Opinion
15-P-599
04-28-2016
ADOPTION OF QUENIA.
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 and father appeal from decrees issued by a judge of the Juvenile Court terminating their parental rights as to their daughter, Quenia, and dispensing with their rights to consent to Quenia's adoption. The father also appeals from the denial of his motion for new trial. We affirm.
Background. We summarize the relevant facts and procedural history from the judge's comprehensive findings. On February 28, 2012, Quenia, then six years old, was admitted to the hospital after suffering seizures from the ingestion of crack cocaine while in the mother's home. At the hospital, the mother tested positive for cocaine. The following day, the Department of Children and Families (DCF) filed a petition seeking emergency temporary custody of Quenia and three of her siblings, alleging neglect by the mother. A Juvenile Court judge granted DCF emergency temporary custody of all four children. Subsequently, the mother, despondent and suicidal after removal of the children, was hospitalized for psychiatric treatment. The father, who did not have custody of Quenia and was not named in DCF's petition, sought custody of her. After a hearing, the father's request was denied, and Quenia was placed in the temporary custody of DCF on August 23, 2012. The trial, which began on August 20, 2014, ran for fifteen days over the course of four months. On January 22, 2015, the judge found both the mother and the father unfit and terminated their parental rights. In a twenty-eight page written decision, the judge made extensive findings regarding the mother, the father, and Quenia's special needs.
Quenia's siblings named in the petition are not the father's children and are not a part of this case.
Quenia was born in January, 2006. She is the youngest of the mother's seven children, and the only child of the mother and the father. She has been diagnosed with posttraumatic stress disorder (PTSD) and attention deficit hyperactivity disorder (ADHD). Her behavior, a direct result of trauma while in the mother's care, includes refusing adult assistance, screaming, kicking, hitting, and throwing things. In January, 2014, while in the father's temporary custody, Quenia was hospitalized for several weeks after threatening to throw herself over a bannister at school. She was subsequently placed in a foster home and her behavior improved.
The mother's three eldest children, now adults, were adopted at a young age. The three children named with Quenia in DCF's petition were dismissed from the case before trial and ultimately adopted.
The mother was forty-five at the time of trial. At age twelve she was removed from her home by DCF and placed in foster care because of neglect and sexual abuse. The mother's seven children have all been removed from her care. The mother has had five care and protection cases filed against her since 1994. After Quenia's birth, the mother entered rehabilitation for substance abuse. The week before Quenia's hospitalization for cocaine ingestion, the mother used crack cocaine. The mother has also been plagued with mental health problems. She suffers from PTSD and has been hospitalized on multiple occasions for psychiatric treatment. Service plans for the care of her children were established by DCF, but she did not engage in these services as requested.
At the time of trial, the father was sixty-five and had been married to his wife, who was not Quenia's mother, for over forty years. Quenia was born after the father's affair with the mother. The father maintained contact with Quenia after her birth. In 2009, she stayed with the father and his wife for approximately one week while the mother was hospitalized for mental health reasons. In August, 2013, DCF placed Quenia in his care with the goal of reunification. The placement was unsuccessful. As noted, Quenia was removed from the father's care after threatening to harm herself. At trial, the father conceded through counsel that he was unable to provide full-time care for Quenia.
Discussion. 1. Ineffective assistance of counsel. The father sought a new trial alleging that he received ineffective assistance of counsel. He argued that, contrary to his wishes, trial counsel stipulated to his unfitness and the termination of his parental rights. The judge denied the motion in a thorough written decision. We review his decision for abuse of discretion. Adoption of Marc, 49 Mass. App. Ct. 798, 801 (2000). We "determine whether the 'behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer' and, if so, we further inquire 'whether [counsel's conduct] has likely deprived the defendant of an otherwise available, substantial ground of defence.'" Care & Protection of Stephen, 401 Mass. 144, 149 (1987), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The father cannot prevail on his claim unless he establishes that he was prejudiced by counsel's deficient performance. Care & Protection of Georgette, 439 Mass. 28, 33-34 (2003).
We need not decide if counsel's stipulation was constitutionally ineffective because, as the motion judge correctly determined, the father has not established prejudice. See id. at 34. The evidence of his unfitness was clear. Quenia's placement with the father from August, 2013, to January, 2014, was unsuccessful. Despite receiving services from DCF, Quenia's negative behavior worsened when she resided with the father. The father admitted that he was unable to provide full-time care for Quenia, given her special needs.
There was ample evidence that the father's parenting was inconsistent and inattentive. When Quenia was removed from the father's care and placed in her current foster home, her behavior improved. The judge concluded that Quenia, who, as noted, suffers from PTSD and ADHD, needed a more structured and disciplined environment for her physical and emotional development. Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 800 (1983) (child's particular needs should be considered when determining whether parent is unfit). In light of these facts, and the deference we accord a trial judge in assessing the weight of the evidence and credibility of the witnesses, see Custody of Eleanor, 414 Mass. 795, 799 (1993), the father has not shown that "better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1997).
2. Experts. On appeal, the mother challenges the admission of expert testimony from two of Quenia's teachers. "The admission of expert testimony is 'largely within the discretion of the trial judge . . . .'" Adoption of Hugo, 428 Mass. 219, 232 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), quoting from Commonwealth v. Pikul, 400 Mass. 550, 553 (1987). We review for an abuse of discretion or error of law. Adoption of Hugo, supra.
First, the mother contends that it was error to admit the testimony because DCF failed to identify the witnesses as experts prior to trial. While the better practice would have been to provide such notice, we discern no abuse of discretion under the circumstances here. Both experts appeared on DCF's witness list. As school employees who worked closely with Quenia, both were known to the mother. The judge conducted a voir dire at which counsel for the mother was able to cross-examine each witness before her trial testimony. He also gave the mother additional time to secure her own expert and to recall the teachers if necessary, which she had ample time to do over the course of a trial that ran for fifteen days over four months. Thus, we see no unfair surprise and no basis to conclude that the judge abused his discretion in admitting the expert testimony. See Elias v. Suran, 35 Mass. App. Ct. 7, 10 (1993) ("[A] trial judge has broad discretion in deciding whether to permit expert testimony when the proponent has not given proper notice of the identity of the expert or the subject matter of the expert's anticipated testimony").
Second, the mother argues that the witnesses were not qualified to offer expert opinions. We disagree. "'The crucial issue,' in determining whether a witness is qualified to give an expert opinion, 'is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony.'" Adoption of Hugo, supra, quoting from Commonwealth v. Richardson, 423 Mass 180, 183 (1996). Here, Judith Averill was qualified as an expert in special education, crisis intervention, and trauma-informed care. She has a bachelor's degree in elementary education, a master's degree in special education, and a license in elementary administration. At the time of trial, she had twenty years' experience as a behavioral specialist with training in crisis intervention, and she was on a task force regarding trauma-informed care for children. Margaret Betts was qualified as an expert regarding the academic and emotional needs of first graders. She has a bachelor's degree in English, a juris doctorate, and a master's degree in education. As of the time of trial, she also possessed seven years' experience as a first grade teacher. In light of these qualifications, we discern no abuse of discretion in the admission of their expert opinions.
3. Mother's unfitness. The mother also argues that many of the trial judge's findings of fact and conclusions of law were clearly erroneous. We have conducted a careful review of the record and conclude that the evidence amply supports all of the judge's findings. In determining unfitness, a judge is permitted to rely on a parent's mental health which may affect her ability to care for the child, Adoption of Quentin, 424 Mass. 882, 888 (1997); the specialized needs of the child, Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. at 799-800; and the inability of the parent to consistently provide stable and continuous care for the child, Adoption of Gwendolyn, 29 Mass. App. Ct. 130, 136 (1990). In the mother's case, all of these factors were present and supported by evidence. The trial judge did not abuse his discretion or commit a clear error of law. Adoption of Elena, 446 Mass. 24, 30 (2006).
4. Patient-psychotherapist privilege. Lastly, the mother argues that the judge erred in following the recommendation of the guardian ad litem (GAL) who was appointed to determine whether Quenia's patient-psychotherapist privilege should be waived at trial. The GAL recommended that the privilege not be waived, which resulted in the exclusion of a neuropsychological report proffered by the mother. The mother has no standing to challenge the recommendation of the GAL. "General Laws c. 233, § 20B, makes clear that the privilege may be asserted only by the patient, or, if the patient is incompetent, by a guardian appointed to act on his or her behalf." Adoption of Diane, 400 Mass. 196, 201 (1987). "In a case such as this, where the parent and child may well have conflicting interests, and where the nature of the proceeding itself implies uncertainty concerning the parent's ability to further the child's best interests, it would be anomalous to allow the parent to exercise the privilege on the child's behalf." Id. at 202. Accordingly, there was no error in the exclusion of the report.
Decrees affirmed.
Order denying motion for new trial affirmed.
By the Court (Kafker, C.J., Kinder & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 28, 2016.