Heard: December 1, 2017.
filed in the Essex County Division of the Juvenile Court
Department on February 10, 2014, and October 2, 2014.
cases were heard by Jose A. Sanchez, J.
E. Curtis, Jr., for the mother.
Pariser for Department of Children and Families.
Perrotta Dow for the children.
Present: Agnes, Blake, & McDonough, JJ.
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.
a trial in the Juvenile Court in 2016, the judge found the
mother unfit 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
following facts found by the judge are amply supported by the
record. 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. The mother later began a relationship with
Adam's father, and Adam was born in December of
2013. The mother continued to have an on-and-off
relationship with Adam's father up through the time of
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.
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. 2O9A 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.
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
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.
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,  and the next day
the program manager submitted the affidavit,  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.
Disclosure of ...