In care and protection cases, important pieces of evidence are introduced in order for the court to decide issues of custody and visitation. One example, which serves to be significant evidence in care and protection cases, deals with the testimony, notes, and assessment of the social worker who is assigned to the case.

That testimony was at the heart of a recent case decided by the Massachusetts Appeals Court. In the case, Adoption of Luc, a birth mother’s parental rights were terminated by the Juvenile Court. At trial, the social worker who was assigned to the case testified on direct examination. The trial was then continued for several months. Before the trial resumed, and before the mother may have had the chance to cross-examine the social worker, the social worker died.

The trial judge struck and excluded the social worker’s testimony, but he allowed into evidence the dictation notes, reports, and assessments of the social worker, subject to some limitations and to rebuttal. The social worker’s supervisor testified in his stead, and she was allowed to summarize some of the contents of his reports. It should be noted that the judge only allowed in statements of fact and excluded any statements of opinion or impressions.

On appeal, the birth mother claimed that the evidence was admitted in error; that the documents were hearsay which should have been excluded by the trial judge; and that she was unduly prejudiced by their admission, as she was unable to cross-examine the author of the documents due to his death.

The Appeals Court disagreed, holding that the reports and assessments documents were widely recognized to be admissible under the public documents exception to the hearsay rule, while 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 which were introduced, such as the fact that she failed to attend her Alcoholics Anonymous meetings and left the child alone with her brother, who recently had been 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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