Opinion
14-P-1624
10-02-2015
ADOPTION OF BECKY.
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
This is the mother's appeal from a decree issued by a judge of the Juvenile Court terminating the mother's parental rights as to her daughter, Becky. The judge found that the mother is unfit and that termination is in the child's best interests. See G. L. c. 119, § 26; G. L. c. 210, § 3. We affirm.
Despite the moral overtones of the statutory term "unfit," the judge's decision is not a moral judgment, nor is it a determination that the parent does not love the child. The question for the judge is "whether the parent's deficiencies 'place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.'" Adoption of Olivette, 79 Mass. App. Ct. 141, 157 (2011), quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
Background. The mother began living with her friend Charlotte and Charlotte's children when Becky was five months old. The Department of Children and Families (department) became involved with the mother and Becky in 2008, when Becky was three years old, due to "deplorable" conditions in Charlotte's two-bedroom apartment, which was occupied by ten or eleven people, seven cats, and two dogs. When Becky entered kindergarten and during first grade, a school social worker expressed concerns over her "limited oral expression," difficulty with self-control, and awkward demeanor. The mother refused to enroll Becky in a recommended "K-plus" program designed to provide her with extra support. The department had additional concerns that Becky's immunizations were not up-to-date, she was frequently tardy or absent from school, and she had missed medical and dental appointments.
A pseudonym.
In 2011, when Becky was six years old, several of Charlotte's children disclosed sexual abuse by David, a friend of Charlotte's, who had been living in the home. David subsequently was charged with numerous counts of rape and other sexual assault crimes, and admitted to sexually abusing at least one of Charlotte's children. All six of Charlotte's children were removed from the home. The department, concerned that David also may have abused Becky, requested that the mother have her clinically evaluated by a trauma expert. When the mother refused, the department petitioned for and was granted authority to remove Becky from her mother's care.
A pseudonym.
During a subsequent clinical trauma evaluation, Becky disclosed that she too had been sexually abused by David. Becky also reported witnessing David killing animals in the home. As a result, Becky suffers from posttraumatic stress disorder and major depressive disorder. At trial, the mother maintained that Becky was lying and that no sexual abuse had occurred; she insisted that Becky was not in need of counselling.
The mother refused all services offered by the department, refused to allow department social workers into her home, refused to sign releases allowing the department access to her own counselling records, refused to complete a parenting evaluation, and failed to attend medical, dental, clinical, and educational meetings concerning Becky. During biweekly supervised visits with Becky, the mother used vulgar language, made threats, and described her child by using inappropriate and degrading terms. In addition, she refused to secure her own housing despite the department's offer of financial assistance, and despite knowing this was a condition for reunification with Becky.
The department developed a service plan for the mother that she eventually signed on November 19, 2012. The mother failed to comply with key elements of this plan. She failed to meet with the department social worker monthly at her apartment, as required, instead meeting only once at the home, with Charlotte's permission, in the course of a year. The mother also failed to meet with the social worker monthly at the department's office and did not so meet for approximately one year.
The judge found that since her placement in foster care, Becky's well-being has improved. She takes medication for her mental health conditions, and she is engaged in regular, trauma- focused therapy. Becky's teachers have noted academic as well as social progress. At the time of trial, the adoption plan for Becky called for her to transition to a preadoption placement with a paternal aunt, who would provide her with appropriate medical, educational, and psychological resources. Despite Becky's progress, the mother has stated that she will kill anyone who adopts her daughter.
On December 16, 2013, following a trial on the merits, the judge found that the mother is unfit to assume parental responsibility for Becky, that such unfitness is likely to continue indefinitely, and that termination is in Becky's best interests. The judge terminated the mother's parental rights and granted the department permanent custody of Becky..
Discussion. 1. Discovery of Charlotte's family's case file. The mother asserts that she was denied a fair trial because she was not granted access to the department's entire case file on her roommate Charlotte's family. Prior to trial, the mother filed a motion for access to this case file that was denied. For the first time on appeal, the mother asserts that pretrial access to this file was necessary to adequately prepare for cross-examination of the clinical trauma evaluator. The issue was not preserved, however, because the mother failed to object to the witness's testimony or move to strike it. See Adoption of Kimberly, 414 Mass. 526, 534-535 (1993).
Department records prepared under G. L. c. 119, §§ 51A-51D, are classified as confidential, to be released only with written, informed consent of the subject of the records, written permission from the commissioner of the department, or a court order. G. L. c. 119, § 51E; Rule 9B of the Rules of the Juvenile Court. Under the Fair Information Practices Act, the government may not release personal data by compulsory legal process without notifying the data subject (here, Charlotte) and providing an opportunity for the data subject to have the process quashed. G. L. c. 66A, § 2(k). Although they are created and held by a State agency, the department's case files are exempt from the statutory definition of "public records" because they relate to a specific individual and their disclosure "may constitute an unwarranted invasion of personal privacy." G. L. c. 4, § 7, cl. 26(c). The burden lies with the party seeking disclosure "to show that the invasion of [the individual]'s privacy was warranted." Torres v. Attorney Gen., 391 Mass. 1, 10 (1984).
Prior to Becky's removal, the mother was fully aware of the allegations against David and the department's concerns that Becky may have been sexually abused. During discovery in this case, the department provided the mother with copies of those portions of Charlotte's family's case file pertaining to the mother and Becky. At trial, the mother cross-examined the trauma evaluator, but did not claim below and has not demonstrated on appeal that access to portions of the case file unrelated to Becky and the mother was necessary to the mother's case. There was no error in the denial of the mother's motion to produce Charlotte's family's case file.
Although she admitted having reviewed Charlotte's family's case file and evaluated several of Charlotte's children, the trauma evaluator asserted at trial that this information did not affect the results of her evaluation of Becky and that her opinion was based entirely on the five-hour interview with Becky.
For this reason, it is unnecessary to consider the mother's argument that there were procedural irregularities in the denial of her discovery motion. It also should be noted that the mother does not challenge the admission at trial of Becky's statements -- that she was sexually abused while in the mother's care at Charlotte's apartment -- that were made to the trauma evaluator and admitted in evidence after a hearing and findings by the judge in accordance with G. L. c. 233, § 82.
2. Postadoption contact. The mother maintains that the judge's decision to decline to order postadoption contact was an abuse of discretion. "While posttermination visitation may be allowed, the proper focus is on the best interests of the child." Adoption of Helen, 429 Mass. 856, 863 (1999). The judge found that, in light of the mother's refusal to accept the trauma and abuse suffered by Becky, postadoption contact was not in Becky's best interests. This was amply supported by the judge's factual findings and the record, including, in particular, the mother's denial that Becky had been abused, and her refusal to support treatment for Becky. The judge "properly le[ft] the matter of visitation in the hands and discretion of the adoptive parent[]," who is "the person[] who will be in the best position . . . to determine how often, and under what circumstances, [the mother]'s visits with [Becky] would be in [Becky]'s best interests." Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 139 (1990).
Conclusion. For the reasons stated above, we conclude that the judge's factual findings clearly support her determination, by the standard of clear and convincing evidence, that the termination of the mother's parental rights served Becky's best interests.
Decree affirmed.
By the Court (Vuono, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 2, 2015.