Adoption of Vito, In re

• Decision Date: 21 July 1999
• Docket Number: No. 98-P-1152,98-P-1152
• Parties: ADOPTION OF VITO. 1
• Court: Appeals Court of Massachusetts

Page 1188

712 N.E.2d 1188

47 Mass.App.Ct. 349

ADOPTION OF VITO. ¹

No. 98-P-1152.

Appeals Court of Massachusetts,

Suffolk.

Argued Jan. 14, 1999.

Decided July 21, 1999.

John E. Bowman, Jr., Assistant Attorney General, for Department of Social Services.

Ellen Woodward Morris, Auburndale, for the mother.

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

Present: PORADA, SMITH, & SPINA, JJ.

SPINA, J.

Vito was born in January, 1992, at thirty weeks' gestation. He tested positive for cocaine at birth. Within days, hospital staff filed an abuse and neglect report pursuant to G.L. c. 119, § 51A, which was subsequently substantiated. An existing care and protection petition which involved Vito's three biological siblings, two of whom also tested positive for cocaine at birth, was amended to include Vito. In late February, Vito was discharged from the hospital to his foster family, where he has remained ever since. On March 24, the Department of Social Services (department) obtained permanent custody of Vito. On February 16, 1996, ² the department filed its petition pursuant to G.L. c. 210, § 3, to dispense with parental consent to Vito's adoption. In its plan, the department recommended adoption by the foster parents and made no provision for postadoption visitation with the biological mother.

Trial on the petition to dispense with consent to adoption occurred on four days in January and June, 1997. After the fourth day of trial, the judge, uncertain about her authority to order postadoption visitation (this case had been tried before publication of our decision in Adoption of Lars, 46 Mass.App.Ct. 30, 702 N.E.2d 1187 [1998], further appellate review granted, 429 Mass. 1106, 710 N.E.2d 603 [1999] ³), made known her thoughts about the importance of postadoption visitation and asked the parties to consider an open adoption. See 110 Code Mass. Regs. § 7.215 (1993). After the parties reported they were unable to reach an agreement, the judge released her decision. She found that the biological mother was unfit to parent Vito and that Vito had bonded strongly with his foster family. She issued a decree, however, denying the department's petition, but subject to reconsideration on motion of the department, with a prerequisite that the department submit "a new plan for adoption which provides ... [for maintaining] post adoption contact between [Vito] and [his biological mother] and [Vito's] biological siblings." ⁴ The judge indicated that the department's plan must include eight daytime visits annually, provided the mother refrain from drug abuse and participate in random drug screens, and further provided that such visitation remain in Vito's best interests.

The department and Vito appeal, ⁵ arguing that (1) the department is entitled to approval of its petition because the judge found all facts necessary to warrant issuance of a decree dispensing with the biological mother's consent to the adoption of Vito; (2) requiring postadoption visitation with the biological mother exceeded the judge's statutory authority; (3) certain findings that Vito's best interests would be served by postadoption contact with his biological mother were not supported by the evidence; and (4) the order was based on inappropriate consideration of the races and ethnicities of the parties involved. We vacate the decree and direct entry of a decree allowing the department's petition; we approve the judge's reasoning as to visitation but remand as to that issue in view of the passage of time.

1. The department argues it is entitled to approval of its petition because the judge found all facts necessary to warrant issuance of a decree dispensing with the mother's consent to the adoption of Vito. General Laws c. 231, § 124, authorizes "the appeals court or the full bench of the supreme judicial court, ... if satisfied that it has before it all the facts necessary for determining the question in dispute, [to] direct that judgment be entered or that such other action be taken as shall accord with the determination of such court." See Westerly Tobacco Co. v. Huberman, 333 Mass. 548, 550, 132 N.E.2d 289 (1956); Jones v. Director of the Div. of Employment Security, 392 Mass. 148, 151, 465 N.E.2d 245 (1984); Ford v. Flaherty, 1 Mass.App.Ct. 16, 20, 294 N.E.2d 437 (1972), S. C., 364 Mass. 382, 305 N.E.2d 112 (1973).

Before taking the "extreme step ... [of allowing a petition to dispense with parental consent to adoption] ... it must be shown by clear and convincing evidence that the parent's unfitness to assume parental responsibility is such that it would be in the best interests of the child for all legal relations to be ended." Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 119, 461 N.E.2d 186 (1984). The tests of the child's best interests and parental fitness "are not separate and distinct but cognate and connected." Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 641, 328 N.E.2d 854 (1975).

The judge made detailed and extensive findings that the biological mother was currently unfit, summarized as follows and supplemented by facts derived from undisputed evidence consistent with her permissible findings. Bruno v. Bruno, 384 Mass. 31, 35, 422 N.E.2d 1369 (1981). The biological mother, born in 1967, intermittently used cocaine from 1990 to 1995 and has a history of recovery and relapse. She admitted using cocaine during her pregnancy with Vito and not seeking prenatal care. Between February, 1992, and January, 1995, the biological mother visited Vito once, in January, 1993, despite having several scheduled visits during that period. It was not until her incarceration at MCI-Framingham in early 1995 for violation of probation on prior shoplifting charges that the biological mother's visits with Vito occurred with any regularity.

The judge found that the biological mother's efforts fell short of reasonable requirements under the department's various service plans. Between 1992 and 1994, the biological mother failed to provide the department with documentation of treatment for her substance abuse problem, she relocated to Florida for eight months without telling the department, and she failed consistently to accept needed services. After purportedly completing one parenting skills course while in Florida, the biological mother unilaterally decided that further training in that area was unnecessary. She has never undergone a complete substance abuse evaluation despite her history of addiction and her admitted social interaction with drug users. See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289, 503 N.E.2d 1275 (1987) (parents' failure to complete service plan tasks relevant to fitness inquiry).

The judge also found that the biological mother did not begin to understand the import of Vito's life with his foster parents and their children, the only home he has ever known. Although the biological mother "appear[ed] to be invested in ... reorganizing her life and having a home for all her children," she had "formulated no realistic plans to accomplish" that goal. She failed to secure employment or adequate housing. ⁶ After considering the factors set out in G.L. c. 210, § 3(c ), the judge found that despite the biological mother's good intentions, her pattern of "inconsistent parent-child visitation, ... inconsistent contact with the [d]epartment and inconsistent compliance with service plan tasks" rendered her unfit. ⁷

We are satisfied that the judge gave due consideration to the biological mother's ability to parent, including her "character, temperament, capacity and conduct in relation to [Vito's] needs, age, affections and environment." Adoption of Carlos, 413 Mass. 339, 348, 596 N.E.2d 1383 (1992). There was, as the judge found, clear and convincing evidence that the mother was currently unfit to provide for Vito's needs. Ibid. Absent a showing that the judge's findings were clearly erroneous, we accept them as true. Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993).

The judge further found that "[Vito] is fully integrated into his foster family both emotionally and ethnically." He "has formed a strong, positive bond with [them which] ... has existed for a substantial portion of [his] life; the forced removal of the child from [his] foster home would likely cause serious psychological harm to [Vito]." As to Vito's biological mother, the judge found that though she and Vito were developing a positive relationship, there was no attachment or genuine closeness between them. She continued: "There is no reasonable expectation that [his biological mother] would be able to address [Vito's] special needs which would arise from a removal from the foster home; she does not recognize that he would have adjustment problems." These findings are all supported by the record and will not be disturbed.

Although the judge denied the petition, it is apparent that her only reason for doing so was the department's failure to provide for postadoption visitation in its plan. Implicit in her findings and order is that termination of the parental rights of Vito's biological mother is in his best interests. Every order permitting postadoption visitation presupposes the termination of parental rights. The finding that Vito's best interests would be served by postadoption visitation did not require denial of the petition until the plan for adoption be amended to include such visitation. A judge may consider the question of a child's postadoption best interests in the course of considering a petition under G.L. c. 210, § 3, but the question of visitation is separate and distinct from the question whether the child's best interests require termination of parental rights. See Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 702-703, 467...