In re Adoption of Leland

• Decision Date: 24 February 2006
• Docket Number: No. 05-P-898.,05-P-898.
• Parties: ADOPTION OF LELAND.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

842 N.E.2d 962

65 Mass. App. Ct. 580

ADOPTION OF LELAND.¹

No. 05-P-898.

Appeals Court of Massachusetts, Hampden.

Argued November 3, 2005.

Decided February 24, 2006.

COPYRIGHT MATERIAL OMITTED

Catherine C. Sinnott, Concord, for the father.

Brian Pariser for Department of Social Services.

Lisa M. Kling, Springfield, for the child.

Present: LAURENCE, GRASSO, & DOERFER, JJ.

DOERFER, J.

The father of Leland, who was born on January 4, 2000, appeals from a decree of the Juvenile Court finding him currently unfit to care for his son, awarding permanent custody to the Department of Social Services (DSS), terminating his parental rights, and adopting DSS's permanency plan while denying the father's petition for guardianship of the child. We agree with the father that the subsidiary findings taken together do not prove the father to be currently unfit by the requisite clear and convincing evidence.²

Procedural history and background. We summarize the relevant facts and procedural history as set forth in the trial judge's decision and as supported by the record. The mother³ and father had a brief relationship during which the child was conceived. Unaware of the pregnancy and birth of the child, the father encountered the mother and child in April, 2000, in Springfield. The mother told the father that the three month old baby was his son. That day he took the baby to his parents' home in Connecticut, where the father was living. For approximately the next fifteen months, the child lived with the father and his family⁴ in Connecticut, but was returned to the mother in Springfield for weeks at a time.

On July 17, 2001, DSS filed a care and protection petition on behalf of Leland and his younger brother (who has a different father and who is not involved in the current appeal). The care and protection petition was based upon a G.L. c. 119, § 51A, report, which was supported by a G.L. c. 119, § 51B, investigation, alleging neglect by the mother, not the father.⁵ The allegations mostly focused on medical neglect of Leland's younger brother.⁶ According to the father, when DSS filed the petition, it used the following ruse to take Leland into its temporary custody.⁷ An anonymous DSS representative called the father in Connecticut and told him there was an urgent need for him to bring the child to Massachusetts. He was told to bring the child to the maternal grandmother's house in Springfield. DSS did not disclose to the father the reasons why he urgently needed to bring the child there. When the father and child arrived, two DSS representatives and five uniformed police officers were at the grandmother's house and took the child into DSS's custody.⁸

On January 3, 2002, the judge ordered paternity to be established by January 9, 2002. Following that order, the father filed a complaint to establish paternity. On January 16, 2002, the judge allowed the father's motions for genetic paternity testing and funds. Paternity was officially established more than twenty months later on October 3, 2003.⁹

On January 30, 2002, the judge ordered a home study and criminal offender record information (CORI) checks. On March 22, 2002, a foster care review determined that the father's compliance with his service plan was insufficient.¹⁰ On June 25, 2002, prior to the determination of paternity and the institution of visits, DSS changed its goal from reunification to adoption.¹¹ The father moved for visitation on July 8, 2002. That motion was allowed.

The judge allowed a motion for an Interstate Compact on the Placement of Children (Interstate Compact) home study on November 6, 2002. The judge found that the State of Connecticut denied the father as a "placement source" because too many people were living in the home. On June 17, 2003, the paternal grandparents filed a petition for guardianship of Leland, with the written consent of the father and mother. The judge allowed the father's emergency motion for a priority Interstate Compact home study on June 25, 2003. The judge found that Connecticut denied the request due to the grandparents' prior history with DSS. Upon the father's motion, the guardianship petition was consolidated with the care and protection petition on October 13, 2003. The trial occurred on January 21, 2004, and on April 22 and 23, 2004. The father filed a timely appeal.

Discussion. In termination of parental rights cases, the trial judge must make specific and detailed findings demonstrating that close attention has been given the evidence. See Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993). While subsidiary findings must be proved by a fair preponderance of the evidence, taken together these findings must prove parental unfitness, which is the "critical inquiry," by clear and convincing evidence. Care & Protection of Laura, 414 Mass. 788, 793, 610 N.E.2d 934 (1993). "Troublesome facts . . . are to be faced rather than ignored. . . . Only then is the judge's conclusion entitled to the great respect traditionally given to discretionary decisions. Adoption of Stuart, 39 Mass.App.Ct. 380, 382, 656 N.E.2d 916 (1995), quoting from Adoption of a Minor (No. 2), 367 Mass. [684] 688-689 (1975)." Adoption of Abby, 62 Mass.App.Ct. 816, 817, 821 N.E.2d 490 (2005).

As the critical inquiry, a determination of current parental unfitness is not focused upon "whether the parent is a good one, let alone an ideal one; rather, the inquiry is whether the parent is so bad as to place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761, 694 N.E.2d 27 (1998). "Parental unfitness . . . means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's foster parent. Rather, the idea of `parental unfitness' means `grievous shortcomings or handicaps' that put the child's welfare much at hazard. (Footnotes omitted.) Adoption of Katharine, 42 Mass.App.Ct. 25, 28, 674 N.E.2d 256 (1997), quoting [from] Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646, 328 N.E.2d 854 (1975)." Adoption of Greta, 431 Mass. 577, 587, 729 N.E.2d 273 (2000).

The subsidiary findings of fact¹² relating to the father's fitness are limited: in a foster care review in March, 2002, the father's compliance with the service plan was deemed insufficient because he failed to provide drug screens or to undergo a domestic violence evaluation or parenting assessment. He did not maintain regular contact with DSS and his son, and missed scheduled visits and visited sporadically. Neither he nor the paternal grandparents sent Leland any cards, gifts, pictures, or letters. In the November, 2002, home study conducted at the father's request, "Connecticut had denied [the father] as a placement source because there were too many people living in the home."

Even assuming that these subsidiary facts were proved by a preponderance of the evidence, supported by the record, and not clearly erroneous, see Adoption of Greta, 431 Mass. at 587, 729 N.E.2d 273, they do not support an ultimate finding of current parental unfitness by clear and convincing evidence. These findings do not support clearly and convincingly that there is either a history of abuse or neglect or a prognostication of such abuse or neglect in the future. See Care & Protection of Bruce, 44 Mass.App.Ct. at 763-764, 694 N.E.2d 27 ("ultimate finding of unfitness and the extreme step of taking a child away from a [father] . . . required either history of abuse or neglect or prognostications that are more firmly based than those offered by the experts [a psychiatrist and a psychologist]"). Compare Adoption of Nicole, 40 Mass.App.Ct. 259, 262, 662 N.E.2d 1058 (1996) (the record and subsidiary findings of current imprisonment, history of criminal recidivism, and alcoholism supported ultimate finding of the father's unfitness at the time of trial or within any relevant future period). Taken together, the findings here do not show "grievous shortcomings or handicaps that put the child's welfare much at hazard," Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. at 646, 328 N.E.2d 854, and thus the ultimate finding of unfitness is not properly supported by the findings. See Adoption of Abby, 62 Mass.App.Ct. at 827, 821 N.E.2d 490; Adoption of Yale, 65 Mass.App.Ct. 236, 240, 838 N.E.2d 598 (2005).

Reliance upon the denial of the father as a placement source due to "too many people living in the home" does not provide strong support for terminating the father's parental rights in this case. Six or seven family members living in the grandparents' three-bedroom apartment does not, on its face, appear to be so overcrowded as to create a situation of abuse or neglect. Parents may not be deprived of custody "simply because their households fail to meet the ideals approved by the community . . . [or] simply because the parents embrace ideologies or pursue life-styles at odds with the average." Custody of a Minor (No. 2), 378 Mass. 712, 719, 393 N.E.2d 379 (1979). Poverty is not a reason upon which to base a determination of unfitness. Care & Protection of Three Minors, 392 Mass. 704, 714 n. 12, 467 N.E.2d 851 (1984). Furthermore, the findings that the grandparents had a prior history with DSS was no longer relevant to determining the father's current fitness. At the time of trial, the father testified that he no longer lived with his parents, that he lived in an apartment with his fiancée and baby daughter and stepdaughter, and that he had steady employment.

While failure to follow service plan tasks and visitation schedules may be relevant to determining parental unfitness, Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289, 503 N.E.2d 1275 (1987), it is not clear here why certain tasks...