In re Adoption (And

• Decision Date: 30 May 2018
• Docket Number: No. 17–P–644,17–P–644
• Citation: 93 Mass.App.Ct. 284,102 N.E.3d 1018
• Parties: ADOPTION OF LISETTE (and a companion case).
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 284

102 N.E.3d 1018

ADOPTION OF LISETTE (and a companion case¹ ).

No. 17–P–644

Appeals Court of Massachusetts, Essex..

Argued December 1, 2017

Decided May 30, 2018

Robert E. Curtis, Jr., for the mother.

Brian Pariser for Department of Children and Families.

Debra Perrotta Dow for the children.

Present: Agnes, Blake, & McDonough, JJ.

McDONOUGH, J.

In this case, we are called on to balance two compelling interests: the need to protect the privacy of persons seeking drug rehabilitation treatment from having their treatment records disclosed against their will, and the crucial need to protect children from abuse and neglect and promote their best interests. We conclude that under the limited circumstances of this case, the best interests of the children outweigh the mother's right to confidentiality in information concerning her treatment.

Following a trial in the Juvenile Court in 2016, the judge found the mother unfit² to care for her two children, Lisette and Adam, and that termination of her parental rights was in their best interests. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. On appeal, the mother contends that the judge erred by (1) ordering the drug rehabilitation program in which she was enrolled to produce an affidavit giving the reasons for her departure from that program; and (2) failing to find a nexus between her "shortcomings" and a risk of harm to the children. We affirm the decrees entered by the Juvenile Court judge terminating the mother's parental rights.

Background. The following facts found by the judge are amply supported by the record.³ In 2007, the mother gave birth to Lisette. The mother and Lisette's biological father were in a relationship at the time, but are no longer together.⁴ The mother later began a relationship with Adam's father, and Adam was born in December of 2013.⁵ The mother continued to have an on-and-off relationship with Adam's father up through the time of trial.

The mother has an extensive history with the Department of Children and Families (department), and a long history of substance abuse and domestic violence. She "has a consistent pattern of abusing heroin and failing to engage in services to help her maintain her sobriety." She tested positive for opiates when admitted to the hospital prior to Adam's birth in December of 2013, and tested positive for benzodiazepines in January of 2014. The mother also admitted that she used cocaine from September of 2015 until she enrolled, just before trial, in a rehabilitation program in March of 2016.

The mother also has a history of domestic violence with both of the children's fathers. In July of 2014, police responded to the mother's home for reports of a domestic disturbance between her and Adam's father. One month later, the mother obtained a G. L. c. 209A restraining order against Adam's father, stating in her affidavit that he spit in her face, grabbed her throat and choked her, then grabbed her hair and threatened to kill her. After she locked him out of the house, he tried to reenter through a window. When the mother tried to stop him, he pulled her halfway out the window by her hair. On another occasion, the mother testified that Adam's father tied her up with an electric cord. Despite her reported concerns about Adam's father and her active restraining order against him, the mother continued to allow him in her home. The department filed a care and protection petition on behalf of Lisette after receiving a report that Lisette found Adam's father in the mother's bed. After a temporary custody hearing, the judge granted the department custody of Lisette, and she has remained in the department's custody since then.

Adam first came to the department's attention in December, 2013, at just five days old. He was born when the mother was twenty-six weeks pregnant, and he tested positive for methadone at birth. The mother also tested positive for methadone and opiates when she arrived at the hospital to give birth to Adam. Adam was diagnosed with Klinefelter syndrome, a rare condition characterized by an XXY chromosome, resulting in medical and behavioral complications including delayed speech, learning disabilities, and behavioral problems. Due to his premature birth and his diagnosis of Klinefelter syndrome, Adam presented with challenging medical issues necessitating numerous specialty appointments. These conditions caused feeding problems requiring a special formula and special bottle nipples so he could eat.

The hospital set up training for the mother to teach her how to make Adam's special formula. When the mother failed to attend, the hospital rescheduled the training to the following day. The mother arrived late to the training, and she failed to purchase the necessary bottle nipples. The mother then failed to show up for another training session. Prior to Adam's expected discharge, the hospital encouraged the mother to spend more time at the hospital to ensure that she learned his proper care. The hospital's social worker described the mother's visits as "infrequent and sporadic." The hospital social worker informed the department that the mother failed to provide a prescription for Adam's seizure medication, failed to provide the special bottle nipples for his feedings, and failed to provide his insurance information. Several days later, the department filed a care and protection petition for Adam and took emergency custody of him. Following his hospital discharge, the department placed him in foster care, where he remains.

During trial, the department learned that the inpatient rehabilitation treatment program (program) where the mother had been enrolled had discharged her. The department subpoenaed the mother's program records relating to the reasons for her discharge. Citing the patient confidentiality provisions set forth in 42 U.S.C. § 290dd–2 (2012), the program manager objected to the department's subpoena. At a hearing on the program manager's objection, the judge suggested—as a less intrusive alternative—that he order the program manager to prepare an affidavit limited to the circumstances of the mother's discharge. The parties, including the mother's counsel, agreed,⁶ and the next day the program manager submitted the affidavit,⁷ which the judge admitted in evidence over the mother's objection. The mother contends that the judge admitted the program manager's affidavit in violation of the confidentiality provisions of 42 U.S.C. § 290dd–2.

Discussion. 1. Disclosure of treatment records. Title 42 U.S.C. § 290dd–2(a) provides that "[r]ecords of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall ... be confidential...." The broad purpose of the statute is to protect the confidentiality of persons seeking treatment for substance abuse. See Whyte v. Connecticut Mut. Life Ins. Co., 818 F.2d 1005, 1010 (1st Cir. 1987).⁸ However, while the statute protects treatment records and their content from disclosure absent patient consent, Congress recognized that in limited circumstances, release of protected information might be necessary. See 42 U.S.C. § 290dd–2(b) ; 42 C.F.R. § 2.64 (1987). One such circumstance is where disclosure is "authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor." 42 U.S.C. § 290dd–2(b)(2)(C). Regulations promulgated pursuant to that statute require that a court's determination of "good cause" be based on two findings: "(1) Other ways of obtaining the information are not available or would not be effective; and (2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services." 42 C.F.R. § 2.64(d). If good cause is established, the court must limit disclosure to those portions of the records that are "essential to fulfill the objective of the order." 42 C.F.R. § 2.64(e). In addition, 42 C.F.R. § 2.61(a) (1987) provides that "[a]n order of a court of competent jurisdiction entered under this subpart is a unique kind of court order. Its only purpose is to authorize a disclosure or use of patient information which would otherwise be prohibited by 42 U.S.C. [§] 290dd–2 and the regulations in this part. Such an order does not compel disclosure. A subpoena or a similar legal mandate must be issued in order to compel disclosure. This mandate may be entered at the same time as and accompany an authorizing court order entered under the regulations in this part."⁹

a. Other available effective methods. Our first task is to determine whether there was another available effective way to obtain the program discharge information other than by affidavit based on facts derived from the mother's program records. In its subpoena to the program manager, the department sought "[a]ny documents and information regarding the discharge of [the mother]." At the hearing on the program manager's objection to the subpoena, the department's counsel made clear that the department sought only information about the circumstances of the mother's discharge from the program and any documentation relating to that narrow issue. The judge determined that an affidavit narrowly tailored to the reasons for the mother's discharge would sufficiently cover the issue the department sought to explore at trial. Counsel for both the mother and the program agreed that an affidavit so limited would be preferable to disclosing any of the mother's treatment records.

On appeal, the mother maintains that the department had other sources from which to obtain this evidence, namely, either her own testimony or the testimony of the department's social worker...