In re Care and Protection of Olga, 02-P-0595.

• Decision Date: 23 April 2003
• Docket Number: No. 02-P-0595.,02-P-0595.
• Citation: 57 Mass. App. Ct. 821,786 N.E.2d 1233
• Parties: CARE AND PROTECTION OF OLGA (and two companion cases<SMALL><SUP>1</SUP></SMALL>).
• Court: Appeals Court of Massachusetts

786 N.E.2d 1233

57 Mass. App. Ct. 821

CARE AND PROTECTION OF OLGA (and two companion cases¹).

No. 02-P-0595.

Appeals Court of Massachusetts, Plymouth.

Argued October 3, 2002.

Decided April 23, 2003.

COPYRIGHT MATERIAL OMITTED

Henry C. Porter, Beverly, for Olga.

Deborah W. Kirchwey, Boston, for the mother.

R. Scott Miller, Jr., Boston, for the father.

Christopher E. Lee for Department of Social Services.

Andrew R. Gustafson, Townsend, for Joseph and Daniel.

Present: LENK, BERRY, & McHUGH, JJ.

McHUGH, J.

Parental cocaine addiction and domestic violence led the Department of Social Services (department) to file a petition for care and protection of Olga, then twelve, and her brothers, Joseph, then four, and Daniel, then two and one-half, in February, 1998. The department obtained custody of the children and placed them in a foster home. Ultimately, the department sought a dispensation from parental consent to adoption of the two boys and custody of Olga until she reached the age of eighteen. Following a ten-day trial, a judge granted the petition. From the resulting judgment and decrees, the parents appeal.² We affirm.

A brief overview of the facts, supplemented later by more detail, provides an appropriate context for the parents' claims of error. The mother, then twenty-eight, and the father, then thirty-one, were married in 1985. Olga was born on May 11, 1986. She was followed, on February 19, 1994, by Joseph and then by Daniel on September 3, 1995. The mother was an MBTA bus driver, and the father worked as a substance abuse counselor and in various community-based programs. Family life, however, was characterized by serious domestic violence and by the parents' progressively debilitating drug addiction. The mother ultimately lost her job with the MBTA as a result of her drug use, and the father was sentenced to jail for assaulting her. The family upheaval had a profoundly deleterious effect on the three children, all of whom were severely troubled by the time the trial began.

The parents' first claim of error is procedural and focuses on the trial court's findings of fact and conclusions of law. Those findings and conclusions consume fifty-five single-spaced pages, fifty of which contain findings of fact. The recited facts are detailed and, as their sheer volume suggests, comprehensive. All but the last page, however, are an essentially verbatim adoption of the requests for findings of fact and conclusions of law the department submitted at the close of trial, even down to typographical errors the department's submission contained.

We have criticized in the past wholesale adoption of findings proposed by one party to the litigation, and we do so again. See Adoption of Hank, 52 Mass. App.Ct. 689, 691-692, 755 N.E.2d 807 (2001). Proceedings aimed at dispensing with parental consent to adoption involve high stakes and deeply important personal rights. See Adoption of Katharine, 42 Mass.App.Ct. 25, 27, 674 N.E.2d 256 (1997). It is critical, there fore, that the judge's decision reflects "careful factual inspection [of the evidence] and specific and detailed findings" by the judge. Adoption of Harriet, 29 Mass.App.Ct. 111, 112, 557 N.E.2d 767 (1990).

To be sure, pressed by a volume of cases filled with complex factual issues, a busy trial judge may be tempted occasionally to determine the outcome at the trial's end and then adopt the findings proposed by the party he or she has decided will emerge as the victor. Succumbing to that temptation invites error, even as to outcome, that careful consideration of the evidence would likely reveal. Moreover, simply adopting what one side has proposed may lead all parties at least to wonder whether the arguments they made and the evidence they offered were considered be fore the final decision was reached and may lead an appellate court to question whether deference to the imported findings respects the trial judge's weighing and sifting or simply glorifies an illusion. See generally Adoption of Stuart, 39 Mass. App.Ct. 380, 381-382, 656 N.E.2d 916 (1995). Succumbing to that temptation, in other words, substantially diminishes the integrity of the trial process and the respect with which the final result is viewed.

Proper use of the parties' proposed findings can, and often does, substantially facilitate the opinion-writing process. But that proper use should evince fact-finding by the judge, not fact-finding by proxy. No formula can describe how to make that showing in every case, or even in most. However the judge chooses to do it, use of the parties' proposals should show the reader that the judge has given careful consideration to all evidence pertinent to the criteria upon which termination of parental rights depends. See Custody of Two Minors, 396 Mass. 610, 620 n. 6, 487 N.E.2d 1358 (1986). Cf. Parrish v. Parrish, 30 Mass.App.Ct. 78, 88, 566 N.E.2d 103 (1991).

That said, the traditional view is that even findings lifted wholesale from those a party proposes "are not to be rejected out-of-hand, and they will stand if supported by evidence." First Pa. Mort. Trust v. Dorchester Say. Bank, 395 Mass. 614, 622 n. 12, 481 N.E.2d 1132 (1985), quoting from United States v. El Paso Natural Gas Co., 376 U.S. 651, 656, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964). "A finding is clearly erroneous [and thus not supported by evidence] when there is no evidence to support it, or when, `although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.'" Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160, 360 N.E.2d 1051 (1977). While "[t]he standard of review does not change [under such circumstances,] ... the findings are `subjected to stricter scrutiny by an appellate court." Adoption of Hank, 52 Mass. App.Ct. at 693, 755 N.E.2d 807, quoting from Cormier v. Carty, 381 Mass. 234, 237, 408 N.E.2d 860 (1980). See Edinburg v. Cavers, 22 Mass.App.Ct. 212, 218-219, 492 N.E.2d 1171 (1986).

There may be a case in which sweeping adoption of the parties' findings raises such substantial questions that the traditional view must give way. This is not that case. The weight of the evidence presented at trial strongly, if not overwhelmingly, supported the judge's decision. Moreover, as shown by the quotation with which our opinion ends, the judge's ultimate findings recited his own consideration of the evidence and of the consequences that, in his view, the evidence commanded. We there fore proceed with the traditional principles in mind.

The parents' first substantive claim is that several of the findings of fact are clearly erroneous either because they are unsupported by any evidence or because they fail to give weight to contrary evidence, sometimes contrary evidence offered by the very witness on whom the judge relied for the challenged finding.³ Our review reveals that two of the judge's findings are clearly erroneous.⁴ The other challenged findings either are supported by the evidence⁵ or are immaterial errors.⁶ The two clearly erroneous findings, considered singly or in the aggregate, are not central to the ultimate conclusion of unfitness. Even without those findings, that conclusion has clear and convincing evidentiary support. See Petition of the Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 18 Mass.App.Ct. 656, 662, 469 N.E.2d 1277 (1984). Indeed, that conclusion would remain even if the findings challenged for failure to include evidence favorable to the parents were amended to include that evidence.

The judgment just expressed is an obvious rejection of the parents' third and final claim, i.e., that the record does not contain clear and convincing evidence of their unfitness at the time of trial. See, e.g., Adoption of Don, 435 Mass. 158, 164, 755 N.E.2d 721 (2001). Little would be gained by restating here the extensive findings or the evidence on which the findings are based. A summary makes the essential points.

The department first encountered the family in November of 1997 when a police officer discovered Joseph and Daniel unattended in an automobile outside the Dorchester District Court. Unknown to the department at that time, both the mother and the father had extremely serious drug problems and serious domestic violence had been a feature of their family life for years.

Both problems soon became visible. In February of 1998, the father chased the mother around the house with a knife in an effort to stab her. Joseph and Daniel were present at the time. The episode ended when police arrived, arrested the father, removed the mother to the hospital for treatment of her injuries, and discovered the parents' drug paraphernalia strewn about their apartment.

About three weeks later, the mother asked a neighbor, who apparently worked with her at the MBTA, if she would care for the three children for a while. The neighbor ultimately took charge of the children, who were poorly clothed and otherwise in a state of disarray, while the mother disappeared to a crack house. The neighbor then attempted to enroll the mother in an MBTA-sponsored drug treatment plan. Her effort ultimately failed, and she notified the department of the children's plight. At that point, the department intervened, filed a care and protection petition, obtained custody of the children on an emergency basis in late February, 1998, and placed them with the neighbor as a foster parent. The mother and the father filed stipulations of unfitness in the care and protection proceeding in December, 1998. Both before and after the parents filed those stipulations, the department provided them with service plans aimed at reuniting the family.

From February, 1998, through November of 1999, the mother participated in approximately ten different programs focusing on her drug...