Petition of Department of Public Welfare to Dispense with Consent to Adoption

• Decision Date: 07 January 1981
• Parties: Petition of the DEPARTMENT OF PUBLIC WELFARE TO DISPENSE WITH CONSENT TO ADOPTION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 28

421 N.E.2d 28

383 Mass. 573

Petition of the DEPARTMENT OF PUBLIC WELFARE TO DISPENSE

WITH CONSENT TO ADOPTION.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 7, 1981.

Decided May 7, 1981.

As Amended June 1, 1981.

Mark V. B. Partridge, Howard Legal Aid Bureau, Cambridge, for respondent.

Scott A. Smith, Asst. Atty. Gen., for Dept. of Public Welfare.

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

Before HENNESSEY, C. J., and WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

On April 22, 1980, a judge of the Probate Court rendered a judgment granting a petition brought by the Department of Public Welfare (department) to dispense with parental consent to the adoption of a minor child. See G.L. c. 210, § 3. The mother appealed, and we transferred the appeal here on our own motion. The judgment below being unsupported by adequate findings as to the fitness of the surviving parent, we reverse and remand for further proceedings.

The child, Shari, is now between five and six years old. Her mother, Brenda, was serving a prison term at the Massachusetts Correctional Institution at Framingham (MCIF) at the time of Shari's birth. Shari was "accepted" into the temporary custody of the Department of Pubic Welfare on December 19, 1975, pursuant to G.L. c. 119, § 23A. The department then placed Shari with foster parents (Mr. and Mrs. A). Brenda was released from MCIF in August, 1977, and was subsequently reincarcerated at MCIF on a new sentence in June, 1978.

On March 29, 1978, during the period Brenda was not incarcerated, Shari was ordered committed to the temporary custody of the department pursuant to G.L. c. 119, § 23(C). On May 24, 1978, the department filed the instant petition to dispense with consent to adoption. Shortly thereafter Shari, then two and one-half years old, was placed in a pre-adoptive home with her present foster family (Mr. and Mrs. B). A hearing on the § 3 petition was held in April, 1980. The judge determined that removal of the child from her present family environment would be detrimental to the child's welfare. The judge made no express finding of current "unfitness" of the child's natural parent to care for the child. ¹

The main contention of the mother is that under the Constitution of the United States and the relevant Massachusetts statutes as interpreted by our cases, her consent to adoption may not be dispensed with under G.L. c. 210, § 3, in the absence of an affirmative showing of current parental unfitness. In addition she contends that, whether the correct standard is parental "unfitness" or "best interests of the child," the department must meet this standard with a showing of proof beyond a reasonable doubt or by clear and convincing evidence; that the department obtained custody of Shari unconstitutionally, and therefore there is no legal basis to bring the G.L. c. 210, § 3, petition; and that violations by the department of its own regulations constitute grounds for denying the petition.

The events leading to this appeal are as follows. Brenda was born in North Carolina on April 18, 1951. She became involved with heroin when she was twenty-one or twenty-two years old. In September, 1975, then pregnant with Shari, she was sentenced to MCIF for a drug-related offense. Brenda was eligible for parole in March, 1976. A department worker, Jane Briggs, interviewed Brenda prior to Shari's birth to discuss a short-term placement for the child. Brenda indicated her preference that Shari be placed with a member of her extended family in Springfield, most preferably with her aunt, Mrs. S, or, if that were not possible, with a black foster family. Shari was born on December 13, 1975. On January 13, 1976, she was placed, against Brenda's wishes, with a white foster family (family A), chosen in part because they lived near MCIF. ²

In March, 1976, Brenda was offered two options for parole at supervised drug rehabilitation programs; one, a nine- to twelve-month program beginning in March, at Women, Inc.; the other, a six-month program with a minimum prescribed forty-five day stay beginning in April, at the National Center for Attitude Change (NCAC), both in Boston. The department case worker, Ms. Briggs, recommended Women, Inc., because there Brenda could have Shari with her after the first month and receive counseling in parenting skills as part of the program. However, due to the relative length of the programs, Brenda chose NCAC. ³

While Brenda was incarcerated on her initial sentence, Ms. Briggs brought Shari for day long visits approximately once a month, three visits in all. Shari was left alone with Brenda during these visits. ⁴ Ms. Briggs terminated her work with the case prior to Brenda's parole in April, 1976. Unknown to anyone in the department Mr. and Mrs. A brought Shari to visit Brenda at NCAC every week or so.

Michele Benkis, Ms. Briggs's supervisor, took over the case in April, 1976. She first attempted to contact Brenda in June or July, but was unsuccessful. Brenda had left the NCAC program without authorization. The department had no contact with Brenda until October, 1976. Brenda's social worker at MCIF informed the department that Brenda's parole had been terminated and that Brenda now wanted visitation with Shari at MCIF. The new department worker on the case, Susan Marmarek, spoke to Brenda on October 28. Unaware of any visitation between Shari and Brenda since March of that year Ms. Marmarek conditioned any future visitation with Shari on Brenda's first demonstrating a commitment to being a good parent. Brenda enrolled at a parent training course at MCIF. A day long visitation took place on November 16, 1976. The visit went well. Requests were made by Brenda and others on her behalf for more frequent visitation, but no visit took place until January 21, 1977. Ms. Marmarek relinquished responsibility for the case shortly thereafter.

In February, 1977, Brenda entered the pre-release program at MCIF, a transition program involving outside work. Brenda worked as a receptionist and clerk. She had an excellent work record. Shari stayed with Brenda at the pre-release center every other weekend from late Friday through Sunday. The visits went well. In June, 1977, Brenda was returned to MCIF as a result of an on-the-job drinking incident during which she assaulted a correctional officer. During the next two months there were bi-weekly visits with Shari.

On August 27, 1977, Mr. and Mrs. A brought Shari for a scheduled visit, but discovered that Brenda had been paroled on August 24. The department worker then on the case, Marianne LeVert called Brenda's aunt, Mrs. S, to inquire about Brenda's whereabouts. Mrs. S told her Brenda was somewhere in Springfield. On October 4, 1977, Brenda called from a Howard Johnson's motel to request a weekend visit there with Shari. Based on the department's view of Brenda's past history and failure to contact the department sooner following her release, and based upon the department's lack of knowledge about Brenda's present life style, Ms. LeVert concluded that such a visit would be inappropriate. Ms. LeVert suggested that Brenda come to her office in Framingham to discuss Brenda's present plans and living situation before she could have Shari for a weekend visit. Brenda did not come to the office. Ms. LeVert, who left the case in October, had no further contact with Brenda, but in early November, 1977, Ms. LeVert recommended that the department file a guardianship petition in Probate Court as well as a G.L. c. 210, § 3, petition. Because Shari had been in foster care for almost two years, Ms. LeVert felt it was the department's responsibility to start making permanent plans for her. Ms. LeVert's recommendation was referred to the department's legal division for further action. Brenda was not advised that these steps had been taken.

The department next heard from Brenda on December 8, 1977. The new department worker on the case, Judy Hurley, received a message that Brenda had called to arrange a visit. Not hearing further from Brenda, and unable to reach her directly, Ms. Hurley called Mrs. S. Brenda returned Ms. Hurley's call two days later on December 15. Brenda told her that from September through December she had no job and no money, so she had to "take to the streets," and that she was living with her boyfriend whom she was considering marrying. She gave Eunice S's address as her mailing address. It was agreed they would schedule visitation with Shari, but Brenda failed to call the next day as agreed. Brenda next called on December 20, but Shari was unavailable because she had bronchitis. A visit was then agreed upon for December 23. On the morning of the twenty-third, Ms. Hurley called Brenda to confirm the visit. Brenda wasn't sure she could make it and said she would call back. Brenda neither called back nor showed up for the visit.

Brenda next called in mid-January, 1978, to inform Ms. Hurley she had applied for general relief and hoped to apply for Aid to Families with Dependent Children when Shari was returned, and that she had switched drug counseling programs. A visit with Shari took place on January 31, 1978. It went well.

In January Ms. Hurley requested an independent investigation of Brenda's living situation as well as that of her extended family. Early in March, 1978, a department home finder, Cicely Quinn, did an assessment of Brenda's one-room efficiency apartment as well as the homes of Mrs. S, and that of a friend of Brenda, Delores F. She concluded that Brenda's apartment was too small and lacked a separate bed for Shari. In any event, the main focus of her discussion with Brenda involved placement of Shari with Brenda's extended family or Delores F. Although Ms. Quinn considered the homes of both Mrs. S and Delores F adequate placements, neither person was prepared to make a commitment to care for the...