Adoption of Nicole

662 N.E.2d 1058, 40 Mass. App. Ct. 259, 1996 Mass. App. LEXIS 135
CourtMassachusetts Appeals Court
DecidedApril 4, 1996
DocketNo. 95-P-1241
StatusPublished
Cited by44 cases

This text of 662 N.E.2d 1058 (Adoption of Nicole) 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 Nicole, 662 N.E.2d 1058, 40 Mass. App. Ct. 259, 1996 Mass. App. LEXIS 135 (Mass. Ct. App. 1996).

Opinion

Kass, J.

There are four arguments that the biological father presses in his appeal from a decree under G. L. c. 210, § 3, dispensing with his consent to the adoption of his daughter Nicole: 1) the Probate Court judge mistakenly equated his incarceration with parental unfitness; 2) the child welfare agency involved failed to make the effort required by statute to hold the biological family unit together; 3) the judge erroneously denied a motion for a new trial or to amend findings without an evidentiary hearing; and 4) the judge erroneously forbade postadoption visitation by the father. We affirm.

Prior to Nicole’s birth on December 15, 1992, her mother had for many years abused alcohol. Unable to cope with her infant daughter, the mother placed Nicole when three days old in the custody of the Catholic Charitable Bureau of the Archdiocese of Boston, Inc. (CCB). At the time, the biological father was serving a sentence of from twelve to twenty years for armed robbery and assault with a dangerous weapon. He would first be eligible for parole in June, 1996. On March 11, 1993, — the child was then three months old — the mother surrendered Nicole to CCB for adoption. The baby at five months was placed in a pre-adoptive home and has resided there ever since.

The biological father, who was thirty-four years old at the time of trial, had been in and out of jail repeatedly for fourteen years. His adult convictions, in chronological order, included breaking and entering in the night, larceny, possession of burglarious tools, armed assault in a dwelling, unlawful possession of a firearm, burglary, drunk driving, malicious destruction of property (at a police station), armed robbery, and assault and battery with a dangerous weapon. Like the mother (to whom he was married), the father drank excessively and habitually. He claims to have stopped drinking in September, 1991, although he entered a plea of guilty to driving while under the influence of alcohol in February, 1992..

1. Fitness of the father to act as a parent although incarcerated. Section 3(c)(xiii) of c. 210 of the General Laws, inserted by St. 1992, c. 303, § 5, provides that when assessing the fitness of a parent, the judge shall consider “the conviction of a [261]*261parent . . . of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights.” The statutory language codifies what had been decided in Petition of Boston Children’s Servs. Assn. to Dispense with Consent to Adoption, 20 Mass. App. Ct. 566, 573 (1985), namely that, compelled absence of a parent by reason of incarceration was to be taken into account but did not conclusively render a parent unfit. In that case, for example, a long term and stable parent and child relationship had been established between mother and children before the mother was convicted of second degree murder. Before starting to serve her sentence, the mother made arrangements for the care of her children by members of her immediate family.

By contrast, the father in the instant case had no established relationship with Nicole. In a sense, that was not his fault, as he was in prison when she was bom and would be in prison for at least three and one-half more years from the date of her birth. Fault, however, is not the focus of the inquiry. The question is whether the father realistically can provide for the needs of the child: shelter, food, clothing, love, guidance, discipline, stimulation, education, comfort, and play. As a practical matter, the father could do none of those things during the child’s earliest formative months of life. He was unable through family or close friends to set up a reliable child care structure. No one among his siblings was up to the task. The judge reasonably found that the friend he proposed as a caretaker showed no promise of ability, economic and emotional, to provide a stable environment — even if we accept as possible that some link could be forged between father and child through visits in prison during this early time in the child’s life.

As to the likelihood that the father could become a stable physical and emotional presence in Nicole’s life if he were paroled in two year’s time from the date of the judge’s findings of fact, the judge was warranted in factoring in whether it was plausible that the defendant was so altered that he would avoid a revocation of parole. Such reformation is possible and, indeed, is a goal of correctional institutions, but the judge, who was bound to consider the best interests of the child, was warranted in measuring probabilities rather than [262]*262possibilities. See, as to the prognostic relevance of past behavior, Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 13 Mass. App. Ct. 936, 938 (1982); Adoption of Abigail, 23 Mass. App. Ct. 191, 196 (1986); Adoption of George, 27 Mass. App. Ct. 265, 268-269 (1989). The judge found that the father was realistic neither as to arrangements with others nor as to his physical availability.

We have not overlooked, nor did the Probate Court judge, that the father had managed to acquire some knowledge about child care and, indeed, displayed some sound intuition about whether the baby had been fed, changed, or whether she might have an ear ache. Once again, however, the central judgment does not concern the father’s merits or demerits, but whether, in all the circumstances (including consideration of those merits or demerits), he has the capacity to act as a fit parent. As to that core question, the record and the judge’s subsidiary findings concerning the father’s then current imprisonment and history of persistent criminal recidivism and alcoholism support her ultimate finding that the father could not act as a fit parent for Nicole, at the time of trial or within any relevant future period. See Bezio v. Patenaude, 381 Mass. 563, 576-577 (1980); Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 119 (1984); Adoption of Stuart, 39 Mass. App. Ct. 380, 381-382 (1995).

Fitness to act as a parent, in statutory and decisional context, involves inquiry not only into the capacity of the biological parent but into the best interests of the child. See Adoption of Carlos, 413 Mass. 339, 348-349 (1992); Petition of Boston Childrens’ Serv. Assn. to Dispense with Consent to Adoption, 20 Mass. App. Ct. at 567. In this case it is significant that since age five months, Nicole has been the daughter of her adoptive parents and knows them as mother and father. She has thrived there. The judge found that the child had formed strong, positive bonds with her adoptive parents and that she was at risk of serious psychological harm were she at age four or after — the earliest the biological father might be available — suddenly plucked from her home. G. L. c. 210, § 3(c)(vii). Compare Petition of Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 590 (1981); Petition of Boston Children’s Servs. Assn., 20 Mass. App. Ct. at 568. Although the bonding of a child with foster or adop[263]*263live parents is not a dispositive consideration, it is a factor that has weight in the ultimate balance. See Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 391 Mass. at 118-119.

2. Adequacy of child welfare agency’s effort to hold the biological family together.

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Bluebook (online)
662 N.E.2d 1058, 40 Mass. App. Ct. 259, 1996 Mass. App. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adoption-of-nicole-massappct-1996.