PETITIONS OF THE DEPARTMENT OF SOCIAL SERVERCES

• Decision Date: 23 February 1987
• Citation: 399 Mass. 279,503 N.E.2d 1275
• Parties: PETITIONS OF THE DEPARTMENT OF SOCIAL SERVICES TO DISPENSE WITH CONSENT TO ADOPTION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

399 Mass. 279

503 N.E.2d 1275

PETITIONS OF THE DEPARTMENT OF SOCIAL SERVICES TO DISPENSE WITH CONSENT TO ADOPTION.

Supreme Judicial Court of Massachusetts, Middlesex.

December 1, 1986.

February 23, 1987.

Present: HENNESSEY, C.J., WILKINS, ABRAMS, LYNCH, & O'CONNOR, JJ.

Jura Strimaitis (George Casey with her) for Department of Social Services.

Jeffrey Quinn for the parents.

ABRAMS, J.

On October 21, 1985, a judge of the Middlesex Division of the Probate and Family Court Department entered a judgment dismissing petitions of the Department of Social Services (department)¹ to dispense with the need for parental consent for the adoption of two minor children. G.L.c. 210, § 3 (1984 ed.). The department appealed the decision to the Appeals Court. The Appeals Court, in an unpublished memorandum and order, see 22 Mass. App. Ct. 1113 (1986), remanded the case to permit the judge to examine the hospital records of the mother, Mrs. B, and to consider those records which are not covered by the psychotherapist-patient privilege. G.L.c. 233, § 20B (1984 ed. & Supp., Dec. 1986). We granted the parents' application for further appellate review. We agree with the Appeals Court that the cases must be remanded to the judge to permit examination and consideration of those portions of the hospital records which are not covered by the psychotherapist-patient privilege.

We summarize the facts and proceedings from the findings of fact of the judge, supplemented by portions of the uncontested testimony and documentary evidence. Mrs. B, who was born in 1941, experienced a troubled childhood. When she was five years old, her own mother suffered a "psychotic breakdown" and she and her sister were placed in an orphanage. Mrs. B lived in this orphanage for eight years until she was thirteen. She then was reunited with her family. Subsequently, Mrs. B's sister, like her mother, suffered a "psychotic breakdown" and had to be hospitalized.

The two children who are the subject of the department's petitions are Mrs. B's daughter, born on September 5, 1977, and Mrs. B's son, born on August 9, 1979.² The father of these children, Mrs. B's second husband, is mildly retarded and according to the judge, "cannot be seriously considered as a custodial parent." See note 16, infra. Throughout their marriage, Mr. and Mrs. B have had serious marital problems. Mr. B frequently left Mrs. B for indeterminate lengths of time due to this marital discord.

Mrs. B gave birth to her daughter at New England Memorial Hospital. During this pregnancy, the department had offered Mrs. B various support services, which she refused. Three days after the child was born, Mrs. B left the hospital, against the advice of her doctors, without her baby, claiming she could not get any rest in the noisy ward. Fearing abandonment, the hospital filed a report with the department pursuant to G.L.c. 119, § 51A.³ The next day, after communicating with a social worker from the department, Mrs. B decided to return to the hospital. After discharge from the hospital, Mrs. B, the social worker, and the hospital developed a service plan, which included weekly visits by social workers from the department and the hospital, counseling visits at the hospital for Mrs. B, homemaker services, and continued medical care for the baby.

Gradually, Mrs. B ceased adherence to the service plan. She repeatedly fired the homemakers hired by the department to help her. As well, the social workers had difficulty remaining in communication with Mrs. B.⁴ In late 1977, Mrs. B moved out of her apartment and into a motel.⁵ Mrs. B was financially able to make this move because she had received an inheritance of $23,000. The judge found that Mrs. B moved into the motel because she needed a vacation. Mrs. B remained in the motel room from February to May of 1978, at which point the entire inheritance was spent.

Although it is not clear how much time had passed since the social worker had met with Mrs. B, the social worker eventually found Mrs. B penniless at a motel. The social worker arranged for Mrs. B and her baby to spend another night at the motel. When the social worker arrived the next day, Mrs. B and the child had left. The room was a mess with food and litter strewn about. The social worker thereafter filed a care and protection petition in Somerville District Court and the baby was removed from the custody of her parents.

The child was placed with a foster family and a new service plan was formulated. This service plan included counseling, medication consultation, housing, work-related rehabilitation services for Mr. B, and weekly visitation with the daughter. The intent of this service plan was to reintegrate the baby into her parents' home.

In May of 1979, visitation with this child ceased because Mrs. B, then pregnant with her son, entered the psychiatric unit of a hospital. Mrs. B was under a great deal of stress, both because the pregnancy was a difficult one and because of financial and marital difficulties. After Mrs. B was released from the psychiatric unit, she sought help with her pregnancy at another hospital. Because she was experiencing pain with this pregnancy, Mrs. B, then seven months pregnant, asked a nurse at the hospital to terminate the pregnancy. When the hospital refused her request, Mrs. B threatened to kill herself and her baby. The baby was born two months later and the hospital immediately filed a § 51A report.⁶ At the same time, a care and protection petition was filed in the Boston Municipal Court. Thus, this child was committed to the department's custody four days after his birth. He was placed in foster care and has never resided with his parents.

In November of 1979, full hearings were held concerning the custody of the children. The department was granted temporary custody of the daughter on November 19. The son was committed permanently to the custody of the department on November 15.⁷ At this time, both children were placed in the same foster home.⁸

Visitation by Mrs. B during the next two years was sporadic and generally unsuccessful. Because the visits were only one hour and always supervised by a social worker, Mrs. B found them very pamnful experiences. Moreover, as Mrs. B became more involved in her own marital and financial problems, the visits seemed to deteriorate. The judge found that, during this time, the parties did not interact well, with Mrs. B telling the children of her lack of food and money and other subjects inappropriate for young children. In one visit, the daughter held her hands over her face for one-half hour. After this visit, the daughter refused to eat and stated that she did not want any further visits with "that lady." As a result of this child's failure to eat, her foster parents consulted a pediatrician, who diagnosed her as having anorexia. This doctor attributed the anorexia to the child's anxiety over continued visitation with Mrs. B. As a result, visitation ceased from July, 1981, to October, 1981. The visits began again in October and November, 1981, but they did not go well. The children continued to experience emotional upsets during and following the visits. The last visit the parents had with their children was in December, 1981.

In addition to the problems the children experienced during visitation, the department had difficulty obtaining cooperation from Mrs. B in scheduling visits and keeping appointments. On several occasions, Mrs. B would cancel visitation completely because she wanted the children at home, and not simply the right to visit them. On one occasion, when visitation was resumed, Mrs. B demanded that all visits occur early Monday morning because the children were very important to her and thus it was fitting that visitation should occur on the first working day of the week. The department found it impossible to schedule the visits at this time, and, although Mrs. B did not work and could visit the children at other times, she continued to insist on Monday morning visits. In addition, during this time, Mrs. B told social workers that she had no food or money. Although the department offered help, Mrs. B refused their assistance. She refused all involvement with the department's service plan. The judge noted in his findings that "throughout her testimony the mother related how she pleaded for help, and no one would help her. But the fact is that she continually refused most of the help offered to her, whether by DSS, hospitals, doctors, therapists, homemakers, and others."

On October 30, 1981, the department filed petitions pursuant to G.L.c. 210, § 3, to dispense with parental consent to adoption, thereby freeing the children for adoption. A guardian ad litem and attorneys for the children and the parents were appointed and the matter was assigned to trial. The trial was postponed several times because the parents continually fired their attorneys. The record reveals that at least six attorneys have withdrawn from the case during the proceedings. In October, 1982, the judge allowed a motion to dismiss the c. 210 petition concerning the older child because the department did not have permanent custody of her. See Adoption of a Minor, 386 Mass. 741, 748-749 (1982). The department obtained permanent custody in January, 1983, and the Appeals Court affirmed the award of permanent custody in December, 1983. Custody of a Minor, 17 Mass. App. Ct. 1105 (1983). The department filed a second c. 210, § 3, petition on behalf of the daughter in February, 1983, and this petition was consolidated with the petition filed on behalf of the son.⁹ Prior to trial, the court ordered the parents to undergo a psychiatric evaluation. They refused. The guardian ad litem¹⁰ and the children's attorney filed reports with the court and the department filed adoption plans with the court, as required by G.L.c. 210. The matter was heard on July 31 to August 2, 1985.

Five social workers and the guardian ad litem testified for...