Adoption of Virgil.
Adoption of Virgil.
Opinion
*1012 *299 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 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 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, a jobs program for homeless parents, 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 *300 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, piles of clothes, and broken items. The department removed Virgil from the mother's *1013 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, 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 *301 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
,
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
,
"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
,
*1015
Here, the mother argues that the judge erroneously determined
*303
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
,
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.
,
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 child.' "
Custody of a Minor
,
*305
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 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
,
In addition to a showing of good cause,
Finally, the mother argues that she did not receive adequate notice to respond to the department's motions seeking disclosure of her drug abuse treatment records, as required by
Decree affirmed .
The father's parental rights were also terminated; he is not involved in this appeal.
The pediatrician stated that Virgil was being treated for a severely infected penis caused by poor hygiene.
Trial was conducted on March 18, 30, and 31; April 13 and 28; and May 11 and 19, 2016.
A judge's subsidiary findings will not be disturbed on appeal unless clearly erroneous. See
Custody of Eleanor
,
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
,
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).
Title
"(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:
"(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.)
See
Doe
v.
Daviess County Div. of Children & Family Servs.
,
Title
"(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."
The department's motion seeking disclosure of Habit Opco's records was filed on December 4, 2015. The judge allowed 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."
Disclosure 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."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.