In re Luc
| Decision Date | 13 February 2020 |
| Docket Number | SJC-12719 |
| Citation | 139 N.E.3d 337,484 Mass. 139 |
| Parties | ADOPTION OF LUC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Sherrie Krasner (Sarah Unger, Boston, also present) for the mother.
Brian Pariser for Department of Children and Families.
Justin D. Cohen, Melrose, for the child.
Andrew L. Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
In this case, the Department of Children and Families (DCF) filed a petition under G. L. c. 119, § 24, alleging that the child, whom we shall call Luc, and his half-sister, whom we shall call Olivia, were in need of care and protection.2 During the trial, Stephen McMorrow, one of the DCF social workers who managed the mother's case, testified on direct examination but died before the mother had the opportunity to cross-examine him. The Juvenile Court judge then struck McMorrow's testimony but, over the mother's objection, admitted in evidence McMorrow's DCF reports and dictation notes. After trial, pursuant to G. L. c. 210, § 3 (c ), the judge found that the mother was unfit, that Luc was in need of care and protection, and that termination of the mother's parental rights was in the best interests of Luc.3 The judge then issued a decree terminating the mother's parental rights to Luc.4
The mother appealed from the judge's decision and decree, and the Appeals Court affirmed. See Adoption of Luc, 94 Mass. App. Ct. 565, 566, 116 N.E.3d 644 (2018). We granted the mother's application for further appellate review. The mother alleges that (1) the judge improperly admitted in evidence McMorrow's DCF reports and dictation notes, as well as inadmissible second-level hearsay and improper opinion evidence contained therein; and (2) the judge's findings of fact were insufficient to establish the mother's unfitness by clear and convincing evidence. On September 12, 2019, we issued an order affirming the judge's decision and decree. This opinion states the reasons for that order. We conclude that even without the challenged evidence, there was enough proof to support the judge's decree and decision, and therefore, we affirm.5
McMorrow's death raised numerous evidentiary issues regarding the admission of documentary evidence in care and protection cases. While we need not reach those issues to resolve this case, we recognize that the rules of evidence as applied in this area of law are hardly a model of clarity. As such, we take this opportunity to try to disentangle several important evidentiary principles, specifically with regard to hearsay. See Care & Protection of Benjamin, 403 Mass. 24, 27 n.5, 525 N.E.2d 418 (1988) ().6
Background. We briefly describe how a care and protection case is initiated, followed by a summary of the judge's undisputed factual findings, reserving some findings for our discussion.
When a statutorily mandated reporter has reasonable cause to believe that a child is suffering from abuse or neglect, the mandated reporter must report such an allegation to DCF immediately, pursuant to G. L. c. 119, §§ 1, 51A (51A report).7 Upon receipt of a 51A report, DCF must immediately screen the report to determine whether the reported allegation meets the applicable statutory and regulatory requirements. See 110 Code Mass. Regs. § 4.21 (2009).8 Once a 51A report is "screened in," DCF is required to investigate the allegation and make a written determination whether the allegation is supported (51B report). See G. L. c. 119, § 51B ; 110 Code Mass. Regs. § 4.21. If the allegation is supported, DCF must offer "appropriate services" to the family of any child whom it has reasonable cause to believe is suffering from abuse or neglect "to prevent further injury to the child, to safeguard his welfare, and to preserve and stabilize family life whenever possible." G. L. c. 119, § 51B (g ). "If the family declines or is unable to accept or to participate in the offered services, [DCF] or any person may file a care and protection petition under [§] 24." Id. See G. L. c. 119, § 24. Moreover, if DCF has reasonable cause to believe a child is in immediate danger from abuse or neglect and that removal is necessary to protect the child from such abuse or neglect, DCF "shall take the child into immediate temporary custody[,] ... shall make a written report stating the reasons for such a removal and shall file a care and protection case under [§] 24 on the next court day." G. L. c. 119, § 51B (e ). See G. L. c. 119, § 24.
In this case, the undisputed evidence showed that the mother had a history of mental illness, including bipolar disorder
and depression, for which she had been previously hospitalized. The mother informed the court investigator that, against medical advice, she had not taken medication to treat her mental illness and that she did not need counseling. The mother also testified that she had no recollection of receiving mental health treatment in 2012, the year Luc was born. The mother also has an extensive history with DCF. At the time of trial, the mother had nine children and did not have custody of any of them.9
Luc was born on November 8, 2012. The following month, a nonmandated reporter filed a 51A report, alleging that the mother was neglecting Luc and Olivia. A DCF investigation conducted pursuant to G. L. c. 119, § 51B, supported the allegation. In January of 2013, DCF assigned Alba Mora as the ongoing social worker for the family. Mora spoke with the mother several times about participating in mental health services and engaging Luc in early intervention services due to Luc's cognitive, social, and motor skills deficits.10 After several months elapsed, the mother complied, but her follow-up with early intervention was inconsistent.11 Following an altercation between the mother and an early intervention provider, the early intervention visits were moved from the mother's home to the early intervention office, located nearby. An early intervention provider recommended that Luc have weekly visits, but the mother only agreed to one visit per month.
On September 23, 2013 (petition date), DCF filed a care and protection petition alleging that the mother neglected Luc and Olivia (petition). The court granted DCF emergency temporary custody of both Luc, who was then ten months old, and Olivia, who was almost three years old. DCF asserted that Luc and Olivia were in need of care of protection for the following reasons: (1) Luc's lack of participation in early intervention services and Olivia's lack of attendance at day care; (2) the mother lost custody of her five older children due to her untreated bipolar disorder ; and (3) the mother's "lack of consistent mental health treatment and her lengthy history of similar concerns."
Following the initiation of the care and protection case, DCF drafted a service plan for the mother, with the goal of reunification. The plan required the mother, among other things, to engage in mental health and substance use disorder services and individual therapy; provide DCF with urine screens; undergo a psychological evaluation; and attend supervised visits with Luc.12 The mother failed to comply consistently with the plan. The mother did not engage in mental health or substance use disorder treatments for several months, and once engaged, the mother neither took the recommended medication nor consistently attended individual therapy sessions. In addition, the mother failed to complete all the required urine screens. At least four of the urine screens she did complete were positive for substances for which the mother did not have a valid prescription. Moreover, one of the mother's children, born after the petition date, tested positive for cocaine at birth. The mother also failed to provide DCF with a psychological evaluation, and she did not consistently attend visits with Luc.
Approximately seven months after the petition date, on April 15, 2014, DCF changed its goal from reunification to adoption. On August 6, 2014, DCF transferred Luc's case to McMorrow. The mother's inconsistent compliance with the service plan continued throughout the pendency of the care and protection case, during which time she also gave birth to two additional children.
The hearings on the merits of Luc's care and protection case began on October 5, 2015, about two years after the petition date. After a trial that took place on eleven nonconsecutive days and spanned over thirteen months, the judge found that the mother was unfit, that Luc was in need of care and protection, and that it was in the best interests of Luc to terminate the mother's parental rights. Based on those findings, the judge then terminated the mother's parental rights.13
Discussion. To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's "best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59, 944 N.E.2d 115 (2011). We give substantial deference to the judge's findings of fact and decision, and will only reverse "where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Id.
1. Unfitness determination. The mother argues that the judge's findings did not establish her unfitness by clear and convincing evidence. We disagree. The evidence was compelling and more than satisfied
the standard for unfitness, even without the challenged hearsay evidence.
a. Stale evidence. The mother argues that the judge improperly admitted and relied upon stale evidence regarding the mother's care of...
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