Bezio v. Patenaude
| Decision Date | 22 September 1980 |
| Citation | 381 Mass. 563,410 N.E.2d 1207 |
| Parties | Brenda A. BEZIO v. Magdalena PATENAUDE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William C. Newman & Wendy Sibbison, Northampton, for plaintiff.
Geoffrey A. Wilson, Greenfield (James A. Whitbeck, Shelburne Falls, John M. Finn and Peter S. Johnson, Springfield, with him), for defendant.
John H. Henn, Sandra L. Lynch, Stefanie D. Cantor and John Reinstein, Boston, for Civil Liberties Union of Mass., amicus curiae, submitted a brief.
John P. Ward, John Rugheimer, Boston, Rosalie Davies, Narberth, Pa., and Donald J. Martin, Norristown, Pa., for the Gay & Lesbian Advocates & Defenders and another, amici curiae, submitted a brief.
Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.
The plaintiff, Brenda King, 1 appeals from a judgment of the Franklin County Probate and Family Court denying her petition to remove the defendant, Magdalena Patenaude, as guardian and to regain custody of her two natural children. The plaintiff's application for direct appellate review to this court was granted. The judgment below is not supported by adequate findings as to the fitness of the mother. We reverse and remand. We summarize the facts and the proceedings below.
In January, 1971, Brenda King, then age seventeen, was introduced by a pastor of a local church to Magdalena Patenuade, then age twenty-six. At that time Brenda was experiencing emotional problems, and it was thought that Magdalena, who had herself experienced similar difficulties in her early life, might provide friendship and guidance. They became close friends.
Brenda's first child, a daughter, was born on December 6, 1972. Between December, 1972, and April, 1974, when Brenda married James L. Bezio, Brenda entrusted her child to the care of her friend Magdalena from time to time. After her marriage, Brenda and her husband and child lived with Magdalena for approximately three weeks. Brenda and her daughter then moved to North Carolina where James Bezio was stationed in the United States Army. In North Carolina Brenda, then pregnant with her second child, began experiencing medical problems related to her pregnancy. Brenda testified that she was unable to obtain adequate medical attention in North Carolina due to military bureaucracy and her lack of personal funds. In August, 1974, still suffering from complications attendant to the second pregnancy, Brenda returned to Greenfield, Massachusetts, and left her daughter with Magdalena. She returned to North Carolina for approximately one month.
When Brenda was seven months pregnant she was hospitalized in Greenfield for pregnancy complications and potentially fatal, deep thrombophlebitis. At Brenda's request, her daughter was placed in Magdalena's care. Brenda underwent surgery for a pulmonary embolus, and the second daughter was delivered prematurely by caesarean section. Magdalena visited Brenda daily at the hospital. When Brenda was released, she and her two daughters went to live with Magdalena. The following day Brenda was readmitted to the hospital, and the two children remained with Magdalena. She again returned to Magdalena's home upon her release and remained there with the children until January, 1975, when she and the children went to stay with her parents.
In April, 1975, Brenda was experiencing physical and emotional distress, and she arranged to leave her children with Magdalena for approximately one month. The younger child remained with Magdalena for an additional month. Shortly thereafter Brenda took both children to North Carolina. In September, 1975, Brenda returned to Massachusetts with her children for a visit. Brenda left the children with Magdalena and returned to North Carolina where she was again hospitalized for what was diagnosed as another attack of thrombophlebitis. In October, 1975, Brenda returned to Massachusetts at Magdalena's request. The younger had been suffering from an attack of croup, and Magdalena had been experiencing some difficulty in securing medical care as she was not the child's legal guardian. Brenda met with the attending physician, and both women subsequently discussed the possibility of Magdalena's being appointed legal guardian of the children. Magdalena felt that if she were going to continue caring for the children, she should have legal authority to secure medical treatment for them.
On November 21, 1975, Magdalena filed a petition for temporary and permanent guardianship in the Franklin County Probate and Family Court. Brenda assented, and Magdalena was appointed temporary guardian with custody. Soon thereafter problems developed between the two women regarding visitation rights. In February, 1976, temporary custody was returned to Brenda with Magdalena's assent. On May 11, 1976, the Probate Court judge continued temporary custody in the mother for another three months. Later the same day, however, the two women talked, and Brenda became upset and unsure of her ability to care properly for the children. Brenda decided to leave the children with Magdalena. When the probation officer assigned by the court to supervise the children's custody learned of this development, he filed a report with the court. As a result of his report the court returned temporary custody of the children to Magdalena.
In October, 1976, Brenda assented to Magdalena's appointment as permanent guardian with custody. Both women were represented by the same attorney. The judge granted Brenda the right to visit the children at Magdalena's home "at all reasonable times and occasions." At this time Brenda was experiencing extreme financial difficulty, and symptoms of deep thrombophlebitis persisted. 2 Prior to the court's allowance of the permanent guardianship petition, Brenda had written the court a letter stating that she believed Magdalena to be "the only one fully qualified to raise my children in a manner which I myself would do if I could."
After Magdalena's appointment as permanent guardian, difficulties arose over visitation rights. As a result, Brenda and her then husband, James, filed the present petition to vacate the guardianship in February, 1977. 3 Brenda also filed a motion for visitation rights. The judge ordered that Brenda be allowed to visit her children every other Saturday from 1 P.M. to 4 P.M.
In April, 1977, Brenda's parents filed a petition for guardianship. The judge appointed a guardian ad litem who reported in May, 1977: Brenda's parents withdrew their petition for guardianship in November, 1977. The judge, in his findings, indicated that the petition filed by Brenda and James in 1977 was not heard on its merits until September, 1979, due to the illness of the probation officer who had rendered a report, and the petitioner's inability to pay her lawyer.
From October, 1976, until June, 1978, the children were in Magdalena's care, and Brenda regularly exercised her visitation rights. However, on July 22, 1978, Brenda took her children for a regularly scheduled visit and failed to return them. From July 22, 1978, to November 2, 1978, the children lived with Brenda in Vermont. Brenda set up a home there and enrolled the children in school. The older daughter's first grade teacher testified that the child made rapid progress in acquiring the educational skills which she lacked at the beginning of the year. The teacher attributed this rapid progress to Brenda's work with the child at home. Brenda's landlady, coincidentally an experienced social worker, testified that Brenda's apartment was cheerful, clean, and decorated with the children's drawings. The landlady described Brenda's relationship with her children as "relaxed" and "well controlled." "The children seemed happy with it." A Vermont Department of Public Health supervisor described Brenda's apartment as "very clean, very neat and very comfortable." She observed "good rapport" between Brenda King and her children, laughter and conversation, "a good strong relationship."
In November, 1978, Brenda was arrested on a Massachusetts warrant for kidnapping and the children were returned to Massachusetts. A Vermont police officer involved in executing the warrant testified that the children said they loved their mother and did not want to go back to Magdalena. After the children were returned to Magdalena, the complaint against Brenda was dismissed.
Brenda returned to Massachusetts and caused a care and protection complaint to be filed in the District Court of Franklin County against Magdalena. In mid-December, 1978, the children were moved to a neutral foster home. The women were granted visitation rights on alternate weeks. A social worker from the Department of Public Welfare testified that she and other social workers found that charges against Magdalena of neglect and sexual abuse of the children were unsubstantiated, and recommended to the court that the children be returned to the guardian's home. The District Court judge so ordered and at the same time denied the mother all visitation rights for three months. The probate judge concluded that the guardian did not sexually abuse the children and that the "allegation was engendered by the bitterness caused by this litigation."
Brenda, disturbed by her inability to see...
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