Opinion
No. 11–P–1039.
2012-07-13
ADOPTION OF HASKEL.
By the Court (TRAINOR, GRAINGER & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a decree by a judge of the Juvenile Court that dispensed with parental consent for adoption of her son Haskel. G.L. c. 119, § 26. G.L. c. 210, § 3. On appeal, the mother argues the judge made his findings of fact on questionable evidence, evidence not admitted at trial, and unreasonable inferences. She also argues that the remaining evidence does not meet the clear and convincing evidence standard required to terminate parental rights. We affirm.
On January 16, 2009, the Department of Children and Families (department), filed a petition for care and protection pursuant to G .L. c. 119, § 24. The petition issued, granting temporary custody of Haskel to the department. After a temporary custody hearing, at which the mother was not present because she was psychiatrically hospitalized, temporary custody of Haskel remained with the department. After a trial on the merits in August, 2010, the judge found the mother to be currently unfit and committed Haskel to the permanent custody of the department. The judge further concluded that termination of the mother's parental rights was in the child's best interests, and accordingly dispensed with the mother's consent to adoption.
The mother claims that the testimony of Dr. Kline was improperly admitted and utilized. We disagree. At trial, there was a general objection to Dr. Kline's testimony, but when asked if the mother wanted to be heard on the objection, the response was no. “Generally, issues not raised by a losing party in the trial court are not addressed on appeal, absent exceptional circumstances.” Adoption of Mary, 414 Mass. 705, 712 (1993). We find no exceptional circumstances here. See ibid. (failure to raise postadoption visitation not exceptional circumstance). “[B]ecause the mother failed to make the required specific objection, we need not consider the issue raised by her.” Adoption of Kenneth, 31 Mass.App.Ct. 946, 947 (1991). Even so, the judge properly relied on Dr. Kline's testimony. Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 532 (1986)(“If the facts or data are admissible and of the sort that experts in that specialty reasonably rely on in forming their opinions, then the expert may state that opinion without the facts or data being admitted in evidence”).
The father's rights and consent to adoption had previously been terminated on August 20, 2009.
“If a party believes that an expert is basing an opinion on inadmissible facts or data, the party may request a voir dire to determine the basis of the expert opinion.” Department of Youth Servs., supra at 532. There was no voir dire requested in this case.
The mother also claims that the judge erroneously admitted and credited the testimony of a clinical nurse specialist, Sheila Wells. We disagree. The mother did not object to Wells's testimony, though the mother now claims Wells was not qualified as an expert to render the opinions in her testimony. There was no voir dire requested regarding Wells's qualifications, or an objection to her testimony regarding diagnosis and prognosis. Absent an exceptional circumstance, an issue that is not raised below is considered waived. See Adoption of Kimberly, 414 Mass. 526, 534–535 (1993); Adoption of Mary, supra at 712. This court has, once again, not been presented with any exceptional circumstance.
Even if the issue had not been waived, the testimony was properly admitted. See Adoption of Hugo, 428 Mass. 219, 232 (1998), quoting from Commonwealth v. Pikul, 400 Mass. 550, 553 (1987) (“The admission of expert testimony is ‘largely within the discretion of the trial judge and will be reversed only where it constitutes an abuse of discretion or error of law’ ”).
The mother also claims that the judge erroneously admitted portions of guardian ad litem (GAL) report in evidence. We disagree. The mother filed a motion in limine with respect to the GAL report. There was a general objection to its admittance. She now claims that there were sources of information in the report that were not sufficiently identified. However, trial counsel specifically acknowledged that the information in the report was identifiable and the sources would all be available to testify if needed. It was on this basis that the judge denied the motion. See Duro v. Duro, 392 Mass. 574, 580 n. 9 (1984). The GAL was available to testify at trial, though she was never called. “Guardian ad litem reports may properly contain hearsay information. They are analogous to investigator's reports pursuant to G.L. c. 119, § 24, which we have held admissible even when multiple level hearsay (and clinical evaluations) have been contained therein.” Adoption of Sean, 36 Mass.App.Ct. 261, 263 (1994) (citations omitted). “All that is required is that the guardian ad litem be available to testify at trial and that the source of the material be sufficiently identified so that the affected party has an opportunity to rebut any adverse or erroneous material contained therein.” Id. at 263–264. There was no error.
The mother's final claim is that the judge's decision does not meet the clear and convincing evidence standard. We disagree. “[A] judge must find, by clear and convincing evidence, that the parent is currently unfit to further the welfare and best interests of the child” prior to terminating parental rights. Adoption of Kimberly, supra at 528–529. In this case, there was ample evidence that the mother was unfit to parent Haskel.
There was evidence that the mother suffers from a mental illness that subsides when she is taking medication. However, the evidence also showed that she does not think she is sick and therefore can be inconsistent in taking her medication. Dr. Kline testified that she was not hopeful for the mother's future treatment and was concerned that the mother would be unable to handle the high emotional demands of parenting. Mental illness may be grounds for a finding of unfitness when there is a nexus between that illness and the parent's ability to care for a child. See Adoption of Frederick, 405 Mass. 1, 9 (1989). That nexus exists here, and the judge's determination that the mother is unfit to parent was properly based on clear and convincing evidence.
There was evidence that the mother believed the child might be turning into a fish, that he was a girl, that he had evil spirits in him, and that he was sent by his father's family to torment her. There was evidence that she tried to put him into a freezer, but was stopped by a friend. On another occasion, she took Haskel into the snow with no jacket or warm clothes and left him in his car seat in the snow outside a health center. The evidence also demonstrated that the mother also left homes where she was living because spirits told her to do so. There was also evidence that the mother would overfeed the child to the point that he would vomit and on another occasion shook him and intensely rocked him.
Decree affirmed.