In re Adoption of Zoltan

• Decision Date: 07 February 2008
• Docket Number: No. 07-P-1217.,07-P-1217.
• Citation: 881 N.E.2d 155,71 Mass. App. Ct. 185
• Court: Appeals Court of Massachusetts
• Parties: ADOPTION OF ZOLTAN.<SMALL><SUP>1</SUP></SMALL>

881 N.E.2d 155

71 Mass. App. Ct. 185

ADOPTION OF ZOLTAN.¹

No. 07-P-1217.

Appeals Court of Massachusetts, Berkshire.

Argued December 4, 2007.

Decided February 7, 2008.

Patricia Quintilian for the mother.

David Hadas, Assistant Attorney General, for Department of Social Services.

Azizah P. Yasin, Quincy, for the child.

Present DUFFLY, GREEN, & MEADE, JJ.

MEADE, J.

The mother appeals from a decree of a Berkshire County Juvenile Court judge dispensing with consent to the adoption of her minor child. She argues that the evidence and the judge's subsidiary findings do not adequately support the conclusions that the mother is currently unfit to parent the child and that termination of her parental rights is in the child's best interests. We agree and vacate the decree allowing the petition to dispense with consent to adoption.

1. Background. Zoltan, who was born in 2004, first came to the attention of the Department of Social Services (department) on September 2, 2004, when an anonymous reporter called the department alleging that the mother was using marijuana and drinking alcohol while leaving her son in her own mother's (maternal grandmother) care. Pursuant to this G.L. c. 119, § 51A, report, which was sup ported, G.L. c. 119, § 51B, the department opened the case for services. The mother admitted to using marijuana and alcohol at times when the child was not in her care, but denied that the maternal grandmother was unfit to watch the child.² An assessment worksheet prepared by an experienced department social worker indicated that, during the course of the family's receipt of services, the worker "had not seen evidence that a drug problem was interfering with [the mother's] care or parenting of her son" and that she "appeared to be able to provide adequate daily care to her son."

On February 18, 2005, two G.L. c. 119, § 51A, reports were filed stating that the mother, accompanied by the maternal aunt, the maternal grandmother, and the maternal grandmother's boyfriend, had brought the child to the Berkshire County Hospital emergency room with swelling of the head. The reports alleged that some or all of the adults appeared to be inebriated and that the accounts offered by the adults for how the child's injury had occurred were inconsistent with one another and with the child's injury. Based on these reports, the department filed a care and protection petition pursuant to G.L. c. 119, § 24, alleging neglect of the child for physical abuse committed by an unknown perpetrator. Following a hearing on February 25, 2005, the department took temporary custody of the child and placed him in foster care.

On June 29, 2006, and July 21, 2006, a trial on the petition to dispense with consent to adoption was held. On September 1, 2006, the judge found the child in need of care and protection and the mother currently unfit to assume parental responsibility. The judge, however, also found that the department had not established that termination of parental rights was in the child's best interests, or that there was a nexus between the mother's prior drug use and her inability to safely parent her child. The judge ordered that a review and redetermination hearing be held within six months in order to "reevaluate [the mother's] commitment to her child and the level of maturity based on [the] level of compliance with her service plan and her ability to remain free from drugs and alcohol."

Following the review and redetermination hearing held on March 27, 2007, the judge terminated the mother's parental rights, and a decree entered on that date. The judge then issued findings of fact, conclusions of law, and an order on April 30, 2007. The mother appeals.

2. Discussion. a. Standard of review. Parents enjoy a fundamental liberty interest in the care, custody, and management of their children, an interest that does not simply extinguish when they become less than model caretakers. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Care & Protection of Erin, 443 Mass. 567, 570, 823 N.E.2d 356 (2005). Indeed, the decision to terminate parental rights is among the most solemn responsibilities entrusted to judges. See Adoption of Abby, 62 Mass.App.Ct. 816, 823, 821 N.E.2d 490 (2005). In order to justify this extraordinary exercise of State power, the department must prove by "clear and convincing evidence that a parent is currently unfit to further the child's best interest[s]." Adoption of Katharine, 42 Mass. App.Ct. 25, 27, 674 N.E.2d 256 (1997). In this context, "[p]arental 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.) Id. at 28, 674 N.E.2d 256, 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). In determining parental unfitness, the issue is not "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).

In order to be clear and convincing, the "evidence must be sufficient to convey `a high degree of probability' that the proposition is true. . . . The requisite proof must be strong and positive; it must be `full, clear and decisive.'" Adoption of Rhona, 57 Mass.App.Ct. 479, 488, 784 N.E.2d 22 (2003), quoting from Adoption of Iris, 43 Mass.App.Ct. 95, 105, 680 N.E.2d 1188 (1997). "Clear and convincing proof involves a degree of belief greater than the usually imposed burden of proof by a preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases." Custody of Eleanor, 414 Mass. 795, 800, 610 N.E.2d 938 (1993), quoting from Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871, 330 N.E.2d 161 (1975). "Appellate review in custody appeals is not done to assess the evidence de novo, but rather to determine whether the judge's findings were clearly erroneous and whether they proved parental unfitness by clear and convincing evidence." Custody of Eleanor, supra at 802, 610 N.E.2d 938.

b. September, 2006, determination of parental unfitness. The mother argues that the judge's subsidiary findings of fact and the evidence do not adequately support her ultimate conclusions by the requisite standard of clear and convincing proof.³ We agree. It is evident from the judge's findings that the September 2006, determination of parental unfitness was based on the child's head injury, the mother's admitted prior marijuana and alcohol use, her alleged anger management issues, and her failure to complete all tasks required by her service plan. Although far from indicators of parental excellence, those facts fall short of the "grievous shortcomings or handicaps [placing] the child's welfare much at hazard," Adoption of Katharine, supra at 28, 674 N.E.2d 256, quoting from Petition of the New England Home for Little Wanderers, supra at 646, 328 N.E.2d 854, which must be shown by clear and convincing evidence in order to support the "grave conclusion" of parental unfitness. Adoption of Katharine, supra at 27, 674 N.E.2d 256. Indeed, "the central judgment does not concern the [mother's] merits or demerits, but whether, in all the circumstances . . . [s]he has the capacity to act as a fit parent." Adoption of Nicole, 40 Mass.App.Ct. 259, 262, 662 N.E.2d 1058 (1996).

There is no dispute that while the mother was the child's primary caretaker, the child suffered a serious head injury, the cause of which was not adequately explained. Although one might speculate that such an injury might be attributed to the mother's negligent supervision of the child, such conjecture is not a substitute for the evidence necessary to show parental unfitness.⁴ See Adoption of Iris, supra at 104-105, 680 N.E.2d 1188 (without more, evidence of child's single unexplained head injury does not establish parental unfitness); Adoption of Abby, 62 Mass.App.Ct. at 824-825, 821 N.E.2d 490 (unexplained serious physical injuries that were consistent with abuse were insufficient to establish unfitness of primary caretaker-parent, where they were not shown to be attributable to parent's abuse or neglect).

On the record before us, we fail to see how the child's head injury proves any serious parental shortcomings. The judge did not find that the injury was caused by abuse or neglect (nor would the evidence have supported such a finding), or that the mother's response to the injury was improper. Indeed, the record reflects that upon discovering the injury, the mother took the child to the emergency room and offered an explanation as to how the injury, which she did not witness, might have occurred. That her explanation was ultimately deemed inconsistent with the child's injury, as well as with the "stories" offered by the other adults, does not establish parental fault.⁵ Without more, the mother's ignorance as to the cause of the injury does not reflect the "grievous shortcomings" that must underlie a finding of parental unfitness. Adoption of Katharine, 42 Mass.App.Ct. at 28, 674 N.E.2d 256, quoting from Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass, at 646, 328 N.E.2d 854. See Adoption of Iris, 43 Mass.App.Ct. at 99, 680 N.E.2d 1188 (parental unfitness not established despite medical determination that parents' explanation of how injury might have occurred was not consistent with the child's injuries). The evidence presented by the department was "not strong and left too much to speculation for the judge to conclude that ...