Custody of Minor

• Decision Date: 20 April 1979
• Parties: CUSTODY OF a MINOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 68

389 N.E.2d 68

377 Mass. 876

CUSTODY OF a MINOR.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1979.

Decided April 20, 1979.

Leo M. Lazo, Boston, for defendant.

E. Michael Sloman, Asst. Atty. Gen., for plaintiff.

Jinanne S. J. Elder and John Reinstein, Boston, for The Civil Liberties Union of Massachusetts, amicus curiae.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and ABRAMS, JJ.

HENNESSEY, Chief Justice.

On January 12, 1976, Elsie Peck, a social worker employed by the Division of Family and Children's Services of the Department of Public Welfare (department), petitioned the Municipal Court of the Dorchester District, pursuant to G.L. c. 119, § 24, for a determination that the respondent-mother's newly-born son was a child in need of care and protection. After a continuance of two and one-half months, and following a hearing, the judge granted the department's petition and awarded it custody of the child. The mother exercised her right to trial de novo, G.L. c. 119, § 27, see Robinson v. Commonwealth, 242 Mass. 401, 136 N.E. 241 (1922), and her appeal was heard by a judge of the Boston Juvenile Court. Focusing chiefly on the mother's parental fitness as evidenced by her treatment of her other children, the judge entered findings of fact and affirmed the award of custody to the department. The mother appealed to the Appeals Court and we transferred the case to this court on our own motion.

Two arguments are raised on appeal by the child's mother. It is first claimed that the court lacked sufficient basis to justify removal of a child from its natural parent because there were no findings that the welfare of the child was endangered at the time of trial. It is also averred, for the first time ever in this court, that the judge failed to apply the proper standard of proof "clear and convincing evidence" in determining the necessity of awarding custody to the department.

We think the judge's findings are more than adequate to support the statutory and constitutional requirements for invading the family unit. We decline to adopt the mother's suggestion that we require "clear and convincing evidence" as the measure of proof in actions where children are removed from their parents. However, we are persuaded that it is constitutionally demanded that a judge exercise the utmost care, as demonstrated through specific and detailed findings of fact, in rendering a judgment which deprives parents of child custody. Although we state this requirement for the first time here, we believe the judge's findings indicate that this standard has been met. Accordingly, we affirm his custody award.

Since there is no dispute as to their accuracy, we accept the findings of the judge. The child involved in these proceedings was born in Boston on January 9, 1976, to a mother having a substantial history of child neglect. Until 1972, the mother was the caretaker of her own three children, who were born between 1960 and 1963, and of two other children, a niece and nephew of her husband, who joined the family between 1964 and 1968. As early as 1965 there were reports that some of the children in the mother's care had been truant from school. These reports continued intermittently, and in May and June, 1970, it was reported that the children were absent from school as much as 50% Of the time.

In March, 1972, following reports of chronic truancy regarding the children and of strong odors of urine emanating from the mother's apartment, the department dispatched a social worker, Jeanne Yozell (Yozell), to visit the mother's apartment on Geneva Avenue in Dorchester. See G.L. c. 119, § 51A. On her arrival Yozell found the mother, her children, and eight dogs in a cold, cluttered apartment. ¹ The apartment was without heat, electricity, hot water, or gas. It was littered with dog feces and smelling of urine. The children were ill-clothed and dirty, and had difficulty with bowel and bladder control. Two of the children were found locked in a room. The mother explained that the condition of the apartment was attributable, in part, to her being deeply in debt, with past due obligations for rent and utilities. The reason for the children's truancy, she stated, was her inability to provide them sufficient clothing, coupled with the fact that the children simply did not like school.

As a result of Yozell's visit, the mother voluntarily placed the children with the department until she could get reorganized. In turn, the department found foster homes for all the children but one, Leroy, who was allowed to return to his mother because he refused to remain in the foster home provided by the department. Shortly after this event, the mother relocated in Jamaica Plain in an apartment subsequently found to be without heat and littered with glass from broken windows. During the next eight months, attempts to provide financial, housing, and medical care counseling to the mother were frustrated by the mother's failure to keep most of her pre-arranged appointments with Yozell.

In November, 1972, Mary Ann Dougherty (Dougherty), was assigned to replace Yozell as the department's contact with the family. By then, the children had all been placed at St. Vincent's Home in Fall River, where it was found that none of the children was toilet trained and all were behind in schooling. Since Leroy was still at home, but not attending school, Dougherty attempted to establish a relationship with the mother. As before, the home was found to be generally messy and without food or utility service. Attempts to work with the mother became futile because the mother was again inconsistent in keeping the necessary appointments. Meanwhile, Leroy was professionally examined and determined to be suffering from academic neglect and in need of psychiatric counseling.

The mother, since 1972, has changed apartments frequently; on at least one occasion she has been evicted for failure to pay rent. In October, 1974, the father of the child at issue moved in with the mother and Leroy. By the time the child was born, on January 9, 1976, however, the father was no longer living with the family. ² Three days after the child's birth, the department petitioned for custody of the infant. During the pendency of the petition, until the Dorchester District Court granted custody to the department, the child was allowed to remain with the mother, but under the supervision of a homemaker and a public health nurse supplied by the department.

On the basis of these facts, the judge concluded that the mother "is a deprived, immature, impulsive, inconsistent, disorganized person whose inadequacies as a parent have deprived her children in the past of even basic physical needs of food, clothing and shelter . . . . (I)f the Court decided to return the infant to (the mother) even temporarily, she would be in need of massive help, including around-the-clock homemaker service, which homemaker would be invested with the primary responsibility for the children." Believing the mother therefore incompetent to provide proper care for the child, the judge ordered him permanently committed to the department.

[1,2] 1. We turn first to the mother's contention that the judge's findings were inadequate to justify granting custody of the child to the department. The mother maintains that under G.L. c. 119, § 24, and the United States Constitution, the judge is required to make a finding of parental unfitness at the time of trial, a finding she asserts is absent from the record, as a prerequisite to an order depriving a parent of custody of his or her child. We agree that such a finding is required, but we think the judge's findings represent an unequivocal determination of current, as well as past, parental incapacity.

That a finding of current parental unfitness is required in a proceeding which results in a parent's loss of child custody derives from the substantial respect we accord family autonomy. The existence of a "private realm of family life which the state cannot enter," Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), is a cardinal precept of our jurisprudence. See Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, --- Mass. --- ^A, 381 N.E.2d 565 (1978); Custody of a Minor, --- Mass. --- ^B, 379 N.E.2d 1053 (1978); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). ³ Yet, rights evolving from one's interest in family integrity are not absolute. Custody of a Minor, supra. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Indeed, there can be scarce doubt that the State may properly act to protect children of tender years from parental neglect. Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, supra, --- Mass. at --- ^C, 381 N.E.2d 565; Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Alsager v. District Court of Polk County, Iowa, 406 F.Supp. 10, 16 (S.D.Iowa 1975), aff'd 545 F.2d 1137 (8th Cir. 1976).

The procedure by which this action has been brought, the "care and protection" proceeding, is one legislative response to the problem of child maltreatment. ⁴ Pursuant to the statutory provision creating the action, G.L. c. 119, § 24, as amended through St.1975, c. 276, § 3, any person concerned for a child's welfare may file a petition in the appropriate court alleging that the child "is without necessary and proper physical, educational or moral care and discipline, or is growing up under conditions or circumstances damaging to a child's sound character development, or who lacks proper attention of parent, guardian with care and custody, or...