clear and convincing finding that she was unfit as a parent; and (3) whether the judge erred in his findings and conclusions pertaining to her postadoption visitation rights. We transferred this case from the Appeals Court on our own motion. We now affirm.

We summarize the facts found by the judge based on the testimony of five witnesses, seventeen exhibits, and a joint stipulation of the parties. On November 24, 1979, J.B. gave birth to Michael out of wedlock. In 1982, J.B. married R.B., who is not Michael's father, and gave birth on February 10, 1983, to Mary. The Department of Social Services (department) became associated with the family as early as 1983, when a report was filed in accordance with G.L. c. 119, § 51A (1990 ed.) ³ (51A report), on the grounds of poor supervision and medical neglect. Lack of supervision and poor judgment was the basis for another 51A report filed in 1985. In 1988, 51A reports were filed and substantiated on the grounds of physical abuse, lack of food, poor hygiene, and filthy living conditions. A social worker assigned to the family referred them for counseling services. By November of 1989, no significant progress had occurred so the department filed a care and protection petition on November 17. The children were adjudicated to be in need of care and protection with temporary custody awarded to the department. The children were placed in foster care on November 28, 1989. Then in January of 1990, a 51A report, subsequently substantiated, indicated that both children had suffered sexual abuse perpetrated by R.B.

On June 13, 1991, J.B. was convicted and received a suspended sentence for assault and battery on Mary which had occurred when the child attempted to report to her mother that her father was sexually molesting her. On the same day R.B. was also found guilty of indecent assault and battery on both children. He was sentenced to a term of two and one-half years in a house of correction and ordered to have no contact, either directly or indirectly, with the children. J.B., however, visited R.B. at his place of incarceration.

Michael, who began his life as a failure to thrive infant, has suffered from encopresis, and currently has attention deficit hyperactivity for which he takes medication. Although Michael was initially placed in a foster home with his sister, he exhibited inappropriate sexual behavior toward his sister and other children in the household. The department then placed him in a residential setting where he is in a special program to address his ongoing problems. His psychosexual risk assessment states that he has "extreme difficulty in trusting adults" and "has experienced abandonment and rejection throughout his life." While the department's long-term goal is placement in a normal family, it is unclear whether this will ever be possible.

Mary has resided with the same foster family since July of 1991. This family wishes to proceed with adoption. They have received special training to deal with Mary's needs, exhibit appropriate loving and nurturing care, and have experience with children in her situation having adopted another child. She is eating and sleeping well and involved in community activities.

1. Admissibility of the investigator's reports. A court investigator prepared three investigative reports for the underlying care and protection proceedings. The reports were prepared in January, March, and September of 1990. Within the reports are details of the family history and summaries of interviews with the parents, children, foster parents, social workers, and health care providers.

Prior to trial, J.B. moved to strike exhibits including these three reports. ⁴ Following a hearing on the motion, the judge ruled that the investigator's reports were admissible "because of the interrelationship between" care and protection proceedings and proceedings to dispense with consent, "although the stakes are different," noting that the preparer of the documents was present and subject to cross-examination. J.B. argues that the judge improperly extended the statutory exception applicable to the admission of the investigator's reports in the care and protection proceedings to this case when the judge specifically incorporated the reports in his findings, and as such, the mother claims prejudicial error.

"Unquestionably, the removal of a child from a parent's custody is a substantial deprivation," but often necessary in cases of abuse and neglect. See Care & Protection of Frank, 409 Mass. 492, 498, 567 N.E.2d 214 (1991). In care and protection proceedings, an investigator's reports are admissible as a statutory exception to the hearsay rule to provide the court with needed information. Custody of Jennifer, 25 Mass.App.Ct. 241, 245, 517 N.E.2d 187 (1988) (investigator's reports admissible). ⁵ This evidentiary exception has been justified as a necessary tool to assist the judge in the navigation of the cross currents involved in determining the fitness of parents and the best interest of the children. Custody of Tracy, 31 Mass.App.Ct. 481, 485, 579 N.E.2d 1362 (1991). See Gilmore v. Gilmore, 369 Mass. 598, 604-605, 341 N.E.2d 655 (1976) (best interests of child determined on facts presented at trial and facts gathered by court-appointed investigators). However, when a petition to dispense with parental consent for adoption is filed, the relationship between the parent and the intervening agency acquires an adversary character altering the parent's motivation to participate in the litigation. Petition of Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 392 Mass. 738, 743, 467 N.E.2d 866 (1984).

The judge here incorporated by reference specific portions of the investigator's reports "starting with family history from pages 4-7 in [e]xhibit 15 which is the January 22, 1990, report of the District Court investigator," and "starting with the updated family history from pages 3 to 6 in her September 10, 1990, report which is [e]xhibit 17." We have never declared that such reports are admissible in c. 210 proceedings, and it is unnecessary for us to decide the question here. The information contained within these designated pages contributed no new or additional information. The evidence was either in various other documents whose admissibility was not contested or the subject matter of direct testimony subject to cross-examination. Due process concerns and fundamental fairness require that a parent have an opportunity effectively to rebut adverse allegations concerning child-rearing capabilities, especially in a proceeding that can terminate all legal parental rights. See Duro v. Duro, 392 Mass. 574, 580, 467 N.E.2d 165 (1984); Custody of a Minor (No. 2), 378 Mass. 712, 723, 393 N.E.2d 379 (1979); Custody of Tracy, supra, 31 Mass.App.Ct. at 485-487, 579 N.E.2d 1362; Custody of Michel, 28 Mass.App.Ct. 260, 265-266, 549 N.E.2d 440 (1990). J.B. had ample opportunity to rebut the evidence referred to in the reports and to test the reliability or accuracy of the investigator. Gilmore v. Gilmore, supra, 369 Mass. at 605, 341 N.E.2d 655. We also note that in J.B.'s proposed findings of fact, which the judge also incorporated by reference in his findings, she requests that specific portions of two of the reports be acknowledged.

Since the evidence contained in the admitted portions of the investigator's reports was repetitive of other evidence properly admitted and had no bearing on a contested fact or credibility dispute, no prejudicial error could arise from its admission.

2. Evidence of current unfitness of parent. When presented with a petition to dispense with parental consent to adoption, the judge must evaluate whether the parents are able to assume the duties and responsibilities required of a parent and whether dispensing with the need for parental consent will be in the best interests of the children. See G.L. c. 210, § 3; Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 119, 461 N.E.2d 186 (1984); Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 268-269, 381 N.E.2d 565 (1978). The judge must find by clear and convincing evidence that a parent is presently unfit to provide for the welfare and best interests of the child in order to grant a petition that terminates a natural parent's legal rights. See Adoption of Kimberly, 414 Mass. 526, 609 N.E.2d 73 (1993); Care & Protection of Martha, 407 Mass. 319, 327, 553 N.E.2d 902 (1990); Custody of Two Minors, 396 Mass. 610, 619, 487 N.E.2d 1358 (1986). Absent a showing that the judge's findings are clearly erroneous, they are left undisturbed. See Care & Protection of Martha, supra, 407 Mass. at 327, 553 N.E.2d 902; Care & Protection of Valerie, 403 Mass. 317, 318-319, 529 N.E.2d 146 (1988).

Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child...