In care and protection cases, the court looks at important pieces of evidence to decide issues of custody and visitation. One example of significant evidence in care and protection cases is the testimony, notes, and assessment of the social worker assigned the case.

The Massachusetts Appeal Court recently decided a case with such a testimony.


In Adoption of Luc, the Juvenile Court terminated a birth mother’s parental rights. At trial, the assigned social worker testified on direct examination. The trial then continued for several months. Before the trial resumed and the mother had the chance to cross-examine the social worker, the social worker died.

The trial judge struck and excluded the social worker’s testimony. However, he allowed into evidence the dictation notes, reports, and assessments of the social worker. These were subject to some limitations and to rebuttal. The social worker’s supervisor testified in his stead; she summarized some of the contents of his reports. Note, however, that the judge only allowed in statements of fact; he excluded any statements of opinion or impressions.


On appeal, the birth mother claimed that the judge erroneously admitted the evidence; that the documents were hearsay which should have been excluded by the trial judge; and that their admission unduly prejudiced her, as she could not cross-examine the author of the documents due to his death.

The Appeals Court disagreed. It held that based on the public documents exception to the hearsay rule, the reports and assessments documents were admissible. The dictation notes, which made up the basis for those reports, were admissible as declarations of a deceased person.


“The underlying reports were prepared by numerous professionals who also have an obligation to make truthful and accurate reports to the department ‘as a matter of duty and routine,’” the Court stated. “Any prejudice stemming from the factual observations of the service providers is found not in the summary prepared by the department social worker, but in the observations of the service providers themselves. This second-level hearsay may be rebutted by subpoenaing the source.”

Moreover, the Court noted that the mother herself did not dispute some of the findings of the social worker. For example, she did not dispute that she failed to attend her Alcoholics Anonymous meetings. Nor did she dispute that she left the child alone with her brother, recently arrested for sexual assault. With the evidence properly admitted, the Court held that the trial judge properly found that parental rights of the birth mother should be terminated. “The mother’s long-term history of mental illness, sporadically treated, her reliance on drugs and alcohol to self-medicate, her positive urine screens during the pendency of the case, her noncompliance with service plans, and her inability to attend to Luc, coupled with the systematic neglect of her six older children due to the same untreated mental health and substance abuse issues, ‘proved parental unfitness by clear and convincing evidence[,]’” the Court held.

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