Petition of the Department of Social Services to Dispense With Consent to Adoption

493 N.E.2d 197, 397 Mass. 659, 1986 Mass. LEXIS 1331
CourtMassachusetts Supreme Judicial Court
DecidedMay 29, 1986
StatusPublished
Cited by24 cases

This text of 493 N.E.2d 197 (Petition of the Department of Social Services to Dispense With Consent to Adoption) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Petition of the Department of Social Services to Dispense With Consent to Adoption, 493 N.E.2d 197, 397 Mass. 659, 1986 Mass. LEXIS 1331 (Mass. 1986).

Opinion

*660 Hennessey, C.J.

The parents of three minor children appeal from a decision of the Probate and Family Court to dispense with the need for their consent to the adoption of their children. In their challenge to the decision, the parents contend that the trial judge erroneously admitted testimony of a social worker privileged pursuant to G. L. c. 112, § 135, and that the Department of Social Services (department) failed to prove by clear and convincing evidence that the parents are presently unfit to care and provide for their children. We transferred the cases here on our own motion and now affirm.

The three minors who are the subject of these petitions to dispense with parental consent to adoption have been the subject of two prior care and protection proceedings. A care and protection petition was filed in the Salem District Court pursuant to G. L. c. 119, § 24 (1984 ed.), on January 9, 1981, and temporary custody of the three minor children involved in these cases was given to the department. The children were returned to the parents on December 11, 1981. On June 10, 1982, the care and protection action was dismissed. A second care and protection proceeding was filed in the Lynn District Court on December 15, 1982, and temporary custody of the three minors was again given to the department, where temporary custody currently remains.

The department filed the petitions which are the basis for the present actions to dispense with parental consent or notice of adoption pursuant to G. L. c. 210, § 3 (1984 ed.), on July 23, 1984. These petitions were filed in the Probate and Family Court for Essex County along with plans prepared by the Merrimac Valley Catholic Charities pursuant to G. L. c. 210, § 5A (1984 ed.), 1 for each of the three children. On September 18, 1984, the court appointed counsel for the parents and appointed a guardian ad litem for the children in these cases. The guardian ad litem filed reports with the court on November 21, 1984. A conference was held on January 21, 1985. At the conference, *661 the Probate Court judge appointed counsel to represent the three children. A hearing was held on February 26, 27, and 28, and March 1, 4, 5, and 6. On June 10, 1985, the judge issued detailed findings of fact and conclusions of law allowing the petitions of the department to dispense with parental consent to, or notice of, adoption. The parents filed notices of appeal on July 8, 1985.

1. Admissibility of Certain Testimony Pursuant to the Social Worker Privilege Created in G. L. c. 112, § 135.

The parents first argue that the judge erred in admitting the testimony of Barbara Lund, a social worker who was involved with the parents from November, 1980, until November, 1982, and with the youngest child from June, 1983, until October, 1984, contending that the provisions of G. L. c. 112, § 135, operate to bar her testimony. 2 Section 135 of G. L. c. 112 3 *662 prohibits a social worker from disclosing information acquired in a social worker’s professional capacity. One of the exceptions to the general rule of exclusion of § 135, exception (d), operates to permit disclosure of the information to which the social worker testified in this case. 4 This exception provides that disclosures of information “to initiate a proceeding under . . . section three of chapter two hundred and ten [petitioning a court for an order dispensing with consent to adoption] and give testimony in connection therewith" are not protected by the privilege. The parents argue that exception (d) does not apply to permit Barbara Lund’s disclosure of information acquired through her professional involvement with the family because Lund did not bring the petitions to dispense with parental consent to adoption. The parents’ reading of the statute is excessively restrictive. Further, the parents’ interpretation fails to appreciate the functional aspects of the child protection system and misperceives the nature of proceedings pursuant to G. L. c. 210, § 3.

The exceptions to the social worker privilege reflect a legislative intent to balance the dual goals of protecting confidential relationships with the need to protect the well-being of children. See Commonwealth v. Collett, 387 Mass. 424, 434 (1982). In proceedings where the ability of natural parents to provide and care for their children is called into question, “the rights of the children to a stable and safe environment assume an importance at least equal to the interest of the parents.” Custody *663 of Two Minors, 396 Mass. 610, 617 (1986). See Petition of Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 588 (1981); Custody of a Minor (No. 2), 378 Mass. 712, 721 (1979). See also Petition of Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 392 Mass. 738, 743 n.6 (1984) (social worker testimony a source for information on which the government can rely in termination proceedings). Cf. Wyman v. James, 400 U.S. 309, 318 (1971) (“The dependent child’s needs are paramount”). If the exception is interpreted to permit disclosure of information relevant to the fitness of the parents and the best interests of the children only by a social worker who actually brings a petition seeking an order to dispense with parental consent to adoption, the interest of protecting children reflected in G. L. c. 210, § 3, will be defeated.

Two practical considerations illustrate the problem with the interpretation the parents urge us to follow. First, contrary to the parents’ contentions, the G. L. c. 210, § 3, proceeding is not meant to be used to remove children from the custody of their parents on a temporary or emergency basis. Common sense and an examination of the entire statutory scheme relative to the protection of children indicate that petitions to dispense with parental consent to adoption are brought after all other, less drastic means to assist natural parents in developing the ability to provide for their children have failed. Thus, the information required to justify the drastic intervention in family life in which the allowance of a G. L. c. 210 petition would result, necessarily extends beyond the disclosure of specific, isolated incidents or emergency circumstances that usually give rise to initial decisions to remove children from their parents’ custody. Proceedings pursuant to G. L. c. 210, § 3, necessarily entail an examination of the entire parent-child relationship as it relates to the current fitness of the parents. Confining the application of exception (d) to a single social worker who may have limited or cursory knowledge of the case would not serve the interests of either the parents or the children.

*664

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Bluebook (online)
493 N.E.2d 197, 397 Mass. 659, 1986 Mass. LEXIS 1331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petition-of-the-department-of-social-services-to-dispense-with-consent-to-mass-1986.