Opinion
16-P-703
02-15-2017
IN RE Care & Protection of VADIM.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a Juvenile Court judge's finding of parental unfitness and the placement of the child into the care of the Department of Children and Families (DCF). He argues (1) that the judge erred by relying on hearsay statements introduced through the DCF social worker; (2) that the judge erred by relying substantively on the information contained in certain DCF reports and a court investigator's report; and (3) that the judge erred in ultimately determining that he is unfit to parent the child. We conclude that the judge properly determined that the father was unfit to parent the child by clear and convincing evidence.
The mother stipulated that she is currently unfit to parent the child and is not involved in this appeal.
Standard of review . "In care and protection cases, the judge's subsidiary findings must be proved by a preponderance of the evidence and will only be disturbed if clearly erroneous." Care & Protection of Vick , 89 Mass. App. Ct. 704, 706 (2016). "A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ " Custody of Eleanor , 414 Mass. 795, 799 (1993), quoting from Building Inspector of Lancaster v. Sanderson , 372 Mass. 157, 160 (1977). "[T]hese findings must then prove clearly and convincingly that the [parent is] currently unfit to provide for the welfare and best interests of [the child]." Vick , supra (quotation omitted).
1. Hearsay evidence . The father argues that the judge improperly relied on inadmissible hearsay within the DCF social worker's testimony in reaching the ultimate conclusion that the father was unfit to parent the child. He contends that the child's medical condition and statements made against him by the child's mother were wrongfully admitted in evidence. We disagree.
a. Child's medical condition . The social worker testified that the child had been diagnosed with global developmental delay, posttraumatic stress disorder (PTSD), attention deficit hyperactivity disorder (ADHD), and being on the autism spectrum. She learned of the child's medical condition through conversations with clinicians and medical providers at multiple facilities where the child received treatment. In addition, she testified about the child's violent outbursts, frequent hospital visits, placement in long-term medical facilities, and prescribed medications. Her testimony was consistent with DCF reports and written documents admitted in evidence. "[C]ase work documents and court investigator reports prepared by [DCF] staff in the course of their work" "bear the indicia of reliability" and are generally admissible. Brantley v. Hampden Div. of the Probate & Family Ct. Dept ., 457 Mass. 172, 185 (2010). There was sufficient reliable evidence to support the judge's finding as to the child's medical condition.
b. The mother's statements . The father argues that the judge erred by allowing DCF to introduce the mother's statements about the father through the testimony of the social worker. The social worker permissibly testified to interactions she had with the mother. The judge properly limited the scope of the social worker's testimony. Furthermore, the father had the opportunity to refute the social worker's testimony and her sources through cross-examination. The father chose not to call any witnesses. There was no error.
2. Reliance on reports . The father argues that the judge improperly relied substantively on the information contained in reports prepared pursuant to G. L. c. 119, § 51A (51A reports), and G. L. c. 119, § 51B (51B reports), rather than using such information to "set the stage" for the proceeding. Custody of Michel , 28 Mass. App. Ct. 260, 266-267 (1990). 51A and 51B reports are admissible for the limited purpose of providing background information and primary facts. Mass. G. Evid. § 1115(b)(2)(A) & (B) (2016). Here, there is no reason apparent in the record to conclude that the judge made findings based on the contents of the 51A and 51B reports as distinct from other properly admitted evidence, including trial testimony that was to the same effect.
" ‘Primary fact’ is not a self-defining phrase, but at least it connotes facts which can be recorded without recourse to discretion and judgment." Adoption of George , 27 Mass. App. Ct. 265, 274 (1989). Hearsay statements contained in a 51B report may be admitted substantively if they are statements of primary fact or satisfy an exception to the hearsay rule. See id . at 272, 274-275 ; Mass. G. Evid. § 1115(b)(2)(B) Note, at 441 (2016).
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There was also no error in the judge's reliance on the court investigator's report. "When a judge appoints an investigator under G. L. c. 119, § 24, it signifies the judge's expectation that the licensed social worker has the training and specialized knowledge which will enable the social worker to make and report acute observations about the interactions of family members." Custody of Michel , supra at 266. Section 24 reports may contain hearsay. Ibid . The father does not complain that his right to cross-examine the investigator was "foreclosed in any way." Ibid .
3. Sufficiency of the evidence . The father argues that the judge erred in finding that he was unfit to parent the child. "Parental unfitness is determined by considering a parent's character, temperament, conduct, and capacity to provide for the child's particular needs, affections, and age." Vick , 89 Mass. App. Ct. at 709. The best interests of the child are "of paramount importance." Care & Protection of Olga , 57 Mass. App. Ct. 821, 830 (2003).
Here, there was overwhelming evidence to support the judge's findings. The father refused to sign the DCF service plan and never participated in any of the tasks on the service plan. He had no involvement with the child for nearly a year. The father is unable to comprehend the impact of the child's medical condition, which requires residential-level care. The father has minimally participated in meetings regarding the child's treatment and there is a continuing concern that the father would discontinue the child's treatment if he obtained custody of the child. The specialized needs of the child, combined with the father's temperament and conduct, clearly establish the father's unfitness. See Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption , 389 Mass. 793, 799-800 (1983).
Judgment affirmed .