Petition of Dept. of Public Welfare

• Decision Date: 29 August 1978
• Citation: 376 Mass. 252,381 N.E.2d 565
• 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 565

381 N.E.2d 565

376 Mass. 252

Petition of the DEPARTMENT OF PUBLIC WELFARE to Dispense

with Consent to Adoption.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 4, 1978.

Decided Aug. 29, 1978.

Gerald W. Tutor, Cambridge (Peggy O'Reilly, Law Student, with him), for respondents.

James C. Doyle, Boston, for Department of Public Welfare.

James M. Cronin, New Bedford, for New Bedford Child & Family Service, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

HENNESSEY, Chief Justice.

The respondent parents appeal from two Probate Court decrees allowing petitions brought by the Department of Public Welfare (DPW) to dispense with parental consent to adoption. The petitions were brought pursuant to G.L. c. 210, § 3, on behalf of the respondents' two minor children. ¹

The DPW originally filed the petitions in March, 1974. In June, 1974, the respondents obtained a continuance so that psychiatric evaluations could be made. In 1975, the judge appointed a guardian ad litem for the children and the cases were again continued pending the guardian ad litem's investigation and report. The petitions were not heard until June, 1976.

By the time of trial, no party contested the DPW's allegations that the respondents were unable "to assume parental responsibility" for their two children. Rather, the question for determination was whether the DPW's plans for adoption represented an appropriate response to this family's situation. The position of the various parties on this issue may be summarized briefly as follows.

According to a plan submitted to the Probate Court pursuant to G.L. c. 210, § 3, the DPW believed that the best interests of each child call for separate placement in different types of environments. According to the DPW, the older child had emotional problems which made a family placement inadvisable. In the opinion of the DPW, this child was in need of a highly structured group setting, a therapeutic environment in which he could work gradually toward permanent placement with an adoptive family. As to the younger child, the DPW thought that a permanent family placement was both possible and highly desirable. The DPW recommended one particular family as "ideal for meeting (this child's) needs," and reported that, on the basis of weekly visits with the child, "a bond of affection is developing both ways."

The guardian ad litem's report, submitted to the Probate Court on June 22, 1976, also concluded that the children should not be returned to the custody of their natural parents. However, the guardian ad litem sharply differed with the DPW's views with respect to placement. The report pointed out that the children's maternal aunt, one Mrs. C, had demonstrated a long-standing interest in the children, and had repeatedly sought custody of both of them. After an investigation, the guardian ad litem recommended placement with the C's, noting that, in such an environment, the children could grow up together, and could remain within the extended family.

The respondent parents also opposed the DPW's plans for adoption, alleging that the agency sought to separate the children permanently both from their extended family and from each other without first exploring "less drastic alternatives." The parents agreed with the guardian ad litem that the best placement for the children was with their maternal aunt. To that end, the parents sought a continuance to allow the C's time to file a petition for guardianship, which motion was denied. Additionally, the judge did not permit the appearance of an attorney on the C's behalf.

The judge allowed the DPW's petitions on July 19, 1976, after considering the report of the guardian ad litem, the DPW's plan, and the testimony of several witnesses. At the request of the respondents, however, the judge stayed the decrees pending appeal.

The respondents challenge the judge's decision on several grounds. The parents primarily contend that the ruling below allowed the DPW to separate the children permanently from their family without requiring the agency to explore less intrusive alternatives to adoption. They claim that such a result is inconsistent with the various Federal and State statutes which seek to promote child welfare, not by dispersing, but by strengthening and encouraging the family unit. They further argue that such a result necessarily restricts their fundamental rights to family integrity, thereby violating their rights under the due process clause of the Fourteenth Amendment to the United States Constitution. Second, the respondents claim that the judge erred in denying their motion to appoint an independent psychiatrist to examine the children and the extended family. Third, they assert that the judge abused his discretion by failing to give any weight to the testimony of their expert witnesses.

On November 17, 1977, we transferred the case to this court on our own motion. We note that the case is before us without a report of the material facts. Absent such report, the entry of the final decree in the Probate Court implies that the judge found all facts necessary to sustain it. It is well settled that such implied findings will not be reversed unless plainly wrong. See Gannon v. MacDonald, 361 Mass. 851, 279 N.E.2d 668 (1972); Stein v. Dornig, 355 Mass. 797, 247 N.E.2d 397 (1969).

Based on our review of the transcript and exhibits which the parties agreed to include in an appendix, we cannot say that the judge was plainly wrong in determining that adoption is in the best interests of respondents' two children. Nor do we discern any error of law warranting reversal. As will be discussed more fully below, we conclude that the judge correctly applied G.L. c. 210, § 3. We agree with the respondents that the integrity of the family is due significant statutory and constitutional protection. We do not think, however, that the instant decrees offend against either Federal or State mandates in this area. Accordingly, we affirm.

We summarize the evidence. The respondent parents were married in Massachusetts on March 13, 1967. On February 6, 1968, their first child was born. The report of the guardian ad litem indicates that by the time the child was six months old, he had been admitted to the Chelsea Naval hospital twice. The evidence shows that on April 12, 1968, the child entered the hospital with a skull fracture, and on August 16, 1968, the child was admitted with a fractured arm.

In September, 1968, the family moved to Harrisburg, Pennsylvania, where the mother and child lived for several months while the father served overseas in the United States Navy. In October, 1968, a neighbor called the Dauphin County Child Care Service to report that the mother had been physically abusive to the child. A series of similar complaints brought visits both from a Child Care Service social worker and from a visiting nurse.

On November 25, 1968, a neighbor reported that another abusive incident had occurred and that the respondent mother had threatened suicide. That same day, the Dauphin County Child Care Service obtained temporary custody of the child and arranged hospitalization for the mother.

While in the hospital, the mother was diagnosed as suffering from a borderline psychosis. She remained in the hospital for approximately two and one-half weeks, during which time her husband obtained an emergency leave from the Navy and returned home. The situation seemed to improve. After her discharge from the hospital on December 12, 1968, the mother continued to receive psychiatric care on an out-patient basis. Both respondents were in frequent contact with the Child Care Service social worker, who reported, on the basis of several interviews, that the mother had "definitely benefitted from (psychiatric) treatment," and that, with continued help, she could make substantial progress "in handling her problems."

In February, 1969, the respondents moved back to the Boston area. The Dauphin County Child Care Service transferred custody of the child to the Division of Family and Children's Services of the Massachusetts Department of Public Welfare, which agency placed the child in Mrs. C's care.

The child was returned to his parents' custody on a trial basis in February, 1970. By this time, however, the parents had separated. The father had moved out of the State and the mother, then expecting a second child, was living with her parents.

On February 17, 1970, the mother gave birth to the respondents' second son. One month later, the second child was admitted to Malden hospital with a fractured arm. The child sustained another fracture on April 19, and was again admitted to the hospital. Approximately one week later, the mother suffered a nervous breakdown, attempted suicide, and entered Metropolitan State Hospital for treatment. She stated that she would kill the babies and was afraid of them.

The DPW obtained temporary custody of the two children in May, 1970, after an ex parte hearing in the Probate Court for Middlesex County. The older child was placed in Mrs. C's care and the younger child remained with his maternal grandparents.

The mother was discharged from the hospital on June 25, 1970, and reunited with her husband early in 1971. With the passage of several months, it was the opinion of the DPW social workers that the respondents had made progress, and were again ready to assume custody of their children.

For approximately ten months after the children were returned to their parents' home, the DPW had no contact with the family. The agency became involved once more in June, 1972, when the older child was admitted to the Central hospital for second degree burns on both buttocks and for multiple bruises on various parts of his body.

On September 20, 1972, a neighbor called the DPW to report that the younger child had a broken nose. Without verifying this allegation, and presumably...