Adoption of Seth

• Decision Date: 09 October 1990
• Docket Number: No. 89-P-804,89-P-804
• Parties: ADOPTION OF SETH.
• Court: Appeals Court of Massachusetts

Page 708

560 N.E.2d 708

29 Mass.App.Ct. 343

ADOPTION OF SETH.

No. 89-P-804.

Appeals Court of Massachusetts,

Middlesex.

Argued Feb. 15, 1990.

Decided Oct. 9, 1990.

Vida K. Berkowitz, for mother.

Jon Laramore, Asst. Atty. Gen., for Dept. of Social Services.

Robert F. Murphy, Jr., for minor.

Before ARMSTRONG, KASS and JACOBS, JJ.

JACOBS, Justice.

Seth was three weeks old when the Department of Social Services (department) removed him from his mother's home and obtained temporary legal custody pursuant to G.L. c. 119. Approximately one year later, the department filed a petition under G.L. c. 210, § 3, to dispense with parental consent to adoption. On nine occasions, a District Court reviewed and renewed the original temporary custody order. When Seth was two and one-half years old, a Probate Court judge, acting under special assignment, heard both the care and protection and the G.L. c. 210, § 3, petitions. ¹ After a four-day trial, the judge filed comprehensive findings of fact and conclusions of law. Among the latter were his conclusions that Seth's mother and father were unfit to care and provide for their son and that it was in the child's best interests that the G.L. c. 210, § 3, petition be allowed.

Neither of Seth's parents appeals the award of permanent custody to the department pursuant to G.L. c. 119, and only the mother ² appeals from the decree entered under G.L. c. 210, § 3, dispensing with parental consent to adoption. The mother claims that the judge "stepped entirely out of the role of neutral arbiter and became an advocate for the [department]," thereby violating her right to due process. She also argues that she was substantially prejudiced by the erroneous admission in evidence of communications between her and her psychotherapist, contrary to G.L. c. 233, § 20B. ³ We find neither prejudice nor due process violation and, therefore, affirm the decree.

At the time of the trial, the mother was a patient at a mental health facility. Counsel for the department, in her opening statement, referred to the mother as suffering from "mental disorders" and to her long history of hospitalizations. There followed the testimony of a department social worker who made repeated reference to the mother's involvement with mental health treatment. The judge, reasonably assuming that the department's case was grounded principally on evidence of specific mental illness, interrupted this testimony to inquire of department's counsel, who apparently was inexperienced in these matters, ⁴ "Are you going to have a psychiatrist testify as to her diagnosis and prognosis?" The response was "[N]o.... We will go with the [guardian ad litem's] report, the records, the [social] workers."

Repeated judicial suggestions that a "mental health person" ought to testify prompted department's counsel to state that she was prepared to argue the admissibility of the records of the mother's psychiatric treatment. Noting that the records consisted of sixteen envelopes standing two feet high, the judge stated: "[T]hat's not how these things are supposed to be done." Counsel for the department did not press further to have the records admitted directly in evidence. Instead, during the testimony of the guardian ad litem, she offered to introduce his entire report, appended to which were the same records of psychiatric treatment. When counsel for the mother objected, on hearsay grounds, to the admission of the appended records, the judge sustained the objection and allowed only the report to be admitted. The apparent reliance by department's counsel on the contents of the records of the mother's treatment caused the judge to make several further suggestions that the testimony of a psychiatrist be offered. Eventually, he unequivocally ordered her to have a psychiatrist in court "right away" and refused a request for a continuance, noting that it would result in the loss of court time which had been set aside for the case. The next day, counsel for the department offered the testimony of a psychiatrist who had never treated or seen the mother. After the psychiatrist testified to her qualifications, she requested an opportunity to review the mother's treatment records. The judge suspended the hearing for that day, describing "[w]hat would be helpful, what I think I would like from [the psychiatrist]." ⁵

On the following day, the psychiatrist testified on the basis of her review of the report of the guardian ad litem, the notes of a department social worker, and the records of some of the mother's hospitalizations. After sustaining objections to several questions put to the psychiatrist by the department's counsel, the judge made suggestions as to the form of questions to be asked and finally posed questions directly to the witness. The psychiatrist testified to the mother's history and psychiatric diagnoses as contained in the hospital records. She also described the behavioral manifestations of such diagnoses and opined as to the mother's current parental fitness and prognosis.

During the first day of the psychiatrist's testimony, counsel for the mother indicated that she might have some problem with "privileged information" contained in the records reviewed by the psychiatrist and with "hearsay ... as the basis of the expert's opinion," but made no objection to the forced production of the witness. ⁶ Thereafter, counsel for the mother successfully objected to certain preliminary questions put to the psychiatrist by the department's counsel but, somewhat understandably, fell silent when the judge took over the questioning.

Prior to the psychiatrist's testimony, the judge peppered the proceedings with commentary on the evidence. His effusions ranged from references to psychiatric evidence as "the essential element of the case" to a statement that "I don't think the case is going to turn on it." On one occasion, he intimated that he was left to decide "on surmise." On another, he stated that "probably the facts are not close." He also expressed concern over how an appellate court would view the proceedings.

Notwithstanding the judge's insistence upon the department offering psychiatric testimony and his involvement in the examination of the psychiatrist, his findings, for the most part, were not dependent on that testimony. Fifty of fifty-one of his subsidiary findings were based on the evidence introduced through the social workers and the guardian ad litem. We summarize those findings. The mother was thirty years old and unmarried when Seth was born. The father, who never married the mother, was in prison both at the time of the child's birth and at the time of the trial. The mother had first been a patient at a mental health facility when she was fourteen years old. As of the time of the trial, she had a nineteen-year history of psychiatric intervention, had experienced lengthy hospitalizations, both voluntary and involuntary, and had been an inpatient at a mental health facility for the last nine months. The judge found that the care and protection petition had been filed as a result of the department having received reports of the mother experiencing psychological problems and that "[s]he became extremely stressed while caring for [Seth]." When the department first acquired legal custody of Seth, he was placed in the physical custody of the mother's parents. After two weeks of this arrangement, Seth's grandmother notified the department that she was unable to care for such a young child and requested that he be removed from her home. For approximately two years thereafter, Seth resided with foster parents.

The mother's contact with Seth for the two-year period following his removal from her custody consisted of weekly visits of no more than two and one-half hours duration. All but three of the visits were supervised by department personnel. The judge found that the unsupervised visits were terminated by the department due to the mother's inability to care for Seth by herself. For approximately a year and one-half, the visits generally took place at the mother's apartment. Thereafter, they took place at the mental health center at which she was a patient. All visitation arrangements were made by the department. At no time did the mother attempt to increase the frequency or time of visitation.

During Seth's placement in foster care, the department attempted to teach the mother how properly to care for him. Department personnel provided homemaker services to the mother and demonstrated parental skills during the visitations. The department also attempted to implement several service plans directed at assisting the mother in acquiring such skills. The judge found that she was "extremely resistant to the services provided for her."

The mother never learned to diaper or feed Seth properly. During visits she was unable to focus her attention on her child. She spent much of her visitation time discussing with her social worker the problems she had experienced with various support agencies and professionals. During such discussions she ignored the child's presence. As a result of the mother's inattention during various visits, Seth endangered himself on several occasions. During one of the three unsupervised visits, the mother locked herself out of her apartment with the child inside. The judge found that "[s]he panicked at not being able to solve this problem and relied on the social worker to gain access to the apartment." He also found that "[h]er actions during visits demonstrated that she did not have any insight into the care of her minor child" and that she was generally unaware of safety hazards. The judge further found that the mother had alienated herself from her family and from much of the community support which had been available to her. Some of this alienation was the result of her penchant for making repeated and harassing telephone calls to persons attempting to help her.

After Seth had been in foster care...