Mass. R. Evid. 1115
Mass. Guid. Evid. 1115
Subsection (a). This subsection is derived from G. L. c. 119, § 21A. Cross-Reference: Section 103, Rulings on Evidence, Objections, and Offers of Proof.
Subsection (b). This subsection is derived from Commonwealth v. Slavski, 245 Mass. 405, 415 (1923).
Subsection (b)(1). This subsection is derived from Adoption of Irwin, 28 Mass. App. Ct. 41, 43 (1989), and G. L. c. 276, § 100. Probation records, including CARI, are records of the court system and are by statute available for use by the courts of the Commonwealth. Adoption of Irwin, 28 Mass. App. Ct. at 43. It is unnecessary to qualify probation records as business records because they are admissible as official records. Id. While not necessarily conclusive, a parent's criminal record, as well as observations of the parent's criminal conduct, are relevant as to the issue of parental fitness. Care & Protection of Frank, 409 Mass. 492, 495 (1991). "An adjudication of any child as a delinquent child . . . or any disposition thereunder . . . shall not be received in evidence or used against such child for any purpose in any proceedings in any court except in subsequent delinquency or criminal proceedings against the same person." G. L. c. 119, § 60.
Cross-Reference: Note to Section 405(b), Methods of Proving Character: By Specific Instances of Conduct.
Subsection (b)(2)(A). A "Section 51A report" is a report filed with the DCF that "details suspected child abuse or neglect." G. L. c. 119, § 21. Such reports are admissible to "set the stage," i.e., to explain the reasons for the filing of the petition. Care & Protection of Inga, 36 Mass. App. Ct. 660, 663-664 (1994), quoting Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990). Competent evidence regarding an incident that was the subject of an unsubstantiated Section 51A report may be admitted at trial against a parent as long as the evidence is "sufficient to convey to a high degree of probability that the proposition is true." Adoption of Rhona I, 57 Mass. App. Ct. 479, 484 (2003), quoting Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997).
Subsection (b)(2)(B). This subsection is derived from Adoption of Luc, 484 Mass. 139 (2020), and Adoption of George, 27 Mass. App. Ct. 265 (1989). First- and second-level hearsay in official DCF records in care and protection cases
"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 requests to do so. If the source is not already in court, the party challenging the evidence may subpoena him or her."
Adoption of Luc, 484 Mass. at 154.
"'Primary fact' is not a self-defining phrase, but at least connotes facts which can be recorded without recourse to discretion and judgment, e.g., the fire alarm sounded at 10:30 p.m.; it was raining lightly at the time of the accident; the child was placed with Mr. and Mrs. Doe ...." Adoption ofGeorge, 27 Mass. App. Ct. at 274. The exclusion of expressions of opinion, evaluation, or judgment from official records is a "practical working rule" that has exceptions. Id. at 272. "More leeway" relative to admissibility may be given to material that "smacks of opinion," if the source of the opinion is available for cross-examination. Id. at 274.
Service plans are admissible under a statutory exception to the hearsay rule under G. L. c. 119, § 29.
A private entity's assessment or a case review, performed under a contract with the DCF, is admissible in the same manner as an official record prepared by the DCF, because the private entity was required to prepare the document as an agent of the DCF. Adoption of Vidal, 56 Mass. App. Ct. 916, 917 (2002).
While pleadings are not evidence under G. L. c. 231, § 87, DCF affidavits submitted in support of care and protection petitions are admissible in care and protection proceedings to the extent that the source of any first- and second-level hearsay contained therein is specifically identified in the document and available for cross-examination if requested by the party challenging the evidence. Care & Protection of Doretta, 101 Mass. App. Ct. 584, 590-591 (2022).
Subsection (b)(3). This subsection is derived from G. L. c. 111B, § 11 (alcoholism treatment records); G. L. c. 111E, § 18 (drug rehabilitation treatment records); and 42 U.S.C. § 290dd-2 (substance abuse treatment records). Federal regulations require that, before issuing an order for release of these records to one or more parties, the court must determine that "disclosure [of the information] is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties [(among other things)]."42 C.F.R. § 2.63(a)(1)-(3). Orders of appointment issued to court-appointed investigators do not satisfy the requirements of State and Federal law and therefore do not permit the court investigator to obtain drug and alcohol treatment records where the specific factual determination necessary for release of these records has not been made by the appointing judge.
Cross-Reference: Introductory Note (f)(5) to Article V, Privileges and Disqualifications.
Subsection (b)(4). This subsection is derived from Introductory Note (f)(2) and (f)(3) to Article V, Privileges and Disqualifications. There is no privilege preventing the introduction of relevant school records in evidence at trial, and most school records are admissible as official records. See Introductory Note (f)(2) to Article V, Privileges and Disqualifications (student records). Records of the clinical history and evaluations of students with special needs, created or maintained in accordance with G. L. c. 71B, are confidential but not privileged. G. L. c. 71B, § 3. See Introductory Note (f)(3) (special needs student records) and Introductory Note (d) (confidentiality versus privilege) to Article V, Privileges and Disqualifications.
Subsection (b)(5). This subsection is derived from G. L. c. 233, § 78. See Adoption of Paula, 420 Mass. 716, 727 (1995); Julian v. Randazzo, 380 Mass. 391 (1980). Besides the ordinary business records hearsay exception, there is an additional business records exception permitting second-level hearsay where the proponent of a hearsay statement shows "that all persons in the chain of communication, from the observer to the preparer, reported the information as a matter of business duty or business routine." Irwin v. Town of Ware, 392 Mass. 745, 749 (1984), quoting Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982).
Cross-Reference: Section 803(6)(A), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Entry, Writing, or Record Made in Regular Course of Business.
Subsection (c). This subsection is derived from G. L. c. 119, §§ 21A and 24.
Subsection (c)(1). By the express terms of G. L. c. 119, § 24, investigators' reports are admissible and become part of the record in care and protection cases. Care & Protection of Zita, 455 Mass. 272, 281 (2009), citing Custody of Michel, 28 Mass. App. Ct. 260, 265 (1990). As set forth in G. L. c. 119, § 21A, "[t]he person reporting may be called as a witness by any party for examination as to the statements made in the report." Hearsay statements, including multilevel hearsay, contained within the reports, including opinions, clinical observations, and recommendations, are admissible probatively as long as the declarant is identifiable and the parties have a fair opportunity to rebut the statements of both the investigator and any sources on which the investigator relied through cross-examination or other means. Care & Protection of Zita, 455 Mass. at 281; Gilmore v. Gilmore, 369 Mass. 598, 604-605 (1976); Adoption of Astrid, 45 Mass. App. Ct. 538, 546 (1998). This principle applies to hearsay statements of children against their parents that are contained in investigators' reports. Care & Protection of Inga, 36 Mass. App. Ct. 660, 664 (1994). "When a judge appoints an investigator under G. L. c. 119, § 24, it signifies the judge's expectation that the [investigator] has the training and specialized knowledge which will enable the [investigator] to make and report acute observations about the interactions of family members, and their respective mental conditions." Custody of Michel, 28 Mass. App. Ct. at 266. Opinions of the court investigator as to the credibility of another witness (including the credibility of any source) are not admissible. Commonwealth v. Triplett, 398 Mass. 561, 567 (1986) ("[I]t is a fundamental principle that 'a witness cannot be asked to assess the credibility of his testimony or that of other witnesses'" [citation omitted].).
Subsection (c)(2). Guardian ad litem (GAL) reports are analogous to court investigator reports in that hearsay, including multilevel hearsay, generally is admissible. See the Note to Subsection (c)(1) above and Adoption of Sean, 36 Mass. App. Ct. 261, 263 (1994). Guardian ad litem reports containing hearsay information are admissible, including multilevel hearsay and clinical evaluations, if the guardian ad litem is available to testify at trial and the source of the material is sufficiently identified so that the affected party has an opportunity to rebut any adverse or erroneous material contained therein. Adoption of Sean, 36 Mass. App. Ct. at 264. Adoption of Sean leaves open the question whether expert opinions contained in GAL reports are admissible. Id. It is "sound practice" for the judge to give notice to the parties if the judge intends to use the report. See Duro v. Duro, 392 Mass. 574, 575 (1984) (like guardian ad litem reports, reports of probation officers in the Probate and Family Court made pursuant to G. L. c. 276, § 85B, must be in writing and subject to crossexamination).
Subsection (c)(3). A CASA is analogous to a guardian ad litem. Adoption of Georgia, 433 Mass. 62, 68 (2000). See the Note to Subsection (c)(2) above. For a CASA report to be admitted into evidence, including reports containing multilevel hearsay, the CASA must be available to testify at trial, and the sources of the information contained in the report must be sufficiently identified so that the affected party has an opportunity to rebut. Id. at 68-69. A CASA is not automatically qualified to file a report containing the CASA's expert opinions or to testify as an expert simply by being a CASA. Rather, when an objection is made regarding a CASA's qualifications to render an expert opinion, the court must determine whether the CASA is qualified to do so. Id. at 68 n.6. Expressions of opinion of mental health professionals (including the CASA if so qualified) in a CASA report are not admissible, but factual observations and information contained in clinical evaluations may be admissible and entitled to whatever weight the judge may give them. Adoption of Sean, 36 Mass. App. Ct. 261, 264 (1994).
Subsection (c)(4). Written court-ordered psychiatric evaluation reports are inadmissible. Adoption of Seth, 29 Mass. App. Ct. 343, 351-352 (1990). Although those who conduct psychological evaluations, including psychological evaluations that are court ordered, may testify in child custody, care and protection, and TPR proceedings (see Subsections [e][4], [5], and [6] below), there is no exception to the hearsay rule pertaining to written reports of such evaluations.
Cross-Reference: Section 503(d)(2), Psychotherapist-Patient Privilege: Exceptions: Court-Ordered Psychiatric Exam; Section 503(d)(5), Psychotherapist-Patient Privilege: Exceptions: Child Custody and Adoption Cases.
Subsection (d)(1). This subsection is derived from Custody of Michel, 28 Mass. App. Ct. 260, 267 (1990), and Custody of Jennifer, 25 Mass. App. Ct. 241, 243 (1988). Children's out-of-court statements are not admissible for the truth of the matter asserted, but expressed preferences regarding where they want to live are admissible insofar as the statements reflect the mental state of the children at the time. A child's state of mind is often a material issue in child custody cases. Custody of Michel, 28 Mass. App. Ct. at 267; Custody of Jennifer, 25 Mass. App. Ct. at 243. A child's out-of-court hearsay statement made to an expert witness may also be admissible, not for the truth of the matter asserted, but rather to indicate the basis of an expert opinion given by the witness. Custody of Michel, 28 Mass. App. Ct. at 267. See Mass. G. Evid. § 705. Similarly, a child's statement may be admissible when used for diagnostic or treatment purposes. Custody of Michel, 28 Mass. App. Ct. at 268.
A child's extrajudicial statement concerning a parent is not admissible as an admission by a party-opponent against that parent. Care & Protection of Sophie, 449 Mass. 100, 110 (2007); Mass. G. Evid. § 801(d)(2).
With respect to a child's privileged communications to a social worker or psychotherapist, exceptions exist that permit such statements to be admitted in certain circumstances. See Mass. G. Evid. §§ 503(d), 507(c). Children's out-of-court statements to court-appointed investigators are admissible where there is "an opportunity to refute the investigator and the investigator's sources through cross-examination and other means." Custody of Michel, 28 Mass. App. Ct. at 266. The child's parent must be allowed the opportunity to effectively rebut such hearsay when the child does not testify and the trial judge has no other means by which to assess the credibility and accuracy of the child's statements. Id.
Subsection (d)(2). This subsection is derived from G. L. c. 233, §§ 82 and 83. Cross-Reference: Section 503(d)(5), Psychotherapist-Patient Privilege: Exceptions: Child Custody and Adoption Cases; Section 803(24), Hearsay Exceptions; Availability of Declarant Immaterial: Out-of-Court Statement of Child Describing Sexual Contact in Proceeding to Place Child in Foster Care.
Subsection (d)(2)(A). This subsection is derived from G. L. c. 233, § 82. "Child under the age of ten" refers to the age of the child at the time the out-of-court statements were made, not the age of the child at the time of trial. Adoption of Daisy, 460 Mass. 72, 78-79 (2011). The following procedures must be utilized in Section 82 proceedings: (1) the DCF must give prior notice to the parent of their intention to introduce a child's out-of-court statements regarding alleged sexual abuse; (2) the DCF must show by more than a mere preponderance of the evidence that a compelling need exists for use of such a procedure; (3) any separate hearing regarding the reliability of the child's out-of-court statements must be on the record; (4) specific findings must be issued that present the basis upon which the reliability of the statements was determined; and (5) independently admitted evidence must be presented that corroborates the out-of-court statements. See Mass. G. Evid. § 804(b)(9); Adoption of Quentin, 424 Mass. 882, 892 (1997); Adoption of Olivette, 79 Mass. App. Ct. 141, 147 (2011), quoting Adoption of Arnold, 50 Mass. App. Ct. 743, 752 (2001). A judge who presides over a Section 82 hearing is not necessarily disqualified from presiding over a subsequent trial related to the hearing. Adoption of Iliana, 96 Mass. App. Ct. 397, 406-407 (2019).
Cross-Reference: Section 804(b)(9), Hearsay Exceptions; Declarant Unavailable: The Exceptions: Out-of-Court Statement of Child Describing Sexual Contact in Civil Proceeding, Including Termination of Parental Rights.
Subsection (d)(2)(B). This subsection is derived from G. L. c. 233, § 83. See Section 803(24), Hearsay Exceptions; Availability of Declarant Immaterial: Out-of-Court Statement of Child Describing Sexual Contact in Proceeding to Place Child in Foster Care. Where a care and protection case is joined with a TPR proceeding, the hearing should comply with the stricter requirements of G. L. c. 233, § 82. Adoption of Tina, 45 Mass. App. Ct. 727, 733 (1998).
Subsection (e)(1). This subsection is derived from G. L. c. 119, § 21A, and G. L. c. 233, § 20. Every person is competent to be a witness, unless excepted by statute or common law. This includes children of all ages who (1) have the ability to observe, remember, and give expression to that which they have seen, heard, or experienced and (2) have an understanding sufficient to comprehend the difference between truth and falsehood, their duty to tell the truth, that lying is wrong, and that failure to tell the truth will result in punishment. Mass. G. Evid. § 601(b). In care and protection and termination of parental rights proceedings, "[evidence] may include the testimony of the child if the court determines that the child is competent and willing, after consultation with counsel, if any, to testify." G. L. c. 119, § 21A (emphasis supplied). See Abbot v. Virusso, 68 Mass. App. Ct. 326, 337-338 (2007) (upholding judicial discretion regarding competency of child witnesses and discussing issues concerning in-camera interviews with children). An order limiting the parties' access to, or participation in, any portion of the proceedings must be narrowly tailored to the particular protection required in the circumstances, which must be explained by the judge and supported by explicit findings. Adoption of Roni, 56 Mass. App. Ct. 52, 57 (2001) (exclusion of parents from courtroom to accommodate traumatized child's testimony); Adoption of Tina, 45 Mass. App. Ct. 727, 735 (1998) (in-camera hearing of traumatized child's testimony).
Cross-Reference: Section 601, Competency.
Subsection (e)(2). This subsection is derived from G. L. c. 119, § 29D. Foster and preadoptive parents have a statutory right to testify at trial. Such testimony must be taken as any other witness's, under oath and subject to cross-examination. Adoption of Sherry, 435 Mass. 331, 337 (2001).
Subsection (e)(3). This subsection is derived from G. L. c. 233, § 22. Absent a valid assertion of a Fifth Amendment privilege, a parent may be required to testify in care and protection and TPR proceedings. Adoption of Salvatore, 57 Mass. App. Ct. 929, 930 (2003). The burden is on the party asserting the Fifth Amendment privilege to establish its existence. Commonwealth v. Brennan, 386 Mass. 772, 780 (1982). Negative inferences may be drawn against a party who asserts the privilege. See Care & Protection of Sharlene, 445 Mass. 756, 767 (2006). See also Mass. G. Evid. § 511. Whether to draw the adverse inference is a matter within the discretion of the judge, who should take into consideration all of the circumstances. See Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017).
Subsection (e)(4). This subsection is derived from G. L. c. 112, §§ 135, 135A, and 135B.
General Laws c. 112, § 135A, requires that from the initial phase of the professional relationship, a licensed social worker or social worker employed by a government agency shall inform the client about the confidential nature of their communications and not disclose any information acquired or revealed from the client except, inter alia, in the initiation of, or to give testimony in connection with, a proceeding under G. L. c. 119, § 24, to commit a child facing abuse or neglect to the custody of the department or agency, or to transfer custody by way of an emergency order, or to dispense with the need for consent to adoption of the child in the care or custody of the department or agency. G. L. c. 112, § 135A(e).
In any court proceeding or preliminary proceeding thereto, G. L. c. 112, § 135B, creates a privilege enabling a client to refuse to disclose, or prevent a witness from disclosing, any communication between the client and the social worker relative to the diagnosis or treatment of the client's mental or emotional condition. The exception to the privilege in this subsection is taken nearly verbatim from G. L. c. 112, § 135B(e), (f), and (g).
Cross-Reference: Section 104, Preliminary Questions; Section 507, Social Worker-Client Privilege.
Subsection (e)(5). This subsection is derived from G. L. c. 233, § 20B. See Section 503(a) for definitions of "psychotherapist," "patient," and "communications," and Section 503(b) and (d) for descriptions of, and exceptions to, the privilege. See also Commonwealth v. Lamb, 365 Mass. 265, 270 (1974). Because the privilege is not self-executing, the patient must attempt to assert it during the trial. Adoption of Carla, 416 Mass. 510, 515 (1993).
Cross-Reference: Introductory Note to Article V, Privileges and Disqualifications; Section 503, Psychotherapist-Patient Privilege.
Subsection (e)(6). This subsection is derived from G. L. c. 119, § 21A.
Subsection (e)(7). This subsection is modeled after Sections 702, 703, and 705. See, e.g., Adoption of Leonard, 103 Mass. App. Ct. 419, 427 (2023) (proffered expert familiar with Native American studies but lacking education and training in psychology, social work, or related field not qualified to testify as expert under Indian Child Welfare Act on likelihood of harm to child if returned to mother's custody). Massachusetts law, unlike Federal law, allows expert opinion on the ultimate issue. Mass. G. Evid. § 704. Expert testimony that simply "vouches" for the credibility of other witnesses, opines as to whether a child told the truth, makes legal conclusions, or renders an opinion within the common understanding of the trier of fact is inadmissible. See Mass. G. Evid. § 704. See also Care & Protection of Rebecca, 419 Mass. 67, 83 (1994); Adoption of Olivette, 79 Mass. App. Ct. 141, 152 (2011).
Cross-Reference: Section 702, Testimony by Expert Witnesses.
Subsection (f)(1). This subsection is derived from G. L. c. 210, § 3(c). Section 3(c) requires the court to consider the adoption plan by the DCF, which plan need not be in writing but may be presented to the court through testimony. Adoption of Stuart, 39 Mass. App. Ct. 380, 393-394 (1995). It is not necessary that the plan be fully developed or that the plan identify prospective adoptive parents, but it must have sufficient content and substance to permit the court to meaningfully evaluate and consider the suitability of the DCF adoption plan. Adoption of Gertrude, 99 Mass. App. Ct. 817, 823-824 (2021); Adoption of Varik, 95 Mass. App. Ct. 762, 770-771 (2019). Judges are obligated to give meaningful consideration to admissible evidence related to any competing adoption plan or plans proposed by the parents, children, or both to decide which plan is in the children's best interests. Adoption of Hugo, 428 Mass. 219, 226 n.8 (1998); Adoption of Dora, 52 Mass. App. Ct. 472, 474-475 (2001).
Subsection (f)(2). Bonding and attachment evaluators may testify in the same manner as any other witness. Expert opinions held by such evaluators are admissible subject to Sections 702, Testimony by Expert Witnesses, and 703, Bases of Opinion Testimony by Experts. Admission of a bonding assessment expert's testimony based on observation of the mother's interaction with her child was not an abuse of discretion even where counsel for the child, who had retained the expert, was alleged to have violated ethical obligations under Mass. R. Prof. C. 4.2 (2015) by failing to notify the mother's counsel of the planned observation. Adoption of Bea, 97 Mass. App. Ct. 416, 425-426 (2020).
Cross-Reference: Section 201, Judicial Notice of Adjudicative Facts; Section 803(22), Hearsay Exceptions; Availability of Declarant Immaterial: Judgment of a Previous Conviction.
Subsection (f)(3). Findings of fact in a prior care and protection or termination of parental rights proceeding that are not "out of date, or the product of a proceeding where the parent may not have a compelling incentive to litigate," may be admitted in a subsequent proceeding to the extent that they are both relevant and material. Adoption of Paula, 420 Mass. 716, 721 (1995); Adoption of Darla, 56 Mass. App. Ct. 519, 520-521 (2002). The parties and the judge are not bound by the prior findings, which carry no special evidentiary weight, and evidence may be offered by any party as to any of the issues covered by the prior findings, either to support or contradict them. Adoption of Paula, 420 Mass. at 722. Where a prior proceeding is on appeal, the better practice is for the judge to decline to admit the prior findings in the subsequent proceeding. Adoption of Simone, 427 Mass. 34, 43 (1998), citing Adoption of Paula, 420 Mass. at 722. See also Care & Protection of Zita, 455 Mass. 272, 283 (2009) (judge may not judicially notice facts or evidence brought out in a prior hearing or trial).
Subsection (f)(4). This subsection is derived from Custody of Two Minors, 396 Mass. 610, 621 (1986) (in assessing future fitness and likelihood of harm to child, judge may consider "prognostic evidence from prior patterns of parental neglect or misconduct"), and Adoption of Larry, 434 Mass. 456, 469 (2001) (judge may consider evidence of past parental conduct that is not too remote, especially where it supports "continuing vitality of such conduct"). See Custody of Vaughn, 422 Mass. 590 (1996) (domestic violence); Care & Protection of Laura, 414 Mass. 788 (1993) (physical and sexual abuse); Adoption of Katharine, 42 Mass. App. Ct. 25 (1997) (parents' past substance abuse admissible but insufficient to support unfitness finding absent nexus between drug use and abuse or neglect of child).
Subsection (g). This subsection is derived from Adoption of Talik, 92 Mass. App. Ct. 367, 370-373 (2017). Whether to draw the adverse inference is a matter within the discretion of the judge, who should take into consideration all of the circumstances. Id. at 372. The department must produce evidence of unfitness before the judge may draw an adverse inference from a party's failure to appear. See Adoption of Helga, 97 Mass. App. Ct. 521, 526-527 & n.6 (2020) (not abuse of discretion to draw adverse inference where mother was absent for last two days of trial and misrepresented her whereabouts, even though she had been present for most of trial and testified).