Adoption of Virgil.

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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.