Guardianship of a Minor

298 N.E.2d 890, 1 Mass. App. Ct. 392, 1973 Mass. App. LEXIS 478
CourtMassachusetts Appeals Court
DecidedJuly 10, 1973
StatusPublished
Cited by17 cases

This text of 298 N.E.2d 890 (Guardianship of a Minor) 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
Guardianship of a Minor, 298 N.E.2d 890, 1 Mass. App. Ct. 392, 1973 Mass. App. LEXIS 478 (Mass. Ct. App. 1973).

Opinions

Rose, J.

This is an appeal from an interlocutory decree entered January 13, 1972, denying the appellant’s motion to dismiss and from a final decree of the Probate Court entered February 7, 1972, finding the appellant to be an unfit mother and granting custody of her illegitimate minor son to the Boston Children’s Service Association, Inc. (BCS). On August 5, 1971, BCS filed its petition for [393]*393custody pursuant to G. L. c. 201, § 5, as amended by St. 1961, c. 171.1 On that date BCS was granted temporary guardianship of the child at an ex parte hearing. The final hearing was held on January 27, January 31 and February 1, 1972. The probate judge filed a report of material facts and the evidence is reported.

The appellant was one of ten children. Her father died when she was fifteen. The frequent illness of her mother caused her to have the responsibility of taking care of the home and her siblings. She left school in the ninth grade to go to hairdressing school and later to work as a hairdresser. When she was seventeen years old and still unmarried, she became pregnant. Her son was born on June 17,1969.

Following his birth, the appellant moved into the Cathedral Housing Project where she resided, except for brief intervals, for the entire time the child was in her care.

Both mother and son have had a number of medical problems since the birth. The mother testified that her son had many illnesses either causing him to be treated at or confined to a hospital.

In April of 1970 he was burned on some pipes at home. She explained that he fell from his bed against a hot radiator. He suffered third-degree burns on one leg and lesser burns on his abdomen and perineum. As a result he was in the hospital for one month. In November, 1970, she placed him in foster care with BCS for a period of six weeks so that she might have a kidney ailment corrected, look for a job and find a better place to live. In December, 1970, not having found a job, she took him back to the same apartment. At this time she hoped to marry her boyfriend, age twenty-two, unemployed, with whom she shared an apartment from time to time. In February, 1971, she had what she described as a nervous breakdown. At that time [394]*394her son was in the care of her boyfriend’s mother, and her boyfriend had moved in to care for her. During this period she attempted suicide by taking an overdose of medicine. By June the child was back in her custody, her boyfriend was gone and the marriage plans were over.

In December of 1970 she began having seizures. In January, 1971, she had a seizure during which she lost consciousness. She left a hospital against medical advice in the spring of 1971. On June 11, 1971, she disclosed to a pediatrician who was examining her son that she had had a seizure that morning, was taking no medicine and seeking no medical assistance.

She called her social worker at BCS on June 28, 1971, with a plea that BCS accept the boy for foster care as, according to her social worker, she “found herself waking in the middle of the night with her hand around ... [her son’s] throat and that we must take ... him into foster care.” Her social worker further testified that she called the first thing the following morning and stated that if BCS “did not take . .. [her son] quickly from her she was going to kill him and that there would be nothing left of him to take.” That day the child was placed by the mother with BCS and has not been in her custody since. Later on the same day welts on his legs, body and backside were observed. They disappeared within a week. A pediatrician, experienced in the care of foster children, examined him on July 9 and found him to be a “timid, shy, frightened, quiet boy... who made no social approaches, no words, no actions.”

The mother testified that she has not had seizures since she was an in-patient in the psychiatric department of the University Hospital during a five-week period in November and December of 1971.

The probate judge in his report of material facts stated, “Although ... [she] has both affirmed and denied that her seizures are epileptic a psychiatrist who saw her in February of 1971 described their causation as hysterical. It has been difficult for the court to find the true nature and prognosis of her illness and the specifics of the medical and [395]*395psychiatric care she has been receiving.... However, it is clear that during these episodes she has been unable to care for the child and her condition constitutes a threat to his safety while he is in her custody.”

This appeal brings several issues before us. The appellant first argues that G. L. c. 201, § 5, as amended by St. 1961, c. 171, the statute under which this action has been brought, is unconstitutionally vague and is therefore in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States. She argues that the standard “unfit” as used in the statute is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application ...,” Lanzetta v. New Jersey, 306 U. S. 451, 453; Commonwealth v. Carpenter, 325 Mass. 519, 521; and that the statute is not specific enough adequately to guide the courts in adjudication and to provide a satisfactory guide for an individual’s future conduct. Musser v. Utah, 333 U. S. 95, 97. Winters v. New York, 333 U. S. 507.

We reject this argument. The “unfit” standard has been in our laws since 1873. St. 1873, c. 367. Through the process of judicial decision making, the standard has been defined with as much precision as the subject is susceptible of. See Richards v. Forrest, 278 Mass. 547; Bottoms v. Cariz, 310 Mass. 29; Gordon v. Gordon, 317 Mass. 471; Stinson v. Meegan, 318 Mass. 459. In Richards v. Forrest, supra, at 552-553,554, the court said: “This petition is brought under G. L. c. 201, § 5. So far as here material, that section confers jurisdiction upon probate courts to order that the guardian shall have custody and care of the person of a minor if, upon a hearing, the parents are found ‘unfit to have such custody.’ This is a valid exercise of legislative power. Chambers’s Case, 221 Mass. 178,180. A strong word thus is used in the statute to describe parents from whom may be taken by order of the court the right to custody and care of their child. That word governs the power of the court to award the custody of the child to some one other than her parents. There is no statutory definition of the word ‘unfit.’ It therefore must be given its ordinary significance, having [396]*396due regard to the context. In general, the word means unsuitable, incompetent, or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. Violence of temper, indifference or vacillation of feeling toward the child, or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from other moral defects....

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Bluebook (online)
298 N.E.2d 890, 1 Mass. App. Ct. 392, 1973 Mass. App. LEXIS 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guardianship-of-a-minor-massappct-1973.