Commercial Litigation and Arbitration

Facebook Authentication Insufficient — Expert Pulled Metadata from One Side of Chat But, Because Conversants Were No Longer “Friends” Then, Data Showed Unknown Account as Source of Messages — Expert Admits Messages Could’ve Been Altered

Adoption of Nash, 2016 Mass. App. Unpub. LEXIS 520 (Mass. Ct. App. May 12, 2016):

The mother appeals from a decree issued by a judge of the Juvenile Court determining that the best interests of her son, Nash, would be served by the termination of the mother's parental rights. See G. L. c. 119, § 26; G. L. c. 210, § 3. On appeal, the mother claims that the judge erred in excluding from evidence certain electronic messages sent via Facebook, the social networking Web site. The mother also claims that the judge abused his discretion in assessing the credibility of one of the child's guardians, Helen Smith,2 and in declining to order postadoption visitation. We affirm.

2   The names we use for the guardians, Helen and Tom Smith, are pseudonyms.

Background. We recite the relevant facts as found by the judge. The mother and Nash met Helen and Tom Smith, who would eventually become Nash's guardians and preadoptive parents, when the mother sought help at the Salvation Army, where the Smiths are officers. Nash was five months old at the time, and the Smiths developed a supportive relationship with the mother, who began volunteering at the Salvation Army. In November, 2009, when Nash was eight months old, [*2]  the mother, who had a history of depression, self-harm, and suicide attempts, was hospitalized for being "out of control." The Smiths cared for Nash during that time. In January, 2010, the mother left Nash with the Smith family again, and he resided with them in an informal arrangement until the Department of Children and Families (DCF) filed a care and protection petition one month later. In early February, 2010, prior to DCF's involvement and following concerns from the Smiths that Nash was behind in his early intervention appointments, the mother signed and notarized a letter providing the Smiths with permission to seek medical care for Nash, and stating that Helen Smith was taking care of Nash until the mother was able to care for him.

Nash was formally placed with the Smiths by DCF in late February, 2010. The mother and the Smiths arranged for the mother's regular visitation with Nash. During late 2010 and 2011, Helen Smith noted that Nash had returned injured from all-day visits with the mother (once presenting with a rash, and once with a mark on his forehead). She also noticed that Nash "would hide under a table and cry" and appeared "withdrawn" following visits with the mother. [*3]  When Helen Smith asked Nash how he got the mark, he struck his forehead and banged the back of his head against a wall, which prompted her to report her concerns to the police and DCF. The mother herself took Nash to the doctor during an August, 2011, visit, after he fell at a park and hit his head on the gravel. In October, 2011, Helen Smith reported behavioral concerns to Nash's doctor; she stated that Nash was having nightmares after his two-day visits with the mother and that he "had been sucking his thumb more than normal, screaming in his sleep, and getting down on his hands and knees, hiding his face, and asking her not to hit him."

After a home study, the New Hampshire Division of Children, Youth and Families (DCYF) approved Nash's placement with the mother, her husband, and their young daughter at their home in New Hampshire in October, 2011. Nash, who was three years old at the time, lived with the mother for six months, during which time he displayed a number of behavioral problems that the mother was unable to address. These included being aggressive with his younger sibling, hitting and biting the mother, gorging, urinating on the floor, cursing, and sneaking and hiding [*4]  food. While Nash was placed with her, the mother called DCYF because she was concerned that she could not keep him safe. At one point, Nash jumped on his younger sister and broke her rib, leading DCYF to open a case on the family.

In late 2011, the mother brought Nash to a therapist, who recommended that she allow visitation with the Smiths to ease Nash's transition to the mother's home. The therapist reported that the mother disagreed with her diagnosis of Nash as having reactive attachment disorder, and brought him to only one-half of the scheduled therapy appointments. The mother began to allow Nash telephone calls and daytime visits with the Smiths. However, in February, 2012, she left Nash in the care of a neighbor while she and her husband went on their honeymoon; the mother also lied to DCYF about this. DCYF also noted that there were holes in the walls of the mother's home, which the mother attributed to Nash throwing toys; Nash, however, told Helen Smith that the mother's husband punched holes in the walls. The mother did not follow through with DCYF recommendations to enroll Nash in Head Start and to attend a parenting group in order to understand childhood development. At [*5]  some point, the mother brought Nash to a medical provider because she insisted that he has a blood clotting disorder. Nash has tested negative for the disorder, but the mother nevertheless insists that he has the disease and that the Smiths are neglecting his medical needs.

In March, 2012, after explaining to the DCYF social worker that she "[did not] want to do this anymore" because "[Helen Smith] does a much better job" of taking care of Nash, the mother dropped Nash off with the Smiths, and he has lived with them ever since. On June 21, 2012, the mother waived her right to a trial and stipulated to a finding of her current unfitness. Still, the Smiths encouraged the mother to continue visiting with Nash and even to take him for longer visits. The judge found that the "[m]other was unable to handle [Nash's] behavior" on two such occasions and dropped Nash off with the Smiths early. On December 5, 2012, the mother consented to the appointment of the Smiths as Nash's permanent guardians. The mother continued to visit with Nash, but on at least one other occasion dropped him off early.

Sometime during 2014, the mother and Helen Smith had a falling out, which included exchanging "nasty messages" [*6]  through Facebook. This caused the mother to reduce the frequency of her visits with Nash. During the summer of 2014, the mother, who was by then residing in Maine, visited Massachusetts but "did not bother to contact the [Smiths] to see if [a visit with Nash] was a possibility." In the fall of 2014, the Smiths attended a conference in Maine and invited the mother to visit with Nash, but she did not do so. The mother did not visit with Nash between April and December, 2014.

The mother and Helen Smith primarily communicated with one another through Facebook. At trial, the mother sought to introduce in evidence Facebook messages exchanged between them. She attempted to authenticate the veracity of the messages, "pulled" from the mother's account, by calling an expert witness, digital forensic analyst Steven Verronneau. Verronneau testified that the communications presented were between the mother and Helen Smith. The trial judge declined to admit the messages, noting that "it wasn't clear [from the messages] who was saying what," and citing concerns about their reliability.

On the first day of trial, the mother stated that she was not sure if she would want to maintain contact with Nash [*7]  if her parental rights were terminated, and that she saw the situation as "all or nothing." She failed to appear at five court dates over the course of the entire case. On August 12, 2015, the judge issued detailed findings of fact and conclusions of law that the mother was currently unfit, that such fitness was likely to continue in the foreseeable future, and that termination of her parental rights was in Nash's best interests, and he accordingly terminated her parental rights.3 The judge also approved DCF's plan for the Smiths to adopt Nash.

3   The inquiry regarding unfitness is whether the parent's deficiencies or limitations "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761, 694 N.E.2d 27 (1998). Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment or a determination that the mother does not love the child.

The judge found that Nash and the mother had a bond and that ongoing contact was in Nash's best interests. He also noted that "the [Smiths] have put [Nash's] interests in maintaining contact with his family first," and that "[i]f the [Smiths] were allowed to adopt [Nash], they would want [Nash] to have [*8]  a relationship with [the] [m]other." He noted that the Smiths are "trying to keep everyone as close as possible and want [Nash] to know who his family is." The judge nevertheless declined to order postadoption visitation, finding that it was unnecessary to do so given the Smiths' testimony that they support contact and visitation between Nash and the mother.

Discussion. a. Authentication of Facebook messages. To establish their admissibility, the proponent of electronic messages must demonstrate that there is sufficient evidence to permit the finder of fact (in this case the judge), to conclude that it is more likely than not that the messages were authored by the person the proponent (here the mother) claims was the author. See Commonwealth v. Purdy, 459 Mass. 442, 447, 945 N.E.2d 372 (2011); Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 367, 16 N.E.3d 502 (2014). See also Mass. G. Evid. §§ 104(b), 901(b)(11) (2016). The mother claims that the judge erred by concluding that she did not meet her burden to establish that the Facebook messages were authentic. The mother relies on Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 737, 20 N.E.3d 967 (2014), in support of her argument. That case is distinguishable, however, because the proponent of the evidence there not only presented an affidavit from a keeper of the records, but also "confirming circumstances" providing a basis for concluding that the records were authentic. Ibid. [*9]  In this case, the expert witness testified that he accessed the mother's Facebook account to pull metadata from the messages, but because the mother was no longer Facebook "friends" with Helen Smith, the data showed an unknown account as the originator of the messages claimed to be from Helen Smith. The expert acknowledged in response to the judge's questioning that the messages could have been altered prior to the expert accessing the account. We see no basis to disturb the trial judge's decision to exclude the messages on the basis that they were not authenticated. See Renzi v. Paredes, 452 Mass. 38, 52, 890 N.E.2d 806 (2008) (authentication is preliminary question of fact and within trial judge's discretion).4

4   In view of our resolution of this issue, we need not consider other arguments by the mother that the Facebook messages were admissible under an exception to the hearsay rule or as non-hearsay. None of these alternative theories is available unless the material in question has been authenticated. See Mass. G. Evid. § 901(b)(11) (authentication of electronic evidence is preliminary question of admissibility under § 104[a]).

b. Credibility of Helen Smith. The mother also argues that the trial judge's assessment of Helen Smith's credibility was "unreasonable" and must be set aside. Acknowledging the wide discretion afforded a trial judge in assessing witness [*10]  credibility, the mother nonetheless asserts that the judge ignored evidence and failed to consider facts undermining Helen Smith's credibility. This argument "simply reflect[s] dissatisfaction with the judge's weighing of the evidence and his credibility determinations." Adoption of Hugo, 428 Mass. 219, 224, 700 N.E.2d 516 (1998) (quotation omitted). The judge made detailed factual findings, none of which is specifically contested by the mother. There is nothing to suggest that he overlooked or ignored relevant evidence.5 "[T]he judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993).

5   In reviewing the contents of the Facebook messages, this panel discovered nothing that, if properly authenticated and admissible, would render the trial judge's factual findings or credibility assessments clearly erroneous.

c. Postadoption visitation. A judge deciding whether to order postadoption visitation "must ask two questions: First, is visitation in the child's best interest? Second, in cases where a family is ready to adopt the child, is an order of visitation necessary to protect the child's best interest, or may decisions regarding visitation be left to the judgment of the adoptive family?" Adoption of Ilona, 459 Mass. 53, 63, 944 N.E.2d 115 (2011). The trial judge plainly [*11]  answered the first question in the affirmative and the second in the negative. He found that "[t]he [Smiths] have made an exceptional effort to facilitate contact between [Nash] and his half-siblings and his biological father. . . . The court concludes that the [Smiths] are still entitled to the presumption they will act in the best interest of the child in making decisions regarding the child, including decisions about visitation." Our review of the record confirms that the Smiths have not wavered in their desire to maintain the lines of communication between Nash and the mother. The judge did not err in declining to issue an order for postadoption visitation.

Conclusion. Based on the evidence presented at trial, the judge was warranted in finding that the child has been cared for by the Smiths since he was nine months old, that he has thrived while in their custody, that he struggled with an attachment disorder while living with the mother in New Hampshire, and that he would suffer serious harm if returned to the mother. Furthermore, the evidence at trial supports the judge's determination by clear and convincing evidence that the mother is unfit to parent her child, that her unfitness [*12]  is likely to continue into the future, and that the termination of mother's parental rights is in the child's best interests.

Decree affirmed.

By the Court (Milkey, Agnes & Maldonado, JJ.6),

6   The panelists are listed in order of seniority.

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