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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.
