Adoption of Luc ( 2018 )

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18-P-473 Appeals Court
ADOPTION OF LUC.1
No. 18-P-473.
Suffolk. September 5, 2018. - December 13, 2018.
Present: Hanlon, Sullivan, & Desmond, JJ.
Parent and Child, Adoption, Dispensing with parent's consent to
adoption. Minor, Adoption. Adoption, Dispensing with
parent's consent. Evidence, Child custody proceeding,
Public documents, Declaration of deceased person, Report of
licensed social worker.
Petition filed in the Suffolk County Division of the
Juvenile Court Department on September 23, 2013.
The case was heard by Peter M. Coyne, J.
Sarah M. Unger for the mother.
Brian Pariser for Department of Children and Families.
Justin D. Cohen for the child.
SULLIVAN, J. The mother appeals from a decree issued by a
judge of the Juvenile Court terminating parental rights to her
son, Luc. See G. L. c. 210, § 3. She contends that (1) the
1 A pseudonym.
2
judge based his findings on dictation notes and reports of a
deceased social worker that contained inadmissible hearsay; (2)
the admissible evidence did not support a finding of unfitness;
and (3) the lengthy delay between the witness testimony and the
judge's findings of fact rendered the findings unreliable. We
conclude that the dictation notes and reports were admissible,
the evidence was sufficient, and the delay was not prejudicial.
We therefore affirm.
Hearsay. The mother's threshold claim is that the judge
erroneously admitted dictation notes taken and reports prepared
by Department of Children and Families (DCF) social worker
Stephen McMorrow. After McMorrow testified on direct
examination, the trial was continued for several months. In the
interim, before the mother had an opportunity to cross-examine
him, McMorrow died. The judge struck McMorrow's testimony, but
admitted his dictation notes, reports, and assessments, subject
to rebuttal, and with certain limitations.2 The judge
2 The judge stated:
"I'll allow the admission of the dictation, subject to the
counsel's -- to the parties' opportunity to rebut any of
the -- any of the factual assertions that are in there, but
it would only be limited to statements of fact and as to,
as similarly with all the other types of reports and
assessments that the -- there's a limitation on the
materials that'll be admitted, and it will -- a judgment
and opinion will not be admissible under the regular rules
of hearsay."
3
meticulously interlineated ninety pages of the record with
rulings and redactions, admitting statements of fact, and
excluding opinion and impressions. Melissa Thibodeau, who was
McMorrow's supervisor, testified in his stead, and was permitted
(over objection) to summarize certain aspects of his reports.
"In a care and protection proceeding, evidence is
'admissible according to the rules of the common law and the
General Laws.'" Care & Protection of Zita, 455 Mass. 272, 279
(2009), quoting G. L. c. 119, § 21A.3 "The general admissibility
of case work documents and court investigator reports is no
longer seriously in question." Adoption of Iris, 43 Mass. App.
Ct. 95, 100 n.8 (1997). See Adoption of Paula, 420 Mass. 716,
725 (1995); Adoption of George, 27 Mass. App. Ct. 265, 274
3 General Laws c. 119, § 21A, provides in pertinent part:
"Evidence in proceedings under sections 21 to 51H,
inclusive, shall be admissible according to the rules of
the common law and the General Laws and may include reports
to the court by any person who has made an investigation of
the facts relating to the welfare of the child and is
qualified as an expert according to the rules of the common
law or by statute or is an agent of the department or of an
approved charitable corporation or agency substantially
engaged in the foster care or protection of children. Such
person may file with the court in a proceeding under said
sections 21 to 51H, inclusive, a full report of all facts
obtained as a result of such investigation. The person
reporting may be called as a witness by any party for
examination as to the statements made in the report. Such
examination shall be conducted as though it were on cross-
examination."
4
(1989).4 The rationale underlying these cases is that service
plans, case reviews, and foster care reviews are admissible
pursuant to "the public documents or official records hearsay
exception [that] authorizes admission of the record of a primary
fact made by a public officer in the course of official duty."
Adoption of George, supra at 272. See Adoption of Vidal, 56
Mass. App. Ct. 916, 916 (2002); Mass. G. Evid. § 1115(b)(2)(C)
(2018). Cf. Mass. Guide Evid. § 803(8)(A).
The mother contends that the dictation notes are not an
official record because they are not required by statute, unlike
reports of social workers, court investigators, and guardians ad
litem, and those reports made pursuant to G. L. c. 119, §§ 51A
and 51B. See G. L. c. 119, §§ 21, 21A, 24; G. L. c. 215, § 56A;
and G. L. c. 119, §§ 51A (a), 51B (c), respectively. The
dictation notes are required by regulation, and are therefore
made in the course of an official duty. See 102 Code Mass.
Regs. § 5.13(2)(b)(12) (1998). Section 5.13(2)(b)(12) requires
that case workers maintain "case notes documenting contacts and
4 We note that Adoption of George, supra, was decided under
what was then G. L. c. 119, § 21. Section 21 was later amended,
and the provisions upon which we now rely were moved, with
modifications, from § 21 to § 21A. See St. 1972, c. 785, § 7;
St. 1996, c. 151, § 276; St. 2008, c. 176, § 83; St. 2008,
c. 215, § 64B.
5
services set forth in 102 [Code Mass. Regs. §§] 5.05(1) and (3),
5.06, and 5.07" for each child.5
"[A] properly promulgated regulation has the force of law
and must be given the same deference accorded to a statute."
Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 496 (2010). See
Dexter v. Superintendent, Massachusetts Correctional Inst.,
Concord, 88 Mass. App. Ct. 325, 326 (2015).6 The dictation notes
were taken as required by law, in the course of McMorrow's
duties, and are an official record within the meaning of the
statutes. See Adoption of George, 27 Mass. App. Ct. at 272.
The notes formed the basis of reports signed by McMorrow and his
supervisor. See Adoption of George, supra ("It would be
5 After trial, 102 Code Mass. Regs. § 5.13(2) was
superseded by 606 Code Mass. Regs. § 5.12(2) (2018).
6 In addition, DCF policy no. 85-011 (1995), entitled
"Assessment Policy," requires that a case worker performing an
assessment of a family "document[] all client and collateral
contacts in dictation by noting the date, location, and method
of contact as well as the content and outcome of each contact."
The policy is entitled to substantial deference but does not
have the force of law. See Global NAPs, Inc., 457 Mass. at 496(guidelines do not have force of law). The policy is consistent
with the regulation and underscores our conclusion that the
dictation notes are an official record. Contrast id. Because
the notes were required by regulation, we need not decide
whether the policy alone would suffice to render the dictation
notes an official record. After the date of this trial, DCF
replaced policy no. 85-011 with policy no. 2017-01, entitled
"Family Assessment and Action Planning Policy," effective Feb.
6, 2017, https://www.mass.gov/files/documents/2018/03/05/Family
Assessment and Action Planning Policy.pdf
[https://perma.cc/7YVB-93DL].
6
anomalous to require keeping of these records on the one hand
while requiring that they be entirely ignored on the other when
the case is under judicial review").
The dictation notes and the reports were admissible subject
to two conditions. "The first of two conditions that limit the
receipt in evidence of [DCF] reports is that the reports must
either be limited to a statement of facts, or redacted to
exclude opinion, diagnosis or evaluation." Care & Protection of
Bruce, 44 Mass. App. Ct. 758, 766 (1998). We have reviewed the
record and are satisfied that the judge made the necessary
rulings and redactions of statements of evaluation, impression,
and opinion, and that the document admitted was a record of
primary fact. See Adoption of George, 27 Mass. App. Ct. at 272.7
"The second condition is that opposing parties must be able
to cross-examine the author of the report, should they request
so to do." Care & Protection of Bruce, supra. "[F]airness and
due process concerns require 'that a parent be given the
opportunity effectively to rebut adverse allegations,' by having
the opportunity to refute incorrect information." Custody of
Tracy, 31 Mass. App. Ct. 481, 486 (1991), quoting Custody of Two
7 To the extent that the reports contained, and the judge
relied on, matters that were arguably impression or opinion (for
example, the findings regarding the mother's cluttered home or
her struggle with the child's high energy level), there is other
evidence in the record to support the finding.
7
Minors, 19 Mass. App. Ct. 553, 557 (1985), and Duro v. Duro, 392
Mass. 574, 580 (1984). McMorrow's untimely death deprived the
mother of the opportunity to cross-examine him. The judge
properly struck his testimony. The remaining question is
whether the reports were admissible on some other basis.
We conclude that the reports were otherwise admissible
(without cross-examination of McMorrow) as the declaration of a
decedent. General Laws c. 233, § 65, provides that "[i]n any
action or other civil judicial proceeding, a declaration of a
deceased person shall not be inadmissible in evidence as
hearsay . . . if the court finds that it was made in good faith
and upon the personal knowledge of the declarant." Written
reports fall within the ambit of § 65. Bellamy v. Bellamy, 342
Mass. 534, 536 (1961). The fact that reports and dictation
notes are kept as required by law will generally satisfy the
good faith requirement in the statute; the public duty to report
is an indicia of reliability. Case work documents and court
investigator reports prepared by DCF staff in the course of
their work bear the indicia of reliability and are generally
admissible. Brantley v. Hampden Div. of the Probate & Family
Court Dep't, 457 Mass. 172, 185 (2010). The mother does not
contend that McMorrow exhibited bias, or that his reports were
made without a good-faith basis.
8
The mother nonetheless contends that she was unduly
prejudiced by the admission of documents whose author she was
unable to cross-examine. Of the thirty-one findings challenged
by the mother, several involve statements she made to McMorrow.
The underlying statements of the mother constitute the
admissions of a party opponent. See Adoption of Larry, 434
Mass. 456, 464 (2001). The mother testified at trial and could
rebut any statement improperly attributed to her.
Several other statements involve prior clinical histories
and summaries of reports by mental health providers, substance
abuse service providers, and day care providers; notations of
G. L. c. 119, § 51A, reports; initial and amended DCF service
plans and goal assessments; and reports of the mother's
probation officer. We have previously held that this second-
level hearsay is admissible "with opinion, evaluation, and
judgment material edited out," noting the burden that would be
imposed in calling the full panoply of actors involved in any
case at trial. Adoption of George, 27 Mass. App. Ct. at 274.
The underlying reports were prepared by numerous professionals
who also have an obligation to make truthful and accurate
reports to the department "as a matter of duty and routine."
Id. at 274-275. "It would ill serve the interests of the
parties or the court if each contributor to the case record were
required to present testimony from her or his own mouth." Id.
9
at 273. Any prejudice stemming from the factual observations of
the service providers is found not in the summary prepared by
the department social worker, but in the observations of the
service providers themselves. This second-level hearsay may be
rebutted by subpoenaing the source.
Of those observations made by McMorrow himself during home
visits, the mother does not dispute some, such as her refusal to
attend Alcoholics Anonymous meetings, and her decision to leave
one of her children with her brother, who had been diagnosed
with schizophrenia and who had been arrested for sexual assault
a month before she left the child alone with him. She
testified, and she had the opportunity to dispute any other fact
regarding her behavior observed only by McMorrow and contained
in the dictation notes and reports. Finally, the mother's new
social worker testified to her knowledge of the mother's history
of drug and alcohol use, and the reasons the mother gave for her
positive drug screens, reasons that the judge did not credit.
The mother also relies on Anselmo v. Reback, 400 Mass. 865(1987). She argues that the prejudice attendant to admitting
the reports and dictation notes without the opportunity for
cross-examination far outweighs the probative value of the
evidence. In Anselmo, however, the plaintiff's decedent in a
medical malpractice case made a videotaped statement in
anticipation of her impending death. No notice was given to the
10
defendants, who thus had no opportunity to cross-examine her.
The Supreme Judicial Court affirmed the decision of the trial
judge to exclude the evidence, reasoning that G. L. c. 233,
§ 65, was not intended to involve "declarations of a deceased
person that were made for the purpose of perpetuating the
declarant's testimony." Id. at 869. This case, unlike Anselmo,
is consistent with prior cases in which "provision for cross-
examination . . . [was] not a realistic possibility." Id.
Fitness. "Parental unfitness is determined by considering
a parent's character, temperament, conduct, and capacity to
provide for the child's particular needs, affections, and age."
Care & Protection of Vick, 89 Mass. App. Ct. 704, 706 (2016).
The best interests of the child are "of paramount importance."
Care & Protection of Olga, 57 Mass. App. Ct. 821, 830 (2003).
The mother's primary challenge to the judge's determination
of unfitness is based on her previous argument that the evidence
of mental illness, resistance to treatment, choice of an
inappropriate caregiver for a child, and lack of engagement with
and care of Luc all derived from erroneously admitted case notes
and reports.8 Having concluded that the reports and notes were
8 The mother also challenges the admissibility of the
testimony of Thibodeau, McMorrow's supervisor. The parties had
originally stipulated that Thibodeau could testify to lay a
foundation for the reports, which she also signed. Due to
delays in the trial calendar, she testified eight months after
McMorrow's death. She was allowed to summarize, over objection,
11
properly admitted, that evidence is properly before us. We
conclude that the judge's determination of unfitness was
supported by clear and convincing evidence. See Care &
Protection of Vick, 89 Mass. App. Ct. at 706. The mother's
long-term history of mental illness, sporadically treated, her
reliance on drugs and alcohol to self-medicate, her positive
urine screens during the pendency of the case, her noncompliance
with service plans, and her inability to attend to Luc, coupled
with the systematic neglect of her six older children due to the
same untreated mental health and substance abuse issues, "proved
parental unfitness by clear and convincing evidence." Custody
of Eleanor, 414 Mass. 795, 802 (1993).
Delay. The mother also maintains that the thirteen-month
delay between the termination decree and the issuance of the
judge's findings of fact (which issued one year after the mother
filed her notice of appeal) renders the findings unreliable.9
some of the evidence in the reports, including observations she
made, her visits and telephone conversations with the mother,
the mother's case history, the mother's positive drug screens,
and the mother's failure to adhere to service plan tasks.
Thibodeau did not purport to testify to conversations between
the mother and McMorrow that occurred when Thibodeau was not
present, but she did verify the dictation notes and reports as
keeper of the record. The testimony based on her firsthand
knowledge was plainly admissible. Because the dictation notes
and the reports were independently admissible, her testimony was
cumulative with respect to the case history.
9 The findings issued some two and one-half years from first
date mother testified. However, the mother concluded her
12
Although delay is never to be desired, this delay was not so
prolonged as to "strain[] the outer limits of any judge's
ability to remember witness demeanor and credibility." Adoption
of Rhona, 57 Mass. App. Ct. 479, 486 (2003). The mother has not
indicated in any meaningful way how the delay affected the
judge's findings or conclusions. For this reason, the mother
has not persuaded us that the delay in issuing written findings
materially prejudiced the fact finding process.
Decree affirmed.
testimony and the evidence closed on January 18, 2017. The
decree issued on February 21, 2017. The mother filed her notice
of appeal on March 10, 2017, and the judge issued his findings
of fact and conclusions of law one year later, on March 23,
2018.