Adoption of Lisette

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
17-P-644 Appeals Court
ADOPTION OF LISETTE (and a companion case1).
No. 17-P-644.
Essex. December 1, 2017. - May 30, 2018.
Present: Agnes, Blake, & McDonough, JJ.
Adoption, Care and protection, Dispensing with parent's consent.
Minor, Adoption. Parent and Child, Adoption, Dispensing
with parent's consent to adoption. Evidence, Medical
record.
Petitions filed in the Essex County Division of the
Juvenile Court Department on February 10, 2014, and October 2,
2014.
The cases were heard by José A. Sánchez, J.
Robert E. Curtis, Jr., for the mother.
Brian Pariser for Department of Children and Families.
Debra Perrotta Dow for the children.
McDONOUGH, J. In this case, we are called on to balance
two compelling interests: the need to protect the privacy of
persons seeking drug rehabilitation treatment from having their
1 Adoption of Adam. The children's names are pseudonyms.
2
treatment records disclosed against their will, and the crucial
need to protect children from abuse and neglect and promote
their best interests. We conclude that under the limited
circumstances of this case, the best interests of the children
outweigh the mother's right to confidentiality in information
concerning her treatment.
Following a trial in the Juvenile Court in 2016, the judge
found the mother unfit2 to care for her two children, Lisette and
Adam, and that termination of her parental rights was in their
best interests. See G. L. c. 119, § 26; G. L. c. 210, § 3. On
appeal, the mother contends that the judge erred by (1) ordering
the drug rehabilitation program in which she was enrolled to
produce an affidavit giving the reasons for her departure from
that program; and (2) failing to find a nexus between her
"shortcomings" and a risk of harm to the children. We affirm
the decrees entered by the Juvenile Court judge terminating the
mother's parental rights.
2 Despite the moral overtones of the statutory term "unfit,"
the judge's decision is not a moral judgment, nor is it a
determination that the parent does not love the children. The
question for the judge is "whether the parent's deficiencies
'place the child[ren] at serious risk of peril from abuse,
neglect, or other activity harmful to the child[ren].'"
Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting
from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761
(1998).
3
Background. The following facts found by the judge are
amply supported by the record.3 In 2007, the mother gave birth
to Lisette. The mother and Lisette's biological father were in
a relationship at the time, but are no longer together.4 The
mother later began a relationship with Adam's father, and Adam
was born in December of 2013.5 The mother continued to have an
on-and-off relationship with Adam's father up through the time
of trial.
The mother has an extensive history with the Department of
Children and Families (department), and a long history of
substance abuse and domestic violence. She "has a consistent
pattern of abusing heroin and failing to engage in services to
help her maintain her sobriety." She tested positive for
opiates when admitted to the hospital prior to Adam's birth in
December of 2013, and tested positive for benzodiazepines in
January of 2014. The mother also admitted that she used cocaine
from September of 2015 until she enrolled, just before trial, in
a rehabilitation program in March of 2016.
3 The mother does not challenge the judge's factual
findings, aside from two specific findings discussed in more
detail infra.
4 Lisette's father stipulated to his unfitness at trial, and
is not a party to this appeal.
5 Adam's father did not participate in the proceedings below
and has not appealed from the termination of his parental
rights.
4
The mother also has a history of domestic violence with
both of the children's fathers. In July of 2014, police
responded to the mother's home for reports of a domestic
disturbance between her and Adam's father. One month later, the
mother obtained a G. L. c. 209A restraining order against Adam's
father, stating in her affidavit that he spit in her face,
grabbed her throat and choked her, then grabbed her hair and
threatened to kill her. After she locked him out of the house,
he tried to reenter through a window. When the mother tried to
stop him, he pulled her halfway out the window by her hair. On
another occasion, the mother testified that Adam's father tied
her up with an electric cord. Despite her reported concerns
about Adam's father and her active restraining order against
him, the mother continued to allow him in her home. The
department filed a care and protection petition on behalf of
Lisette after receiving a report that Lisette found Adam's
father in the mother's bed. After a temporary custody hearing,
the judge granted the department custody of Lisette, and she has
remained in the department's custody since then.
Adam first came to the department's attention in December,
2013, at just five days old. He was born when the mother was
twenty-six weeks pregnant, and he tested positive for methadone
at birth. The mother also tested positive for methadone and
opiates when she arrived at the hospital to give birth to Adam.
5
Adam was diagnosed with Klinefelter syndrome, a rare condition
characterized by an XXY chromosome, resulting in medical and
behavioral complications including delayed speech, learning
disabilities, and behavioral problems. Due to his premature
birth and his diagnosis of Klinefelter syndrome, Adam presented
with challenging medical issues necessitating numerous specialty
appointments. These conditions caused feeding problems
requiring a special formula and special bottle nipples so he
could eat.
The hospital set up training for the mother to teach her
how to make Adam's special formula. When the mother failed to
attend, the hospital rescheduled the training to the following
day. The mother arrived late to the training, and she failed to
purchase the necessary bottle nipples. The mother then failed
to show up for another training session. Prior to Adam's
expected discharge, the hospital encouraged the mother to spend
more time at the hospital to ensure that she learned his proper
care. The hospital's social worker described the mother's
visits as "infrequent and sporadic." The hospital social worker
informed the department that the mother failed to provide a
prescription for Adam's seizure medication, failed to provide
the special bottle nipples for his feedings, and failed to
provide his insurance information. Several days later, the
department filed a care and protection petition for Adam and
6
took emergency custody of him. Following his hospital
discharge, the department placed him in foster care, where he
remains.
During trial, the department learned that the inpatient
rehabilitation treatment program (program) where the mother had
been enrolled had discharged her. The department subpoenaed the
mother's program records relating to the reasons for her
discharge. Citing the patient confidentiality provisions set
forth in 42 U.S.C. § 290dd-2 (2012), the program manager
objected to the department's subpoena. At a hearing on the
program manager's objection, the judge suggested -- as a less
intrusive alternative -- that he order the program manager to
prepare an affidavit limited to the circumstances of the
mother's discharge. The parties, including the mother's
counsel, agreed,6 and the next day the program manager submitted
the affidavit,7 which the judge admitted in evidence over the
6 The mother's counsel supported the judge's proposed
affidavit alternative, saying: "I think the affidavit is great.
I don't have a problem with that." Nevertheless, the judge made
clear that the parties' acceptance of his affidavit alternative
was "[w]ithout waiving any objection." The next day, when the
department offered the program manager's affidavit in evidence,
the mother's counsel objected.
7 In her affidavit, the program manager stated that "[i]n
accordance with the [program's] Progressive Discipline Policy,
[the mother] was terminated from the [program] on May 16, 2016,
after receiving four (4) Safety Notices." The mother received
the notices after twice failing to sign back into the program
after appointments and for having cigarettes in her room. The
7
mother's objection. The mother contends that the judge admitted
the program manager's affidavit in violation of the
confidentiality provisions of 42 U.S.C. § 290dd-2.
Discussion. 1. Disclosure of treatment records. Title 42
U.S.C. § 290dd-2(a) provides that "[r]ecords of the identity,
diagnosis, prognosis, or treatment of any patient which are
maintained in connection with the performance of any program or
activity relating to substance abuse education, prevention,
training, treatment, rehabilitation, or research, which is
conducted, regulated, or directly or indirectly assisted by any
department or agency of the United States shall . . . be
confidential. . . ." The broad purpose of the statute is to
protect the confidentiality of persons seeking treatment for
substance abuse. See Whyte v. Connecticut Mut. Life Ins. Co.,
818 F.2d 1005, 1010 (1st Cir. 1987).8 However, while the statute
fourth notice issued after the mother (1) returned from an
appointment apparently under the influence of "some substance,"
despite a drug screen that came back clean, and (2) for being
unaccounted for on the next day for some two and one-half hours,
returning apparently under the influence of an unknown
substance. The program's disciplinary policy states that after
receiving three notices, a resident may be terminated from the
program.
8 The Whyte decision refers to a prior version of the
statute, before it was reorganized and renumbered in 1992; the
language of the statute has not materially changed. See Act
July 10, 1992, P.L. 102-321, Title I, Subtitle C, § 131, 106
Stat. 366. At the time of the decision in Whyte, regulations
barred the disclosure of all communications; only "objective
data" was subject to disclosure. See 42 C.F.R. § 2.63 (1975).
8
protects treatment records and their content from disclosure
absent patient consent, Congress recognized that in limited
circumstances, release of protected information might be
necessary. See 42 U.S.C. § 290dd-2(b); 42 C.F.R. § 2.64 (1987).
One such circumstance is where disclosure is "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). Regulations promulgated pursuant to that
After the decision in Whyte, the regulation was amended to allow
for the court-ordered disclosure of "confidential
communications" as well. See 42 C.F.R. § 2.63 (1987), which
permitted court orders authorizing disclosure of confidential
communications between a patient and treatment program only if:
"(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; or
"(3) The 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."
We note that 42 C.F.R. § 2.63(2) was amended in 2017 to read as
follows: "The disclosure is necessary in connection with
investigation or prosecution of an extremely serious crime
allegedly committed by the patient, 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."
9
statute require that a court's determination of "good cause" be
based on two findings: "(1) Other ways of obtaining the
information are not available or would not be effective; and (2)
The 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).
If good cause is established, the court must limit disclosure to
those portions of the records that are "essential to fulfill the
objective of the order." 42 C.F.R. § 2.64(e). In addition, 42
C.F.R. § 2.61(a) (1987) provides that "[a]n order of a court of
competent jurisdiction entered under this subpart is a unique
kind of court order. Its only purpose is to authorize a
disclosure or use of patient information which would otherwise
be prohibited by 42 U.S.C. [§] 290dd-2 and the regulations in
this part. Such an 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."9
a. Other available effective methods. Our first task is
to determine whether there was another available effective way
9 Here, there was both a subpoena issued by the department
to the program and an order issued by the judge, thereby
compelling the production of the program manager's affidavit at
issue.
10
to obtain the program discharge information other than by
affidavit based on facts derived from the mother's program
records. In its subpoena to the program manager, the department
sought "[a]ny documents and information regarding the discharge
of [the mother]." At the hearing on the program manager's
objection to the subpoena, the department's counsel made clear
that the department sought only information about the
circumstances of the mother's discharge from the program and any
documentation relating to that narrow issue. The judge
determined that an affidavit narrowly tailored to the reasons
for the mother's discharge would sufficiently cover the issue
the department sought to explore at trial. Counsel for both the
mother and the program agreed that an affidavit so limited would
be preferable to disclosing any of the mother's treatment
records.
On appeal, the mother maintains that the department had
other sources from which to obtain this evidence, namely, either
her own testimony or the testimony of the department's social
worker assigned to the mother's case. In making her argument,
the mother overlooks significant evidentiary obstacles.
Testimony from the department social worker about what the
program's staff told her about the mother's discharge would
11
constitute inadmissible hearsay.10,11 See generally Mass. G.
Evid. § 801 (2018). Furthermore, putting aside the hearsay
problem, even were the mother to authorize the program to
disclose to the department's social worker the details of the
mother's discharge, regulations promulgated under 42 U.S.C.
§ 290dd-2 would bar the social worker from redisclosing that
information in court, without the mother's consent. See 42
C.F.R. § 2.32(a)(1) (1987) (disclosures made with patient's
consent must be accompanied by notice stating that "federal
rules prohibit you from making any further disclosure of
information in this record"). With regard to the mother's
testimony explaining her discharge, the judge determined that
absent an independent source, he doubted he could rely on the
mother's testimony alone. This decision was well within the
judge's discretion. See Care & Protection of Three Minors, 392
Mass. 704, 711 (1984) (judge is not required to view evidence
10Indeed, when a different social worker testified, the
judge sustained objections to questions about what the program's
staff told him about the mother's level of compliance.
11While it is true that certain types of hearsay are
admissible in care and protection proceedings, it does not
appear that any of those exceptions would have governed this
issue. See Care & Protection of Rebecca, 419 Mass. 67, 80-81
(1994) (child's hearsay statements regarding sexual abuse
admissible pursuant to G. L. c. 233, § 83); Custody of Michel,
28 Mass. App. Ct. 260, 265-268 (1990) (hearsay contained in
investigator's reports and in G. L. c. 119, §§ 51A and 51B,
reports admissible). See also Mass. G. Evid. § 1115 (2018).
12
from mother's perspective). Thus, we agree with the judge that
there was no available effective way for the department to
provide evidence of the circumstances surrounding the mother's
discharge from the program, other than through the program
manager's affidavit.
b. Need for disclosure. Having concluded that other than
obtaining the program manager's affidavit, there existed no
effective means for the department to obtain admissible evidence
of the circumstances of the mother's program discharge, we turn
to the second step of 42 C.F.R. § 2.64(d): weighing the public
interest and need for disclosure against the potential injury to
the mother, the physician-patient relationship, and the
treatment program. In assessing the public interest, our courts
have long held that in care and protection matters, the
interests of a child in being free from abuse and neglect, and
the Commonwealth's interests in protecting the child's welfare,
outweighs the concerns of the parent. See Custody of a Minor,
375 Mass. 733, 749 (1978), quoting from Purinton v. Jamrock, 195
Mass. 187, 199 (1907) ("[W]here 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 child'"); Care & Protection of Robert, 408
Mass. 52, 62 (1990) ("The child's interest in freedom from
abusive or neglectful behavior, however, is absolute. In no
13
situation may a child be legitimately subjected to abusive or
neglectful conditions").12
The need for the narrowly tailored evidence explaining the
mother's discharge from the program also supports disclosure.
The purpose of care and protection proceedings is "to insure the
rights of any child to sound health and normal physical, mental,
spiritual and moral development." G. L. c. 119, § 1, as amended
by St. 2008, c. 176, § 82. Here, the judge decided that
evidence of the circumstances of the mother's discharge from the
treatment program was an important component of his fitness
determination, and concluded that, "because the underlying
allegations involve a significant repetitive history of
substance abuse and her failure to engage in services that would
remedy the circumstances that led to the filing of this care and
protection [petition], I have to find that there is good cause
for a disclosure of the records." Thus, both the public
interest and the need for the judge to learn the circumstances
12Courts of other jurisdictions have reached similar
conclusions when applying 42 U.S.C. § 290dd-2 to cases involving
children's welfare. See Doe v. Daviess County Div. of Children
& Family Servs., 669 N.E.2d 192, 195 (Ind. Ct. App. 1996)
(mother's right to nondisclosure "must give way before the duty
of the court to prevent harm and to safeguard . . . 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"). The Doe and Baby X opinions refer to the
statute prior to the 1992 reorganization and renumbering. See
note 8, supra.
14
of the mother's program discharge weigh heavily in favor of
disclosure.
In contrast, any risk of injury to the mother, to the
physician-patient relationship, and to the treatment program, is
negligible. As the judge noted, the private nature of a
Juvenile Court proceeding, and the fact that the records of the
proceedings below are impounded and therefore not open to
indiscriminate public inspection, minimizes the likelihood of
the mother's treatment becoming a matter of public record. See
G. L. c. 119, § 38; G. L. c. 210, § 5C. In addition, any impact
on the mother's physician-patient relationship with the program
is, at best, minimal because her treatment at that program had
already ended by the time the department subpoenaed her records.
Nor can she credibly contend that releasing the limited
information derived from her records deterred her from seeking
treatment elsewhere, since she subsequently identified a
different program in which she intended to enroll. Finally, the
mother herself opened the door to an exploration of her program
compliance by testifying that she was in substantial compliance
with its rules. And, as counsel for the parties agreed, the
program manager's narrowly focused affidavit explaining the
reasons for her discharge was preferable to the release of any
of her treatment records. This limited disclosure, combined
with the program's zealous protection of its patients' rights in
15
contesting the department's subpoena, minimizes any risk of
injury to the program.
Because the interests of the children in being free from
abuse and neglect substantially outweigh any unlikely injury to
the mother from this limited disclosure of confidential
information, we conclude that the judge had good cause to order
the program manager to disclose by affidavit the reasons for the
mother's discharge from her treatment program, in accordance
with 42 U.S.C § 290dd-2.13 See Adoption of Virgil, 93 Mass. App.
Ct. , (2018).
2. Determination of unfitness and termination of parental
rights. The mother also argues that the judge erred in his
unfitness conclusion because he failed to connect the unfitness
finding to any risk of harm to the children. We review the
decision of the judge to determine whether there was any abuse
of discretion or error of law. Adoption of Hugo, 428 Mass. 219,
225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S.
1134 (1999). We review findings of fact under the familiar
"clearly erroneous" standard. See Adoption of Adam, 23 Mass.
App. Ct. 922, 924 (1986); Adoption of Jacques, 82 Mass. App. Ct.
Therefore, the mother's contention that the judge was
13
clearly erroneous in finding that her discharge from the program
was based on "violations of policy" must fail. If the judge
properly admitted the affidavit, there was evidence to support
the judge's finding.
16
601, 606-607 (2012). In doing so, we grant substantial
deference to the judge's decision, because a "judge who hears
the evidence, observes the parties, and is most familiar with
the circumstances remains in the best position to make the
judgment [regarding fitness]." Guardianship of Estelle, 70
Mass. App. Ct. 575, 579 (2007).
"The interest of parents in their relationship with their
children [is] fundamental [and] constitutionally protected."
Petition of the Dept. of Pub. Welfare to Dispense with Consent
to Adoption, 383 Mass. 573, 587 (1981) (quotation omitted). A
State's intervention into a family is justified only if the
parents are "shown to have grievous shortcomings or handicaps
that would put the child's welfare in the family milieu much at
hazard." Petition of the New England Home for Little Wanderers
to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975).
"[T]he term 'unfitness' signifies something more than a
standard by which we measure the limits of acceptable parental
conduct[; it] is a standard by which we measure the
circumstances within the family as they affect the child's
welfare." Petition of the Dept. of Pub. Welfare to Dispense
with Consent to Adoption, 383 Mass. at 589. It requires careful
consideration, reflecting the unique facts present in each case,
of the capacity of the parents to care for the child. See
Freeman v. Chaplic, 388 Mass. 398, 405 (1983). The department
17
bears the burden of proving parental unfitness by clear and
convincing evidence.14 Adoption of Lorna, 46 Mass. App. Ct. 134,
139 (1999).
The welfare of the child is the most important
consideration when determining parental fitness. See Petition
of the Dept. of Pub. Welfare to Dispense with Consent to
Adoption, 383 Mass. at 589. "[T]he critical question is whether
the natural parents are currently fit to further the welfare and
best interests of the child." Bezio v. Patenaude, 381 Mass.
563, 576 (1980). The parental unfitness test and the best
interests of the child test are not mutually exclusive, but
rather reflect different degrees of emphasis on the same
factors. See Adoption of Kimberly, 414 Mass. 526, 528 (1993).
We disagree with the mother's contention that the judge's
findings of fact do not support his determination that she is
unfit, and that he failed to connect his findings regarding her
unfitness to any risk of harm to the children. On the contrary,
the judge explicitly connected his findings to the risk of harm
to the children should they be returned to her custody.
Specifically, the judge found that "[the mother] has also failed
to adequately address the domestic violence in the home or
14Clear and convincing evidence is evidence that is
"strong, positive and free from doubt." Stone v. Essex County
Newspapers, Inc., 367 Mass. 849, 871 (1975) (quotation omitted).
18
complete a domestic violence program." He found that she "was
involved in several abusive relationships and suffered vicious
beatings at the hands of her abusers." However, despite vowing
to end her abusive relationships and even obtaining a
restraining order against Adam's father, she continued to
associate with him on numerous occasions. Finding that "[t]here
is no evidence that [the mother] completed any domestic violence
program or would not repeat this vicious cycle again," the judge
concluded, "[the mother's] inability to extricate herself from
these abusive relationships bears on her ability to protect the
subject children from the grievous type of harm." See Adoption
of Zak, 87 Mass. App. Ct. 540, 543 (2015), quoting from Custody
of Vaughn, 422 Mass. 590, 595, 599 (2015) ("[W]itnessing
domestic violence, as well as being one of its victims, has a
profound impact on children. . . . [A] child who has been
either the victim or the spectator of such abuse suffers a
distinctly grievous kind of harm").15
15The mother's argument that any domestic violence occurred
when the children were at school, and thus was not witnessed by
or directed toward them, is unpersuasive. A parent's
willingness to ignore or minimize abusive behavior can be an
indicator of unfitness, regardless of whether the child is at
risk of abuse or witnessing abuse. See Adoption of Anton, 72
Mass. App. Ct. 667, 674-675 (2008) (mother's refusal to end
relationship with man convicted of child sexual abuse properly
considered by judge despite no evidence that subject child was
at risk of abuse).
19
With regard to drug abuse, the judge concluded that "[the
mother] has longstanding addiction issues and has relapsed
several times prior to and since the initiation of these
petitions." He also found that "[i]n over two years since
[Adam] has been removed from her custody, [the mother] has not
been able to complete a substance abuse program," and that when
she did enroll in such a program, the program terminated her for
noncompliance after only ten weeks. The judge did not credit
the mother's testimony that she had been drug-free since 2003
and that she only started abusing drugs again once the
department removed the children from her care. That testimony
conflicted with evidence of positive drug tests in December of
2013 and January of 2014, as well as an incident in September of
2015 when police found her incoherent with "track marks" on her
arms. Finally, the judge noted that the mother failed to
complete a substance abuse treatment program, having enrolled in
a program shortly before trial some two years after the removal
of the children. He concluded that "[the mother] has not taken
action to remedy . . . her repeated drug use . . . and is unable
to see how these issues negatively [a]ffect the subject
children. . . . [The m]other has clearly demonstrated an
enduring inability to parent the subject child[ren]."
As to Adam, the judge again connected his findings to the
risk of harm to the child. Specifically, he found that "[Adam]
20
has substantial medical and emotional needs due to his premature
birth and genetic condition." The judge also found that "[the
mother] does not fully understand the scope of his medical
issues as she did not think that it was important to meet with
his dietician[16] or obtain the necessary feeding implements and
stated to the court investigator that the [d]epartment was
making it seem like he was sicker than he was." He concluded,
"[the mother] has little understanding of [the child's]
substantial medical issues, and developmental delays and is
unwilling and/or unable to provide the constant supervision and
consistency for his social, emotional, and physical well-being."
The record well supports these findings. See Adoption of
Oliver, 28 Mass. App. Ct. 620, 625-626 (1990) (parental
unfitness can be established where child has substantial needs
16The mother takes issue with this finding because the
judge relied on a statement contained in a G. L. c. 119, § 51A,
report (51A report), admitted during Adam's temporary custody
hearing, but not admitted at trial. Without expressing an
opinion on the propriety of the judge's decision to consider a
51A report that was not admitted in evidence, we note that there
is ample evidence in the record from which the judge could infer
that the mother did not take Adam's medical issues seriously.
Specifically, the judge found that the mother (1) did not appear
for the initial appointment with the hospital, (2) was late to
the rescheduled appointment and did not bring the necessary
bottle nipples, (3) had infrequent and sporadic visits with Adam
at the hospital, (4) failed to provide the prescription for
Adam's seizure medication, and (5) told an investigator that
Adam was not sickly and that the department made him out to be
sicker than he actually was. The mother does not contest these
findings.
21
requiring extraordinary attentiveness from caregiver and where
parent has little or no understanding of those needs, or
willingness or ability to meet them); Petitions of the Dept. of
Social Servs. to Dispense with Consent to Adoption, 389 Mass.
793, 799-800 (1983) (specialized needs of particular child
considered with parent's character, temperament, capacity, or
conduct may clearly establish parental unfitness).
Thus, we conclude that the record is replete with evidence
supporting the judge's unfitness determination. The judge's
findings are detailed and thorough, and show that he gave the
case his close attention. See Custody of a Minor (No. 1), 377
Mass. 876, 886 (1979). The record belies the mother's argument
that the judge's findings are insufficient to support his
conclusions. We think it plain that the mother simply views the
evidence differently from how the judge viewed it. The judge is
not required to view the evidence from the parent's perspective.
See Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 n.3
(2003), quoting from Anderson v. Bessemer City, 470 U.S. 564,
573-574 (1985) ("Where there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
erroneous").
After a determination of unfitness, a "judge must determine
whether the parent's unfitness is such that it would be in the
child[ren]'s best interests to end all legal relations between
22
parent and child[ren]." Adoption of Nancy, 443 Mass. 512, 515
(2005). In order to terminate a parent's parental rights, the
unfitness element must be so probative and persuasive that it
can serve as a predicate for finding that the unfitness will
continue undiminished into the future, affecting the welfare of
the child. See Adoption of Carlos, 413 Mass. 339, 350 (1992).
While consideration of the reasonable likelihood that a parent's
unfitness at the time of trial may only be temporary is
appropriate, such a prediction must rely "upon credible evidence
rather than mere hypothesis or faint hope." Adoption of Serge,
52 Mass. App. Ct. 1, 7 (2001) (quotation omitted). See Adoption
of Carlos, supra.17
As noted supra, the judge's finding that the mother is
currently unfit was clearly and convincingly supported by the
evidence presented at trial. The judge found, "[the mother] has
longstanding issues with drug abuse and domestic violence which
she has not adequately addressed. . . . She has not taken
action to remedy either her repeated drug use or repeated
abusive relationships and is unable to see how these issues
negatively [a]ffect the subject children. She remains
17"'[A] condition which is reasonably likely to continue
for a prolonged indeterminate period, such as alcohol or drug
addiction . . . [that] makes the parent . . . unlikely to
provide minimally acceptable care of the child' is not a
temporary condition." Adoption of Elena, 446 Mass. 24, 31
(2006), quoting from G. L. c. 210, § 3(c)(xii).
23
noncompliant with several service plan tasks." Based on these
findings, the judge concluded that the mother remains unfit to
care for the children and that her unfitness is likely to
continue indefinitely. There was no error in the judge's
conclusions.
In this case, the judge made meticulous findings, amply
supported by the record, supporting his conclusion that the
mother's long-standing substance abuse and her inability to
extricate herself from violent relationships were unlikely to be
resolved in the future. In addition, the record supports the
judge's conclusion that the mother is unable to provide adequate
medical care for Adam, for whom she has never been the primary
caregiver. The judge noted in his findings that Adam's
preadoptive parents, with whom he has lived since his hospital
discharge, have provided satisfactory care for the child, and
that notwithstanding his medical challenges, he continues to
make improvements. The judge also found that Lisette has made
significant improvements since her removal from the mother's
custody, especially improving in school and with her behavioral
issues. It has now been more than two years since the
children's placement in the department's custody. At some
point, the judge must say "enough," and act in the best
interests of the children. Adoption of Nancy, 443 Mass. at 517
("[C]hildren deserve permanence and stability"). See Adoption
24
of Ilona, 459 Mass. 53, 60 (2011) ("Because childhood is
fleeting, a parent's unfitness is not temporary if it is
reasonably likely to continue for a prolonged or indeterminate
period").
Conclusion. For the reasons stated, there was no error in
the termination of the mother's parental rights.
Decrees affirmed.