ADOPTION OF LUC. [Note 1]

LOWY, J. In this case, the Department of Children and Families (DCF) filed a petition under G. L. c. 119, § 24, alleging that the child, whom we shall call Luc, and his half-sister, whom we shall call Olivia, were in need of care and protection. [Note 2] During the trial, Stephen McMorrow, one of the DCF social workers who managed the mother's case, testified on direct examination but died before the mother had the opportunity to cross-examine him. The Juvenile Court judge then struck McMorrow's testimony but, over the mother's objection, admitted in evidence McMorrow's DCF reports and dictation notes. After trial, pursuant to G. L. c. 210, § 3 (c), the judge found that the mother was unfit, that Luc was in need of care and protection, and that termination of the mother's parental rights was in the best interests of Luc. [Note 3] The judge then issued a decree terminating the mother's parental rights to Luc. [Note 4]

The mother appealed from the judge's decision and decree, and the Appeals Court affirmed. See Adoption of Luc, 94 Mass. App. Ct. 565, 566 (2018). We granted the mother's application for further appellate review. The mother alleges that (1) the judge improperly admitted in evidence McMorrow's DCF reports and dictation notes, as well as inadmissible second-level hearsay and improper opinion evidence contained therein; and (2) the judge's findings of fact were insufficient to establish the mother's unfitness by clear and convincing evidence. On September 12, 2019, we issued an order affirming the judge's decision and decree. This opinion states the reasons for that order. We conclude that even without the challenged evidence, there was enough proof to support

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the judge's decree and decision, and therefore, we affirm. [Note 5]

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. As such, we take this opportunity to try to disentangle several important evidentiary principles, specifically with regard to hearsay. See Care & Protection of Benjamin, 403 Mass. 24, 27 n.5 (1988) ("It is most important to the integrity of the process and for the protection of the rights of the parties that the rules of evidence be followed in all adjudicatory stages of care and protection proceedings . . ." [citation omitted]). [Note 6]

Background. We briefly describe how a care and protection case is initiated, followed by a summary of the judge's undisputed factual findings, reserving some findings for our discussion.

When a statutorily mandated reporter has reasonable cause to believe that a child is suffering from abuse or neglect, the mandated reporter must report such an allegation to DCF immediately, pursuant to G. L. c. 119, §§ 1, 51A (51A report). [Note 7] Upon receipt of a 51A report, DCF must immediately screen the report to determine whether the reported allegation meets the applicable statutory and regulatory requirements. See 110 Code Mass. Regs. § 4.21 (2009). [Note 8] Once a 51A report is "screened in," DCF is required to investigate the allegation and make a written determination whether the allegation is supported (51B report). See G. L. c. 119, § 51B; 110 Code Mass. Regs. § 4.21. If the allegation is supported, DCF must offer "appropriate services" to the family of any child whom it has reasonable cause to believe is suffering from abuse or neglect "to prevent further injury to the child, to safeguard his welfare, and to preserve and stabilize family life whenever possible." G. L. c. 119, § 51B (g). "If the family

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declines or is unable to accept or to participate in the offered services, [DCF] or any person may file a care and protection petition under [§] 24." Id. See G. L. c. 119, § 24. Moreover, if DCF has reasonable cause to believe a child is in immediate danger from abuse or neglect and that removal is necessary to protect the child from such abuse or neglect, DCF "shall take the child into immediate temporary custody[,] . . . shall make a written report stating the reasons for such a removal and shall file a care and protection case under [§] 24 on the next court day." G. L. c. 119, § 51B (e). See G. L. c. 119, § 24.

In this case, the undisputed evidence showed that the mother had a history of mental illness, including bipolar disorder and depression, for which she had been previously hospitalized. The mother informed the court investigator that, against medical advice, she had not taken medication to treat her mental illness and that she did not need counseling. The mother also testified that she had no recollection of receiving mental health treatment in 2012, the year Luc was born. The mother also has an extensive history with DCF. At the time of trial, the mother had nine children and did not have custody of any of them. [Note 9]

Luc was born on November 8, 2012. The following month, a nonmandated reporter filed a 51A report, alleging that the mother was neglecting Luc and Olivia. A DCF investigation conducted pursuant to G. L. c. 119, § 51B, supported the allegation. In January of 2013, DCF assigned Alba Mora as the ongoing social worker for the family. Mora spoke with the mother several times about participating in mental health services and engaging Luc in early intervention services due to Luc's cognitive, social, and motor skills deficits. [Note 10] After several months elapsed, the mother complied, but her follow-up with early intervention was inconsistent. [Note 11] Following an altercation between the mother and an early intervention provider, the early intervention visits were moved from the mother's home to the early intervention office,

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located nearby. An early intervention provider recommended that Luc have weekly visits, but the mother only agreed to one visit per month.

On September 23, 2013 (petition date), DCF filed a care and protection petition alleging that the mother neglected Luc and Olivia (petition). The court granted DCF emergency temporary custody of both Luc, who was then ten months old, and Olivia, who was almost three years old. DCF asserted that Luc and Olivia were in need of care of protection for the following reasons: (1) Luc's lack of participation in early intervention services and Olivia's lack of attendance at day care; (2) the mother lost custody of her five older children due to her untreated bipolar disorder; and (3) the mother's "lack of consistent mental health treatment and her lengthy history of similar concerns."

Following the initiation of the care and protection case, DCF drafted a service plan for the mother, with the goal of reunification. The plan required the mother, among other things, to engage in mental health and substance use disorder services and individual therapy; provide DCF with urine screens; undergo a psychological evaluation; and attend supervised visits with Luc. [Note 12] The mother failed to comply consistently with the plan. The mother did not engage in mental health or substance use disorder treatments for several months, and once engaged, the mother neither took the recommended medication nor consistently attended individual therapy sessions. In addition, the mother failed to complete all the required urine screens. At least four of the urine screens she did complete were positive for substances for which the mother did not have a valid prescription. Moreover, one of the mother's children, born after the petition date, tested positive for cocaine at birth. The mother also failed to provide DCF with a psychological evaluation, and she did not consistently attend visits with Luc.

Approximately seven months after the petition date, on April 15, 2014, DCF changed its goal from reunification to adoption. On August 6, 2014, DCF transferred Luc's case to McMorrow. The mother's inconsistent compliance with the service plan continued throughout the pendency of the care and protection case, during which time she also gave birth to two additional children.

The hearings on the merits of Luc's care and protection case

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began on October 5, 2015, about two years after the petition date. After a trial that took place on eleven nonconsecutive days and spanned over thirteen months, the judge found that the mother was unfit, that Luc was in need of care and protection, and that it was in the best interests of Luc to terminate the mother's parental rights. Based on those findings, the judge then terminated the mother's parental rights. [Note 13]

Discussion. To terminate parental rights to a child, the judge must find, by clear and convincing evidence, that the parent is unfit and that the child's "best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). We give substantial deference to the judge's findings of fact and decision, and will only reverse "where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Id.

1. Unfitness determination. The mother argues that the judge's findings did not establish her unfitness by clear and convincing evidence. We disagree. The evidence was compelling and more than satisfied the standard for unfitness, even without the challenged hearsay evidence.

a. Stale evidence. The mother argues that the judge improperly admitted and relied upon stale evidence regarding the mother's care of her other children to underpin twenty-four findings of fact. When assessing parental fitness, a judge must exercise great caution in considering how parents care for their other children, including the varied circumstances surrounding parents' unique relationships with each child. See Adoption of Mary, 414 Mass. 705, 711 (1993) ("Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age"). Where a parent has had prior involvement with DCF, the judge also recognizes any

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steps that a parent has since taken to improve his or her parenting abilities. Nevertheless, a judge may rely upon a parent's past conduct with regard to older children to support a finding of current unfitness as to a different child, so long as that evidence is not the sole basis for the judge's unfitness determination. See Adoption of Don, 435 Mass. 158, 166 (2001), quoting Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) ("Prior history . . . has prognostic value"); Adoption of Larry, 434 Mass. 456, 469 (2001); Adoption of Paula, 420 Mass. 716, 729 (1995).

Here, the contested findings of fact were not stale. We note that several of the contested findings pertained to the mother's treatment of (1) Olivia, who was named in the same petition as Luc; and (2) Luc's younger siblings, who were the subjects of a different care and protection petition while Luc's case was pending. The concerns regarding the mother's ability to care for Olivia and Luc arose prior to the petition date, and the concerns as to the mother's younger children arose after the petition date, thus after DCF removed Luc from the mother's custody, but still during the pendency of Luc's case. [Note 14]

As to the mother's older children, the judge properly found and relied upon the mother's ongoing pattern of untreated mental health and substance use disorders, parental neglect, and failure to utilize services in making his determination of parental unfitness. [Note 15] See Adoption of Don, 435 Mass. at 166, quoting Adoption of George, 27 Mass. App. Ct. at 268 ("[The mother's] history shows failures to follow through with therapy and other forms of assistance of her children and for herself"); Adoption of Carla, 416 Mass. 510, 517 n.7 (1993). The mother's failure to engage her other children consistently in early intervention services is particularly notable here, where Luc had cognitive, social, and motor skills deficits. See Adoption of Mary, 414 Mass. at 711.

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After DCF removed Luc from the mother's custody, Luc attended consistent early intervention visits and made significant improvements.

The mother also argues that the judge erred by omitting any findings concerning the mother's present relationship with Luc and, in particular, that the judge omitted mention of the mother's visits or interactions with Luc during the pendency of the trial. This is incorrect. The judge properly focused on the mother's current fitness and made several findings based on the mother's trial testimony as to her visits and interactions with Luc since the petition date. The mother acknowledged that beginning in May of 2015, she was responsible for requesting visits with Luc, yet those visits remained inconsistent. For example, in October of 2015, the mother did not request a visit with Luc until October 23, and as of January 18, 2017, the mother had yet to request a visit with Luc for that month. [Note 16] The mother explained, "I have a lot going on and will get there when I can get there." There was no error.

b. Mental health challenges and substance use disorder. The mother next argues that the judge's findings did not establish a sufficient nexus between her mental health challenges and her ability to provide for Luc, or between her substance use disorder and her ability to provide for him. We disagree.

"Mental disorder is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's special needs" (emphasis added). Adoption of Frederick, 405 Mass. 1, 9 (1989). [Note 17] Here, the mother was diagnosed with bipolar disorder and failed to recognize the need for or to engage consistently in treatment. Mora testified that the mother reported an inability to get out of bed and a fear of leaving her home. The mother later told a court investigator that she experienced both the manic and depressive stages of her bipolar disorder, but she repeatedly denied the need for therapy and

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medication. [Note 18] Moreover, during the pendency of the care and protection case, the mother did not provide DCF with a psychological evaluation.

In addition to mental health concerns, evidence of alcohol or drug use is relevant to, but not dispositive of, "a parent's willingness, competence, and availability to provide care." Care & Protection of Frank, 409 Mass. 492, 494 (1991). Treatment "does not always work the first or even the second time, [and] relapse should not be cause for giving up on" an individual experiencing substance use disorder (citation omitted). Commonwealth v. Eldred, 480 Mass. 90, 99 (2018). Just as we should not criminalize addiction, see id., parental rights should not be terminated only because the parent has a substance use disorder. However, the parent's willingness to engage in treatment is an important consideration in an unfitness determination where the substance dependence inhibits the parent's ability to provide minimally acceptable care of the child. See Adoption of Elena, 446 Mass. 24, 33-34 (2006), citing G. L. c. 210, § 3.

Here, the mother acknowledged her history of substance use during trial. The mother regularly failed to complete the required urine screens, and several of the urine screens that she did complete tested positive for cocaine. One of Luc's younger siblings also tested positive for cocaine at birth. Despite these concerns, the mother consistently failed to recognize the need for or engage in substance use disorder treatment. [Note 19]

In sum, the mother's unwillingness to adhere to DCF's service plan, which required her to obtain treatment for her mental health challenges and substance use disorder, is "relevant to the determination of unfitness." See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289 (1987). We conclude that the judge did not abuse his discretion or commit a clear error of law in determining that the mother was unfit.

2. Inadmissible second-level hearsay and improper opinion evidence. The mother argues that the judge erred by admitting in evidence and relying on inadmissible second-level hearsay and

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improper opinion evidence in his decision. [Note 20] Specifically, the mother contends that McMorrow's DCF reports and dictation notes improperly formed the basis for thirty-one findings of fact and that the judge's reliance upon those findings prejudiced her. [Note 21]

We need not decide whether the judge erred in admitting McMorrow'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 investigator reports, which are "part of the record" pursuant to G. L. c. 119, § 24. [Note 22] The mother does not challenge the judge's admission of the court investigator reports on appeal. [Note 23] Accordingly, even excising the thirty-one contested findings of fact, there was ample support, under the clear and convincing evidence standard, for the judge's decree terminating the mother's parental rights to Luc. [Note 24]

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3. Admission of documents in care and protection cases. Our decision to affirm the judge's decree based upon the sufficiency of indisputably admissible evidence dispenses with the need to address the mother's challenges to the admission of McMorrow's DCF reports and dictation notes specifically. Nonetheless, we take the opportunity presented to clarify certain rules governing the admissibility of hearsay evidence in the context of care and protection cases with regard to two categories of documents filed in those cases: [Note 25] (a) court investigator reports under G. L. c. 119, § 24; [Note 26] and (b) DCF-created documents, which include (i) DCF-authored reports under G. L. c. 119, § 21A (DCF reports), and (ii) official records in care and protection cases (official DCF records). [Note 27]

a. Court investigator reports under G. L. c. 119, § 24. [Note 28] Upon the initiation of a care and protection case, "the court shall appoint a person qualified under [§] 21A to investigate the conditions affecting the child and to make a report under oath to the court." G. L. c. 119, § 24. [Note 29] See Custody of Michel, 28 Mass. App. Ct. 260, 266 (1990) ("When a judge appoints an investigator under G. L. c. 119, § 24, it signifies the judge's expectation that

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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 . . ."). Pursuant to the statutory hearsay exception declared in G. L. c. 119, § 24, court investigator reports are a "part of the record." See Care & Protection of Erin, 443 Mass. 567, 573 & n.5 (2005), citing Custody of Jennifer, 25 Mass. App. Ct. 241, 245 (1988). See also Rule 14(C) of the Juvenile Court Rules for the Care and Protection of Children (2018). "There can, therefore, be no objection in general to the receipt and use of such reports in arriving at decisions in care and protection proceedings." Care & Protection of Zita, 455 Mass. 272, 281 (2009), quoting Custody of Michel, supra at 265.

Second-level hearsay contained within court investigator reports should be "limited to factual information collected from identified sources." Custody of Tracy, 31 Mass. App. Ct. 481, 487 (1991). See Juvenile Court Department, Guidelines for Court Investigation Reports, at 1, 3-4 (reissued Nov. 1, 2013). In addition, our case law has long held that such hearsay is admissible where the opposing party has "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. See Adoption of Paula, 420 Mass. at 724; Care & Protection of Rebecca, 419 Mass. 67, 83 (1994); Adoption of Carla, 416 Mass. at 514. For opposing parties to have that opportunity, the court investigator report must identify the sources of such second-level hearsay statements. See Custody of Tracy, supra at 486-487. See also Adoption of Sean, 36 Mass. App. Ct. 261, 263-264 (1994); Note to Rule 14 of the Juvenile Court Rules for the Care and Protection of Children. If the source of a challenged statement is not already present in court, the burden to subpoena that source rests with the party challenging the statement's admission. See Adoption of Paula, supra at 726; Care & Protection of Leo, 38 Mass. App. Ct. 237, 242-243 (1995).

b. DCF-created documents. i. DCF reports under G. L. c. 119, § 21A. In relevant part, G. L. c. 119, § 21A, states:

"Evidence in proceedings under [§§] 21 to 51H, inclusive, shall be admissible according to the rules of the common law and the General Laws and may include reports to the court by any person who has made an investigation of the facts relating to the welfare of the child and is qualified as an expert

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according to the rules of the common law or by statute or is an agent of the department or of an approved charitable corporation or agency substantially engaged in the foster care or protection of children. Such person may file with the court in a proceeding under said [§§] 21 to 51H, inclusive, a full report of all facts obtained as a result of such investigation. The person reporting may be called as a witness by any party for examination as to the statements made in the report. Such examination shall be conducted as though it were on cross-examination."

Section 21A governs the admission of evidence in care and protection cases [Note 30] and permits the admission of a separate type of report prepared and introduced in evidence by DCF. See G. L. c. 119, § 21A; Care & Protection of Zita, 455 Mass. at 280-281 (distinguishing DCF reports from court investigator reports). See also Rule 10 of the Juvenile Court Rules for the Care and Protection of Children (2018) ("[DCF] shall file a written report with the court each time the case is before a judge for hearing or report"); Goldstein, The Care and Protection Report: Some Evidentiary and Due Process Issues, 1 Mass. Fam. L.J. 69, 71 (1984) (DCF "progress reports" admissible under G. L. c. 119, § 21A). Cf. Rule 11 of the Juvenile Court Rules for the Care and Protection of Children (2018) (investigator's report in care and protection cases).

ii. Official DCF records. Official DCF records are records created by DCF employees in the course of their official duties that any party in a care and protection case may seek to admit in evidence. To date, our courts have identified several types of DCF documents as official records. See Adoption of Querida, 94 Mass. App. Ct. 771, 778 (2019) (51B reports); Adoption of Vidal, 56 Mass. App. Ct. 916, 916-917 (2002) (private entity's written assessment performed under contract with DCF); Adoption of George, 27 Mass. App. Ct. at 272-274 (service plans, case reviews, and foster care reviews). See also Mass. G. Evid. § 1115(b)(2) (same and DCF action plans, affidavits, family assessments, and dictation notes).

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iii. Admissibility criteria for DCF-created documents. A parent's "fundamental liberty interest in the care, custody, and management of their children" is axiomatic. L.B. v. Chief Justice of the Probate & Family Court Dep't, 474 Mass. 231, 237 (2016), quoting Matter of Hilary, 450 Mass. 491, 496 (2008). "Due process concerns and fundamental fairness require that a parent have an opportunity effectively to rebut adverse allegations concerning child-rearing capabilities, especially in a proceeding that can terminate all legal parental rights." Adoption of Mary, 414 Mass. at 710. [Note 31] By providing a parent with the opportunity to effectively cross-examine the court investigator and the investigator's sources, the admissibility criteria for second-level hearsay contained within court investigator reports balance the "importance of providing needed information to the court" with fairness and due process concerns. Custody of Tracy, 31 Mass. App. Ct. at 484, 486. See Duro v. Duro, 392 Mass. 574, 580 n.9 (1984) ("Our decisions permitting judges to rely on the reports of court-appointed investigators despite their hearsay nature are linked to the opportunity of affected parties to refute incorrect information contained in such reports"). See also Care & Protection of Leo, 38 Mass. App. Ct. at 241-242 (cross-examination of court investigator and their sources provides sufficient opportunity to rebut statements contained in court investigator report); Custody of Michel, 28 Mass. App. Ct. at 266.

In the context of care and protection cases, we see no reason why the criteria for admitting second-level hearsay contained within independent, court-ordered reports written by court investigators under § 24 should be stricter than the criteria for admitting hearsay contained within DCF-created documents. Interpreting our evidentiary rules to permit a more lenient admissibility standard for DCF-created documents, especially since DCF is a party to the case, would contradict the fundamental protections our law bestows upon a parent's relationship to their child. Accordingly, we now announce the following criteria for the admission of first- and second-level hearsay in DCF reports under G. L. c. 119, § 21A, and official DCF records in care and protection cases, where that hearsay does not satisfy another common-law or

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statutory exception. [Note 32] See G. L. c. 119, § 21A. [Note 33] Under what we will refer to as the Luc criteria, first- and second-level hearsay contained within DCF reports and official DCF records is admissible for statements of primary fact, [Note 34] so long as the hearsay source is specifically identified in the document [Note 35] 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

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party challenging the evidence may subpoena him or her. [Note 36] And once again, the hearsay need not meet the Luc criteria if it satisfies another, preexisting hearsay exception. [Note 37]

Conclusion. 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.