Care and Protection of Three Minors

• Decision Date: 13 August 1984
• Citation: 392 Mass. 704,467 N.E.2d 851
• Parties: CARE AND PROTECTION OF THREE MINORS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 851

467 N.E.2d 851

392 Mass. 704

CARE AND PROTECTION OF THREE MINORS.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 7, 1984.

Decided August 13, 1984.

Jinanne S.J. Elder, Boston, for the mother.

Anthony J. DeMarco, Lynn, for the minors.

Joan C. Stoddard, Asst. Atty. Gen., for Dept. of Social Services.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

LYNCH, Justice.

On April 18, 1978, a social worker for the Department of Public Welfare ¹ (department) filed petitions pursuant to G.L. c. 119, § 24, on behalf of three minor sisters. Anne, Jane, and Mary. ² On August 9, 1979, and September 13, 1979, a judge of the Chelsea District Court found all three girls in need of care and protection and committed them to the department, pursuant to G.L. c. 119, § 26. After a trial de novo in the Appellate Division of the Juvenile Court Department (Boston Division), G.L. c. 119, § 27, the children were again committed to the custody of the department. ³

Following this decision, the mother, the children, and the maternal grandfather filed notices of appeal. ⁴ Because the department intended to move the two older girls from the foster home where they had been living since February, 1979, the mother sought a stay of the dispositional order, which was denied by the trial court on July 29, 1983. She subsequently sought from the Appeals Court a stay of the trial judge's order. This request was denied by a single justice on August 23, 1983. On September 1, 1983, the mother and the two older children filed a joint petition for a stay pursuant to G.L. c. 211, § 3, in this court. A single justice denied the application for a stay pending appeal and on September 13, 1983, transferred the cases to the Supreme Judicial Court for Suffolk County. On November 19, 1983, the single justice reserved and reported the cases for decision to the full court of the Supreme Judicial Court.

The mother appeals the judgment of the Juvenile Court judge on two bases. She takes issue with the judge's conclusion that she is unfit to care for her children, arguing that his findings lack the requisite specificity, are not supported by clear and convincing evidence, and are based on inappropriate factors. She also argues that the judge's findings do not adequately consider the individual needs of the children and therefore that his disposition is contrary to their best interests. The children do not dispute the judge's finding of the mother's unfitness, but argue that his findings regarding the children are insufficient to support his order that they be placed permanently in the custody of the department. Specifically, they contend that he failed to consider the sibling relationships and the effect those relationships should have on the ultimate placement of the three girls. The children also argue that the judge should have issued a more detailed dispositional order.

We agree that the facts presented support the judge's finding of the mother's unfitness to care for her children, but we conclude that the judge's findings do not adequately address the needs of the children, and we therefore remand the case for further findings and conclusions.

The facts are summarized from the findings of the trial judge. ⁵ The mother was born in Missouri in 1953. She was removed from the home of her natural parents at the age of two, as a result of physical abuse inflicted by her parents. She was placed in a foster home and at the age of five was adopted by a couple who eventually settled in Maine (the maternal grandparents). She attended high school through the eleventh grade. She took a job as a nurse's aide in a nursing home. During this time she met her future husband who was in the United States military service. The oldest child, Anne, was born on June 19, 1974. In 1975, the couple began to have marital difficulties and the father became physically abusive toward the mother. She moved from the Boston area, where they had been living, to Cape Cod to avoid him. On January 24, 1976, the couple's second child, Jane, was born. The father followed the mother to Cape Cod and lived there with her until May or June of 1977. The third child, Mary, was born on February 4, 1977. During the course of this pregnancy, the mother considered placing Mary for adoption, but decided against it.

The marriage continued to deteriorate and the police were summoned to the house on numerous occasions to prevent the father from beating the mother. After the father left the family, ⁶ the mother moved to Chelsea with the three children. In April, 1978, the events which led to the involvement of the department occurred. The mother went to Maine to visit a friend, leaving her children in the care of a teenager. She returned to Chelsea after becoming ill, where she was hospitalized for treatment for hepatitis and jaundice. After a few days, she was able to reach her daughter Anne by telephone. The child told her that the babysitter had gone to the store a couple of days earlier and had not returned. She told Anne to bang on the door to attract a neighbor's attention. She did not call the police or the department. The department was notified by police that the children were unattended and on April 14, 1978, they were taken into the department's care, pursuant to G.L. c. 119, § 23 E. The children were examined at Massachusetts General Hospital. The two older girls had no medical problems and Mary was treated for severe diaper rash. The children were then placed in temporary foster care. On the same day, the department filed a care and protection petition pursuant to G.L. c. 119, § 24, in the Chelsea District Court. Shortly thereafter, the mother called the department, was told that her children had been placed in foster care and learned about the care and protection petition. She did not attend the hearing at which the District Court judge granted temporary custody of the children to the department. On June 9, 1978, physical custody of Anne and Jane was returned to the mother, although legal custody remained with the department. Once, in July of 1978, and again in October, the department offered to return Mary to the mother's care. On the first occasion she declined because she did not feel financially able to care for all three children. She did take Mary temporarily, from July 5 to July 7, until another foster home could be found. On the second occasion she declined again. She said she was moving that weekend. In fact, she did not move until six months later. Mary was moved to her third foster home, where she has been ever since. On February 16, 1979, the department was notified that the mother had left Anne and Jane in the care of a neighbor on February 14, and had not returned. The children were suffering from severe colds and head lice and were not properly dressed for the season. At that time, the family was living in an unheated apartment. The mother was also recovering from an abortion which had given rise to gynecological complications. The two oldest children were placed in a foster home in Lynn where they remained until July, 1983. At that time, they were moved to the home of their paternal grandparents. ⁷

The record shows that, since 1979, the mother has changed apartments frequently. Some of her apartments would have been suitable for overnight visits with her children, others were too small or crowded. At times she stayed with friends. She has been employed sporadically as a clerk in a variety store or as a nurse's aide. She has been plagued with health problems which have made steady employment difficult. She has worked part of the time in nursing homes, and once as a private nurse for a paraplegic. She moved in with this patient in the summer of 1982. Shortly thereafter, her employer was hospitalized. The employer subsequently filed larceny charges against the mother for cashing two of her disability checks. The mother admits having cashed the checks and having kept some of the money herself, which she says was owed to her as "back" wages. In October, 1982, while her employer was still in the hospital, the mother returned to the apartment to find a former boyfriend there. He had been drinking and refused to leave. The mother called the Chelsea police several times that night for assistance, waiting in a local bar until they arrived. The police did not remove the man at first and at some point the mother and the man became involved in a knife fight in which she received deep lacerations which required treatment at a local hospital. Upon learning of the fight that had taken place in her apartment, the mother's employer fired her.

Since 1978, there have been numerous service plans and visitation schedules worked out between the mother and the department. The record shows that she has resisted the therapy and counselling programs urged by the department, and has been unreliable in keeping appointments with case workers and therapists. ⁸ Similarly, she has been somewhat inconsistent in maintaining visits with her children. ⁹

The foster mother of the two oldest children maintained an "open visitation" policy, which allowed the mother to adjust her visitation schedule to her work schedule. ¹⁰ Visitation with Mary has been irregular. There have been periods of months when the mother has not visited Mary, due in part to personal conflicts with Mary's foster mother and difficulties in scheduling visits that were mutually convenient. When the visits do take place, they are generally successful. The children are always glad to see their mother and they spend valuable time together. When the mother stays overnight at the foster home, she prepares the children's meals and puts them to bed. She picks them up after school and takes them to ballet lessons. She plays with them and helps them with their homework. On one visit to the maternal grandparents in Maine, she taught the children how to swim.

On the other hand, there have been...