Adoption of Nancy

• Decision Date: 07 December 2004
• Citation: 443 Mass. 512,822 NE 2d 1179
• Parties: ADOPTION OF NANCY & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

443 Mass. 512

822 NE 2d 1179

ADOPTION OF NANCY & another.¹

Supreme Judicial Court of Massachusetts, Middlesex.

December 7, 2004.

February 24, 2005.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Brian Pariser for Department of Social Services.

Andrew Hoffman, Committee for Public Counsel Services, for the father.

Garry M. O'Brien for the children.

IRELAND, J.

This is an appeal from the grant of a petition to dispense with parental consent to adoption pursuant to G. L. c. 210, § 3. After the decrees were entered in the juvenile session of the Ayer division of the District Court Department, the father appealed to the Appeals Court, which vacated the portion of the decrees terminating the father's parental rights. Adoption of Nancy, 61 Mass. App. Ct. 252 (2004).² We granted the application of the Department of Social Services (department) for further appellate review to determine whether the trial judge erred in terminating the father's parental rights to his two daughters where termination was not a prerequisite to the implementation of the children's permanent plans. The children joined their father in appealing from the decrees, claiming that they have been rendered "legal orphans." Because we conclude that termination need not be a prerequisite to implementation of a permanent plan and that the trial judge's factual findings clearly support the determination that termination of parental rights served the children's best interests, we affirm the decision to terminate the father's parental rights.

Background.

We recount the relevant facts, reserving certain details for our discussion. Nancy was born in 1990, and Rachel was born in 1991. In 1997, the girls' mother left the girls' father, who is an alcoholic, claiming that the father physically abused her. She did not take the girls with her but left them in their father's care. The department first filed an emergency care and protection petition in the District Court in September, 1998, alleging neglect, and subsequently, the girls were removed from their father's care. At that time, the father had a drinking problem, and his home was well known to police. When the father drank, he left the girls unattended or with inappropriate caretakers. Although the girls were returned to their father's care in November, 1998, they were permanently removed from his care in October, 1999, due to his chronic alcohol abuse.

The department's goal at the time the girls were removed from their father's care was reunification. That goal changed, however, after the father repeatedly failed to comply with the terms of his service plan, which required him to participate in long-term residential alcohol treatment programs.³ The father's persistent pattern has been to enter a detoxification program and, shortly thereafter, to return to alcohol abuse. He has never participated in an extended treatment program and has been unwilling to admit or believe that he has a problem with alcohol. Since being removed from their father's home, the girls have had minimal contact with either parent.⁴

The department's permanency plan for Nancy is that her foster parents become her guardians. The permanency plan for Rachel is long-term substitute care with recruitment of an adoptive family when she is stabilized. The judge found that the department's plans for the girls were appropriate, considered their needs and desires, and were in their best interests.

Discussion.

The father does not claim error in the judge's conclusion that he is currently unfit to care for his daughters. He asserts, however, and the Appeals Court agreed, that the judge erred in terminating his parental rights, because there was no evidence that termination furthered the girls' best interests, neither child's permanency plan required termination, and the judge failed to consider the girls' wishes regarding termination of their father's parental rights. We disagree, and discuss each issue in turn.⁵

1. Evidence for termination. In determining whether to dispense with parental consent to adoption, a judge must "evaluate whether the [parent is] 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." Adoption of Mary, 414 Mass. 705, 710 (1993). Because the termination of parental rights is an "extreme step," Adoption of Frederick, 405 Mass. 1, 5 (1989), quoting Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 119 (1984), we require that the judge articulate specific and detailed findings in support of a conclusion that termination is appropriate, demonstrating that she has given the evidence close attention. See Adoption of Hugo, 428 Mass. 219, 224 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999); Care & Protection of Laura, 414 Mass. 788, 791 (1993); Adoption of Frederick, supra at 4-5. Subsidiary findings must be supported by a preponderance of the evidence, Adoption of Helen, 429 Mass. 856, 859 (1999), and none of the findings will be disturbed unless clearly erroneous. Adoption of Greta, 431 Mass. 577, 587 (2000). Custody of Eleanor, 414 Mass. 795, 799 (1993). We review the judge's findings with substantial deference, recognizing her discretion to evaluate a witness's credibility and to weigh the evidence. Adoption of Quentin, 424 Mass. 882, 886 (1997).

Although recognizing that the evidence supported the judge's conclusion of the father's current unfitness, the Appeals Court stated that the evidence "did not rise to the level of clear and convincing proof needed to terminate the father's rights." Adoption of Nancy, 61 Mass. App. Ct. 252, 258 (2004). We disagree. The standard for parental unfitness and the standard for termination are not separate and distinct, but "reflect different degrees of emphasis on the same factors." Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641 (1975). This is not to say that the judge can conflate the two issues; it is a two-part analysis. The finding of parental unfitness by clear and convincing evidence is the "critical inquiry." Adoption of Peggy, 436 Mass. 690, 701, cert. denied sub nom. S.T. v. Massachusetts Dep't of Social Servs., 537 U.S. 1020 (2002), quoting Care & Protection of Laura, supra at 793. After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child. See Adoption of Carlos, 413 Mass. 339, 350-351 (1992); Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, supra at 119. In determining whether the best interests of the children will be served by issuing a decree dispensing with the need for consent, a "court shall consider the ability, capacity, fitness and readiness of the child's parents . . . and shall also consider the plan proposed by the department or other agency initiating the petition." G. L. c. 210, § 3 (c). Both girls and their father argue that the judge erred by failing to make specific findings regarding how termination would be in the girls' best interests.

The judge's findings make clear that her decision to sever legal ties between the girls and their father was based on her determination that there was no hope that the father would stop drinking and, thus, would not be capable of any normal parenting duties. The judge enumerated multiple reasons for her conclusion that the father was currently unfit to parent and would be unfit to parent in the future.⁶ She repeatedly referenced the father's inability or unwillingness to attend alcohol treatment programs and stated, "History is very relevant and very predictive in this case." While not specifically stating the reasons that termination was in the children's best interest, the judge's factual findings were specific and detailed, demonstrating that close attention was paid to the evidence and the fourteen factors listed in G. L. c. 210, § 3 (c). Although it would be better practice specifically to state the reasons that termination is in the child's best interest, such specificity is not required. The judge had discretion to conclude that termination was appropriate. See Adoption of Hugo, supra at 225, quoting Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975) ("We recognize that in this field it is neither possible nor desirable to make decisions with precision, and that `much must be left to the trial judge's experience and judgment'"). Here, it is implicit in the judge's findings that termination is in the best interests of the children, and by no means can the judge's decision be said to be clearly erroneous.

2. Permanency plans. The father and the girls also argue that termination of the father's parental rights was error because neither of the girls' permanency plans required termination, and termination rendered the girls legal orphans. The Appeals Court focused on the fact that termination was not absolutely essential at this time for either permanency plan. Adoption of Nancy, supra at 258. However, G. L. c. 119, § 26 (4), provides that a judge "may enter an order to dispense with the need for consent of any person named in [G. L. c. 210, § 2], to the adoption, custody, guardianship or other disposition of the child . . . upon a finding that the child is in need of care and protection . . . and that the best interests of the child will be served by such an order" (emphasis added). The statute thus provides a greater range of permanent placement options for children than simply limiting placement to adoption, and the department is not required to retry a parent's unfitness in the event the proposed plan for a child changes. The statute's plain language indicates an intent to place children in permanent situations, though not necessarily through adoption.

Her...