Adoption of Ramona

809 N.E.2d 547, 61 Mass. App. Ct. 260, 2004 Mass. App. LEXIS 619
Massachusetts Appeals Court·Decided June 4, 2004·No. No. 03-P-480·Published·Cited by 18 cases

Opinion

Lenk, J.

The biological mother appeals from decrees entered pursuant to G. L. c. 210, § 3, terminating her parental rights as to the three youngest of her five children: Ramona, bom on September 28, 1988, Curt, bom on June 22, 1990, and Sam, born on April 18, 1991. At all relevant times since removal from her mother’s care in early 1999, Ramona has been in the same preadoptive foster care setting, where she has flourished, and she wishes to be adopted by her foster mother. Accordingly, Ramona expresses reservation about her decree only insofar as it precludes posttermination and postadoption visitation between and among the siblings. Curt and Sam, neither of whom are in preadoptive homes nor wish to be adopted, join their mother in appealing their decrees, claiming in effect that it renders them legal orphans.

1. Background. The Department of Social Services (department) brought a care and protection proceeding pursuant to G. L. c. 119, § 24, in May, 1998, as to all five children,2 who then ranged in age from seven to fifteen years old. The proceeding was brought following a number of G. L. 119, § 51A, reports clustered in a period of several months, showing the three youngest children running very seriously amok,3 and their mother repeatedly neglecting them by leaving them either unsupervised, or inadequately supervised, by a boyfriend or one or both of the oldest two children. The five children were placed in the department’s custody, but remained in their mother’s care for almost a year until she was briefly incarcerated in early 1999.4 They were then placed in various foster care settings and, in essence, have not been in their mother’s care since that time.5

[262] In February of 2000, the mother stipulated that all of her children were in need of care and protection6; the permanency plan for the three youngest was changed to adoption later that year.7 Trial took place over three days during the first three months of 2002, the decrees entered on June 26, 2002, and the judge’s findings on October 4, 2002. The mother, Curt, and Sam jointly moved on November 20, 2002, for relief from judgment seeking (a) that the decrees dispensing with parental consent as to Curt and Sam be vacated on the grounds that, given their ages, they cannot be adopted without their consent, which consent they refuse to give; and (b) in the alternative, that new decrees enter adding provisions that the boys have posttermination and postadoption visits with the mother. The boys also moved for posttermination and postadoption sibling visitation. Their motions were supported by the boys’ affidavits. After hearing, the judge without opinion denied the first two motions, but allowed the motion seeking sibling visitation.

On appeal, the mother contends that, as to all three children, the judge’s findings of fact were based upon stale evidence and were insufficiently detailed to support the ultimate finding that she was, at the time of trial, unfit to parent each of the three children. The boys support this position as it concerns their mother’s fitness to parent them and further contend, with the mother, that the evidence did not support the ultimate finding that it was in their best interests that the mother’s parental rights be terminated. Finally, the mother and the boys maintain that the judge erred in failing to provide for posttermination and postadoption visitation between and among the mother and the boys.

2. Unfitness to parent. Faced with a petition to dispense with parental consent to adoption, a judge must first determine whether the parent is currently unfit to further the welfare and [263] best interests of the children. Adoption of Willow, 433 Mass. 636, 644 (2001). See Adoption of Gregory, 434 Mass. 117, 125 (2001). A determination of parental unfitness must be child-specific; “the issue is the current fitness of the biological parents to further the welfare and the best interests of the particular child” (emphasis original). Custody of a Minor, 21 Mass. App. Ct. 1, 7 (1985).

In addition to Ramona’s participation in certain of the 1998 behaviors occasioned by the mother’s neglect as earlier detailed,8 and Ramona’s report of inadequate food, hygiene, and sleep while in the mother’s care,9 the judge found that, during an April, 2000, visit with the mother, Ramona became frightened by her mother’s efforts to retrieve a car from Beth’s father. Since her removal from her mother’s care, Ramona’s behavior in school had improved, and she had become involved in sports. Ramona’s therapist opined that Ramona’s behavior would regress were she to be returned to her mother’s care. The judge also found that Ramona was happy in the foster home that she had lived in since she was removed from her mother’s care and that Ramona did not wish to return to live with her mother. Ramona had expressed a preference to remain permanently in her foster home and to be adopted by her foster mother, who wishes to adopt her. These findings are sufficiently specific and detailed to allow us to ascertain which facts the judge considered and relied upon in determining that the mother was currently unfit to parent Ramona and that termination of the mother’s parental rights was in Ramona’s best interests. See Custody of Eleanor, 414 Mass. 795, 799 (1993); Adoption of Willow, 433 Mass, at 644-645.

The judge’s findings with regard to the mother’s current fitness to parent Curt and Sam, however, are considerably more sparse. The judge found that Curt’s behavior regressed when the mother missed visits with him. The judge found that, during one visit between and among the mother, Beth, Curt, Ramona, and Sam, Sam kept to himself. These findings, even when viewed in conjunction with the 1998 behaviors occasioned by maternal neglect, fall short of what is necessary to sustain a [264] determination of current parental unfitness. We note that certain other findings relate additional facts, which might properly weigh in favor of a determination of unfitness, but those findings do not identify the child or children to whom the judge refers.10 The findings as to Curt and Sam, then, are lacking in both detail and specificity, and neither demonstrate that the requisite close attention was given to the evidence nor show that the judge’s determination of maternal unfitness was based upon consideration of all the relevant facts. See Custody of Eleanor, 414 Mass. at 799.

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Adoption of Ramona, 809 N.E.2d 547, 61 Mass. App. Ct. 260, 2004 Mass. App. LEXIS 619 (Mass. Ct. App. 2004).

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