Department of Social Services to Dispense With Consent to Adoption, Petition of

• Decision Date: 29 May 1986
• Citation: 397 Mass. 659,493 N.E.2d 197
• Parties: PETITION OF the DEPARTMENT OF SOCIAL SERVICES TO DISPENSE WITH CONSENT TO ADOPTION. (and two companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 197

493 N.E.2d 197

397 Mass. 659

PETITION OF the DEPARTMENT OF SOCIAL SERVICES TO DISPENSE

WITH CONSENT TO ADOPTION. (and two companion cases).

Supreme Judicial Court of Massachusetts Essex.

Argued Feb. 6, 1986.

Decided May 29, 1986.

Deborah A. Boggs, for parents.

Jura Strimaitis & Griffith J. Winthrop, for Dept. of Social Services (Michael D. Gargas, for minors, with them).

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The parents of three minor children appeal from a decision of the Probate and Family Court to dispense with the need for their consent to the adoption of their children. In their challenge to the decision, the parents contend that the trial judge erroneously admitted testimony of a social worker privileged pursuant to G.L. c. 112, § 135, and that the Department of Social Services (department) failed to prove by clear and convincing evidence that the parents are presently unfit to care and provide for their children. We transferred the cases here on our own motion and now affirm.

The three minors who are the subject of these petitions to dispense with parental consent to adoption have been the subject of two prior care and protection proceedings. A care and protection petition was filed in the Salem District Court pursuant to G.L. c. 119, § 24 (1984 ed.), on January 9, 1981, and temporary custody of the three minor children involved in these cases was given to the department. The children were returned to the parents on December 11, 1981. On June 10, 1982, the care and protection action was dismissed. A second care and protection proceeding was filed in the Lynn District Court on December 15, 1982, and temporary custody of the three minors was again given to the department, where temporary custody currently remains.

The department filed the petitions which are the basis for the present actions to dispense with parental consent or notice of adoption pursuant to G.L. c. 210, § 3 (1984 ed.), on July 23, 1984. These petitions were filed in the Probate and Family Court for Essex County along with plans prepared by the Merrimac Valley Catholic Charities pursuant to G.L. c. 210, § 5A (1984 ed.), ¹ for each of the three children. On September 18, 1984, the court appointed counsel for the parents and appointed a guardian ad litem for the children in these cases. The guardian ad litem filed reports with the court on November 21, 1984. A conference was held on January 21, 1985. At the conference, the Probate Court judge appointed counsel to represent the three children. A hearing was held on February 26, 27, and 28, and March 1, 4, 5, and 6. On June 10, 1985, the judge issued detailed findings of fact and conclusions of law allowing the petitions of the department to dispense with parental consent to, or notice of, adoption. The parents filed notices of appeal on July 8, 1985.

1. Admissibility of Certain Testimony Pursuant to the Social Worker Privilege Created in G.L. c. 112, § 135.

The parents first argue that the judge erred in admitting the testimony of Barbara Lund, a social worker who was involved with the parents from November, 1980, until November, 1982, and with the youngest child from June, 1983, until October, 1984, contending that the provisions of G.L. c. 112, § 135, operate to bar her testimony. ² Section 135 of G.L. c. 112 ³ prohibits a social worker from disclosing information acquired in a social worker's professional capacity. One of the exceptions to the general rule of exclusion of § 135, exception (d ), operates to permit disclosure of the information to which the social worker testified in this case. ⁴ This exception provides that disclosures of information "to initiate a proceeding under ... section three of chapter two hundred and ten [petitioning a court for an order dispensing with consent to adoption] and give testimony in connection therewith" are not protected by the privilege. The parents argue that exception (d ) does not apply to permit Barbara Lund's disclosure of information acquired through her professional involvement with the family because Lund did not bring the petitions to dispense with parental consent to adoption. The parents' reading of the statute is excessively restrictive. Further, the parents' interpretation fails to appreciate the functional aspects of the child protection system and misperceives the nature of proceedings pursuant to G.L. c. 210, § 3.

The exceptions to the social worker privilege reflect a legislative intent to balance the dual goals of protecting confidential relationships with the need to protect the well-being of children. See Commonwealth v. Collett, 387 Mass. 424, 434, 439 N.E.2d 1223 (1982). In proceedings where the ability of natural parents to provide and care for their children is called into question, "the rights of the children to a stable and safe environment assume an importance at least equal to the interest of the parents." Custody of Two Minors, 396 Mass. 610, 617, 487 N.E.2d 1358 (1986). See Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 588, 421 N.E.2d 28 (1981); Custody of a Minor (No. 2), 378 Mass. 712, 721, 393 N.E.2d 379 (1979). See also Petition of Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 392 Mass. 738, 743 n. 6, 467 N.E.2d 866 (1984) (social worker testimony a source for information on which the government can rely in termination proceedings). Cf. Wyman v. James, 400 U.S. 309, 318, 91 S.Ct. 381, 386, 27 L.Ed.2d 408 (1971) ("[t]he dependent child's needs are paramount"). If the exception is interpreted to permit disclosure of information relevant to the fitness of the parents and the best interests of the children only by a social worker who actually brings a petition seeking an order to dispense with parental consent to adoption, the interest of protecting children reflected in G.L. c. 210, § 3, will be defeated.

Two practical considerations illustrate the problem with the interpretation the parents urge us to follow. First, contrary to the parents' contentions, the G.L. c. 210, § 3, proceeding is not meant to be used to remove children from the custody of their parents on a temporary or emergency basis. Common sense and an examination of the entire statutory scheme relative to the protection of children indicate that petitions to dispense with parental consent to adoption are brought after all other, less drastic means to assist natural parents in developing the ability to provide for their children have failed. Thus, the information required to justify the drastic intervention in family life in which the allowance of a G.L. c. 210 petition would result, necessarily extends beyond the disclosure of specific, isolated incidents or emergency circumstances that usually give rise to initial decisions to remove children from their parents' custody. Proceedings pursuant to G.L. c. 210, § 3, necessarily entail an examination of the entire parent-child relationship as it relates to the current fitness of the parents. Confining the application of exception (d ) to a single social worker who may have limited or cursory knowledge of the case would not serve the interests of either the parents or the children.

The history of social worker involvement in the instant cases is instructive on the issue of the proper interpretation of exception (d ). Here no fewer than seven social workers were involved at various points during the department's intervention with the family. Rather than being exceptional, the number of social workers involved in these cases is probably typical, depending on the length of time a family has received services from the department before a petition is filed. Frequently, attorneys or third parties initiate G.L. c. 210 proceedings. Construing exception (d ) as permitting disclosure only of information acquired by a social worker who may have been in a position to file the petition does not conform to the realities of the provision of social work services in the Commonwealth and would place an undue burden on the department and other agencies when bringing such petitions. The exception would be of little or no value if we were to give it the restrictive meaning favored by the parents here.

2. Clear and Convincing Evidence.

The parents argue that the department failed to prove by clear and convincing evidence that they are presently unfit to care and provide for their children. We do not agree. The judge stated that he reached his ultimate conclusion upon clear and convincing proof. His subsidiary findings fully support his ultimate conclusion, and the record in turn supports his subsidiary findings.

We summarize the judge's findings. The father was born in 1955, one of twenty-one children. He dropped out of school two months before graduating from high school. The mother was born in 1959. In 1975, when she was sixteen years old she became pregnant by the father. Subsequently, the parents were married on January 27, 1976. Their first child, a daughter, was born on July 14, 1976. A second child, a son, was born on September 12, 1977. Another son was born on December 29, 1979. The mother was just twenty years old when the third child was born. At the time of trial, the mother was employed as a nurse's aide.

Since 1980, the parents have lived in at least twenty-three different locations, either together, separately, or with friends or relatives. Testimony at the hearing indicated that the problems the parents experienced in handling marriage and fulfilling their family obligations were due in large part to the young age at which they assumed these responsibilities. Professional testimony indicated that the parents had missed their adolescence and needed time to mature. The financial pressures experienced by the parents also contributed to family difficulties. By November, 1981, the parents both had drinking problems and all...