Opinion
14-P-1509
06-19-2015
ADOPTION OF ISAIAH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a judgment and order issued by a judge of the Juvenile Court finding the child to be in need of care and protection, that termination of the father's parental rights was in the child's best interests, and terminating the father's parental rights. See G. L. c. 119, § 26; G. L. c. 210, § 3. The mother had previously entered into a stipulation for judgment consenting to the termination of her parental rights and an agreement for postadoption visitation with the child.
The father argues that the trial in this matter did not meet the minimum requirements of due process because it was abbreviated and the judge did not review the exhibits before entering her judgment and order at the close of evidence. The father did not attend the trial and concedes that there is no due process requirement that a trial be of a particular length. Here, the Department of Children and Families (department) introduced the testimony of two social workers and fifteen exhibits, including the court investigator's report (investigator's report) three CASA reports, five service plans, two department assessments, and the department's permanency plan.
The father claims that the judge did not review the trial exhibits before entering her judgment and order. There was, however, a two-hour time period during which the judge reviewed the father's counsel's objections to the exhibits before issuing the termination decree. The judge stated that "based on the evidence and through the exhibits and testimony, I do find that the [d]epartment has met their burden in proving by clear and convincing evidence that [the father] is currently unfit."
It was also clear that the judge had read the exhibits when she issued the findings of fact and conclusions of law. Specific exhibits were used to support a significant number of individual findings.
The father also argues, generally, that evidence was erroneously admitted without which there was insufficient evidence to terminate his parental rights. We disagree that the evidence was erroneously admitted and conclude that, even if it were, there was still sufficient evidence to support the judge's conclusions. See Adoption of Nancy, 443 Mass. 512, 515 (2005).
The father contends, specifically, that there was inadmissible hearsay contained in the investigator's report and that the hearsay from that report was inappropriately relied on in six findings of fact. Finding twenty-four is supported by the investigator's report and a CASA report. The exhibits and finding identify the date and the hospital where the father tested positive for cocaine and opiates and had a blood alcohol content of .120. This information was sufficient for the father to identify the source of the evidence. See Adoption of Carla, 416 Mass. 510, 514 (1993); Adoption of Sean, 36 Mass. App. Ct. 261, 263-264 (1994), and cases cited.
Similarly, the father complains about finding fourteen regarding a stabbing incident included in the court investigator's report. The investigator detailed the source of the information, which included the specific police department that conducted the investigation and the name of the perpetrator, who turned himself in to the police.
The father also challenges findings eighteen, nineteen, and twenty that relate to incidents of domestic violence between him and the mother. Again, the court investigator's report is premised on a review of the Fitchburg police department records. The father objected because individual police officers were not identified, but that is not required. See Adoption of Paula, 420 Mass. 716, 727 (1995); Adoption of Astrid, 45 Mass. App. Ct. 538, 546 (1988).
The father also complains about finding twenty-one, which concerns the mother's report of a domestic violence incident. The mother made statements to a department social worker, who recorded the statement in an assessment. This evidence is admissible under the official record exception to the hearsay rule. Adoption of George, 27 Mass. App. Ct. 265, 271-275 (1989). In addition, the father argues that totem pole hearsay is inadmissible when contained in department records. However, second level hearsay is admissible so long as the source of the hearsay is identified and there is an opportunity to refute the hearsay through some appropriate means. See ibid.; Custody of Michel, 28 Mass. App. Ct. 260, 266 (1990).
Here, the father had the opportunity to refute the admitted hearsay evidence because all the sources were sufficiently identified. The fact that he gave up that opportunity is his fault and his fault alone. He missed the first day of trial on February 10, 2014, and the trial was continued to March 13, 2014. When he did not appear on March 13, his attorney represented that the father would return to Massachusetts on March 19. The trial was continued to March 24, and when the father failed to appear on that date, the judge denied another requested continuance and proceeded with the trial, taking testimony and admitting exhibits. See Care & Protection of Quinn, 54 Mass. App. Ct. 117, 122 (2002).
Generally, the father has an extensive criminal record. He has been incarcerated on Federal drug trafficking charges. He was in default on numerous State charges while he was in Federal custody. He has been convicted of assault and battery in 2008, and of assault and battery and assault and battery by means of a dangerous weapon in 2010. He violated his probation on these charges but was not incarcerated.
The department provided the father with several service plans in order to aid and assist him in addressing his shortcomings. He either failed to comply with the plans or refused outright to comply with tasks assigned to improve his parenting. The judge concluded that these failures were evidence of his lack of interest in parenting and obtaining custody of the child. See Adoption of Georgette, 54 Mass. App. Ct. 778, 782 n.5 (2002), S.C., 439 Mass. 28 (2003); Adoption of Rhona, 63 Mass. App. Ct. 117, 126 (2005).
The father has a history of domestic violence. He has been placed on probation for assaulting a former girl friend and has been the defendant in seven abuse prevention orders. The father has significant issues with substance abuse and has been involuntarily committed to a detox program. The findings are supported by the evidence and provide clear and convincing support for the judge's decision to terminate his parental rights, after determining the child to be in need of care and protection, and termination to be in the child's best interests.
Judgment affirmed.
By the Court (Cypher, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 19, 2015.