Adoption of Cesar

856 N.E.2d 198, 67 Mass. App. Ct. 708, 2006 Mass. App. LEXIS 1144
CourtMassachusetts Appeals Court
DecidedNovember 8, 2006
DocketNo. 06-P-437
StatusPublished
Cited by9 cases

This text of 856 N.E.2d 198 (Adoption of Cesar) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adoption of Cesar, 856 N.E.2d 198, 67 Mass. App. Ct. 708, 2006 Mass. App. LEXIS 1144 (Mass. Ct. App. 2006).

Opinion

Green, J.

Cesar was five years old when, on April 1, 1998, the Department of Social Services (department) removed him (and three older siblings) from his mother’s custody and initiated a petition for their care and protection. During the period [709]*709preceding the petition, his mother and her then boyfriend regularly abused drugs and alcohol — and her children.

Cesar was eleven years old in early 2004 at the beginning of the trial that gave rise to the present appeal, and had been living for approximately four months with a foster family in a pre-adoptive placement.2 By that time, Cesar’s mother had moved to New York to be near her family, terminated her relationship with her former boyfriend, obtained steady employment, successfully completed treatment for substance abuse (and been drug and alcohol free for more than three years) and, with the department’s agreement, regained custody of two of Cesar’s older siblings.3 She regularly attended meetings of Alcoholics Anonymous and services of the Jehovah’s Witnesses. Her social worker in New York described her recovery as a “miracle.”

Cesar’s recovery from the prior abuse was less complete. Approximately one month following the trial, he set a fire in the woods near the home of his preadoptive family. That act (which represented a troubling continuation of previous fire-setting behavior4 *) led to his removal from the preadoptive placement and to his return, in July 2004, to a supervised group home.

On February 4, 2005, the trial judge (unaware of Cesar’s removal from the preadoptive placement) entered a decree terminating the mother’s parental rights, citing concern that the mother, though fit to parent Cesar’s siblings, lacked the ability to meet Cesar’s particular needs, and the belief that Cesar’s interests would best be served through adoption by his preadop-tive family. Both Cesar and his mother filed notices of appeal from the decree.

On June 10, 2005, counsel for Cesar and his mother filed motions to “re-open the evidence.”6 After hearing argument, the trial judge denied the motions, expressing the view that [710]*710“[t]his case needs some finality. I think it’s appropriate to pursue this in the Appeals Court .... [This] Court’s made a determination at the time of the trial [that the] Mother was unfit, [and] her [parental] rights were terminated.”

We conclude on the particular facts of this case that the judge erred in refusing to reassess on the basis of material posttrial developments the question whether termination of the mother’s parental rights in the then current circumstances would best serve Cesar’s interests. We accordingly reverse the denial of the motions to reopen the evidence, vacate the termination decree, and remand for further proceedings.

Background. 6 Following an evidentiary hearing on September 6, 2000, and proposed findings submitted by the mother on October 17, 2000, and by the children and the department on January 5, 2001, the judge, on August 30, 2001, issued a finding “that [the mother] does not have the ability, capacity, fitness or readiness to parent [the children],” and that “[h]cr unfitness is demonstrated by the fact that she is a substance abuser who relapsed on alcohol during the trial of this matter .... In doing so she failed to continue her already sporadic engagement with her service plan . . . .” The mother filed objections to that finding with the trial court and, on October 16, 2001, filed a notice of appeal to this court. The department thereafter filed a motion to amend the findings, but the judge did not act on the department’s motion. The mother’s appeal was later discharged as premature.7

On April 24, 2002, with the department’s motion for amended findings still pending, and no decree having entered, the mother moved for a new trial on the ground that the mother’s condition had improved sufficiently in the time since the close of the trial to warrant the judge’s consideration of new evidence bearing on his previous finding of unfitness to parent two of Cesar’s older [711]*711siblings (the third and oldest sibling having attained the age of eighteen, see note 3, supra). The mother’s new trial motion specifically cited the desire of Cesar’s two older siblings to live with the mother, along with the mother’s improved capacity to parent them, in support of her request. The motion did not mention Cesar. The motion was allowed on December 12, 2002, and on December 30, 2002, the judge issued a supplemental order stating that “[i]t is logical to assume that if mother has made significant changes in her life such that she may be currently fit to parent [the two older children] she may also be fit to parent [Cesar].” On March 22, 2004, the department and the mother entered a stipulation dismissing the department’s petition as to Cesar’s two older siblings, and trial proceeded on that date with respect to Cesar alone.

On January 24, 2005, the department filed a motion for a decision, as no findings or decree had yet entered from the trial held the previous March.8 The department made no mention in its motion of the facts that Cesar had been removed from his preadoptive placement in July following a fire-setting incident and that Cesar had remained in a residential group home since that time. As we have noted, the findings and decree terminating the mother’s parental rights entered on February 4, 2005, and the judge thereafter denied motions by the mother and Cesar to reopen the evidence.

Parental unfitness. The mother contends that the trial judge’s subsidiary findings of fact are based on stale evidence and, in any event, do not support his conclusion that she is unfit to parent Cesar.

“Parental unfitness must be determined by taking into consideration a parent’s character, temperament, conduct, and capacity to provide for the child in the same context with the child’s particular needs, affections, and age.” Adoption of Mary, 414 Mass. 705, 711 (1993). Though the determination must be based on current evidence, see Adoption of Ramona, 61 Mass. App. Ct. 260, 264 (2004), “[w]hen a parent’s living situation [712]*712has changed, a judge nonetheless properly may rely on evidence of past parental abuse or neglect to the extent that this evidence has relevance to current parental fitness.” Adoption of Paula, 420 Mass. 716, 729 (1995). A parent may be fit to raise one child and unfit to raise another, in circumstances where the needs of the two children differ. See Petition of Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 395 Mass. 180, 185 n.6 (1985).

The judge in the present case noted the significant improvements made by the mother, including her prolonged freedom from her former substance abuse and her demonstrated ability to care for Cesar’s older siblings. However, though (as the mother observes) many of the findings of abusive behavior related to conduct that occurred more than four years prior to trial, that prior abuse had continuing relevance to the mother’s fitness to parent Cesar. In particular, the judge found that “[ajfter two years of therapy . . . , [Cesar] is just now beginning to discuss the abuse and neglect he suffered in Mother’s care,” and noted Cesar’s repeated expressions of his desire to be adopted.

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Cite This Page — Counsel Stack

Bluebook (online)
856 N.E.2d 198, 67 Mass. App. Ct. 708, 2006 Mass. App. LEXIS 1144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adoption-of-cesar-massappct-2006.