Petitions of Department of Social Services to Dispense with Consent to Adoption

• Decision Date: 30 August 1985
• Citation: 20 Mass.App.Ct. 689,482 N.E.2d 535
• Parties: PETITIONS OF the DEPARTMENT OF SOCIAL SERVICES TO DISPENSE WITH CONSENT TO ADOPTION.
• Court: Appeals Court of Massachusetts

Page 535

482 N.E.2d 535

20 Mass.App.Ct. 689

PETITIONS OF the DEPARTMENT OF SOCIAL SERVICES TO DISPENSE

WITH CONSENT TO ADOPTION.

Appeals Court of Massachusetts,

Suffolk.

Argued April 4, 1985.

Decided Aug. 30, 1985.

Joan N. Feeney, Boston, for mother.

Madeline Mirabito Becker, Asst. Atty. Gen., for Department of Social Services.

Before GREANEY, C.J., and ROSE and GRANT, JJ.

ROSE, Justice.

The mother of four daughters appeals from a Probate Court decision granting the petitions of the Department of Social Services (department) to dispense with her consent to adoption of each of the daughters. On September 26, 1978, approximately four years before the trial commenced, the three older girls, along with their two brothers, were committed by order of the West Roxbury District Court to the permanent care and custody of the department pursuant to G.L. c. 119. The three girls then ranged in age from eleven months to three years and ten months. They were placed, apparently together, in one foster home, from which they were removed to a preadoptive home some ten months before trial. The boys, aged nearly nine and ten, were placed together, initially in a group care setting and subsequently in one foster home. The youngest daughter, born on April 9, 1979, was taken from her mother the following day and committed to the department's permanent care and custody in November, 1979, by the Boston Juvenile Court. She was placed in the home of a maternal aunt, where she has remained. In November and early December, 1979, the department filed petitions pursuant to G.L. c. 210, § 3, to dispense with the mother's and father's consent to adoption of all six children. Both parents opposed the petition, and separate counsel were appointed for each of them in November, 1981. By the time trial began in September, 1982, the parents had been separated for at least a year. The proceeding was conducted over several days in September, October and December, 1982, and in June, 1983. Near the end of the trial, a divorce judgment nisi having been granted, the father signed adoption surrenders for all six children and withdrew from the case. The mother signed surrenders for the two sons, who were then nearly fourteen and fifteen years old and who had expressed a desire to be adopted by their foster parents. The petitions as to the two boys were dismissed. By decrees dated September 15, 1983, the judge granted the petitions as to the four girls, who were at that time nearly nine, seven, nearly six and four years old respectively. ¹ On appeal, the mother's chief contentions are that her current parental unfitness was not established by clear and convincing evidence, and that the department failed to attempt to avoid breakup of the family as required by statutory policy and departmental regulations. We vacate the decrees, and remand the case for further proceedings.

We summarize the relevant facts. When a social worker of the Massachusetts Society for the Prevention of Cruelty to Children first visited their home in 1976, the parents had been married for nine years and had produced their two sons and their two oldest daughters, all living at home. The house was dirty. At that time the mother was withdrawn and appeared depressed. Over the course of approximately one and a half years of visits, during which time the parents' third daughter was born, the social worker observed that the children frequently fought with one another. The boys were not attending school regularly. The apartment continued to be dirty and inadequately equipped. The baby did not have a crib. The mother told the social worker that the father had hit one of the girls in the face; the same child also had a scar on her head resulting from a fall on a radiator. Throughout that period the social worker provided various services to the family, including money for a washing machine, summer camp and clothing for the boys, an attempt at homemaker service, an offer of an infant stimulation program, and an evaluation of the parents through a mental health center. A treatment plan resulting from this evaluation included marital counseling for the parents and alcoholism therapy for the father. There was also evidence that the mother had an alcohol problem. In March, 1978, seeing numerous bruises on the two youngest girls, the social worker drove them to a hospital, where they remained for two weeks. These two children were then placed in foster care with the agreement of both parents. Continued observations of bruises on the mother and the older children, and the mother's report to the social worker that the father had attempted to strangle the oldest girl, led the social worker temporarily to remove the mother and the three oldest children to the home of the mother's aunt. She then filed care and protection petitions for all five children which resulted in their commitment to the department's permanent care and custody in September, 1978. The youngest daughter was committed to the department's permanent care and custody approximately seven months after her birth in 1979. The petitions which are the subject of this appeal were filed a few weeks thereafter.

Some time after the children were removed from her home in 1978 and prior to her separation from her husband in 1980 or 1981 (the date of the separation not being made precisely clear), the mother's life began an upward turn which, from all that appears in the record, continued through the time of trial. She obtained a full-time assembly line job in a packing plant which she still held at the time of trial in 1982- 1983. Her employer testified enthusiastically about the quality of her work. From late 1981 or early 1982 onward, the mother made her home with her aunt, arising early to go to work and retiring early in the evenings. She frequently babysat on weekends. She regularly visited her sons in accordance with the department's visitation plan and visited her three older daughters, at least for a brief period after the department was awarded custody in 1978. It does not appear that she was granted any visitation with her youngest daughter. ²

We approach this case, as we do any such proceeding, by first recognizing the fundamental right of natural parents to the custody of their children. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587, 421 N.E.2d 28 (1981). Petition of the New Bedford Child & Family Serv. to Dispense with Consent to Adoption, 385 Mass. 482, 490, 432 N.E.2d 97 (1982). Custody of a Minor, 389 Mass. 755, 765, 452 N.E.2d 483 (1983). Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 799, 452 N.E.2d 497 (1983). Only for substantial reasons, to protect the basic rights of children, may the State intervene in the relationship between parent and child. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 265, 381 N.E.2d 565 (1978), quoting from Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 645, 328 N.E.2d 854 (1975); Petition of the New Bedford Child & Family Serv. to Dispense with Consent to Adoption, 385 Mass. at 490, 432 N.E.2d 97, General Laws c. 210, §§ 3(b ) and (c ), provide express guidance to the judge in a proceeding where, as here, the State seeks irrevocably to cut off all legal rights of the parents. See Petition of the Catholic Charitable Bureau to Dispense with Consent to Adoption, 392 Mass. 738, 740-741 & n. 5, 467 N.E.2d 866 (1984); Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 16 Mass.App. 607, 610, 453 N.E.2d 1236 (1983), S.C., 391 Mass. 113, 119, 461 N.E.2d 186 (1984). A decree dispensing with consent to adoption shall issue only if the best interests of the child will be served thereby, after the judge's consideration of "the ability, capacity, fitness and readiness of the child's parents ... to assume parental responsibility, and ... also ... the plan proposed by the department." G.L. c. 210, § 3(c ), as appearing in St. 1972, c. 800, § 2. Parental fitness and the child's best interests are to be considered and determined as "cognate and connected" rather than separate and distinct tests. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. [20 Mass.App.Ct. 694] at 591, 421 N.E.2d 28, and cases cited. Neither concept is inflexible; both must be determined by the facts peculiar to an individual case. "Standards of mathematical precision are neither possible nor desirable in this field; much must be left to the trial judge's experience and judgment." Adoption of a Minor, 378 Mass. 793, 389 N.E.2d 90 (1979), 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. "It is conceivable that certain parents might be fit to bring up one child and unfit to bring up another.... The unfitness of parents ... must be determined with respect both to their own character, temperament, capacity, and conduct, and to the welfare of the child in connection with its age, environment and affections." Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 589, 421 N.E.2d 28, quoting from Richards v. Forrest, 278 Mass. 547, 553-554, 180 N.E. 508 (1932). See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. at 799-780, 452 N.E.2d 497; Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass.App. 120, 125, 463 N.E.2d 1187 (1984); Petition of Boston Children's Serv. Assoc. to Dispense with Consent to Adoption, 20 Mass.App. 566, 567, 481 N.E.2d 516 (1985). While "[t]he potential effect of the judge's decision on the child is not irrelevant, ... any adverse impact on a child from being returned to his or her parent cannot alone support a decision to dispense with consent to...