Opinion
13-P-1739
11-21-2014
ADOPTION OF BELLA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from the termination of her parental rights to her daughter, Bella, by a judge of the Juvenile Court. She asserts an abuse of discretion in the judge's evaluation of the admissible evidence, in his consideration of inadmissible hearsay, and in his use of material that she argues should have been excluded from the record. We affirm.
The judge's findings of fact, supported by the record, provide a long and unfortunate history of the mother's consistent drug abuse since age eighteen, including during her pregnancy. Bella was born with addictions to suboxone, klonopin, and heroin, necessitating a period of medically-supervised withdrawal, first at Massachusetts General Hospital and thereafter at Spaulding Rehabilitation Center. The mother struggles with depression and anxiety; she has been diagnosed with opiate dependence, substance-induced mood disorder, major depressive disorder, lack of coping skills, and persistent and severe psychiatric illness. The relationship between the mother and Bella's father has been marked by tumult, and they have been observed screaming and swearing at each other on multiple occasions, on one such occasion requiring the father's departure from the residential facility, Phoenix House, when he was visiting the mother while she was living there. We address the issues asserted by the mother on appeal in the context of these supported findings.
The father has not appealed from the termination of his parental rights
Abuse of discretion. This issue need not detain us. The mother recites evidence she considers favorable to her position, and recharacterizes or discounts unfavorable facts in the record, to support her conclusion that the judge erred. The mother's argument is entirely based on a disagreement with the weight accorded to the evidence by the judge. We do not disturb the judge's view of the evidence absent clear error, not evident here. Custody of Eleanor, 414 Mass. 795, 799 (1993).
As an example, she asserts that the judge failed to appreciate that relapses are a part of a "normal pattern for a person who is successfully engaged in the recovery process." The judge did not abuse his discretion by declining to view relapses as evidence of recovery.
Hearsay. The mother complains that the judge relied upon hearsay in three findings, numbered 21, 25 and 26, of the 44 separate findings of fact contained in the memorandum of decision.
These findings state:
"(21) Staff at both MGH and Spaulding Rehabilitation reported that Mother called but indicated that she was too busy to visit. Upon visitation, mother often appeared high and was inconsistent in her time spent with [Bella]. It was reported that although Mother held [Bella], she did not provide her with much attention, and that at one point Mother had to have [Bella] removed from her arms for [Bella's] safety. Staff reported that Mother did not know how to respond to [Bella] when she was crying and often did not respond to her. Additionally, Spaulding Rehabilitation would not discharge [Bella] on any medication because they doubted Mother's capability to care for her.
" . . .
"(25) On December 15, 2011, at the direction of the Department, Mother entered the Phoenix House in Dorchester, MA. The Phoenix House is a long-term residential family substance abuse treatment facility for women and their children. On January 13, 2012 the Department reunified [Bella] with her Mother at this program. Prior to [Bella's] arrival, Mother had already received three warnings about her non-compliance with the facility's program. Examples of Mother's non-compliance included missing meetings, refusal of urine screens, and swearing at staff. During this time, Mother indicates that there were some programmatic issues at Phoenix House. Elena Moreina, Mother's social worker through the Department, worked with the Department of Public Health and Institute for Health and Recovery (IHR), and offered mother a transfer. Mother declined this transfer offer. [Bella] was consequently placed with mother at the Phoenix House.
"(26) Between January 13, 2012 and January 31, 2012, there were significant concerns about Mother's compliance with the Phoenix House program, her ability to care for [Bella] and [Bella's] weight-loss while in Mother's custody, and her relationship with Father. Additionally, it was very likely that Mother was using drugs while at Phoenix House."
Findings of facts numbers 25 and 26 are a recitation of factual events taken from an investigator's report pursuant to G. L. c. 119, § 24. These were properly admitted despite being based on hearsay because the hearsay declarant was identified and could have been called by the mother for cross-examination. Care & Protection of Bruce, 44 Mass. App. Ct. 758, 765-766 (1998). See Custody of Jennifer, 25 Mass. App. Ct. 241, 245 (1988). Even if their admission were characterized as error, it would not avail the mother, as the underlying facts are almost entirely uncontroverted or admitted by her.
Finding of fact number 21, however, stands on different footing. This finding contains information, consisting of factual observations that provide context to the mother's overall history, redacted from the Department of Children and Families' (department) G. L. c. 119, § 24, petition. Some of those statements were included in a G. L. c. 119, § 51B, report. The statements included in the § 51B report were properly relied on by the judge. See Care & Protection of Bruce, 44 Mass. App. Ct. at 765-766. See also Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990), citing Adoption of George, 27 Mass. App. Ct. 265, 271-275 (1989). The remaining statements which appear in finding 21 were previously excluded by the judge at trial. Unlike the statements contained in the § 51B report, there is no alternate basis by which the judge could have properly relied on them as part of his consideration of this case. As such, they should not have formed any part of his consideration and the inclusion of those statements in the findings of fact was error. Accordingly we review the termination of the mother's parental rights without reference to these findings. In so doing we conclude that the overall record, including the forty-one unchallenged findings of fact, demonstrates that the judge's rulings support the best interests of the child. In these circumstances we are obliged to agree with the department and with the child that any errors able to be selected from the judge's lengthy and considered decision do not support a reversal of the decision to terminate the mother's parental rights.,
Those statements were that "[s]taff . . . at MGH and Spaulding Rehabilitation reported that Mother called but indicated that she was too busy to visit. Upon visitation, Mother often appeared high . . . . It was reported that although Mother held [Bella], she did not provide her with much attention." Finding of Fact 21.
The judge's conscientious approach is further evident from the two revisions to his original set of findings. We do not agree with the mother's surmise that these indicate his belief in an insufficiency, or bare sufficiency, of the evidence or that they reveal an inattention to the record. The findings are well supported and the changes are, in many instances, stylistic or a change in emphasis.
Despite the semantic overtones of the statutory term "unfit," the judge's decision was not a moral judgment. A judge may find that a mother and father love and provide for their child to the best of their abilities, but nonetheless reach the conclusion that the best interests of the child warrant termination of parental rights.
Decree affirmed.
By the Court (Grainger, Carhart & Sullivan, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 21, 2014