PETITIONS OF THE DEPARTMENT OF SOCIAL SERVICES TO DISPENSE WITH CONSENT TO ADOPTION.

ROSE, J. The mother of four daughters appeals from a Probate Court decision granting the petitions of the Department of Social Services (department) to dispense with her consent to adoption of each of the daughters. On September 26, 1978,

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approximately four years before the trial commenced, the three older girls, along with their two brothers, were committed by order of the West Roxbury District Court to the permanent care and custody of the department pursuant to G. L. c. 119. The three girls then ranged in age from eleven months to three years and ten months. They were placed, apparently together, in one foster home, from which they were removed to a preadoptive home some ten months before trial. The boys, aged nearly nine and ten, were placed together, initially in a group care setting and subsequently in one foster home. The youngest daughter, born on April 9, 1979, was taken from her mother the following day and committed to the department's permanent care and custody in November, 1979, by the Boston Juvenile Court. She was placed in the home of a maternal aunt, where she has remained. In November and early December, 1979, the department filed petitions pursuant to G. L. c. 210, Section 3, to dispense with the mother's and father's consent to adoption of all six children. Both parents opposed the petition, and separate counsel were appointed for each of them in November, 1981. By the time trial began in September, 1982, the parents had been separated for at least a year. The proceeding was conducted over several days in September, October and December, 1982, and in June, 1983. Near the end of the trial, a divorce judgment nisi having been granted, the father signed adoption surrenders for all six children and withdrew from the case. The mother signed surrenders for the two sons, who were then nearly fourteen and fifteen years old and who had expressed a desire to be adopted by their foster parents. The petitions as to the two boys were dismissed. By decrees dated September 15, 1983, the judge granted the petitions as to the four girls, who were at that time nearly nine, seven, nearly six and four years old, respectively. [Note 1] On appeal,

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the mother's chief contentions are that her current parental unfitness was not established by clear and convincing evidence, and that the department failed to attempt to avoid breakup of the family as required by statutory policy and departmental regulations. We vacate the decrees, and remand the case for further proceedings.

We summarize the relevant facts. When a social worker of the Massachusetts Society for the Prevention of Cruelty to Children first visited their home in 1976, the parents had been married for nine years, their two sons and their two oldest daughters had been born, and all lived at home. The house was dirty. At that time the mother was withdrawn and appeared depressed. Over the course of approximately one and a half years of visits, during which time the parents' third daughter was born, the social worker observed that the children frequently fought with one another. The boys were not attending school regularly. The apartment continued to be dirty and inadequately equipped. The baby did not have a crib. The mother told the social worker that the father had hit one of the girls in the face; the same child also had a scar on her head resulting from a fall on a radiator. Throughout that period the social worker provided various services to the family, including money for a washing machine, summer camp and clothing for the boys, an attempt at homemaker service, an offer of an infant stimulation program, and an evaluation of the parents through a mental health center. A treatment plan resulting from

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this evaluation included marital counseling for the parents and alcoholism therapy for the father. There was also evidence that the mother had an alcohol problem. In March, 1978, seeing numerous bruises on the two youngest girls, the social worker drove them to a hospital, where they remained for two weeks. These two children were then placed in foster care with the agreement of both parents. Continued observations of bruises on the mother and the older children, and the mother's report to the social worker that the father had attempted to strangle the oldest girl, led the social worker temporarily to remove the mother and the three oldest children to the home of the mother's aunt. Care and protection petitions were then filed for all five children which resulted in their commitment to the department's permanent care and custody in September, 1978. The youngest daughter was committed to the department's permanent care and custody approximately seven months after her birth in 1979. The petitions which are the subject of this appeal were filed a few weeks thereafter.

Some time after the children were removed from her home in 1978 and prior to her separation from her husband in 1980 or 1981 (the date of the separation not being made precisely clear), the mother's life began an upward turn which, from all that appears in the record, continued through the time of trial. She obtained a full-time assembly line job in a packing plant which she still held at the time of trial in 1982-1983. Her employer testified enthusiastically about the quality of her work. From late 1981 or early 1982 onward, the mother made her home with her aunt, arising early to go to work and retiring early in the evenings. She frequently babysat on weekends. She regularly visited her sons in accordance with the department's visitation plan and visited her three older daughters, at least for a brief period after the department was awarded custody in 1978. It does not appear that she was granted any visitation with her youngest daughter. [Note 2]

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We approach this case, as we do any such proceeding, by first recognizing the fundamental right of natural parents to the custody of their children. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981). Petition of the New Bedford Child & Family Serv. to Dispense with Consent to Adoption, 385 Mass. 482, 490 (1982). Custody of a Minor, 389 Mass. 755, 765 (1983). Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 799 (1983). Only for substantial reasons, to protect the basic rights of children, may the State intervene in the relationship between parent and child. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 265 (1978), quoting from Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 645 (1975); Petition of the New Bedford Child & Family Serv. to Dispense with Consent to Adoption, 385 Mass. at 490. General Laws c. 210, Section 3(b) and (c), provide express guidance to the judge in a proceeding where, as here, the State seeks irrevocably to cut off all legal rights of the parents. See Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 392 Mass. 738, 740-741 & n.5 (1984); Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 16 Mass. App. Ct. 607, 610 (1983), S.C., 391 Mass. 113, 119 (1984). A decree dispensing with consent to adoption shall issue only if the best interests of the child will be served thereby, after the judge's consideration of "the ability, capacity, fitness and readiness of the child's parents . . . to assume parental responsibility, and . . . also . . . the plan proposed by the department." G. L. c. 210, Section 3(c), as appearing in St. 1972, c. 800, Section 2. Parental fitness and the child's best interests are to be considered and determined as "cognate and connected" rather than separate and distinct tests. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 591,

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and cases cited. Neither concept is inflexible; both must be determined by the facts peculiar to an individual case. "Standards of mathematical precision are neither possible nor desirable in this field; much must be left to the trial judge's experience and judgment." Adoption of a Minor, 378 Mass. 793 (1979), quoting from Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. at 646. "It is conceivable that certain parents might be fit to bring up one child and unfit to bring up another . . . . The unfitness of parents . . . must be determined with respect both to their own character, temperament, capacity, and conduct, and to the welfare of the child in connection with its age, environment and affections." Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 589, quoting from Richards v. Forrest, 278 Mass. 547, 553-554 (1932). See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. at 799-800; Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 125 (1984); Petition of Boston Children's Serv. Assn. to Dispense with Consent to Adoption, ante 566, 567. While "[t]he potential effect of the judge's decision on the child is not irrelevant, . . . any adverse impact on a child from being returned to his or her parent cannot alone support a decision to dispense with consent to adoption." Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 700 (1984). The "extreme step" of terminating parental rights, which inevitably results from the allowance of such a petition, must be justified by "clear and convincing evidence that the parent's unfitness to assume parental responsibility is such that it would be in the best interests of the child for all legal relations to be ended." Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 119 (1984).

It has also long been the rule that, for the purposes of G. L. c. 210, Section 3, parental fitness must be currently assessed. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 589; cf. Bezio v. Patenaude, 381 Mass. 563, 570 n.6, 576 (1980). In appropriate cases, an ongoing

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or past pattern of behavior or a persistent parental characteristic may furnish a prognosis of how a child might fare if physical custody in the parent were to be continued or resumed. See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. at 801; Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 395 Mass. 180, 185 (1985); Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 13 Mass. App. Ct. 936, 938 (1982). We think that the judge in this case improperly emphasized the father's past pattern of behavior within the family and the mother's reaction to that past pattern. We recognize that the father was a party to this action, that he was represented by separate counsel throughout the proceedings, and that he withdrew from the case only upon the entry of a judgment nisi near the very end of the trial. Understandably, a great deal of evidence concerning his previous treatment of the children and of his wife was received by the judge. After the father withdrew his opposition to the petitions, however, and in the absence of any evidence that he would remain a presence in the life of the mother, [Note 3] references in the findings to his past behavior within the family, which exceeded references to the mother's current situation, could no longer have any prognostic value in determining her parental fitness or the children's best interests. Contrast Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 395 Mass. at 186. Compare Custody of a Minor (No. 2), 392 Mass. 719, 723-724 (1984). On the question of the mother's fitness alone, the judge made the following findings: she had a good ability to perform repetitious tasks, and was an excellent and steady worker at her assembly line job, a job which required no abstract thinking or problem solving and was good for her self-esteem; she had abstained from alcohol since acquiring the

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job; and she was able to babysit properly for a friend so long as the necessities for that task were provided. Countering these essentially positive findings, cf. Adoption of a Minor, 17 Mass. App. Ct. 993, 995 (1984), were findings that the mother's "natural impediments" included intelligence within the mentally retarded range [Note 4] "with an anxiety behavior characterized by low self-esteem"; that her long-term memory had been impaired, perhaps by alcohol abuse; that her ability to cope diminished as stress increased; that "[f]or many years [she] . . . was further hindered by an abusive, alcoholic husband"; and that "for a long period of time [she] could not and did not cooperate [with plans attempted by the department]. She always `went along' with [the father] . . . . She was aware that [he] was beating the children." The judge concluded that she "would not be able to stand the stress of the return of these children and the loss of her job (which [the judge found] she plans to leave if the children are returned)." [Note 5] We agree with the mother that this conclusion, drawn largely from findings of her demonstrated past unfitness with respect to raising her children, is not based on clear and convincing evidence of current unfitness. [Note 6] See Petitions of the Dept. of Social Servs. to Dispense

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with Consent to Adoption, 18 Mass. App. Ct. at 126. See also Petition of the Worcester Children's Friend Soc. to Dispense with Consent to Adoption, 9 Mass. App. Ct. 594, 599-600 (1980).

Reversal is also required by the judge's conclusion that the best interests of each of the children would be served by dispensing with the mother's consent to the department's plan for their adoption. The judge failed to consider "among other factors, the `fitness' of the [mother] to assume parental responsibility, not just in the abstract, but in relation to [each] particular child. The judge should have considered the needs of [each] child, in light of her [respective] age, and what the positive and negative effects upon [her] would be of allowing or denying the petition . . . given the circumstances in this case." Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 16 Mass. App. Ct. at 610. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. at 266; Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. at 799-800. Such a determination includes consideration of the placement of the siblings, together or separately, as evidenced by the department's plan under c. 210, Section 3, cf. Care & Protection of Three Minors, 392 Mass. at 715, as well as consideration of any special needs of any of the children in relationship to the mother's capacity and ability to deal with those needs. See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. at 125, and cases cited; Petition of Boston Children's Serv. Assn. to Dispense with Consent to Adoption, ante at 573. In the case before us, the judge found from the testimony of a psychiatric social worker that the oldest daughter was in long-term therapy for a psychiatric disorder resulting from early childhood traumas. He found from the testimony of a child psychologist that the youngest daughter had a speech handicap. [Note 7] Notwithstanding the judge's general

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finding (intermixed, as were other findings of fact, with his rulings of law) that "[t]he children subject of these petitions have been shown to have special needs, which [the mother] does not seem to comprehend," he made no specific finding of special needs with respect to the two middle daughters. Compare 18 Mass. App. Ct. at 123, 125-126. Nor did he make any other specific findings respecting the children except that the three older daughters had formed an emotional bond with their foster family. Despite his ruling that parental fitness must be viewed in the light of the special needs of the particular children, and the ability of the parent to address those needs, it is clear from his ultimate conclusion that the judge erred in considering the children's best interests collectively only rather than also individually, and in determining the mother's unfitness by contemplating the return to her custody of all as opposed to any one or more of the four daughters: "The Court finds that [the mother] cannot be expected, with even abnormal help, to reintegrate these children, some of whom are still recovering, into a new family unit with mother . . . . The Court finds that the children cannot reasonably be expected to survive emotionally another traumatic assault upon their basic emotional and mental health by removal from their present bonded situations." Contrast Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. at 260-262. See Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 18 Mass. App. Ct. 656, 661 (1984), S.C. 395 Mass. 180, 185 n.6 (1985).

There was evidence that during their long separation from their natural mother, the children had formed emotional ties to their respective foster parents. Although the judge correctly ruled that "[a]djustment of a child to new foster parents does not alone warrant termination of parental rights," see Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 591 n.16, his findings concerning the children suggest that he gave undue weight to these factors on the facts of this case. [Note 8] See and compare Petitions of the Dept. of

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Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. at 125-127, wherein the "long separation of [the children] from the parents, considered in light of the evidence of current parental unfitness . . . militate[d] against an attempt at reunification . . . [and] the judge . . . rested his ultimate conclusion upon the parents' continuing problems, the fragile nature of their home, and the severe emotional needs of [the children] which called for an immediate and permanent solution." Id. at 127.

Since the decrees must be vacated in this case, we need not reach the mother's other arguments or belabor the issue of the department's responsibility, enunciated in G. L. c. 119, Section 1, to attempt to strengthen the family unit "before it may proceed with plans to sever family ties permanently." Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. at 266; cf. Petition of Catholic Charitable Bureau to Dispense with Consent to Adoption, 392 Mass. at 743. Here, the evidence was very strong that the children's safety in 1978 required their placement out of the parents' home, and the placement of the last baby born to the marriage in early 1979 was presumably warranted for the same reason. We share the mother's concern, however, that the department, at the very least, failed to work toward her visitation with the daughters, apparently from a time shortly after it was awarded custody of the three older daughters in 1978, and in the face of the mother's continuous progress in stabilizing her life and diminishing or eliminating factors which had contributed to her

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earlier parental unfitness. [Note 9] Cf. Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. at 126 n.12.

The decrees are vacated, and the case is remanded to the Probate Court for further proceedings. The department is to retain permanent care and custody of all four daughters. A service plan is to be instituted without delay pursuant to current departmental rules, regulations and policies. The possibility of the mother's regaining custody of the daughters, individually and collectively, is to be considered before proceeding with the petitions to dispense with her consent to the adoption of any of the daughters. Cf. Petition of the New Bedford Child & Family Serv. to Dispense with Consent to Adoption, 385 Mass. at 490. Under the service plan the department is to explore fully and to encourage, if appropriate, the prospect of visitation rights. See Custody of a Minor (No. 2), 392 Mass. at 725-726. On proper petition by the mother, such visitation orders as may be appropriate may be entered.

So ordered.