Adoption of Virgil , 93 Mass. App. Ct. 298 ( 2018 )

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17-P-776 Appeals Court
ADOPTION OF VIRGIL.1
No. 17-P-776.
Essex. January 9, 2018. - May 30, 2018.
Present: Trainor, Massing, & Singh, JJ.
Adoption, Care and protection, Dispensing with parent's consent,
Visitation rights. Minor, Adoption. Parent and Child,
Adoption, Dispensing with parent's consent to adoption.
Evidence, Medical record.
Petition filed in the Essex County Division of the Juvenile
Court Department on December 1, 2014.
The case was heard by José A. Sánchez, J.
Lynn M. Isaman for the mother.
Richard A. Salcedo for Department of Children and Families.
Rachel T. Rose for the child.
TRAINOR, J. The mother appeals from a decree of the
Juvenile Court finding the child to be in need of care and
protection, terminating her parental rights to the child, and
1 A pseudonym.
2
declining to order posttermination and postadoption visitation.2
The mother argues that the judge erroneously found a nexus
between the mother's substance abuse, poverty, and homelessness,
and her ability to provide minimally adequate care of the child.
The mother additionally argues that the judge erroneously
admitted and relied upon her substance abuse treatment records
in reaching his findings. We affirm.
Background. We summarize the relevant facts and procedural
history as set forth in the judge's decision and as supported by
the record. The child, Virgil, was born in February, 2010. The
Department of Children and Families (department) first became
involved with the mother and Virgil in August of 2014 when
Virgil's pediatrician filed a G. L. c. 119, § 51A, report (51A
report) alleging the mother's neglect of Virgil. The report
specifically alleged that the mother was unable to attend to
Virgil's hygiene due to her severe depression.3 Within the same
month, another 51A report was filed alleging "deplorable
conditions" in the mother's apartment. That report alleged that
there were flies everywhere, trash on the floor and on the
2 The father's parental rights were also terminated; he is
not involved in this appeal.
3 The pediatrician stated that Virgil was being treated for
a severely infected penis caused by poor hygiene.
3
kitchen stove, and a strong odor of cat urine. Both 51A reports
were supported by the department.
During an investigation conducted by the department,
Virgil's doctor's office reported that the mother was
inconsistent with Virgil's medical care, missing more than
twenty scheduled appointments for Virgil. In September, 2014,
the mother was charged with larceny pursuant to a single scheme
of an amount over $250. In October, 2014, the mother was
evicted from her apartment. Using funds provided by Compass for
Kids, the mother moved to a new apartment. During that same
month, the mother was arrested for open warrants pertaining to
previous motor vehicle and larceny charges. The department was
notified after the mother was unable to make arrangements for
Virgil at the time of her arrest. After the mother posted bail,
an emergency response worker from the department accompanied the
mother to her new apartment to determine its suitability. The
emergency response worker observed old food on the counters,
dirty dishes piled in the sink, overflowing trash, black trash
bags piled around the apartment, and clothes strewn throughout.
On November 28, 2014, a department social worker made an
unannounced visit to the mother's apartment. Upon arriving, the
social worker heard the mother screaming and yelling obscenities
at Virgil. Once inside the apartment, the social worker
observed that the apartment was "filthy," filled with trash,
4
piles of clothes, and broken items. The department removed
Virgil from the mother's care that same day due to the mother's
mental health issues and the apartment's condition.
On December 1, 2014, the department filed a petition with
the Juvenile Court, pursuant to G. L. c. 119, § 24, asserting
that Virgil was in need of care and protection. The department
was granted emergency temporary custody. The mother thereafter
signed a service plan with the department but ultimately was
unable to complete any of the service plan tasks. Starting in
June of 2015, the mother failed to attend any of the scheduled
visits with Virgil. On August 18, 2015, the department filed
its notice of intent to seek termination of the mother's
parental rights to Virgil.
In September, 2015, the mother was referred to Habit Opco,
a drug abuse treatment facility, after she had been admitted to
Lawrence General Hospital for a drug overdose. Upon admission
to Habit Opco, the mother tested positive for opiates, cocaine,
and buprenorphine. The Habit Opco drug abuse treatment records
indicate that the mother informed counsellors that she started
using opiates five years prior to her admission and heroin four
months prior, and that she was currently using two bags of
heroin daily. From March of 2015 to March of 2016, the mother
was in and out of several shelters, was arrested for
trespassing, and was reprimanded by, as well as asked to leave,
5
various shelters for aggressive behavior. On March 16, 2016,
the mother entered a drug treatment program at Women's View,
where it was noted that she had a significant risk of relapse.
On April 8, 2016, in the middle of trial, the mother was
arrested and charged with breaking and entering. A few days
after her arrest she was allowed to reenter a shelter, where she
tested positive for benzodiazepines.
On or about December 4, 2015, and March 30, 2016, the
department filed motions for disclosure of the mother's
substance abuse treatment records from Habit Opco and Women's
View, respectively; both motions were allowed. After a seven-
day trial,4 the judge found the mother unfit and the child in
need of care and protection, terminated the mother's parental
rights, and declined to order posttermination and postadoption
visitation.
Discussion. 1. Termination of parental rights. In order
to terminate a parent's rights, the department must first prove
and the judge must find, based upon the record evidence, that
the parent is currently unfit to further the best interests and
welfare of the child, and, as a result, the child is in need of
care and protection. See Custody of a Minor, 389 Mass. 755, 766
(1983); Adoption of Ramona, 61 Mass. App. Ct. 260, 262-263
4 Trial was conducted on March 18, 30, and 31; April 13 and
28; and May 11 and 19, 2016.
6
(2004). A determination of parental unfitness must be supported
by clear and convincing evidence, and the subsidiary findings
upon which such unfitness determination is based must be "proved
by a fair preponderance of the evidence."5 Adoption of Helen,
429 Mass. 856, 859 (1999). The judge must not only find that
the parent is currently unfit, but must also find that the
current parental unfitness is not a temporary condition. See
Adoption of Jacques, 82 Mass. App. Ct. 601, 610 (2012). The
determination of parental unfitness is not focused on whether
the parent is a good one, but rather "whether the parent is so
bad as to place the child at serious risk of peril from abuse,
neglect, or other activity harmful to the child." Adoption of
Leland, 65 Mass. App. Ct. 580, 584 (2006), quoting from Care &
Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
"Parental unfitness means . . . more than ineptitude, handicap,
character flaw, conviction of a crime, unusual life style or
inability to do as good a job as the child's foster
parent. . . . '[P]arental unfitness' means 'grievous
shortcomings or handicaps' that put the child's welfare much at
hazard." Adoption of Leland, supra, quoting from Adoption of
5 A judge's subsidiary findings will not be disturbed on
appeal unless clearly erroneous. See Custody of Eleanor, 414
Mass. 795, 799 (1993); Adoption of Elena, 446 Mass. 24, 30-31
(2006). The unfitness determination is reviewed for clear and
convincing evidence. Custody of Eleanor, supra at 800.
7
Katharine, 42 Mass. App. Ct. 25, 28 (1997). A judge, however,
need not wait for disaster to happen but may rely upon past
patterns of parental neglect or misconduct in determining
current or future fitness. See Custody of a Minor (No. 1), 377
Mass. 876, 882-883 (1979); Care & Protection of Stephen, 401
Mass. 144, 152 (1987); Adoption of George, 27 Mass. App. Ct.
265, 268 (1989); Adoption of Jenna, 33 Mass. App. Ct. 739, 744
(1992).
Next, in this bifurcated analysis, if a judge finds that
the parent is currently unfit and that such unfitness is not a
temporary condition, termination of parental rights requires the
additional finding that such termination is in the child's best
interests.6 "After ascertaining unfitness, the judge must
determine whether the parent's unfitness is such that would it
be in the child's best interests to end all legal relations
between the parent and child." Adoption of Nancy, 443 Mass.
512, 515 (2005). In making that determination, "the court shall
consider the ability, capacity, fitness and readiness of the
child's parents . . . to assume parental responsibility," as
6 Upon a finding of unfitness, the child may be committed to
the custody of the department and the parent may retain all
other noncustodial parental rights. See Adoption of Carlos, 413
Mass. 339, 350 (1992). Termination of parental rights may or
may not be in the child's best interests. See id. at 350-351.
8
well as the plan proposed by the department. G. L. c. 210,
§ 3(c), as amended by St. 1999, c. 3, § 17.
"A judge, when deciding whether to dispense with consent to
adoption [i.e., termination of parental rights], must focus on
the present circumstances of the parent and the child, taking
into account recent positive gains (if any), and, in appropriate
cases, the likelihood of future improvement, in a parent's
ability to care for the child. Predictions must be supported by
credible evidence, meaning they must be more than hypothetical.
A judge may not decline to dispense with consent based on a
faint hope that the family will succeed if reunited. Evidence
of future fitness must be more substantial in proceedings to
dispense with consent to adoption than in a care and protection
case. An estimate about the future rests on a more solid basis
for justifying a temporary remedy ([such as] keeping the child
under care and protection) than for an irrevocable one such as
dispensing with consent to adoption" (emphasis supplied).
Adoption of Inez, 428 Mass. 717, 723 (1999) (quotations and
citation omitted). "In determining whether that extreme step
[of terminating parental rights] should be taken, consideration
of the future is a necessity." Adoption of Carlos, 413 Mass.
339, 350 (1992). See Adoption of Jacques, 82 Mass. App. Ct. at
610. "Consideration of future fitness, however, should never be
9
made at the expense of the child, whose interest is paramount."
Adoption of Inez, supra.
Here, the mother argues that the judge erroneously
determined her to be unfit and subsequently terminated her
parental rights based upon her homelessness and her inability to
gain employment, and that the judge should not have considered
her frequent change of housing because such ensuing instability
did not occur while she was living with Virgil. While
homelessness, poverty, and financial instability alone are not
sufficient to terminate a person's parental rights, they are
proper considerations in an unfitness determination. See Care &
Protection of Three Minors, 392 Mass. 704, 713 & n.12 (1984);
Petitions of the Dept. of Soc. Servs. to Dispense with Consent
to Adoption, 399 Mass. 279, 289 (1987) (failure to maintain
stable living arrangement or to maintain financial stability are
proper considerations in unfitness determination). Moreover,
contrary to the mother's argument, it is proper for a judge to
consider a parent's living arrangements at the time of trial
despite the fact that the child was not living with her at that
time. Furthermore, in addition to the mother's housing and
financial struggles, the judge also thoroughly considered the
mother's ongoing substance abuse issues, her emotional and
mental instability, her inability to attend to Virgil's hygiene
(which affected his health and well-being), her past patterns of
10
parental neglect and misconduct, her failure to engage in
remedial services, and her criminal activity. The record
reveals that the judge gave close and careful consideration to
all the evidence presented before making his findings, none of
which we find to be clearly erroneous.
2. Drug abuse treatment records. Relying on 42 U.S.C.
§ 290dd-2 (2012),7 the mother next argues that the judge
improperly admitted and relied upon inadmissible evidence
contained in her drug abuse treatment records. We disagree.
The general purpose of 42 U.S.C. § 290dd-2 is to protect
the confidentiality of drug abuse treatment records. See Whyte
v. Connecticut Mut. Life Ins. Co., 818 F.2d 1005, 1010 (1st Cir.
1987). However, both the statute and the applicable regulations
recognize situations in which release is necessary. 8 Such a
7 Title 42 U.S.C. § 290dd-2(a) provides that certain
substance abuse treatment records are "confidential and [can] be
disclosed only for the purposes and under the circumstances
expressly authorized." A disclosure is permitted "[i]f
authorized by an appropriate order of a court of competent
jurisdiction granted after application showing good cause
therefor . . . . In assessing good cause the court shall weigh
the public interest and the need for disclosure against the
injury to the patient, to the physician-patient relationship,
and to the treatment services. . . ." 42 U.S.C. 290dd-2(b).
8 Title 42 C.F.R. § 2.63 (1987) provides in relevant part:
"(a) A court order under these regulations may authorize
the disclosure of confidential communications made by a
patient to a . . . program in the course of diagnosis,
treatment, or referral for treatment only if:
11
situation exists "[i]f authorized by an appropriate order of a
court of competent jurisdiction granted after application
showing good cause therefor." 42 U.S.C. § 290dd-2(b)(2)(C).
Good cause exists only if: "(1) [o]ther ways of obtaining the
information are not available or would not be effective; and (2)
[t]he public interest and need for the disclosure outweigh the
potential injury to the patient, the physician-patient
relationship and the treatment services." 42 C.F.R. § 2.64(d)
(1987).
The mother does not appear to be challenging whether there
was good cause to disclose her drug abuse treatment records.
While we have not yet explicitly held that disclosure of a
parent's drug abuse treatment records in a care and protection
case meets the requirement of "good cause," we have long held
that "where a child's well-being is placed in issue, 'it is not
the rights of the parents that are chiefly to be considered.
The first and paramount duty is to consult the welfare of the
"(1) The disclosure is necessary to protect against an
existing threat to life or of serious bodily injury,
including circumstances which constitute suspected child
abuse and neglect and verbal threats against third parties;
(2) The disclosure is necessary in connection with
investigation or prosecution of an extremely serious crime,
such as one which directly threatens loss of life or
serious bodily injury, including homicide, rape,
kidnapping, armed robbery, assault with a deadly weapon, or
child abuse and neglect." (Emphases added.)
12
child.'" Custody of a Minor, 375 Mass. 733, 749 (1978), quoting
from Purinton v. Jamrock, 195 Mass. 187, 199 (1907). The United
States Supreme Court has addressed this issue and concluded that
"[t]he dependent child's needs are paramount, and only with
hesitancy would we relegate those needs, in the scale of
comparative values, to a position secondary to what the mother
claims as her rights." Wyman v. James, 400 U.S. 309, 318
(1971). Other jurisdictions have specifically addressed this
question.9
We see no reason not to extend such logic to the disclosure
of a parent's drug treatment records in a care and protection
case. A child's interests in these proceedings outweigh any
potential injury that the parent might face from disclosure of
9 See Doe v. Daviess County Div. of Children & Family
Servs., 669 N.E.2d 192, 195 (Ind. Ct. App. 1996) ("In child
neglect proceedings, the mother's right to the nondisclosure of
the records relating to her alcoholism, as well as testimony of
her counselor, must give way before the duty of the court to
prevent harm and to safeguard the physical, mental, and
emotional well-being of the child"); Matter of Baby X, 97 Mich.
App. 111, 120 (1980) ("[I]n neglect proceedings confidentiality
must give way to the best interests of the child. Where
treatment records are found to be 'necessary and material' . . .
to the state's proof of neglect, a court of competent
jurisdiction may authorize disclosure"); Matter of Doe Children,
93 Misc. 2d 479, 481 (N.Y. Fam. Ct. 1978) ("[T]he interest of
these young children in living in secure surroundings outweighs
any possible injury to the patient, or to the physician-patient
relationship"); Matter of Maximo M., 186 Misc. 2d 266, 269 (N.Y.
Fam. Ct. 2000) ("Good cause for disclosure has been found under
the Federal statutory standards in the context of a child
protective proceeding"). See also In re Marvin M., 48 Conn.
App. 563, 568-570 (1998).
13
his or her drug treatment records. Any interest a parent may
have in the confidentiality of treatment records must give way
to the interests of a child in being protected from physical,
mental, or emotional harm, as well as the interests of the
Commonwealth, as parens patriae, in protecting the child's
welfare. Here, because of the mother's significant history of
drug abuse, her participation, or lack thereof, in her various
treatment programs was highly relevant to the judge's
determination of her current and future fitness as well as the
child's best interests. See Adoption of Lisette, 93 Mass. App.
Ct. , (2018).
In addition to a showing of good cause, 42 C.F.R. § 2.64(e)
(1987) requires that an order of disclosure limit the
"disclosure to those parts of the patient's record which are
essential to fulfill the objective of the order." Here, the
judge stated in his orders allowing the department's motions
that "[t]he safety and best interests of the child in this
matter constitutes good cause, within the meaning of 42 U.S.C.
§ 290dd-2(b)(2)(C) to order disclosure of these records" and
that the "records are subject to limited confidentiality under
G. L. c. 111E, § 18 and 42 U.S.C. § 290dd et seq." We see no
error.
Finally, the mother argues that she did not receive
adequate notice to respond to the department's motions seeking
14
disclosure of her drug abuse treatment records, as required by
42 C.F.R. § 2.64 (1987), because the department's motions were
filed and allowed on the same day.10 We disagree. While it
would have been better practice to have given her more advance
notice and opportunity to be heard, under the circumstances of
this case she was not prejudiced. The mother was present in
open court at the time the department filed the motions. She
had ample time to file appropriate motions, including a request
for an in-camera hearing before the records were disclosed.11
10 Title 42 C.F.R. § 2.64 provides, in pertinent part:
"(b) Notice. The patient and the person holding the
records from whom disclosure is sought must be provided:
"(1) Adequate notice in a manner which does not disclose
patient identifying information to other persons; and
"(2) An opportunity to file a written response to the
application, or to appear in person, for the limited
purpose of providing evidence on the statutory and
regulatory criteria for the issuance of the court order as
described in § 2.64(d).
"(c) Review of evidence: Conduct of hearing. Any oral
argument, review of evidence, or hearing on the application
must be held in the judge's chambers or in some manner
which ensures that patient identifying information is not
disclosed to anyone other than a party to the proceeding,
the patient, or the person holding the record, unless the
patient requests an open hearing in a manner which meets
the written consent requirements of the regulations in this
part. The proceeding may include an examination by the
judge of the patient records referred to in the
application."
11The department's motion seeking disclosure of Habit
Opco's records was filed on December 4, 2015. The judge allowed
15
She failed to make any such request and later waived any
possible objection by testifying about the contents of the
records at trial.12 We would be hard pressed to conclude that,
under these circumstances, the mother was not provided with
adequate notice and an opportunity to be heard.
3. Posttermination and postadoption visitation. The
mother also argues that the judge erred in declining to order
posttermination and postadoption visitation between the mother
and Virgil. "The decision whether to grant posttermination
visitation is within the judge's sound discretion." Adoption of
Cecily, 83 Mass. App. Ct. 719, 727-728 (2013). However, such
discretion is not unfettered; posttermination visitation "must
the department's motion that same day. The subpoena for these
records did not issue until February 11, 2016. The records were
admitted in evidence on March 30, 2016, three months after the
department filed its motion. The department's motion seeking
disclosure of Women's View's records was filed on March 30,
2016. The judge allowed the department's motion that same day,
and the subpoena issued on April 1, 2016. The records were
admitted in evidence on April 28, 2016, almost one month after
the department filed its motion.
We note that "[a court] order does not compel disclosure.
A subpoena or a similar legal mandate must be issued in order to
compel disclosure. This mandate may be entered at the same time
as and accompany an authorizing court order entered under the
regulations in this part." 42 C.F.R. § 2.61(a) (1987).
12Disclosure of treatment records is authorized if "[t]he
disclosure is in connection with litigation or an administrative
proceeding in which the patient offers testimony or other
evidence pertaining to the content of the confidential
communications." 42 C.F.R. § 2.63(a)(3).
16
be grounded in the over-all best interests of the child, based
on emotional bonding and other circumstances of the actual
personal relationship of the child and the biological parent,
not in the rights of the biological parent [or] the legal
consequences of their natural relation." Adoption of Terrence,
57 Mass. App. Ct. 832, 839 (2003), quoting from Adoption of
Vito, 431 Mass. 550, 562 (2000). Although a psychologist
recommended that supervised visits should continue if the mother
can "maintain her emotional stability," the judge found that an
order of visitation was not in Virgil's best interests. The
judge based his decision on the mother's failure to maintain
consistent visits with Virgil, her inability to address her
ongoing mental instability and drug addiction, and her inability
to obtain stable housing. The judge also took into
consideration how the mother's instability has affected Virgil's
emotional well-being. The record shows that the judge carefully
considered the best interests of Virgil in declining to order
posttermination and postadoption visitation. The judge did not
abuse his discretion.
Decree affirmed.