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Adoption of Luc

Appeals Court of Massachusetts, Suffolk

December 13, 2018

ADOPTION OF LUC. [1]

          Heard: September 5, 2018.

          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.

          Present: Hanlon, Sullivan, & Desmond, JJ.

          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 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 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 (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 (c0, 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 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 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 ...


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