Opinion
20-P-1152
06-08-2021
ADOPTION OF GILES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a decree finding her unfit to parent her son, Giles, and terminating her parental rights to him. The mother contends that the judge erroneously relied on inadmissible hearsay and opinion evidence. She further claims that the evidence was insufficient to permit a finding of unfitness. We affirm.
The father consented to termination of his parental rights on May 9, 2019 and is not a party to this appeal.
Background. We summarize the judge's factual findings, reserving some findings for later discussion. The Department of Children and Families (DCF) took custody of Giles after he was born substance exposed. A substantiated report prepared pursuant to G. L. c. 119, § 51B (51B report), stated that the mother admitted to using cocaine on Thanksgiving, prior to the child's birth, after seeing father with another woman. The child was placed with the paternal grandmother on his discharge from the hospital on December 1, 2017.
The mother has a long history with DCF. In 2013, DCF substantiated allegations of neglect of the mother's two older children due to the mother's substance abuse. The judge credited the mother's testimony that she abused opioids and alcohol for a period of five to six years and had been in and out of treatment for the three years preceding trial. The mother entered several hospitals, as well as detoxification (detox) and substance abuse treatment programs. However, she relapsed on several occasions after leaving highly structured detox programs and attempting to participate in less structured programs or sober homes.
After DCF took custody of Giles in late 2017, the mother again sought treatment for substance abuse, but was once again unable to successfully navigate the transition from structured program to community-based care. DCF's permanency goal for Giles changed to adoption by the paternal grandmother in August 2018, after a sober home terminated the mother's participation in July of 2018. The mother provided no drug screens to DCF between August and November of 2018, and was admitted to a detox program at the Danvers Treatment Center on November 27, 2018. She was not in contact with DCF from late October to late November 2018, when she entered the detox program. She has remained drug free since that time.
At the time of trial the mother had a long-term plan to remain in a structured treatment program and testified that this was what she needed. She estimated that she would be in structured treatment for six to nine months, after which she would move to a less structured community-based program for a substantial period of time. Giles has remained with the paternal grandmother, who has also adopted the mother's oldest child.
After a two-day trial, the judge found that the mother was unable to care for Giles due to her recurrent substance abuse and that her inability to care for him was likely to last indefinitely. The judge terminated the mother's parental rights. The judge also found that there was a bond between Giles and the mother and that posttermination and postadoption visitation was in his best interests.
Discussion. "To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's ‘best interests will be served by terminating the legal relation between parent and child.’ " Adoption of Luc, 484 Mass. 139, 144 (2020), quoting Adoption of Ilona, 459 Mass. 53, 59 (2011). We "will reverse only ‘where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion.’ " Id., quoting Adoption of Ilona, supra.
1. Admissible evidence. The mother contends that the judge erred in admitting multilevel hearsay evidence and improper opinion evidence contained in DCF investigatory, case status, and 51B reports. She also argues the affidavit accompanying the care and protection petition was part of a pleading and should not have been admitted as evidence. See G. L. c. 231, § 87.
Prior to trial, which was held before the Supreme Judicial Court issued its decision in Adoption of Luc, 484 Mass. 139, the mother filed two motions in limine to preclude the admission of statements in DCF documents and court investigator reports.
As a general matter, the admissibility of DCF investigatory reports is governed by G. L. c. 119, § 21A, which permits reports "by any person who has made an investigation of the facts relating to the welfare of the child and is qualified as an expert according to the rules of the common law or by statute." See Adoption of Luc, 484 Mass. at 150-151. Generally, "reports prepared by the departmental ‘investigation of the facts relating to the welfare of the child’ may be admitted in evidence at the discretion of the judge." Care & Protection of Zita, 455 Mass. 272, 280 (2009), quoting G. L. c. 119, § 21A. The admissibility of this evidence is " ‘limited to a statement of facts, or redacted to exclude opinion, diagnosis or evaluation’ ... [and] the opposing parties must ‘be able to cross-examine the author of the report, should they request to do so.’ " Care & Protection of Zita, supra, quoting Care & Protection of Bruce, 44 Mass. App. Ct. 758, 766 (1998).
The mother's arguments that Adoption of Luc, 484 Mass. 139, is not retroactive are without merit. This court's decision was then in effect. See Adoption of Luc, 94 Mass. App. Ct. 565 (2018). Furthermore, the Supreme Judicial Court in its decision summarized and clarified existing common law rules of evidence. See Adoption of Luc, 484 Mass. at 149-154.
At trial, the mother challenged the admissibility of the 51B reports, which contained statements attributed to individuals interviewed by DCF workers. It has long been the law that the "judge may ... rely on statements of fact contained in 51B reports, as those records are admissible as ‘required government report[s].’ " Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019), quoting Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990). See Mass. G. Evid. § 1115(b)(2)(B) (2021). "[F]irst- and second-level hearsay contained within DCF reports and official DCF records is admissible for statements of primary fact, so long as the hearsay source is specifically identified in the document and is available for cross-examination" (footnotes omitted). Adoption of Luc, 484 Mass. at 153-154. We address each of the mother's specific challenges below.
a. Hospital social worker. The mother filed a motion in limine to exclude second-level hearsay statements made by a social worker employed at Massachusetts General Hospital and contained in a March 19, 2013, 51B report. The DCF social worker spoke to the hospital social worker, who confirmed that the mother's second child tested positive for oxymorphone, marijuana, and morphine at birth. These were statements of fact contained in the report and were properly admitted, subject to the mother's right to call that witness or others to dispute the contents of the statement. See Adoption of Luc, 484 Mass. at 153-154 ; Adoption of Querida, 94 Mass. App. Ct. at 778.
b. Unnamed reporter. A February 21, 2013, 51B report included statements made to the DCF worker assigned to investigate allegations of abuse and neglect of the mother's oldest child. The mother objected to a multilevel hearsay statement that her eldest child demonstrated how to do a line of cocaine and that the child spied on his parents at night and saw them use drugs.
Arguably, these statements were erroneously admitted. It is unclear from the record whether the mother was given the name of the person who made the initial report. See Adoption of Luc, 484 Mass. at 153 & n.35. There was no resulting prejudice, however. The events occurred in 2013, several years before trial in this case, and the mother's parental rights to the child at issue in that report had already been terminated due to the mother's substance use. The judge cited to this portion of the report in a single factual finding, and there was other credible evidence of the mother's longstanding and recurrent struggles with substance use. See id. at 148.
When interviewed, the eldest child did not tell the DCF investigator that he saw his parents using drugs.
c. Hearsay. The mother filed a motion in limine to preclude hearsay statements made by the house manager of Campbell House that the mother was discharged because drug paraphernalia was found in her closet. The judge admitted this evidence de bene on the representation that DCF would call the Campbell House manager. After DCF rested without calling the house manager as a witness, the judge appears to have allowed the motion in limine to exclude the statements and the motion to strike the social worker's testimony.
However, the trial judge made a factual finding that the mother was discharged from Campbell House after drug paraphernalia was found. Assuming that the finding was erroneous because it was contrary to the judge's prior ruling, the fact remains that the mother was terminated from the sober home. Moreover, the judge was permitted to draw a negative inference from the lack of verifiable drug screens for the period between the mother's discharge from Campbell House to her return to a detox program in November 2018. See In re Shane M., 318 Conn. 569, 595 (2015) (drawing adverse inference in termination of parental rights case for refusal to take drug test). See also Care & Protection of Vieri, 92 Mass. App. Ct. 402, 406 (2017) (adverse inference drawn from refusal to permit social worker in home); Adoption of Talik, 92 Mass. App. Ct. 367, 370-373 (2017) (adverse inference drawn from failure to appear at custody or termination hearing).
Based on this ruling, the mother would have had no reason to consider calling the house manager to rebut the report.
d. Affidavit. Finally, the mother claims error in the admission of the affidavit accompanying the initial care and protection petition. It is not necessary to determine whether an affidavit filed for the purpose of supporting a care and protection petition was properly admitted, see Care & Protection of Zita, 455 Mass. at 280-281, since the evidence contained in the challenged portions of the affidavit was also found in other properly admitted evidence such as 51B reports and the mother's own testimony. See Adoption of Luc, 484 Mass. at 151-152.
The mother's argument that the judge's analysis of the facts was not "even-handed" arises from dissatisfaction with the manner in which the judge weighed the evidence and her credibility determinations. We will not disturb those findings on appeal. See Adoption of Jacob, 99 Mass. App. Ct. 258, 266 (2021) ("we ... afford deference to the judge's assessment of the weight of the evidence and the credibility of witnesses").
2. Sufficiency. The mother further asserts that the evidence was insufficient to establish she was unable to care for Giles. She contends that the judge erred in determining that her substance abuse disorder was "not a temporary condition." Adoption of Virgil, 93 Mass. App. Ct. 298, 301 (2018).
"In determining whether to dispense with parental consent to adoption, a judge must ‘evaluate whether the [parent is] able to assume the duties and responsibilities required of a parent and whether dispensing with the need for parental consent will be in the best interests of the children.’ " Adoption of Nancy, 443 Mass. 512, 514 (2005), quoting Adoption of Mary, 414 Mass. 705, 710 (1993). The mother, commendably, acknowledged her history of substance use. The child was removed from her custody three days after his birth. Since the child's birth, the mother has engaged in substance abuse treatment. The judge acknowledged her accomplishments. However, the mother has repeatedly struggled to maintain sobriety outside of a structured setting, resulting in the loss of her older children. See Adoption of Luc, 484 Mass. at 145 ("a judge may rely upon a parent's past conduct with regard to older children to support a finding of current unfitness to a different child, so long as that evidence is not the sole basis for the judge's unfitness determination"). Since entering substance abuse treatment in December 2017, the mother suffered at least one relapse. "A judge ... may rely upon past patterns of parental neglect or misconduct in determining current or future fitness." Adoption of Virgil, 93 Mass. App. Ct. at 301.
The mother points out that she has remained drug free from November 28, 2018 until trial in May 2019. "Even where a parent has participated in programs and services and demonstrated some improvement, we rely on the trial judge to weigh the evidence in order to determine whether there is a sufficient likelihood that the parent's unfitness is temporary." Adoption of Ilona, 459 Mass. at 59-60. The judge did not err in considering the mother's history of relapse in finding that recovery from substance abuse would take time and that her unfitness was not temporary. The mother testified to having entered various treatment programs and struggled to maintain sobriety over the past three years. After consenting to the termination of her parental rights and entering an open adoption agreement regarding her two older children, the mother entered treatment but relapsed after four months. A second attempt at achieving sobriety in 2017 also resulted in a relapse after four months.
The mother's current progress towards sobriety is hopeful, and all concerned may wish that it is permanent, but the judge did not err in considering the amount of time the mother would need to remain in treatment settings and her past inability to remain sober outside of a structured environment in determining whether her condition was temporary. Thus, the judge did not abuse her discretion or commit an error of law in finding that the mother's unfitness was not temporary and that termination of her parental rights was in the best interests of the child.
Conclusion. One additional observation is in order. The mother has shown evident care and affection for Giles, and none of the judge's findings negate this. Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment. See Adoption of Bianca, 91 Mass. App. Ct. 428, 432 n.8 (2017). A judge may find that a mother loves her child, and wants to care for him, but nonetheless reach the conclusion that the long (and hopefully successful) road to recovery from substance abuse and addiction means that the best interests of the child warrant termination of parental rights. Id. Such is the case here.
As for any remaining arguments, we have reviewed them all and find them to be without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) ("Other points, relied on by the defendants but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion").
Decree affirmed.