944 N.E.2d 1068
Mass. App. Ct.2011Background
- Olivette born May 8, 1999; placed in foster care February 2001, age 19 months.
- Parental rights of Olivette’s biological parents terminated September 2002; adoption by foster parents finalized following spring.
- Parents separated in 2006 and divorced in 2007; Olivette to live with father while mother remained in contact.
- December 10, 2007 disclosures: Olivette told teacher she had nursed from daddy’s pee pee; SAIN interview described sexual abuse by father.
- January 2008 petition for care and protection; 72-hour hearing; Olivette placed in Department’s temporary custody; 2008 §82 hearings held on admissibility of out-of-court statements.
- August 2009 termination trial with judge’s findings; both parents appeal challenging admissibility, reliability, and other grounds; decrees terminating parental rights affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under §82 of out-of-court statements | Parents contend Olivette incompetent or unreliable; insufficient corroboration. | Department argues statements satisfied §82 criteria, reliability on record, and corroboration. | Statements admissible under §82; reliability and corroboration supported. |
| Whether §82 findings were properly admitted at the termination trial | Admission of §82 findings at termination trial violated separate evidentiary standards. | Findings properly admissible; not reversible error absent prejudice. | Admission of §82 findings at termination trial affirmed. |
| Whether the §82 findings establish reliability given cognitive limitations and prior fabrications | Cognitive limitations and prior fabrications undermine reliability. | Judge appropriately weighed reliability factors; reliability supported despite limitations. | Judge’s reliability determination upheld; reliability supported by §82(c) factors. |
| Whether the trial court properly established unfitness of the parents | Findings insufficient to prove current unfitness. | Evidence showed mother’s disbelief and conduct, treatment noncompliance, and lack of commitment; unfitness shown. | Decrees terminating parental rights affirmed. |
Key Cases Cited
- Commonwealth v. Colin C., 419 Mass. 54 (1994) (failure to testify; reliability of out-of-court statements under §81/§82)
- Adoption of Quentin, 424 Mass. 882 (1997) (balance between reliability and best interests in §82)
- Care & Protection of Rebecca, 419 Mass. 67 (1994) (corroboration in §82 includes behavior and knowledge as factors)
- Adoption of Arnold, 50 Mass. App. Ct. 743 (2001) (appellate review of reliability and corroboration under §82)
- Adoption Frederick, 405 Mass. 1 (1989) (admissibility of §82 findings in subsequent proceedings)
- Adoption Elena, 446 Mass. 24 (2006) (unfitness standards and evidence assessment)
- Adoption of Don, 435 Mass. 158 (2001) (child testimony considerations and accommodations)
- Opinion of the Justices, 406 Mass. 1201 (1989) (judicial flexibility in protecting child witnesses)