Adoption of Carla

• Decision Date: 09 December 1993
• Citation: 623 N.E.2d 1118,416 Mass. 510
• Parties: ADOPTION OF CARLA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1118

623 N.E.2d 1118

416 Mass. 510

ADOPTION OF CARLA.

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued Sept. 8, 1993.

Decided Dec. 9, 1993.

Donald P. Whitney, for mother.

Richard A. Salcedo, for Dept. of Social Services.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

Sally, ¹ the mother, appeals from a judgment of the Probate and Family Court allowing the petition of the Department of Social Services (department) to dispense with consent of the mother and the father to the adoption of their child, Carla. ² G.L. c. 210, § 3 (1992 ed.). The mother argues on appeal that the judge (1) erroneously admitted in evidence three reports of an investigator prepared pursuant to G.L. c. 119, § 24 (1992 ed.); (2) erroneously admitted hearsay statements of the child and of her brother; (3) erroneously admitted the testimony and evaluation of a psychotherapist who evaluated the mother; and (4) granted the petition despite the lack of sufficient evidence.

The facts found by the judge are these. Carla was born in 1980, the child of Sally and Jay, who were married in 1973 and divorced in 1979. After the divorce of her parents, Carla lived with her mother and brother, Jeremy. The family, consisting of Sally, Carla, and Jeremy, came to the attention of the department in October, 1986, as a result of a substantiated report filed in accordance with G.L. c. 119, § 51A (1992 ed.) (51A report). A second 51A report was filed in December, 1986, and a third was filed in February, 1987. The department filed a care and protection petition under G.L. c. 119, § 24, in the Northampton Division of the District Court. Temporary custody was awarded to the department. An investigator was appointed by the District Court judge pursuant to G.L. c. 119, § 24. The investigator prepared a report as prescribed by the statute. In May, 1988, the judge of the District Court issued his findings, adjudication, and order in which he determined that Carla was in need of care and protection, and ordered her committed to the custody of the department. The department filed this petition to dispense with consent to adoption in November, 1989. Trial was held in the Probate and Family Court in February, 1992. During this trial Sally made numerous objections to the admission of certain evidence and testimony. We address each assertion of error individually.

1. The investigator's reports. Sally argues that the trial judge erred in admitting in evidence reports prepared pursuant to G.L. c. 119, § 24, by an investigator for the District Court in the underlying care and protection proceeding. Sally concedes that the report properly was admitted in the care and protection proceeding under the statutory exception to the hearsay rule. See Custody of Jennifer, 25 Mass.App.Ct. 241, 245, 517 N.E.2d 187 (1988), and cases cited. In those proceedings, investigators' reports are admissible even when they contain hearsay. Custody of Tracy, 31 Mass.App.Ct. 481, 486-487, 579 N.E.2d 1362 (1991). Custody of Michel, 28 Mass.App.Ct. 260, 266, 549 N.E.2d 440 (1990).

The admissibility of an investigator's report prepared pursuant to G.L. c. 119, § 24, in a G.L. c. 210, § 3, proceeding on a petition to dispense with consent to adoption previously has been raised in this court but we have not yet been presented with an appropriate case to decide this issue. Adoption of Mary, 414 Mass. 705, 709-710, 610 N.E.2d 898 (1993). Adoption of Kimberly, 414 Mass. 526, 538-539, 609 N.E.2d 73 (1993). Similarly, we find it unnecessary to decide that issue today. Beyond her assertion that she was prejudiced by the admission of the investigator's reports, Sally makes no attempt to demonstrate specifically how she was prejudiced by the admission of the reports except to point out that the judge's findings reflected information in the reports although she does not point to specific findings to which she objects. Our own review of the record before us reveals no prejudice. Only a few of the findings of the trial judge reflected information contained in the reports. Those findings, however, along with all the other findings of the trial judge, were supported by live testimony of witnesses subject to cross-examination, including the investigator, and by other evidence properly admitted. The judge did not specifically rely on these reports in making his findings, and there was ample evidence to support them even if the investigator's reports had been excluded. Thus, any error in admitting the investigator's reports could not prejudice the mother. See Adoption of Kimberly, supra at 539, 609 N.E.2d 73.

2. Hearsay statements of the children. Sally claims that the trial judge erroneously failed to exclude hearsay statements of Jeremy in their entirety and hearsay statements of Carla to the extent they are not relevant to establish her state of mind. She concedes, however, that a child's state of mind may be relevant in a G.L. c. 210, § 3, proceeding.

Sally argues that, although Carla's state of mind may be relevant, since the proceeding deals with Sally's parental rights as to Carla, Jeremy's state of mind is not relevant because Sally's parental rights as to him are not at issue. Relevance is a broad concept, however, and any information which tends to establish or at least shed light on an issue is relevant. Green v. Richmond, 369 Mass. 47, 59, 337 N.E.2d 691 (1975). Commonwealth v. Palladino, 346 Mass. 720, 726, 195 N.E.2d 769 (1964). At issue here is whether Sally is currently unfit to further the welfare and best interests of Carla. Adoption of Kimberly, supra 414 Mass. at 528-529, 609 N.E.2d 73. We have noted that "[a] parent may be fit to raise one child and unfit to raise another," id. at 530 n. 8, 609 N.E.2d 73 and cases cited, but it is also true that a parent may be unfit to raise any child. Sally's fitness to raise Jeremy was not a question that the trial judge had to decide in this case, but that question was relevant to Sally's fitness to raise Carla. Therefore, Jeremy's state of mind may have been relevant and it was not error for the trial judge to consider it.

We recognize that it would have been error to admit the statements of the children for the purpose of establishing the truth of the matters asserted therein. See Custody of Michel, 28 Mass.App.Ct. 260, 267, 549 N.E.2d 440 (1990). In the context of G.L. c. 119, § 24, hearsay contained in an investigator's reports is allowable where there is "an opportunity to refute the investigator and the investigator's sources through cross-examination and other means" (emphasis added). Id. at 266, 549 N.E.2d 440 and cases cited. Similarly, in c. 210 proceedings, due process and fundamental fairness dictate that a parent should have the opportunity to rebut the evidence against the parent. Adoption of Mary, 414 Mass. 705, 710, 610 N.E.2d 898 (1993). To permit the admission of a child's hearsay statements for their truth would violate this requirement where the parent is denied the opportunity to rebut effectively those statements. Such is the case when the child does not testify and the trial judge has no other means by which to assess the credibility and accuracy of the child's statements. ³

Based on the record before us, we cannot determine whether the judge used the statements of the children for something other than a nonhearsay purpose. We note that at several points during the hearing, he indicated that he would accept the statements only to the extent they established the children's state of mind, and in other instances sustained Sally's hearsay objection to questions regarding the children's statements. Since the findings of the judge which reflected the hearsay statements of the children were all supported by other evidence or testimony which was properly admitted, we conclude that any error in admitting and using the statements of the children for hearsay purposes was harmless.

3. The psychotherapist's testimony and evaluation. Sally argues that the trial judge erroneously permitted a psychologist who evaluated Sally in March, 1987, to testify at the hearing despite the assertion by Sally of the psychotherapist-patient privilege, G.L. c. 233, § 20B (1992 ed.). Sally had filed a motion in limine to prohibit the testimony of the psychologist on the ground of the statutory privilege, and the trial judge denied this motion. At the trial, however, when the psychologist took the stand to testify, Sally's counsel made no objection to his testimony. ⁴ Since the existence of the privilege alone does not disqualify a psychotherapist from testifying, a party desiring to exercise the privilege must make an attempt to do so at trial. See Commonwealth v. Benoit, 410 Mass. 506, 518-519, 574 N.E.2d 347 (1991), and cases cited. Sally's failure to make such an attempt prevents her from arguing on appeal that the trial judge's allowing the psychologist to testify was error. Id. The assertion of the privilege in her motion in limine is insufficient to preserve Sally's appellate rights as to the psychologist's testimony. Adoption of Kimberly, 414 Mass. 526, 534-535, 609 N.E.2d 73 (1993); Freyermuth v. Lutfy, 376 Mass. 612, 616, 382 N.E.2d 1059 (1978). Thus, the testimony of the psychologist retained its full probative force. Freyermuth, supra at 617, 382 N.E.2d 1059.

Sally further argues, again on the ground of the psychotherapist-patient privilege, that it was error for the judge to admit the evaluation of Sally written by the psychologist. We find it unnecessary to address this argument, however, because even if it were error to admit the evaluation, any such error was harmless. ⁵ While the judge, in his findings of fact, quoted language contained in the evaluation, the quoted portions also were contained in the findings of fact of the District Court judge in the underlying care and protection proceeding. Those findings were admitted without objection. Therefore, the quoted portions...