Opinion
15-P-251
10-30-2015
ADOPTION OF CARRIE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree by a judge of the Juvenile Court finding her unfit and terminating her parental rights to the minor child. See G. L. c. 210, § 3. She argues that the judge based his determination of unfitness and subsequent termination of her parental rights on hearsay statements contained in reports generated by the Department of Children and Families (department) pursuant to G. L. c. 119, § 51B, and G. L. c. 119, § 21A. She claims that although "opinion, evaluation or judgment" statements contained in these reports were properly excluded pursuant to her motions in limine, the judge thereafter erroneously relied on the same statements to support his finding of unfitness. In her view, without this improperly admitted hearsay evidence, her parental unfitness was not clearly and convincingly established. Because we conclude that the admissible evidence provides ample support for the judge's findings and rulings, we affirm the decree.
The father's parental rights also were terminated after trial; he has not appealed.
The mother specifically objects to certain portions of findings 27, 28, 31, 32, 37, 45, 61, 94 and 99, and to conclusion of law 5, asserting that the highlighted portions of those findings and conclusion were not properly in evidence, making each clearly erroneous.
On the first day of trial, the department offered as exhibits the court investigator's report, see G. L. c. 119, § 24, and department records, including G. L. c. 119, § 51A and § 51B, reports, service plans containing tasks required of the mother, court reports, and the assessment worksheet. The judge stated that "all those records [were] coming in subject to the rulings that [were] made on the motions in limine," which he would have for the parties later. He made it clear that he would give the parties an opportunity to make specific objections.
"I think what you should do, is everybody go over it and pick out parts to that and make specific objections to portions of that. My general ruling on that is it's admissible because it's an official record, so it's going to come in. So I think you've got to look at parts to that which you say are not admissible."
On the second day of trial, the judge ruled on the mother's motion in limine with regard to the various department exhibits. The court investigator's report was properly admitted, and the mother does not contend otherwise. Custody of Michel, 28 Mass. App. Ct. 260, 265 (1990). Department records, including § 51A and § 51B reports, service plans containing tasks required of the mother, court reports, and the assessment worksheet, were admitted under the official records hearsay exception. G. L. c. 233, § 78. See Adoption of George, 27 Mass. App. Ct. 265, 272 (1989). See also Mass. G. Evid. § 803(8)(A) (2015). The judge ruled that the § 51A reports were admitted for the limited purpose of "'setting the stage' for how the [d]epartment became involved with the family," and the § 51B reports were admitted for "primary fact only."
The department case assessment was admitted after a general objection by the mother; prior to its admission, the judge redacted all statements made by "outside hospitals, treatment providers or other individuals." Despite her claim to the contrary, the mother raised no further objection at trial and did not request exclusion of any other statements. She does not cite to any portion of the record where she made a specific objection or requested exclusion of any particular statement she now describes as hearsay. At the conclusion of the trial, the judge found the mother currently unfit to parent the child, that the unfitness was likely to continue into the indefinite future, and that the best interests of the child would be served by terminating the mother's parental rights.
The mother's argument that she assumed that the judge would follow his rulings on the motions in limine -- as she understood them -- and that she was unable to object until she saw his findings simply misses the point. It was her responsibility at the outset to bring to the judge's attention, as he requested, any specific matters she felt should be excluded -- and not to wait until after the findings were issued well after the trial.
Discussion. "[I]t is well established that a motion in limine, seeking a pretrial evidentiary ruling, is insufficient to preserve appellate rights unless there is [also] an objection at trial." Commonwealth v. Little, 453 Mass. 766, 773 (2009), quoting from Commonwealth v. Whelton, 428 Mass 24, 25 (1998). Any hearsay objections now raised by the mother are, therefore, considered waived. See Adoption of Kenneth, 31 Mass. App. Ct. 946, 947 (1991). However, even if the issue were properly before us, we are satisfied, based on this record, that the judge did not use the § 51A and § 51B reports and the court reports for anything other the purpose for which they were admitted -- to "set the stage" and for primary facts. "[T]he judge's findings do not intimate that he used them for anything more." Custody of Michel, supra at 267. Further, even if some hearsay statements were considered improperly, it is clear that the primary facts contained in this record are sufficient to establish by clear and convincing evidence the mother's current unfitness.
To terminate the legal relationship between a parent and child pursuant to G. L. c. 210, § 3, the trial judge must determine by "clear and convincing evidence that the parent is currently unfit to further the child's best interest." Adoption of Carlos, 413 Mass. 339, 348 (1992). The judge's findings must demonstrate careful examination of the evidence, Custody of Eleanor, 414 Mass. 795, 799 (1993), and together must amount to clear and convincing evidence of parental unfitness. See Adoption of Quentin, 424 Mass. 882, 886 (1997). We will not disturb the trial judge's subsidiary findings unless they are clearly erroneous, and we accord substantial deference to the judge's assessment of the weight of the evidence and witness credibility. See Adoption of Rhona, 63 Mass. App. Ct. 117, 124-125 (2005).
The parental unfitness inquiry "means more than ineptitude, handicap, character flaw . . . or inability to do as good a job as the child's foster parent." Care & Protection of Yetta, 84 Mass. App. Ct. 691, 695 (2014), quoting from Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1977). The judge must determine "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." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
Current unfitness "cannot be based solely on the conclusion that the mother suffers from a mental illness. Mental illness is relevant to the extent that it affects the parent's capacity to assume parental responsibility. See Adoption of Saul, 60 Mass. App. Ct. 546, 554 (2004). In this case, however, the judge found that the mother's untreated mental health affects her everyday functioning and "demonstrates her difficulty with understanding and responding to simple questions posed to her"; this conclusion was reinforced through the judge's own observations of the mother during her trial testimony.
Specifically, the judge found that the mother had been hospitalized for psychiatric treatment on numerous occasions for extended periods of time, beginning in 2005 when she was eighteen years old and continuing until the time of trial. Even during the pendency of this case, the mother was hospitalized a number of times, and she consistently has failed to acknowledge that she suffers from mental health issues, repeatedly minimizing the circumstances of each hospitalization, sometimes suggesting the reasons were malnutrition, stress, pneumonia, and "flashbacks of [her] childhood." She admitted in her testimony that she did not follow her treatment plans on discharge, specifically failing to take prescribed medications, and choosing instead to "work through the pain." In addition, the judge did not credit the mother's own reports of her childhood "due to numerous contradictions" demonstrating "her inability to distinguish between reality and fiction due to her untreated mental health issues." The judge concluded that the mother's refusal to address and treat her mental health issues places the child in an unsafe environment.
The mother reported that she was adopted. She refused to provide the name of her adoptive parents, and the department could find no record of such an adoption. She also reported that the maternal grandmother had left her and her brother home alone when they were children, and that she had grown up on the streets. That testimony was contradicted by the maternal great grandmother in statements contained in the investigator's report. The mother also reported she was emotionally and physically abused by numerous individuals; however, there were no specifics provided about those claims.
In addition, the mother has never had unsupervised visits with the child. The judge acknowledged that the mother had attended most of the scheduled visits (although generally missing visits while hospitalized); she arrived at the visit with snacks and activities for the child (although some of each were inappropriate for the child's age); and she was loving to the child during visits. However, the judge also considered the mother's excessive cleaning of the visiting room prior to visits, the inordinate amount of time it took her to change the child's diaper, and her insistence on using multiple baby wipes to clean the child's genital area. Specifically, the social worker supervising the visits told the mother "on a few occasions" that she should not be placing the baby wipe on the end of her finger and inserting it into the child's vagina. Finally, during one supervised visit, the mother was "completely unfocused and distracted to the point where she left [the child] on the couch unattended. [The child] fell off the couch and bumped her head on the floor."
The judge also found that the mother has little support to help care for the child, due mainly to her alienation of family members, especially the maternal grandmother. The mother's involvement with the department throughout the pendency of this petition was minimal; she failed to engage in recommended services; and, although she underwent the mandated psychological evaluation in April, 2012, she failed to follow the resulting recommendations. As of October, 2012, the mother refused to schedule home and office visits with her social worker, and her only contact with the department was at the supervised visits. She continually refused to comply with service plan tasks, including seeking mental health treatment. She has been unable to maintain stable housing or stable employment and she lost contact with the department between December, 2013, and April, 2014, apparently due to another hospitalization. She also has failed to sign releases for the department to gather information regarding her psychiatric hospitalizations and ongoing treatment. "Evidence of parents' refusal to cooperate with the department, including failure to maintain service plans and refusal of counseling programs, is relevant to the determination of unfitness." Adoption of Rhona, 63 Mass. App. Ct. at 126.
We see no error in the judge's findings. Taken together, they summarize clear and convincing evidence that the mother is currently unfit to provide for the welfare of the child and her "unfitness is such that it would be in the child's best interests to end all legal relations." Adoption of Nancy, 443 Mass. 512, 515 (2005). Accordingly, we are satisfied that the judge did not abuse his discretion in finding that the best interests of the child were served by terminating her mother's parental rights. See Adoption of Ilona, 459 Mass. 53, 62 (2011).
To the extent that we have not addressed any argument in the mother's brief, it is because we have considered it carefully and found it to be without merit.
Decree affirmed.
By the Court (Cypher, Green & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 30, 2015.