Mass Lawyers Weekly (This Week's Decisions 2/24/2020)
Where a Juvenile Court judge terminated a mother's parental rights, that ruling should be affirmed regardless of the judge's decision to admit into evidence the reports and dictation notes of a Department of Children and Families social worker who died before the mother had the opportunity to cross-examine him.
"...We conclude that even without the challenged evidence, there was enough proof to support the judge's decree and decision, and therefore, we affirm.
"Stephen 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. ...
"We need not decide whether the judge erred in admitting McMorror's documents because, even assuming error, there was no resulting prejudice. The judge relied on the contested evidence to support only thirty-one of 181 findings of fact. These thirty-one findings were not essential to the judge's decision, as they were largely cumulative of the mother's and the other social workers' testimony, and the court investagator reports, which are part of the record' pursuant to G.L.c. 119, S24. The mother does not challenge the judge's admission of the court investigator reports on appeal. Accordingly, even excising the thirty-one contested findings of fact, there was ample support, under the clear and ocnvincing evidence standard, for the judge's decree terminating the mother's parental rights to Luc. ...
"For the foregoing reasons, we issued an order on September 12, 2019, affirming the judge's decision and decree. In sum, the judge did not err in terminating the mother's parental rights to the child.
"First-and second-level hearsay in DCF reports and official DCF records that does not fall within an already existing common-law or statutory hearsay exception is admissible for statements of primary fact, so long as the hearsay source is specifically identified in the report and is available for cross-examination, should the party challenging the evidence request to do so. If the source is not already present in court, the party challenging the evidence may subpoena him or her."
