Custody of a Minor, 389 N.E.2d 68 (Mass. 1979). · Go Syfert
Custody of a Minor, 389 N.E.2d 68 (Mass. 1979). Cases Citing This Book View Copy Cite
213 citation events (56 in the last 25 years) across 11 distinct courts.
Strongest positive: ADOPTION OF CORA (And Three Companion Cases). (massappct, 2026-06-22)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) ADOPTION OF CORA (And Three Companion Cases).
Mass. App. Ct. · 2026 · confidence medium
And the judge made no finding that his 10 However, even though the department did not demonstrate a link between the father's substance use and the neglect of his children, it did not need to do so if the neglect alone was sufficient to establish unfitness, see Custody of a Minor, 377 Mass. 876, 883 (1979) (pattern of parental neglect sufficient to determine unfitness), the issue to which we now turn. c.
discussed Cited as authority (rule) Care and Protection of Marcie.
Mass. App. Ct. · 2026 · confidence medium
"To find a child in need of care and protection, there must be 'an affirmative showing of parental unfitness.'" Care & Protection of Yetta, 84 Mass. App. Ct. 691, 695 (2014), quoting Custody of 4 a Minor, 377 Mass. 876, 882 (1979). "[T]he idea of 'parental unfitness' means 'grievous shortcomings or handicaps' that put the child's welfare 'much at hazard.'" Adoption of Yvonne, 99 Mass. App. Ct. 574 , 577 (2021), quoting Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997).
cited Cited as authority (rule) ADOPTION OF KASEM (And a Companion Case).
Mass. App. Ct. · 2024 · confidence medium
Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979).
cited Cited as authority (rule) Adoption of Daesha.
Mass. App. Ct. · 2024 · confidence medium
Adoption of Don, 435 Mass. 158 , 165 n.10 (2001), quoting Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979). 4.
cited Cited as authority (rule) Guardianship of Raya
Mass. App. Ct. · 2023 · confidence medium
Custody of a Minor, 377 Mass. 876, 882 (1979).
discussed Cited as authority (rule) Adoption of Posy
Mass. App. Ct. · 2019 · confidence medium
Here, the judge waived the father's absence at trial due to his immigration status, so any negative inference was unwarranted. 7 conclusions are untethered to any specific findings of fact and generally assail the father with references to "poor parenting choices," "poor parenting," "poor decision making," and "parental neglect."9 Although we are cognizant of the significant burdens placed on trial judges in these cases, the task of setting forth adequate findings and conclusions provides a valuable safeguard. "[A]s every judge knows, to set down in precise words the facts as [s]he finds them …
examined Cited as authority (rule) Diatchenko v. District Attorney for the Suffolk District Commonwealth v. Roberio (6×) also: Cited "see"
Mass. · 2015 · confidence medium
For reasons we discuss next, the court’s reasons for deeming appointment of counsel necessary in this context are instructive here: “[t]he petition may well involve complex questions of fact and law, and require the marshalling and rebutting of sophisticated expert testimony”; and “[provision of appointed counsel not only safeguards the rights of the parents, but it assists the court in reaching its decision with the ‘utmost care’ and ‘an extra measure of evidentiary protection,’ required by law.” J.K.B., supra, quoting Custody of a Minor (No. 1), 377 Mass. 876, 877, 884 (197…
discussed Cited as authority (rule) Care & Protection of Yetta (2×)
Mass. App. Ct. · 2014 · confidence medium
To find a child in need of care and protection, there must be “an affirmative showing of parental unfitness.” Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979).
discussed Cited as authority (rule) Care & Protection of Zita
Mass. · 2009 · confidence medium
Ireland, Juvenile Law § 3:24, at 165 (2d ed. 2006): “[F]or purposes of evidentiary rulings the Legislature intended that trials on the merits of care and protection petitions are to be conducted with the same formality, and the same adherence to the rules of evidence, that governs other categories of litigation not involving juries.” Moreover, “ ‘an extra measure of evidentiary protection’ is warranted, and should be afforded to the natural parents, when the breakup of a family is threatened.” Id. at 166, quoting Custody of a Minor (No. 1), 377 Mass. 876, 884 (1979).
cited Cited as authority (rule) Andrews
Mass. · 2007 · confidence medium
Guardianship of Roe, supra, citing Custody of a Minor (No. 1), 377 Mass. 876, 885 (1979).
discussed Cited as authority (rule) Care & Protection of Lillian
Mass. · 2005 · confidence medium
In making a decision concerning the removal of the children, a “court need not wait until it is presented with a maltreated child before it decides the necessity of ‘care and protection.’ ” Custody of a Minor (No. 1), 377 Mass. 876, 882-883 (1979).
discussed Cited as authority (rule) In re Angela
Mass. · 2005 · confidence medium
See also Santosky v. Kramer, 455 U.S. 745, 769 (1982) (beyond reasonable doubt standard in termination of parental right cases may “erect an unreasonable barrier to state efforts” to care for children); Custody of a Minor (No. 1), 377 Mass. 876, 885 (1979) (same).
discussed Cited as authority (rule) Adoption of Nancy
Mass. App. Ct. · 2004 · confidence medium
Moreover, the judge’s findings must be specific and detailed enough to demonstrate “that close attention has been given the evidence and that the necessity of removing the child[ren]” from their parent “has been persuasively shown.” Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979).
discussed Cited as authority (rule) Care & Protection of Quinn
Mass. App. Ct. · 2002 · confidence medium
While “important personal rights, such as those involved when the breakup of a family is threatened, warrant an extra measure of evidentiary protection,” Custody of a Minor (No. 1), 377 Mass. 876, 884 (1979), constitutional rights which normally attach in criminal proceedings are not automatically available in cases involving care and protection or dispensation with consent to adoption.
discussed Cited as authority (rule) Adoption of Olivia
Mass. App. Ct. · 2002 · confidence medium
Because the termination of a parent’s relationship with his or her child may be as severe a deprivation to that parent as the loss of personal freedom, 4 Custody of a Minor (No. 1), 377 Mass. 876, 884 (1979), we have turned to the criminal case law of this Commonwealth for guidance in deciding issues involving the right to counsel in proceedings to terminate parental rights.
discussed Cited as authority (rule) Don (2×)
Mass. · 2001 · confidence medium
Hugo P. v. George P, 526 U.S. 1034 (1999); Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979).
cited Cited as authority (rule) Adoption of Georgia
Mass. · 2000 · confidence medium
Hugo P. v. George P., 526 U.S. 1034 (1999); Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979).
cited Cited as authority (rule) Adoption of Helen
Mass. · 1999 · confidence medium
Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979).
discussed Cited as authority (rule) Youmans v. Ramos
Mass. · 1999 · confidence medium
The long-standing jurisprudence of the Commonwealth has been to deny custody and visitation rights to third parties unless extreme circumstances exist, such as abuse or neglect. 4 “ ‘State intervention in the parent-child relationship is justified only when parents appear unable to provide for their children’s care and protection.’ Custody of a Minor (No. 1), [ 377 Mass. 876, 882 (1979)]. ...
cited Cited as authority (rule) Doe v. Sex Offender Registry Board
Mass. · 1998 · confidence medium
See Guardianship of Roe, supra at 425; Custody of a Minor (No. 1), 377 Mass. 876, 884 (1979).
discussed Cited as authority (rule) Adoption of William
Mass. App. Ct. · 1995 · confidence medium
Given that the severance of a parent’s relationship with his or her child may be as severe a deprivation to that parent as the loss of personal freedom, see Custody of a Minor (No. 1), 377 Mass. 876, 884 (1979), it is appropriate that we look to the criminal law to determine the validity of a purported waiver of counsel in a proceeding which operates to terminate parental rights.
discussed Cited as authority (rule) Care and Protection of Inga
Mass. App. Ct. · 1994 · confidence medium
It is clear that [the mother] cares about her children and wants them home with her.” As for Alison, none of the judge’s forty-nine findings of fact included any charges of abuse by her father, and none specifically referred to the treatment or caretaking she received. “[T]he State interest in protecting neglected children may properly be preventive as well as remedial,” Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979), but the fear must be well-founded, see Custody of a Minor (No.2), 378 Mass. 712, 720 (1979).
discussed Cited as authority (rule) In the Matter of GAIL
Mass. · 1994 · confidence medium
L. c. 119, §§ 24-26; Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979) (finding of parental unfitness required where custody of child granted to the Department of Public Welfare pursuant to G.
cited Cited as authority (rule) Adoption of Eugene
Mass. · 1993 · confidence medium
The “loss of a child may be as onerous a penalty as the deprivation of the parents’ freedom.” Custody of a Minor (No. 1), 377 Mass. 876, 884 (1979).
cited Cited as authority (rule) Care and Protection of Laura
Mass. · 1993 · confidence medium
Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979).
cited Cited as authority (rule) Adoption of Jenna
Mass. App. Ct. · 1992 · confidence medium
Welfare v. J.K.B., 379 Mass. 1, 3 (1979), quoting from Custody of a Minor (No.l), 377 Mass. 876, 884 (1979).
examined Cited as authority (rule) Guardianship of Doe (3×)
Mass. · 1992 · confidence medium
See Matter of Moe, supra at 572 ; Custody of a Minor (No. 1), 385 Mass. at 713 ; Roe, supra at 425 ; Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979). “[A]s every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of [one’s] duty: Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper.” Custody of a Minor (No. 1), 377 Mass. at 886 , quoting United States v. Forness, 125 F.2d 928, 942 (2d Cir.), cert. denied sub nom.
discussed Cited as authority (rule) Adoption of Carlos
Mass. App. Ct. · 1991 · confidence medium
L. c. 210, § 3); Custody of a Minor (No. 1), 377 Mass. 876, 880, 882 (1979) (under G.
examined Cited as authority (rule) Adoption of Gwendolyn (3×) also: Cited "see"
Mass. App. Ct. · 1990 · confidence medium
The required detailed findings by the judge, which will not be disturbed unless clearly erroneous, Care and Protection of Stephen, 401 Mass. 144, 151 (1987); Care and Protection of Martha, 407 Mass. 319, 327 (1990), must nevertheless be supported by clear and convincing evidence, Santosky v. Kramer, 455 U.S. 745, 747-748 (1982), of parental unfitness, Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979); Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 391 Mass. at 119; Adoption of Frederick, 405 Mass. 1, 4 (1989); Care and Protection of Martha, 407 Mass. at 327 , …
discussed Cited as authority (rule) Care & Protection of Robert (2×)
Mass. · 1990 · confidence medium
Welfare, supra, quoting Custody of a Minor (No. 1), 377 Mass. 876, 884 (1979).
discussed Cited as authority (rule) Care & Protection of Martha
Mass. · 1990 · confidence medium
“Moreover, the judge’s findings in a custody proceeding must be specific and detailed so as to ‘demonstrare] that close attention has been given the evidence and that the necessity of removing the child [ren] from [their] parents has been persuasively shown.’ ” Care and Protection of Stephen, supra at 151, quoting Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979).
discussed Cited as authority (rule) Custody of Michel (2×) also: Cited "see"
Mass. App. Ct. · 1990 · confidence medium
Custody of a Minor (No. 1), 377 Mass. 876, 882-883 (1979).
discussed Cited as authority (rule) Adoption of Frederick (2×)
Mass. · 1989 · confidence medium
Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979).
discussed Cited as authority (rule) Care & Protection of Stephen
Mass. · 1987 · confidence medium
Moreover, the judge’s findings in a custody proceeding must be specific and detailed so as to “demonstrat[e] that close attention has been given the evidence and that the necessity of removing the children] from [their] parents has been persuasively shown.” Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979).
cited Cited as authority (rule) Petitions of the Department of Social Services to Dispense With Consent to Adoption
Mass. · 1987 · confidence medium
Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979).
cited Cited as authority (rule) Petition of the Department of Social Services to Dispense With Consent to Adoption
Mass. · 1986 · confidence medium
Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979).
discussed Cited as authority (rule) Custody of a Minor
Mass. App. Ct. · 1986 · confidence medium
The judge’s findings, taken cumulatively, demonstrate “close attention . . . [to] the evidence and that the necessity of removing the child from . . . her [mother] has been persuasively shown.” Custody of a Minor (No. 1), 377 Mass. 876, 886 (1979).
discussed Cited as authority (rule) Petitions of Catholic Charitable Bureau of the Archdiocese of Boston, Inc.
Mass. App. Ct. · 1986 · confidence medium
“Courts need not wait until they are confronted with a maltreated child before deciding that care and protection are necessary.” Custody of Two Minors, 396 Mass, at 620, citing Custody of a Minor (No. 1), 377 Mass. 876, 882-883 (1979).
examined Cited as authority (rule) Custody of Two Minors (3×) also: Cited "see"
Mass. · 1986 · confidence medium
See Petition of Catholic Charitable Bureau of the Archdiocese of Boston, Inc., to Dispense with Consent to Adoption, 395 Mass. 180, 185 (1985); Custody of a Minor (No. 1), 377 Mass. 876,883 (1979).
cited Cited as authority (rule) Petitions of the Dept of Soc. Serv to Dispense
Mass. App. Ct. · 1985 · signal: cf. · confidence medium
Cf. Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979).
discussed Cited as authority (rule) In Re Catholic Charitable Bureau of the Archdiocese of Boston, Inc.
Mass. · 1985 · confidence medium
Dr. Orlov, the psychiatrist, also opined that, based on his 1981 diagnosis, the parents “had so severely neglected and deprived [the child] of parenting essential to his physical and mental health, that only a concerted effort could return [the child] to normal physical and mental health.” Although there is a paucity of evidence on the current condition of the mother, past unfitness may be used to show current unfitness. “[A]n assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the l…
discussed Cited as authority (rule) Medical Malpractice Joint Underwriting Ass'n v. Commissioner of Insurance
Mass. · 1985 · confidence medium
We have indicated that the adoption of an intermediate standard of proof, such as the “clear and convincing” standard, too often serves “as the functional equivalent for the more familiar ‘reasonable doubt’ standard.” Guardianship of Roe, supra at 424, quoting Custody of a Minor (No. 1), 377 Mass. 876, 885 (1979).
discussed Cited as authority (rule) Custody of Two Minors (2×) also: Cited "see"
Mass. App. Ct. · 1985 · confidence medium
Stringent requirements assure that judges “exercise the utmost care” in making such determinations, see Custody of a Minor (No. 1) 377 Mass. 876, 885-886 (1979), even when they do not involve custody.
discussed Cited as authority (rule) In Re Department of Social Services to Dispense With Consent to Adoption (2×)
Mass. · 1984 · confidence medium
In Custody of a Minor (No. 1), 377 Mass. 876, 877, 884 (1979), we discussed a *698 mother’s contention that a clear and convincing standard of proof should be adopted, even though in that case, also, the issue was raised on appeal for the first time.
discussed Cited as authority (rule) Custody of a Minor (2×)
Mass. · 1984 · confidence medium
Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979).
cited Cited as authority (rule) Care & Protection of Three Minors
Mass. · 1984 · confidence medium
Custody of a Minor (No. 1), 377 Mass. 876, 877 (1979).
discussed Cited as authority (rule) Custody of a Minor
Mass. App. Ct. · 1984 · confidence medium
See also Petition of New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 639, 642 (1975); Custody of a Minor (No. 1), 377 Mass. 876, 882 (1979); Bezio v. Patenaude, 381 Mass. 563, 570 (1980); Custody of a Minor, 383 Mass. 595, 600-601 (1981); Freeman v. Chaplic, 388 Mass. 398, 406-409 (1983).
discussed Cited as authority (rule) In Re the Department of Social Services to Dispense With Consent to Adoption
Mass. · 1984 · confidence medium
We also stated: “While it is true that ‘an assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the likelihood of harm to the child’ (Custody of a Minor [No. 1], 377 Mass. 876, 883 [1979]), the critical inquiry is ‘current parental [fitness]’ (id.).
discussed Cited as authority (rule) Custody of a Minor
Mass. App. Ct. · 1983 · confidence medium
Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587-592 (1981); Custody of a Minor, 383 Mass. 595, 601 (1981), and so the judge held. 9 We note further: First, “care and protection” may serve a preventive as well as a remedial purpose, see Custody of a Minor (No. 2), 378 Mass. 712, 720 (1979); Custody of a Minor (No. 1), 377 Mass. 876, 882-883 (1979), thus it is no novelty for the Commonwealth to assert its interest and concern when the child at risk is very young.
discussed Cited as authority (rule) In Re the Department of Social Services to Dispense With Consent to Adoption
Mass. · 1983 · confidence medium
Thus, the judge properly made “an assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct ... [in determining] future fitness and the likelihood of harm to the [children].” Bezio v. Patenaude, supra, quoting Custody of a Minor (No. 1), 377 Mass. 876, 883 (1979).
Retrieving the full opinion text from the archive…
Custody of a Minor (No. 1)
1.
Massachusetts Supreme Judicial Court.
Apr 20, 1979.
389 N.E.2d 68
Leo M. Lazo for the defendant., E. Michael Sloman, Assistant Attorney General, for the plaintiff., Jinanne S. J. Elder & John Reinstein for the Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.
Hennessey, Quirico, Braucher, Kaplan, Abrams.
Cited by 126 opinions  |  Published
Hennessey, C.J.

On January 12, 1976, Elsie Peck, a social worker employed by the Division of Family and[*877] Children’s Services of the Department of Public Welfare (department), petitioned the Municipal Court of the Dorchester District, pursuant to G. L. c. 119, § 24, for a determination that the respondent-mother’s newly-born son was a child in need of care and protection. After a continuance of two and one-half months, and following a hearing, the judge granted the department’s petition and awarded it custody of the child. The mother exercised her right to trial de novo, G. L. c. 119, § 27, see Robinson v. Commonwealth, 242 Mass. 401 (1922), and her appeal was heard by a judge of the Boston Juvenile Court. Focusing chiefly on the mother’s parental fitness as evidenced by her treatment of her other children, the judge entered findings of fact and affirmed the award of custody to the department. The mother appealed to the Appeals Court and we transferred the case to this court on our own motion.

Two arguments are raised on appeal by the child’s mother. It is first claimed that the court lacked sufficient basis to justify removal of a child from its natural parent because there were no findings that the welfare of the child was endangered at the time of trial. It is also averred, for the first time ever in this court, that the judge failed to apply the proper standard of proof — "clear and convincing evidence” — in determining the necessity of awarding custody to the department.

We think the judge’s findings are more than adequate to support the statutory and constitutional requirements for invading the family unit. We decline to adopt the mother’s suggestion that we require "clear and convincing evidence” as the measure of proof in actions where children are removed from their parents. However, we are persuaded that it is constitutionally demanded that a judge exercise the utmost care, as demonstrated through specific and detailed findings of fact, in rendering a judgment which deprives parents of child custody. Although we state this requirement for the first time here, we believe the judge’s findings indicate that this[*878] standard has been met. Accordingly, we affirm his custody award.

Since there is no dispute as to their accuracy, we accept the findings of the judge. The child involved in these proceedings was born in Boston on January 9, 1976, to a mother having a substantial history of child neglect. Until 1972, the mother was the caretaker of her own three children, who were born between 1960 and 1963, and of two other children, a niece and nephew of her husband, who joined the family between 1964 and 1968. As early as 1965 there were reports that some of the children in the mother’s care had been truant from school. These reports continued intermittently, and in May and June, 1970, it was reported that the children were absent from school as much as 50% of the time.

In March, 1972, following reports of chronic truancy regarding the children and of strong odors of urine emanating from the mother’s apartment, the department dispatched a social worker, Jeanne Yozell (Yozell), to visit the mother’s apartment on Geneva Avenue in Dorchester. See G. L. c. 119, § 51 A. On her arrival Yozell found the mother, her children, and eight dogs in a cold, cluttered apartment. [1] The apartment was without heat, electricity, hot water, or gas. It was littered with dog feces and smelling of urine. The children were ill-clothed and dirty, and had difficulty with bowel and bladder control. Two of the children were found locked in a room. The mother explained that the condition of the apartment was attributable, in part, to her being deeply in debt, with past due obligations for rent and utilities. The reason for the children’s truancy, she stated, was her inability to provide them sufficient clothing, coupled with the fact that the children simply did not like school.

As a result of Yozell’s visit, the mother voluntarily placed the children with the department until she could get reorganized. In turn, the department found foster[*879] homes for all the children but one, Leroy, who was allowed to return to his mother because he refused to remain in the foster home provided by the department. Shortly after this event, the mother relocated in Jamaica Plain in an apartment subsequently found to be without heat and littered with glass from broken windows. During the next eight months, attempts to provide financial, housing, and medical care counseling to the mother were frustrated by the mother’s failure to keep most of her pre-arranged appointments with Yozell.

In November, 1972, Mary Ann Dougherty (Dougherty), was assigned to replace Yozell as the department’s contact with the family. By then, the children had all been placed at St. Vincent’s Home in Fall River, where it was found that none of the children was toilet trained and all were behind in schooling. Since Leroy was still at home, but not attending school, Dougherty attempted to establish a relationship with the mother. As before, the home was found to be generally messy and without food or utility service. Attempts to work with the mother became futile because the mother was again inconsistent in keeping the necessary appointments. Meanwhile, Leroy was professionally examined and determined to be suffering from academic neglect and in need of psychiatric counseling.

The mother, since 1972, has changed apartments frequently; on at least one occasion she has been evicted for failure to pay rent. In October, 1974, the father of the child at issue moved in with the mother and Leroy. By the time the child was born, on January 9, 1976, however, the father was no longer living with the family. [2] Three days after the child’s birth, the department petitioned for custody of the infant. During the pendency of the petition, until the Dorchester District Court granted custody to the department, the child was allowed to remain with[*880] the mother, but under the supervision of a homemaker and a public health nurse supplied by the department.

On the basis of these facts, the judge concluded that the mother "is a deprived, immature, impulsive, inconsistent, disorganized person whose inadequacies as a parent have deprived her children in the past of even basic physical needs of food, clothing and shelter .... [I]f the Court decided to return the infant to [the mother] even temporarily, she would be in need of massive help, including around-the-clock homemaker service, which homemaker would be invested with the primary responsibility for the children.” Believing the mother therefore incompetent to provide proper care for the child, the judge ordered him permanently committed to the department.

1. We turn first to the mother’s contention that the judge’s findings were inadequate to justify granting custody of the child to the department. The mother maintains that under G. L. c. 119, § 24, and the United States Constitution, the judge is required to make a finding of parental unfitness at the time of trial, a finding she asserts is absent from the record, as a prerequisite to an order depriving a parent of custody of his or her child. We agree that such a finding is required, but we think the judge’s findings represent an unequivocal determination of current, as well as past, parental incapacity.

That a finding of current parental unfitness is required in a proceeding which results in a parent’s loss of child custody derives from the substantial respect we accord family autonomy. The existence of a "private realm of family life which the state cannot enter,” Prince v. Massachusetts, 321 U.S. 158, 166 (1944), is a cardinal precept of our jurisprudence. See Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252 (1978); Custody of a Minor, 375 Mass. 733 (1978); Quilloin v. Walcott, 434 U.S. 246 (1978); Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816 (1977); Griswold v. Connecticut, 381 U.S. 479 (1965);[*881] Meyer v. Nebraska, 262 U.S. 390 (1923). [3] Yet, rights evolving from one’s interest in family integrity are not absolute. Custody of a Minor, supra. Roe v. Wade, 410 U.S. 113 (1973). Indeed, there can be scarce doubt that the State may properly act to protect children of tender years from parental neglect. Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, supra at 265. Stanley v. Illinois, 405 U.S. 645, 652 (1972). Alsager v. District Court of Polk County, 406 F. Supp. 10, 16 (S.D. Iowa 1975), aff'd 545 F.2d 1137 (8th Cir. 1976).

The procedure by which this action has been brought, the "care and protection” proceeding, is one legislative response to the problem of child maltreatment. [4] Pursuant to the statutory provision creating the action, G. L. c. 119, § 24 as amended through St. 1975, c. 276, § 3, any person concerned for a child’s welfare may file a petition in the appropriate court alleging that the child "is without necessary and proper physical, educational or moral care and discipline, or is growing up under conditions or circumstances damaging to a child’s sound character development, or who lacks proper attention of parent, guardian with care and custody, or custodian, and whose parents or guardian are unwilling, incompetent or unavailable to provide such care.” If the court finds the allegations proved, the judge may commit the child to the department until the minor becomes eighteen years of age or the judge may make any other order deemed appropriate to the child’s best interests. G. L. c. 119, § 26. See Shubow & Stahlin, Juveniles in Court: A Look at a System in Flux, 61 Mass. L.Q. 193, 195 (1977). Significant[*882] ly, parents, among others, retain the right to petition the court every six months for review and redetermination of the current needs of the child. G. L. c. 119, § 26.

While there may have been some question in prior years regarding the kinds of evidence sufficient to prove cases, like those under c. 119, where a parent stands to lose custody of a child, see Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 651 (1975) (Hennessey, J., dissenting), it is now clear that the Commonwealth may not attempt to force the breakup of a natural family without an affirmative showing of parental unfitness. Little Wanderers, supra at 641-642. Quilloin v. Walcott, supra at 255. Because the interest of the child is thought to be best served in the stable, continuous environment of his own family, see Stanley v. Illinois, supra at 651; Goldstein, Freud & Solnit, Beyond the Best Interests of the Child (1973), State intervention in the parent-child relationship is justified only when parents appear unable to provide for their children’s care and protection. Custody of a Minor, supra at 749; Roe v. Conn, 417 F. Supp. 769, 779 (M.D. Ala. 1976) (three-judge court); Alsager v. District Court of Polk County, Iowa, supra at 24; Burt, Developing Constitutional Rights of, in, and for Children, 39 L. & Contemp. Prob. 118, 128 (Summer 1975). [5]

Notwithstanding this measure of deference that must be accorded parental and family rights, the State interest in protecting neglected children may properly be preventive as well as remedial. See Long v. Long, 255 N.W.2d 140, 143 (Iowa 1977); Waagen v. R.J.B., 248 N.W.2d 815, 819 (N.D. 1976). The court need not wait until it is presented with the maltreated child before it decides the[*883] necessity of "care and protection.” Rather, an assessment of prognostic evidence derived from an ongoing pattern of parental neglect or misconduct is appropriate in the determination of future fitness and the likelihood of harm to the child. See In re Terry D., 83 Cal. App. 3d 890, 900 (1978); State v. Randall, 187 Neb. 64 (1971); In re Fred S., 66 Misc. 2d 683 (N.Y. Fam. Ct. 1971). Such evidence, particularly where unrebutted by more recent proof of parental capacity, provides a satisfactory basis for a finding of current parental unfitness. [6]

We therefore think it plain that the judge was warranted in determining the mother’s newborn child to be in need of care and protection at the time of trial. The uncontested facts, as reported by the judge, indicate that the mother is incapable of providing the basic necessities of food and shelter, ignorant of proper child care and supervision, see In re Fred S., supra at 697, indifferent to her children’s education, and apparently unwilling to cooperate with departmental attempts to rearrange her life, see In re Rosenbloom, 266 N.W.2d 888 (Minn. 1978). To the extent that these findings refer to the mother’s past conduct, it is with the understanding that the problems described therein continue unabated through the present. Not unlike the respondent in a prior case of ours, Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 371 Mass. 651, 654 (1976), the mother here has failed to formulate any realistic plan by which she could care for her two children already in the department’s custody. Thus, in these circumstances, court intervention is appropriate in order to protect a child who, although not yet maltreated, is a probable victim of parental neglect. See J. & E. v. M. & F., 157 N.J. Super. 478 (1978). See also Vilakazi v. Maxie, 371 Mass. 406, 409 (1976).

[*884] 2. Although it is clear that the judge possessed sufficient grounds to find the child in need of care and protection, a further issue is raised, a question of first impression in this court, concerning the appropriate standard of proof for findings that determine that it is in the child’s best interest to be removed from his parent. The mother urges, and the department concedes, that, because of the importance placed on the family, a parent-child relationship should be disturbed only on a showing of "clear and convincing” evidence that a need for such intervention exists. While we agree with the premise that custody of a child should be removed from a parent to the State only on most careful judicial consideration, we decline to adopt the "clear and convincing” standard urged here. We think that the objective to be sought can be better accomplished by a requirement of specific findings than by the injection of a standard of proof which is intermediate between the standards ordinarily applied in civil and criminal matters.

Where constitutional rights hang in the balance, a greater level of factual inspection has sometimes been required in civil cases as an additional safeguard against improvident judicial action. See Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 275 (1978); Andrews, petitioner, 368 Mass. 468, 488 (1975); Stone v. Essex County Newspapers, 367 Mass. 849, 870 (1975) (following Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 [1974]). Indeed, we believe that important personal rights, such as those involved when the breakup of a family is threatened, warrant an extra measure of evidentiary protection. Cf. Marcoux v. Attorney Gen., 375 Mass. 63, 65 n.4 (1978). For some parents, loss of a child may be as onerous a penalty as the deprivation of the parents’ freedom. Thus, while it may be observed that a c. 119 custody determination in favor of the department is neither a final nor complete [7] severance of the parent-[*885] child relationship, we think that the effect of such an order places a sufficient burden on family integrity to make the determination deserving of added judicial attention. See Sims v. State Dep’t of Pub. Welfare of Tex., 438 F. Supp. 1179, 1194 (S.D. Tex. 1977) (three-judge court); Alsager v. District Court of Polk County, supra at 25; In re William L., 477 Pa. 322, 333 (1978); ABA Standards Relating to Abuse and Neglect, § 5.3E(2) (Tent. Draft 1977); Annot., 79 A.L.R.3d 417 (1977).

We think it undesirable, however, to adopt the mother’s suggestion that we require "clear and convincing” proof in cases of the kind presented here. "Clear and convincing” evidence standards, as we recently observed in Superintendent of Worcester State Hosp., supra at 275-276, often act as the functional equivalent for the more familiar "reasonable doubt” standard. As such, the introduction of this third test of proof may serve no useful purpose and add only confusion. See Stone, supra at 877 (Quirico, J., concurring in part and dissenting in part). However, if we were, for the sake of simplicity, to adopt a "reasonable doubt” test in cases involving parental neglect, we fear that we might overly jeopardize the welfare of the child. If proof "to a moral certainty,” a requirement of our interpretation of "beyond a reasonable doubt,” [8] were demanded before a judge could find it necessary to remove a child from his or her parents, preventive intervention by a court, as proposed by the department here, might well be precluded.

We prefer to take the position that the personal rights implicated in proceedings of this character require the[*886] judge to exercise the utmost care in promulgating custody awards. Such care, in our view, demands that the judge enter specific and detailed findings demonstrating that close attention has been given the evidence and that the necessity of removing the child from his or her parents has been persuasively shown. [9] Moreover, we do not limit this requirement merely to cases where the ultimate outcome involves the loss of custody by a parent. In all cases of child neglect, including those where a disposition depriving a parent of custody is adjudged unnecessary, see Custody of a Minor, 375 Mass. 733 (1978), we think it well advised that a judge make specific findings of fact. Cf. King v. King, 373 Mass. 37 (1977); Rice v. Rice, 372 Mass. 398 (1977). ”[A]s every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of [one’s] duty: Often a strong impression that, on the basis of the evidence, the facts are thus-and-so-gives way when it comes to expressing that impression on paper.” United States v. Forness, 125 F.2d 928, 942 (2d Cir.), cert. denied sub nom. Salamanca v. United States, 316 U.S. 694 (1942) (Frank, J.). See United States v. Merz, 376 U.S. 192 (1964); Woods Constr. Co. v. Pool Constr. Co., 314 F.2d 405 (10th Cir. 1963). [10]

In this case the judge’s findings, see supra, make it manifest that the utmost care was devoted to the determination of the custody award. Accordingly, we hold that the judge’s decision and order are to be affirmed.

So ordered.

1

By this time, the mother was separated from her husband.

2

The father of the child, as well as the mother’s legal husband, have waived any right to custody in this matter.

3

We have recognized the right of natural parents to raise their children as existing independently of the State. Richards v. Forrest, 278 Mass. 547, 553 (1932). See J. Locke, Second Treatise of Government (London 1690).

4

See generally S. Katz, When Parents Fail (1971); Wald, State Intervention on Behalf of "Neglected” Children: A Search for Realistic Standards, 27 Stan. L. Rev. 985 (1975); Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminancy, 39 L. & Contemp. Prob. 226 (1975).

5

Fittingly, it is the stated policy of c. 119 to "provide substitute care of children only when the family itself or the resources available to the family are unable to provide the necessary care and protection to insure the rights of any child to sound health and normal physical, mental, spiritual and moral development” (emphasis added). G. L. c. 119, § 1, as amended through St. 1972, c. 785, § 5.

6

We think this result must have been contemplated by the Legislature, if the purpose of the "care and protection” statute — "to insure that the children of the commonwealth are protected against the harmful effects” of parental abuse or neglect — was to be given full effect. G. L. c. 119, § 1. Report of The Subcommittee on Child Welfare Legislation, 1952 House Doc. No. 2440, at 43.

7

Even after a parent has been deprived of child custody under c. 119, the parent retains such residual rights as the right to visit,[*885] G. L. c. 119, § 35, to consent to adoption, G. L. c. 210, §§ 2-3, and to determine the child’s religious affiliation, G. L. c. 119, § 33. See Campbell, The Neglected Child: His and His Family’s Treatment under Massachusetts Law and Practice and their Rights Under the Due Process Clause, 4 Suffolk U.L. Rev. 631, 656-657 (1970).

8

See Commonwealth v. Seay, 376 Mass. 735, 745-746 (1978); Commonwealth v. Webster, 5 Cush. 295, 320 (1850) (Shaw, C.J.).

9

We are aware that the procedure mandated here constitutes an exception to Rule 52 of the Rules of Procedure for the District Courts and Municipal Court of Boston (1975) under which the submission of written findings of fact is optional at the discretion of the judge. See J.W. Smith & H.B. Zobel, Rules Practice 241 (1977).

10

While much of what we say here applies to custody disputes involving husbands and wives or other relatives of the child, we wish to make clear that the requirement of detailed findings is directed only to custody controversies between the parent and the State.