Opinion
No. 15–P–1681.
06-06-2016
Adoption of QUINZEL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from a decree terminating her parental rights, the mother claims that her due process rights were violated, that the evidence was insufficient to support a conclusion that her unfitness is likely to continue into the indefinite future, and that the judge made erroneous findings that require a remand. We affirm.
The mother first contends that she was not notified that there would be a trial on August 28, 2015, in violation of her right to due process. In the trial judge's decision denying the mother's motion for a new trial, the judge explicitly found that the mother's attorney was informed on July 15, 2015, that a hearing on the merits would be held on August 28, and that the Department of Children and Families (department) advised it would likely seek termination of her parental rights. The mother was present for several proceedings in this matter in 2014, including the December hearing after her relapse where father was granted contingent custody. The mother only ceased attendance after a warrant was issued for her arrest. In addition, she failed to appear at the hearing on her motion for a new trial, which was held on the date she requested, indicating that her absence was not due to a lack of notice. Unlike Adoption of Zev, 73 Mass.App.Ct. 905, 905–906 (2009), and Adoption of Jacqui, 80 Mass.App.Ct. 713, 717 (2011), the mother was clearly aware of the proceedings and had the opportunity to participate. And in contrast to Care & Protection of Orazio, 68 Mass.App.Ct. 213, 220–221 (2007), the mother had sufficient advance notice of the proceedings in general and the trial in particular. Therefore, the mother's right to notice was not violated. Cf. Care & Protection of Marina, 424 Mass. 1003, 1003 (1997) (where father participated in initial stages of proceedings, his failure to participate in later sessions, including trial, constituted “absolute abandonment” sufficient to sacrifice right to counsel).
The mother did not include the decision in the record appendix. However, by action this date we have allowed the motions of the father, the child, and the Department of Children and Families to supplement the record to include the decision. Even were the decision not included in the record, we may take judicial notice of it. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002).
The mother alleges an additional due process violation because the evidence presented at trial consisted solely of documentary evidence and proffers. However, because the mother did not object, and in fact consented to the procedure, her argument is waived. Adoption of Astrid, 45 Mass.App.Ct. 538, 542, 548 (1998). While it is true that we will address issues not raised by a losing party in the trial court in “exceptional circumstances,” Adoption of Mary, 414 Mass. 705, 712 (1993), this case does not present such circumstances. The procedure employed here, although not ideal, has been upheld in certain cases, particularly where facts are not in dispute. See id. at 708n. 4 (joint stipulations to uncontested facts); Adoption of Sean, 36 Mass.App.Ct. 261, 266 (1994) (offers of proof as to proposed cross-examinations of witness); Adoption of Parker, 77 Mass.App.Ct. 619, 622 (2010) (citing Mary and Sean). In Parker, the court considered this issue, although it had not been raised below, largely because the facts were disputed. But the mother is incorrect that the facts here were in dispute. At trial, the mother's counsel declined the opportunity to cross-examine the department's social worker, she stated that she “wouldn't controvert [the facts that had] been stated” by the department, and she agreed that “there was no good faith reason” to believe the mother had visited the child after March, 2015. Lastly, the judge did not shift the burden to the mother where he asked whether there was a “good faith reason” not to accept a proffer by the department; instead, he was simply providing the mother an opportunity to present rebuttal evidence.
The mother's principal objection appears to be to the judge's refusal to credit her proffer, unchallenged by the department, that she had successfully completed treatment and remained drug-free between the time of her last positive urine screen in January, 2015, and the trial in August, 2015. Passing the question whether the judge had authority to refuse to credit her uncontested proffer on the point, we are not persuaded that it would have had a material effect on the judge's assessment of her unfitness, in light of her history of relapse and her abandonment of participation in the termination proceedings.
Next, the mother argues that, even if she were unfit at the time of trial, the judge could not determine whether her unfitness was temporary or permanent. The assertion that there was no evidence presented as to her current unfitness is inaccurate; at the time of trial, the judge was able to consider her failure to attend court proceedings, her ongoing lack of communication with the department, and her continued failure to visit the child. While the mother is correct that the trial judge must consider whether “there is a reasonable likelihood that the parent's unfitness at the time of trial may be only temporary,” Adoption of Carlos, 413 Mass. 339, 350 (1992), such a prediction must “depend[ ] upon credible evidence rather than mere hypothesis or faint hope.” Adoption of Serge, 52 Mass.App.Ct. 1, 7 (2001) (quotation omitted). The mother offered scant credible evidence of her fitness, and the judge properly weighed it against her history of substance abuse, her lack of contact with the department, her refusal to participate in services, her failure to visit the child, and her criminal record. There was no error.
Finally, the mother points to several of the judge's findings that she argues are erroneous, thus requiring a remand. The mother objects to the judge's finding that she tested positive for opiates in January, 2015, since the evidence came from a G.L. c. 119, § 51B, report that the judge admitted only for “primary facts,” explicitly excluding hearsay. The report was properly admitted, and the term “primary facts” refers to “facts which can be recorded without recourse to discretion and judgment,” even where they would otherwise constitute hearsay. Adoption of George, 27 Mass.App.Ct. 265, 274 (1989). The fact that the mother's urine screen was positive satisfies this definition. The court in George recognized that a primary fact reported by an individual or entity who is “charged with reporting it as a matter of duty and routine” could be admitted. Id. at 274–275. Here, that reporter was “AdCare” (presumably AdCare Hospital), an entity that makes such routine reports. In any case, this evidence was merely cumulative of the undisputed fact that the mother had relapsed one month earlier, and its admission, even if erroneous, did not prejudice the mother. See Adoption of Carla, 416 Mass. 510, 517–520 (1993) (upholding conclusion of unfitness even if some evidence should have been excluded). The mention of an unusual urine screen, because it occurred only one day later, also could not have caused prejudice.
The mother also disputes the judge's statements that she had no contact with the department after December, 2014, because the department proffered that she had minimal contact from December through March, at the latest. The judge correctly stated that mother's contact during that time period was “minimal” in another section of his decision, as well as in his decision on her motion for a new trial. Moreover, in the context of the entire termination decision, any erroneous statement to this effect was harmless. See Adoption of Helen, 429 Mass. 856, 860–861 (1999) (even where minor details in findings may have been erroneous, decision affirmed because evidence of mother's unfitness was “clear and convincing”).
As for the finding that mother had not been present in court since December, 2014, the parties stipulated to this fact at trial, and the judge indicated in his denial of the mother's motion for a new trial that she was present in the court house in February, 2015, but that she left before the hearing. The judge's reference to a “Mr. Doucette” is a scrivener's error that does not detract from the judge's extensive findings. Lastly, the finding that the mother had been the child's caretaker “for only a few months of his life” was not inaccurate, where the child had been with the mother for six to seven months out of the twenty-one months of his life as of December, 2015.
Decree affirmed.