Adoption of Stuart

• Decision Date: 06 November 1995
• Docket Number: No. 95-P-14,95-P-14
• Citation: 39 Mass.App.Ct. 380,656 N.E.2d 916
• Court: Appeals Court of Massachusetts
• Parties: ADOPTION OF STUART & others. 1

Page 916

656 N.E.2d 916

39 Mass.App.Ct. 380

ADOPTION OF STUART & others. ¹

No. 95-P-14.

Appeals Court of Massachusetts,

Essex.

Argued June 22, 1995.

Decided Nov. 6, 1995.

Elizabeth B. Dunn, Salem, for the mother.

Elizabeth A. Keliher, Assistant Attorney General, for Department of Social Services.

Joseph K. Del Valle, Salem, for the minors.

Before WARNER, C.J., and PERRETTA and LENK, JJ.

LENK, Justice.

Megan Kramer, joined by her three minor children, ² appeals from the 1994 allowance by a Probate and Family Court judge of petitions filed in 1991 by the Department of Social Services (DSS) pursuant to G.L. c. 210, § 3, to dispense with her consent to the adoption of Stuart, Megan Ruth, and Carrie Kramer. The Kramers argue on appeal that (a) the judge's subsidiary findings of fact do not support her ultimate finding of current parental unfitness, and (b) the judge erred by not requiring DSS to present fully developed adoption plans and by terminating the mother's parental rights in the absence of any adoption plans. The minor Kramers also contend that DSS has failed to provide adequate services for the reunification of the family. Because we agree that the judge's subsidiary findings do not warrant a determination of current parental unfitness sufficient to compel dispensing with the mother's consent to adoption and, further, because we conclude that there was noncompliance with the statutory mandate that the department's adoption plan be considered by the court, we vacate the decrees allowing the petitions and reverse the judgments.

1. Current parental fitness. The principles of law that we apply in reviewing the judge's decision are well settled. Before the trial court may take what has been characterized as the "extreme step" of irrevocably terminating the parent and child's legal relationship pursuant to G.L. c. 210, § 3, the petitioner, here DSS, must prove by clear and convincing evidence that a parent is currently unfit to further the child's best interest. Adoption of Carlos, 413 Mass. 339, 348-350, 596 N.E.2d 1383 (1992). Adoption of Harriet, 29 Mass.App.Ct. 111, 113-114, 557 N.E.2d 767 (1990).

"[C]areful factual inspection and specific and detailed findings" by the trial court are "mandated in cases of this nature." Adoption of Harriet, 29 Mass.App.Ct. at 112, 557 N.E.2d 767, and cases cited. The judge's findings are required to be "specific and detailed so as to demonstrate that close attention has been given the evidence," Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993), thereby showing that the trial court's decision was based on a consideration of all relevant facts. Adoption of a Minor (No. 2), 367 Mass. 684, 688-689, 327 N.E.2d 875 (1975). Judges are to use "utmost care" in these proceedings, Custody of a Minor (No. 2), 392 Mass. 719, 725, 467 N.E.2d 1286 (1984), and the trial court's findings must "make clear" that the judge gave "careful consideration" to pertinent statutory criteria in reaching her decision. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 6 Mass.App.Ct. 477, 478-479, 377 N.E.2d 708 (1978). The judge's findings, inferences, and rationale are thus to be clearly set forth and are to explain the conclusions reached. A determination of current parental unfitness can only result if the judge's findings prove it "clearly and convincingly." Custody of Eleanor, 414 Mass. at 799, 610 N.E.2d 938.

The judge's findings themselves will not be disturbed unless shown to be clearly erroneous, and deference is to be accorded the trial judge's assessment of the credibility of witnesses and the weight of the evidence. Id. at 799, 610 N.E.2d 938, and cases cited. However, "[d]iscretion in this context does not of course mean arbitrary or capricious decision; it calls for decision based on all of the relevant facts. Troublesome facts ... are to be faced rather than ignored.... Only then is the judge's conclusion entitled to the great respect traditionally given to discretionary decisions." (Emphasis original.) Adoption of a Minor (No. 2), 367 Mass. at 688-689, 327 N.E.2d 875. Moreover, even if each of the judge's findings is not clearly erroneous, it "does not follow ... that the findings, taken together, proved parental unfitness by clear and convincing evidence." Custody of Eleanor, 414 Mass. at 800, 610 N.E.2d 938.

The Probate and Family Court judge, after three days of trial in October, 1993, at which eight witnesses ³ testified and eight exhibits ⁴ with multiple sub-parts were received in evidence, issued her Amended Findings of Fact and Conclusions of Law on January 11, 1994. ⁵ The court concluded that DSS had proven by clear and convincing evidence that the mother "currently lacks the ability, capacity, fitness and readiness to assume parental responsibility for the minor children ... and that the best interests of the said children will be served by a decree dispensing with the need for parental consent to their adoption."

In reaching these conclusions, the court made sixty-four findings of fact, roughly half of which recite from documents in evidence or concern often undisputed background information about the family. ⁶ The remaining subsidiary findings of fact are sparse, too often conclusory, and lack the requisite specificity and detail so critical in cases of this nature. The subsidiary findings provide little insight into what facts the judge did and did not consider and rely upon, what inferences the judge drew, and, in short, why the judge reached the conclusion of current parental unfitness. The judge's findings accordingly do not satisfactorily "demonstrate that close attention has been given the evidence." Custody of Eleanor, 414 Mass. at 799, 610 N.E.2d 938. Moreover, her ultimate determination of current parental unfitness does not clearly and convincingly follow from the cursory findings made, even when seen as not clearly erroneous and taken together as a whole.

a. Background facts. ⁷ Megan Kramer, born November 8, 1960, is the biological mother of Stuart, born May 23, 1982, Megan Ruth, born July 14, 1984, and Carrie, born October 17, 1986. Megan is married to Henry Kramer, the children's biological father who left and has been living apart from his family since prior to 1989; he raised no objection to and took no part in this G.L. c. 210, § 3, proceeding. Living on Aid to Families with Dependent Children (AFDC) payments and having been evicted from their home in Revere after Henry's departure, Megan and her children moved into the home of Megan and Henry's mutual friend, Daniel Parrish, who offered the family inexpensive, if crowded, housing.

The Kramer family was unknown to DSS until October, 1989, when DSS received reports of suspected child abuse filed pursuant to G.L. c. 119, § 51A. The reports alleged that Megan and Parrish neglected the children by providing unsanitary living conditions and inappropriate dress and by virtue of Megan Ruth's one week absence from school. The reports were subsequently found supported by DSS against the mother on the grounds of neglect. The reports also alleged that Parrish had sexually abused Carrie with the mother's at least tacit awareness; the § 51A reports were not at the time supported in this regard.

As a result of these reports and its investigation of them, on October 26, 1989, DSS filed petitions with the Lynn District Court pursuant to G.L. c. 119, § 24, for each of the children, and DSS was granted temporary custody. Shortly after the children were removed, DSS received another § 51A report on November 6, 1989, alleging again that Carrie had been sexually abused by Parrish. Since the day the children were removed to foster care, they have not lived with their mother. Permanent custody of the children was granted DSS in August, 1991; this occurred while the mother was in prison.

Within months of the removal of her children in October, 1989, Megan Kramer was arrested on December 27, 1989, for conspiracy to violate the controlled substance act and for trafficking in cocaine. Megan pleaded guilty and began serving her five-year sentence on January 23, 1991; she was released from prison in July, 1993, three months before trial of these G.L. c. 210, § 3, petitions began. Shortly after the children were removed from Megan's care in October, 1989, Parrish went to prison for sexually abusing Megan's niece. Megan at the time did not believe Parrish had abused her niece or any of her own children. Megan visited Parrish from time to time in prison. Parrish returned to his home in October, 1990, and he and Megan resided at the house for three months before Megan left for prison in January, 1991. Megan's last contact with Parrish was in December, 1991; Megan does not wish to resume this relationship. Following her July, 1993, release from prison and at the time of trial, Megan was living with relatives in her brother's Somerville house, and she had found employment. Any previous drug or alcohol abuse by Megan had apparently ceased for several years by the time of trial.

After being removed from their mother's care, the three children were initially placed together in what proved to be an unfortunate foster care situation. ⁸ The children were removed from that home on January 18, 1990, and Megan Ruth and Carrie were then placed together in a second foster home, not a preadoptive one, where they remained through the time of trial. Stuart was also placed in a second foster home, separate from his sisters, where he remained until being hospitalized for two weeks in mid-1991 due to concerns about major depression and sexually acting-out behavior and an incident involving oral sex with Carrie. He was removed to a third foster home and was hospitalized again in December, 1992, placed at the Judge Baker Children's Center, then transferred to the St. Vincent's Diagnostic Program in Fall River, where he remained through the trial. All of the children have been in therapy and each of...