HEABERLIN v. FALL RIVER DEPT OF SOCIAL SERVICES & another

HEABERLIN

v.

FALL RIVER DEPT OF SOCIAL
SERVICES & another

COMMONWEALTH OF MASSACHUSETTS

BRISTOL,
ss. SUPERIOR COURT

CIVIL ACTION

NO. 99-0833

JEFFREY HEABERLIN[1]

vs.

FALL RIVER DEPARTMENT OF SOCIAL
SERVICES and another[2]

MEMORANDUM OF DECISION AND
ORDER ON

DEFENDANT FALL RIVER
DEPARTMENT OF SOCIAL SERVICES’

MOTION FOR SUMMARY JUDGMENT

Jeffrey Heaberlin brings this action as
administrator of the estate of his son, Robert Heaberlin. Robert
Heaberlin died on June 12, 1996 while in the care of Eileen
Sousa,[3] a foster parent. Now before the court is the Fall River
Department of Social Services’ motion for summary judgment. For
the following reasons, the court ALLOWS the defendant’s
motion.

BACKGROUND

When viewed in the light most favorable to the
plaintiff , the record reveals the following facts:

On April 10, 1996, the Fall River Department of
Social Services ("DSS") placed Robert Heaberlin
("Robert"), along with his brother, in the home of
Eileen Sousa ("Sousa"). Robert’s sister was already in
a pre-adoptive home. At the time, Robert was eight years old.
Prior to Robert being placed in foster care, Jeffrey Heaberlin
("Heaberlin") was told by an unidentified
representative of the Department of Social Services that Robert
would be taken care of with regard to his well-being, including
clothes, food and medical care.

After receiving an individual’s application to
be a foster parent, DSS conducts a "home study." If the
home is approved, "An Agreement between the Massachusetts
Department of Social Services and Foster Parents" (the
"Agreement") is entered. The foster parent agrees with
DSS to "provide a safe, nurturing and stable environment
that is free from abuse and neglect." DSS agrees with the
foster parent to assign a social worker who is responsible for
providing the foster child with services. The foster parent
agrees to schedule appointments for the child’s routine health
care and to arrange for emergency medical treatment when
necessary.

The Commonwealth also agrees to provide a
"Medical Passport" to foster parents and the foster
parent agrees to "hold the child’s Medical Passport."
The Medical Passport includes, in part, a list of all the
childhood diseases that the foster child has had. DSS did not
provide Sousa with Robert’s Medical Passport.

DSS also agrees to provide the foster parent
with relevant training programs. The training program used by DSS
is a nationally recognized education program to prepare and
assess prospective foster and adoptive parents. It is the most
widely used and accepted foster parent training curriculum. It is
used by twelve other states, a number of individual counties
within other states, and internationally as well. The training
focuses on educating foster and adoptive parents how to handle
special problems associated with foster and adoptive children,
such as neglect, abuse, and feelings of loss following separation
from natural parents or prior foster homes. DSS does not require
foster parents to have training in CPR or First Aid. DSS does not
offer these courses nor does it offer instruction on disease
recognition.[4] The training provided by DSS does not include specific
instruction on childhood diseases, nor on the recognition of
symptoms to diagnose such diseases.

Sousa is married and has three grown children
of her own and a stepson. Sousa received training on how to
handle a foster child’s behavior. Since the mid-1970’s, she has
had over two hundred and seventy-five foster children placed in
her home. Sousa has dealt with various medical problems in caring
for these children.

Sousa had a great deal of experience with
chicken pox. She had other foster children in the past who had
chicken pox, and Sousa’s natural children also had chicken pox.
One summer, she had six children with chicken pox. Before this
incident, Sousa had heard of meningitis and knew that it was
serious, but did not know anyone who had contracted the disease.
The disease is rare.

On June 6, 1996, a technician at St. Anne’s
Hospital in Fall River, where Robert was being tested for reasons
unrelated to the meningitis that caused his death, noticed purple
spots on Robert’s body. Sousa was with him at this time.

On June 11, 1996, Sousa kept Robert home from
school. He had a temperature of 101 degrees. There is evidence in
the record that Sousa believed that Robert had chicken pox for
three days prior to his hospital admission on the morning of June
12, 1996. There is also evidence in the record that Robert had a
rash on his trunk and armpits for one to two days prior to his
hospital admission.

A purple rash is a classic symptom and hallmark
of meningitis. A 101 degree temperature is another symptom of
meningitis. The purple rash which is a symptom of meningitis is
an entirely different color and shape from chicken pox. Chicken
pox are characterized by spots whereas meningitis is
characterized by a rash.

On June 11, 1996, Sousa called St. Anne’s
hospital to verify the presence of chicken pox in the area and
was told by a person in the Emergency Room that it was. She told
the person she spoke with about Robert’s morning fever. The
person told her not to worry. Sousa asked if the treatment was
still to keep the child clean and to use Calamine lotion. The
hospital told her that it was, and also advised her to use
Children’s Tylenol.

Sousa also spoke with Heaberlin who told her
that Robert had had chicken pox before. Rarely does one contract
chicken pox more than once in a lifetime.

Robert only "picked" at his supper on
the evening of June 11, 1996. Between 3:30 and 4:00 A.M. the next
morning, Sousa discovered that Robert had soiled himself. As he
felt warm, Sousa gave him a cool bath; after his bath, his
temperature registered 102. Sousa did not see any spots other
than the ones which had been visible to her the night before.

When, thirty minutes later, Robert said that he
was freezing and that his wrist hurt, Sousa believed that Robert
might have Lyme disease or encephalitis. She called
"911" at 5:56 A.M., and an ambulance arrived six
minutes later. When the ambulance arrived, Robert was in
respiratory distress. Sousa told the firefighter who arrived that
Robert was having trouble breathing and that he had chicken pox.

Robert was placed into an ambulance where he
went into full cardiac arrest. An emergency technician attempted
to get Robert breathing again, but his condition deteriorated
quickly. By 6:13 A.M., his breathing rate went down to zero. The
hospital staff in Fall River transferred him to Rhode Island
Hospital after diagnosing him with meningitis. By 8:30 A.M.,
Robert’s body was "all purple," including his feet.
Prior to the transfer, the hospital staff was able to get a pulse
from Robert.

After being transported to Rhode Island
Hospital, Robert died of meningitis and shock at 2:47 P.M. At the
time of his arrival at Rhode Island Hospital, Robert had massive
purpurea, or a purple rash, on his body. The purpurea which
Robert had on his body on the day of his death looked nothing
like chicken pox. Chicken pox are raised, and the blotches on
Robert’s body were not raised. Chicken pox looks like a blister,
almost like a boil. Robert’s skin was not blistered; the blotches
were flat on his skin. Chicken pox are usually itchy. There were
no signs that the blotches or spots on Robert’s skin had been
scratched.

Robert probably would have exhibited additional
symptoms of meningitis, other than the rash, as early as twelve
to twenty-four hours prior to the time when emergency medical
attention was first sought by Sousa. These symptoms include
lethargy and confusion, severe headaches and neck pain. Had
medical treatment been sought twelve to twenty-four hours earlier
than when it was sought, Robert probably would have survived.
Sousa was not responsible in any way for Robert’s becoming
infected with meningitis.

DISCUSSION

The complaint seeks damages from DSS for
Robert’s wrongful death brought about by the negligence of Sousa
(Count 2) and the negligence of DSS (Count 4). More specifically,
the alleged negligence consists of the following:

1) Sousa’s disregard for the
early symptoms of meningitis and her failure to
obtain prompt and adequate medical attention for
Robert;

2) DSS’ failure to provide
Sousa with training and education on childhood
diseases and severe medical problems, including
their identification and treatment; and

3) DSS’ hiring, supervision, and training of
the social worker assigned to Sousa and Robert.

DSS maintains that, under the Tort Claims Act,
it is immune from liability because neither DSS nor anyone acting
on its behalf "originally caused" Robert to develop
meningitis.[5] G.L. c. 258, § 10(j).

Section 10(j) of the Tort Claims Act aims
"to provide some substantial measure of immunity from tort
liability to government employers." Brum v. Town
of Dartmouth, 428 Mass. 684, 695 (1999). That section of
chapter 258 provides immunity from:

any claim based on an act or
failure to act to prevent or diminish the harmful
consequences of a condition or situation, including
the violent or tortious conduct of a third person,
which is not originally caused by the public employer
or any other person acting on behalf of the public
employer.

G.L. c. 258, §10(j). The grant of immunity,
however, does not apply to any of the following types

of claims:

any claim based upon explicit and
specific assurances of safety or assistance, beyond
general representations that investigation or
assistance will be or has been undertaken, made to
the direct victim or a member of his family or
household by a public employee, provided that the
injury resulted in part from reliance on those
assurances. . . .

any claim based upon the
intervention of a public employee which causes injury
to the victim or places the victim in a worse
position than he was in before the intervention; and
. . .

any claim by or on behalf of a
patient for negligent medical or other therapeutic
treatment received by the patient from a public
employee.

G.L. c. 258, § 10(j) (1), (2), (4).

Heaberlin does not claim that, but for Robert
being in Sousa’s care, Robert would not have developed
meningitis. Rather, the thrust of the complaint is that, but for
the negligence of DSS and Sousa, Robert would have received
treatment for meningitis more quickly and, therefore, would have
survived. In Brum, the Supreme Judicial Court interpreted
section 10(j) to immunize a town from liability for a student’s
death brought about by a stabbing at school because the town’s
failure to provide security was deemed not to have
"originally caused" the stabbing, despite the fact that
the killing came about because the town failed to prevent it. Brum,
428 Mass. at 692. The Court rejected an expansive reading of the
phrase "originally caused" in order to avoid every
negligent failure to prevent a condition or situation from giving
rise to liability notwithstanding section 10(j). Id. at
693. "Thus, there is immunity in respect to all consequences
except where ‘the condition or situation’ was ‘originally caused
by the public employer.’" Id. at 692. Therefore, even
if DSS or Sousa negligently failed to act to diminish the harmful
consequences of the meningitis contracted by Robert, section
10(j) provides immunity because neither DSS nor Sousa
"originally caused" Robert’s illness. None of
Heaberlin’s arguments to the contrary are persuasive.

Relying upon language in Brum to the
effect that "the principle purpose of §10(j) is to preclude
liability for failures to prevent or diminish harm, including
harm brought about by a third party," id. at 696,
Heaberlin argues that section 10(j) offers immunity only if the
harm at issue has been brought about by the act of a third
person. See also Serrell v. Franklin County, 47
Mass. App. Ct. 400, 403 (1999) ("the [appellate] cases to
date construing § 10(j) and holding it a bar to tort liability
involve fact patterns where a third party, not the governmental
actor, directly harmed the plaintiff"). Since it is not
contended that Robert fell ill with meningitis as a result of the
violent or tortious conduct of a third person, Heaberlin
maintains that section 10(j) is inapplicable. The appellate
courts have not, however, purported to restrict application of
section 10(j) to harm brought about by a third party.

Indeed, the plain text of section 10(j)
militates against the restrictive reading urged by Heaberlin.
"The ‘including’ clause [in section 10(j)] must modify the
noun consequences, rather than the nearer nouns ‘condition’ or
‘situation,’ because conduct cannot grammatically or logically
constitute ‘a condition or situation.’ Thus, there is immunity in
respect to all consequences except where ‘the condition or
situation’ was ‘originally caused by the public employer.’" Brum,
428 Mass. at 692 (emphasis added). Nowhere in its decision does
the Court conclude that the phrase "including the violent or
tortious conduct of a third person" confers immunity only to
claims of harmful consequences arising from the conduct of a
third person. Should the "including" clause be so
limited, it would leave public employers potentially liable for
negligent acts or omissions which fail or prevent or diminish the
harmful consequences of many conditions or situations, such as
those flowing from a natural disaster, self-inflicted harm, or
animal behavior.[6] Given the statute’s purpose, it is highly unlikely that
the Legislature intended the "including" clause to be
one of such narrow limitation. Accordingly, the
"including" clause in section 10(j) is not a limitation
which precludes immunity here merely because Robert’s meningitis
was not the result of the conduct of a third person.

Heaberlin next makes the related argument that
an illness, such as meningitis, is not a "condition or
situation" within the meaning of G.L. c. 258, § 10(j). The
text of the statute contains no such limitation. To construe, as
Heaberlin urges, the word "condition" as excluding any
medical condition would violate the principle of statutory
construction that words in a statute should be accorded their
common meaning. Pyle v. School Comm. of S. Hadley,
423 Mass. 283, 286 (1996). The common meaning of condition
certainly encompasses the state of being physically ill. See
American Heritage Dictionary 393 (3d ed. 1996) (defining
"condition" as "a mode or state of being . . . a
state of health . . . a state of readiness or physical fitness .
. . a disease or physical ailment . . . "). There is no
reason to assume that the Legislature intended the term
"condition" to be given a construction different from
its plain and ordinary meaning. To the contrary, section 10(j)
itself contains an exception for claims by patients for negligent
medical or other therapeutic treatment, G.L. c. 258, § 10(j)(4),
which would be rendered superfluous if the term
"condition" did not encompass a medical condition.

Relying upon the fact that the Court in Bonnie
W. v. Commonwealth, 419 Mass. 122, 126-128 (1994) held
that some of the claims in that action should have survived a
summary judgment motion, Heaberlin contends that his negligence
claims must survive as well. His argument overlooks the fact that
there is no evidence here of an affirmative act undertaken by DSS
or its agent which would remove this action from the protective
ambit of section 10(j).[7]

The plaintiff in Bonnie W. was sexually
assaulted during a parolee’s employment at a park. Id. at
125. She advanced two significantly different theories of
negligence, namely negligent supervision of a parolee and the
negligent recommendation of that parolee’s continued employment
at a trailer park and the giving of incorrect information in
support of that recommendation resulting in the parolee’s having
access to the plaintiff inside her mobile home. The Supreme
Judicial Court held that the negligent supervision theory was
barred by G.L. c. 258, § 10(j). The second claim, based on the
alleged negligent activity of a parole officer after parole was
granted, survived because it was based upon "an affirmative
act . . . that created a situation in which a sexual predator
held a job giving him access to the keys to every trailer in the
park." Brum, 428 Mass. at 695.

This record, by contrast, contains no similar
evidence of a wrongful affirmative act. Heaberlin does not claim
that the placement of Robert in Sousa’s home resulted in any way
in Robert becoming infected with meningitis.

Therefore, the exception to the grant of
immunity contained in G.L. c. 258, § 10(j)(2), applicable if the
claim is based upon the "intervention of a public employee
which causes injury to the victim" or which "places the
victim in a worse position than he was in before the
intervention" does not save Heaberlin’s claim. There is
nothing in this record that would support a finding of an
affirmative act of intervention that caused Robert to contract
meningitis or placed him in a worse position than he was before
the intervention. Cf. Bonnie W. v. Commonwealth,
419 Mass. at 127 (public employer negligently recommended
parolee’s employment and gave employer misleading information in
support of recommendation); Serrell, 47 Mass. App. Ct. at
405 (summary judgment not warranted where prison visitor’s
injuries stemmed from the affirmative action of the intervening
correctional officers and where the plaintiff produced evidence
"that the officers’ intervention exacerbated the situation
to her detriment and, ultimately, her harm") .

Heaberlin also maintains that the exception for
explicit and specific assurances of safety or assistance, G.L. c.
258, § 10(j)(1), allows his action to survive. That exception
has three prerequisites, namely that the representation be
"explicit and specific . . . beyond general representations
that investigation or assistance will be or has been
undertaken," that the representation be made to the direct
victim or a member of his family or household, and, finally, that
the injury result, in part, from reliance on those assurances.
With respect to the alleged oral representation made by an
unnamed representative of DSS,[8] Heaberlin fails to
meet the first and third prerequisites.[9]

A representation that a child being placed in
foster care will be taken care of with regard to his well-being,
including medical care, is far too general to satisfy the
specificity requirement in subsection 10(j)(1). "[B]y
‘specific’ the terms of the assurance must be definite, fixed and
free from ambiguity." Lawrence v. City of
Cambridge, 422 Mass. 406, 410 (1996). The representation
alleged by Heaberlin is no more than a general representation
concerning Robert’s care and protection and cannot be stretched
to mean that DSS promised Heaberlin that the foster parent caring
for Robert would receive special training in the recognition of
rare diseases such as meningitis. This court "would fail to
respect the intent of the Legislature to make § 10(j)(1) apply
to the truly exceptional case where direct and explicit
assurances are given to a particular person quite apart from the
normal carrying out of officials’ routine duties if [it] allowed
statements such as these to pass the bar of summary
judgment." Barnes v. Metropolitan Housing
Assistance Program, 425 Mass. 79, 87 (1997). Compare Lawrence,
422 Mass. at 410 (genuine issue of material fact whether a police
department’s promise was explicit and specific where, following
plaintiff’s agreement to testify at a grand jury hearing against
his assailants, including a known dangerous individual, the
police agreed to protect the plaintiff when he closed his store
at night).[10] The requisite specificity also cannot be supplied by
the situation, namely the placement of a child in foster care. Id.
("by ‘explicit’ the Legislature meant a spoken or written
assurance, not one implied from the conduct of the parties or the
situation").[11]

Moreover, unlike the recipient of the
representation in Lawrence, who submitted an affidavit
asserting that in returning to work he relied on the police
department’s promise, id. at 407, Heaberlin’s affidavit
does not state that he relied in any way upon the representation
made to him by DSS, and the record does not demonstrate that any
injury flowed from such reliance. On this record, such reliance
cannot be assumed; nor can it be assumed that, but for the fact
of the representation, Robert would not have been placed in
foster care in Sousa’s home.[12] Thus, Heaberlin cannot take advantage of G.L. c. 258,
§ 10(j)(1).

Heaberlin’s final argument is that since foster
children are "committed to [DSS]" pursuant to G.L. c.
119, § 24, a "special relationship" exists between the
Commonwealth and foster children, permitting a suit for
negligence in connection with the foster child relationship to be
maintained. However, there is nothing in G.L. c. 119, § 24 that
constitutes a waiver of sovereign immunity in connection with
actions alleging negligence by a foster parent or negligence by
DSS in connection with the foster care program.

Heaberlin analogizes foster children to
incarcerated prisoners and persons involuntarily committed to
mental facilities whose relationship to the state gives rise to a
duty of adequate protective services. See, e.g., DeShaney
v. Winnebago County Dep’t of Social Services, 489 U.S.
189, 198-200 (1989). In those circumstances, however, it is the
Constitution that imposes the duty of care. Id. at 200.
The immunity afforded by the Massachusetts Tort Claims Act
cannot, of course, bar a cause of action based upon violation of
a duty of care imposed by the Constitution. But there is no
authority for this court to create a common law public duty rule
that would permit negligence actions to proceed despite section
10(j) whenever a "special relationship" exists. See Bonnie
W., 419 Mass. at 126 ("G.L. c. 258, §10 [is] the only
public duty rule we shall now apply. We do not intend to have
applicable both the legislated public duty rule and a common law
public duty rule that might be applicable when the legislative
public duty rule is inapplicable").

Rather than supporting his argument that the
"special relationship" between the Commonwealth and
Robert should allow Heaberlin to proceed on his common law
negligence claims, Brum favors precisely the opposite
result. In Brum, the Court analyzed whether there was a
"special relationship" between a governmental unit and
school children that gave rise to a duty of care only in
connection with its discussion of the plaintiff’s claims under 42
U.S.C. § 1983. Brum, 428 Mass. at 697-705. The legal
impact of the possibility of there being a "special
relationship" was not discussed in the chapter 258 analysis.
Id. at 691-696.

Heaberlin has not brought any constitutional
claims here. Accordingly, any "special relationship"
that may have been created by G.L. c. 119, § 24 is not
sufficient to exempt this negligence action from the ambit of
G.L. c. 258, § 10(j). The task for this court is to interpret
and

apply G.L. c. 258, § 10(j), not to create
exceptions the Legislature has chosen not to include.

ORDER

For the foregoing reasons, it is hereby ORDERED
that the Fall River Department of Social Services’ motion for
summary judgment is ALLOWED and that JUDGMENT shall
enter in favor of the Fall River Department of Social Services
dismissing the plaintiff’s claims against it.

________________________

E. Susan Garsh

Associate Justice of the Superior Court

DATED: June 8, 2001.

FOOTNOTES:

[1] As Administrator of the Estate of Robert Heaberlin.

[2] Eileen Sousa.

[3] On October 17, 2000, this court (Murphy, J.) granted
Eileen Sousa’s motion for judgment on the pleadings with respect
to all counts against her on the grounds that she is a public
employee for purposes of this case and, therefore, immune from
liability.

[4] There is no evidence in the record that any state
provides training to foster parents in the recognition of
meningitis symptoms.

[5] DSS also argues that no evidence exists which could
support any finding of negligence or duty on the part of DSS or
Sousa. Disputed material facts, however, preclude the entry of
summary judgment dismissing the complaint on this ground. It is,
for example, disputed whether Sousa was aware that Robert
previously had had chicken pox and when Robert first displayed
symptoms of meningitis entirely different from chicken pox, an
illness with which Sousa was familiar. Furthermore, an assurance
of safety by DSS which may not be of a type that would permit the
plaintiff to maintain a suit against a public employer may
nonetheless be probative as to whether DSS breached a duty of
care owed to Robert.

[6] Several Superior Court justices have construed G.L. c.
258, § 10(j) as immunizing a public employer from liability even
when there is no violent or tortious conduct of a third person.
It has, for example, frequently been the basis for immunity when
the harm at issue resulted from the conduct of an animal. See,
e.g., Coughlin v. Hanson, Civil Action No.
00-1161A, 12 Mass. L. Rptr. 447, 448, 2000 WL 1584856, at *2
(Worcester Super. Ct. 2000) (Toomey, J.); Kelly v. City
of Cambridge, Civil Action No. 96-02877, 11 Mass. L. Rptr.
131,132, 1999 WL 1411348, at *2 (Middlesex Super. Ct. 1999)
(Fahey, J.); Moores v. Callahan, Civil Action No.
96-0972A, 10 Mass. L. Rptr. 743, 744, 1999 WL 1295109, at *2
(Plymouth Super. Ct. 1999) (Hely, J.); Cooper v. Somerville
Hous. Auth., Civil Action No. 98-5274, 10 Mass. L. Rptr. 410,
411-412, 1999 WL 753386, at *2 (Middlesex Super. Ct. 1999)
(Sosman, J.). In other contexts, as well, section 10(j) has been
held to provide immunity in the absence of any conduct of a third
person. E.g., Jacome v. Commonwealth, Civil Action
No. 99-3709E, at 3-4 (Suffolk Super Ct. 2000) (King, J.) (minor
drowned at public beach); Hardy v. City of Somerville,
Civil Action No. 94-2979, 3 Mass. L. Rptr. 158, 160, 1994 WL
878797, at *4 (Middlesex Super. Ct. 1994) (Bohn, J.)
(self-inflicted intoxciation).

[7] Heaberlin’s argument that DSS cannot take advantage of
the discretionary function exception, G.L. c. 258, § 10(b), also
in reliance on Bonnie W., 419 Mass. at 127, is not
addressed because DSS has not argued that § 10(b) entitles it to
summary judgment.

[8] Plaintiff’s failure to identify the DSS employee who
made the alleged representation "may cast doubt on the
factual accuracy of his claim," but is an insufficient basis
on which to grant summary judgment in favor of the Commonwealth. Lawrence
v. City of Cambridge, 422 Mass. 406, 410 (1996).

[9] To the extent that Heaberlin seeks to come within
section 10(j)(1) based upon the assertions in the Agreement
regarding the provision of a medical passport to a foster parent
and a foster parent’s obligation to arrange for emergency medical
treatment when necessary, he cannot. Not only is there no
evidence in the record that Heaberlin relied upon statements in
the Agreement, there is no evidence that he ever saw it and thus
no evidence that any representation in the Agreement was made to
him directly. Even if Heaberlin or Robert could be deemed to be a
third party beneficiary of the Agreement, that status is
insufficient to satisfy the statutory requirement that the
representation actually be made to the direct victim or a member
of his family or household. See Barnes v. Metropolitan
Hous. Assistance Program, 425 Mass. 79, 85 (1997).

[10] In Lawrence, the Court pointed out that the
promise must be taken to refer only to protection in respect to
the particular assault that gave rise to the representation and
not to extend generally to protecting the plaintiff "from a
disgruntled fellow employee or person carrying a grudge because
of some personal relationship." Lawrence, 422 Mass.
at 412.

[11] See also Lamare v. Commonwealth, Civil
Action No. 92-6343, 1994 WL 879863, at *1 (Super. Ct. 1994).

[12] See generally G.L. c. 119, § 24. According to the
facts in the record, objected to on the grounds of relevancy but
not disputed, on February 21, 1996, a 51A report was filed when a
man overdosed on heroin and died in Heaberlin’s apartment. DSS
asked Heaberlin to submit to random urine screens for drugs, and
he refused. On April 9, 1996, another 51A report was made after
Heaberlin was seen in the emergency room of St. Anne’s Hospital
where he arrived by ambulance after collapsing. Heaberlin
admitted to alcohol intoxication, but denied drug use. On April
10, 1996, the hospital reported that it had found alcohol,
heroin, and marijuana in Heaberlin’s system. On the same day,
Robert, along with a sibling, was placed in Sousa’s home. The
record also reflects that both Robert and his brother had been in
foster homes before.