Adoption of Vito

• Decision Date: 06 January 2000
• Citation: 728 NE 2d 292,431 Mass. 550
• Parties: ADOPTION OF VITO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

431 Mass. 550

728 NE 2d 292

ADOPTION OF VITO.¹

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 2000.

May 18, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, IRELAND, & COWIN, JJ.

Virginia A. Peel, Special Assistant Attorney General (Lynne M. Murphy with her) for Department of Social Services.

Andrew L. Cohen, Committee for Public Counsel Services, for the mother.

Christin A. Anderson, for the child, submitted a brief.

MARSHALL, C.J.

This appeal arises from the denial of a petition to dispense with parental consent to adoption.² The case concerns a child who tested positive for cocaine at the time of his birth in January, 1992, and who has lived with his foster parents (also his preadoptive parents) since he was discharged from the hospital one month after his birth. Vito has never lived with his biological mother.³ He is now eight and one-half years old.

On February 16, 1996, the Department of Social Services (department or DSS) filed a petition to dispense with parental consent for the adoption of Vito in the Probate and Family Court Department, pursuant to G. L. c. 210, § 3 (1998 ed.).⁴ In termination proceedings, a judge must assess the fitness of the parent and the adequacy of the department's adoption plan. See G. L. c. 210, § 3 (b), (c). The probate judge concluded that the mother was unfit to parent Vito, but found that the department's adoption plan was not in his best interest because it did not provide for significant postadoption contact with Vito's mother and biological siblings.⁵ She denied the petition. The judge provided that, on a timely filing of a motion for reconsideration, she might reconsider the denial and enter a new judgment should the department submit a new adoption plan that provided for postadoption contact between Vito and his biological mother and siblings, including eight yearly visits with his biological mother, as long as the mother is not abusing drugs and the contact continues to be in Vito's best interests.

The department appealed.⁶ The Appeals Court vacated the probate decree and directed that a decree enter allowing the department's petition to dispense with consent. Adoption of Vito, 47 Mass. App. Ct. 349, 355, 358-359 (1999). The Appeals Court further found the judge's proposal for postadoption visitation was both permissible and sound, but ordered that, given the passage of time, the Probate Court should hear anew any petition for postadoption visitation filed within thirty days. Id. We granted the department's application for further appellate review, challenging the judge's requirement of postadoption visitation in the adoption plan and departmental involvement after the adoption.⁷

We vacate the judge's order denying the petition to dispense with parental consent to adoption. The judge's conclusion that the mother is unfit is not challenged.⁸ With respect to the judge's denial of the petition based on failure to provide for postadoption contact in the adoption plan, we hold that a judge may order limited postadoption contact, including visitation, between a child and a biological parent where such contact is currently in the best interests of the child. The judge has the authority to ensure that such contact in the best interests of the child is maintained during an appropriate transitional period.

Judicial exercise of equitable power to require postadoption contact is not warranted in this case, however, because there is little or no evidence of a significant, existing bond between Vito and his biological mother, and no other compelling reason for concluding that postadoption contact is currently in his best interests. Vito has formed strong, nurturing bonds with his pre-adoptive family; and the record supports little more than speculation that postadoption contact will be important for his adjustment years later, in adolescence. See Adoption of Greta, post 577, 589 (2000). Accordingly, we remand the case to the Probate and Family Court and direct that a decree enter granting the department's petition to dispense with the biological mother's consent to Vito's adoption.

I

We summarize in some detail the findings of fact and conclusions of law made by the judge. In 1990 Vito's biological mother began using crack cocaine, which she continued to do until 1995, with occasional periods of nonuse. Prior to May, 1991, when a judge in the Boston Juvenile Court awarded temporary custody of her three oldest children to the department, see G. L. c. 119, § 24, she had been trading food stamps and using public welfare benefits to purchase crack cocaine. Her children were often left at home alone. When Vito tested positive for cocaine at birth, an abuse and neglect report concerning him was filed two days after his birth, alleging his positive cocaine screen and his mother's failure to obtain prenatal care. See G. L. c. 119, § 51A. The report was substantiated. In February, 1992, the existing care and protection petition for Vito's three older siblings was amended to include Vito, and he was placed in the temporary custody of the department.

Vito was discharged from the hospital one month after his birth and was placed in the home of his foster parents; his siblings had been placed in other homes. In March, 1992, the Boston Juvenile Court ordered the department to assume permanent custody of Vito and his three older siblings; the mother's whereabouts were unknown to the department at that time.

From the time of his removal from his mother's care in January, 1992, while in the hospital, until January, 1995, his biological mother visited Vito only once.⁹ During that ninety-minute visit, Vito responded minimally to his biological mother, withdrew from her and attached himself to his foster mother. At the end of that visit, the mother agreed to visit Vito again at the end of the month, on his first birthday, but although the foster mother and Vito arrived for the birthday visit, the mother failed to attend; she did not telephone to cancel the visit. Following the failed January, 1993, birthday visit, the biological mother made no request for a visit with her son for the remainder of 1993. During 1994 there were no visits with Vito, and little contact between the biological mother and the department; she told the department she had relocated to Florida.

In 1995, while back in Massachusetts in prison on shoplifting charges, Vito's mother signed a department service plan, entered a drug rehabilitation program and began visits with Vito and his siblings.¹⁰ Vito's mother was released from prison in October, 1995. The judge found that the mother's visits with Vito have been generally consistent since March, 1995, and that she has attended monthly supervised visits since her release. The judge found that Vito and his biological mother have "no emotional sharing" between them and remain dissociated, despite pleasant play and conversation. The judge found that Vito did not show any genuine interest in his biological siblings and did not appear to have formed any emotional attachment to his biological mother; he did not appear to be excited to see her and separated from her with no difficulties or emotional overtones. The judge nevertheless made an ultimate finding that Vito had formed "a positive relationship" with his biological mother that has developed since visitation began when she was incarcerated.¹¹ The judge found that Vito's mother, however, had not fully complied with the department's service plan tasks, and concluded that Vito's biological mother cannot now resume care and custody of Vito because "she has not secured adequate stable housing, has not adequately addressed her issues of lengthy substance abuse history and has not acquired any meaningful parenting skills training." She also concluded that Vito's mother's drug abuse and resultant neglect "was severe and of a lengthy duration," although she had improved in the last two years.

In contrast, the judge found that Vito is "fully integrated into his foster family both emotionally and ethnically." The judge found that it was "important" to Vito to belong to his foster family "because that was the only family he had known," and that "[t]he foster parents are invested in adopting [Vito]; they perceive him as their own son."¹² She found that Vito "has a significant attachment to his foster family," and that separating Vito from his foster family could result in a range of negative responses, from severe depression to less severe trauma.

The judge concluded that, by clear and convincing evidence, Vito's mother is currently unfit to parent him. She specifically found that the biological mother "lacks the current ability, capacity, fitness and readiness" to parent Vito. Her unavailability to Vito, she concluded, resulted in Vito's "life-long placement with [his foster] family, to which he is now attached." Despite the fact that the biological mother "cares deeply for and has good intentions toward the child," however, "[g]ood intentions . . . are insufficient to establish fitness to parent a child."

The judge further determined that "racial issues may at sometime in the future" become a problem for Vito (emphasis added). She found that Vito's relationship with his biological mother is "crucial" for his "racial and cultural development and adjustment," that his best interests will be served by continued "significant" contact with her after any adoption, and that under the department's adoption plan Vito would have limited or no connection to his African-American family or culture.¹³ She found that the department's plan is not in Vito's "best interest so long as it does not provide for significant ongoing contact with [his] [m]other and [biological] siblings."

II

A

Despite numerous appellate decisions to the contrary, the department argues that there is no authority for the judge to enter an order requiring postadoption visitation in a termination proceeding, pursuant to G. L. c. 210, § 3, or at...