419 Mass. 67 | Mass. | 1994
On December 14, 1989, the Department of Social Services (department), filed a care and protection petition pursuant to G. L. c. 119, § 24 (1992 ed.), seeking custody of Rebecca and Ruth,
1. Background. The following factual background, none of which was disputed, is drawn from the judge’s findings. Rebecca and Ruth are children with special needs. They have displayed cognitive delays since they were toddlers, were two years behind their peers when they started school, and have been described by their therapist as “mildly retarded.” The twins’ mother separated from their father before their birth. Their father has never been involved in their care. In July, 1986, their mother gave birth to William, their half-brother.
In November, 1987, the mother’s stepbrother began sexually abusing Rebecca. Ruth witnessed the abuse, and may also have been a victim. The abuse continued for about two months, when Rebecca reported it to a relative. The relative told the mother, who then reported the abuse to the proper authorities and took the twins to their pediatrician. The stepbrother was found guilty of indecent assault and battery.
In October, 1988, the mother married Simon, who had custody of his two young sons, Arnold and James. The five children lived with the mother and Simon until December, 1989, when all of the children were removed from the home and temporary custody of them was granted to the department.
2. Evidence related to sexual abuse allegedly committed by the mother. The mother’s arguments concerning its admissibility and sufficiency require that we set out in detail the evidence on which the judge relied for his conclusion that
The children were removed from the home of the mother and Simon after Arnold reported sexual abuse inflicted by four persons including his father and his stepmother, both of whom were indicted. An investigator appointed by the court, see G. L. c. 119, § 24 (1992 ed.), interviewed Arnold shortly after the allegations were made. He told the court-appointed investigator (as he had told the investigator for the district attorney’s office) that his stepmother touched him inappropriately and asked him to touch her inappropriately. He also alleged that he had watched while his stepmother made Rebecca and Ruth touch her inappropriately.
Subsequently, Simon pleaded guilty to indecent assault and battery of Arnold and rape of James. The parties have stipulated that the criminal charges pending against the mother, based on Arnold’s statement, were made subject to a nolle prosequi after Arnold disavowed his allegation concerning her.
The twins’ third foster placement was with a family who had a six year old daughter. In February, 1991, the foster parents became aware that the twins and their daughter were “playing house.” The game, initiated by the twins, was similar to one they said they had played with their stepbrother Arnold, and involved the children touching one another’s genitals. The foster parents told the children that this behavior was not appropriate for children, and that it could do them harm. The judge found that, during the following weeks, in a series of conversations, “[Rebecca and Ruth], first separately and then together, disclosed that [Simon] and [the mother] had ‘touching problems;’ that [Simon] had touched [Rebecca and Ruth] with his penis . . . that [their mother] was present when [Simon] touched the children and that she had touched their genitals and rubbed medicine on their privates. Both children indicated that the touching by both [Simon] and [their mother] hurt . . . that [Simon] and [their mother] told them not to tell anyone; that [Simon’s] touching was with his hand and penis and [their mother’s] was with her hands. Both [Ruth and Rebecca] indicated that rubbing of medicine on their vaginas by [their mother] was a ‘bad’ touching.” (There was evidence that both children had suffered from scabies infections. The treatment for scabies was the application of an ointment which had to be applied to the entire body, including the genital area.)
The court-appointed investigator interviewed Rebecca and Ruth on February 3, 1992, shortly before the trial began. The investigator reported: “I asked [Rebecca] why she was living in the [foster] home. She replied: ‘because my mother touched me.’ When I asked what she meant, she stated ‘because my mother touched my vagina’. I asked what her mother touched her vagina with, and she said ‘her hand’. I asked if it hurt when she touched her, and she nodded yes.” Rebecca also said she could not remember whether the touching happened once, twice or more often, or whether anyone else was present when it occurred. In response to sim
The court-appointed investigator also reported on her interview with the twins’ third set of foster parents, who again recounted the twins’ allegations of sexual abuse by their mother and Simon, adding some additional details concerning the alleged abuse by Simon, and an interview with Dr. Plimpton, who repeated his opinion that Simon had abused both girls in their mother’s presence, and that the mother “ ‘engaged in some inappropriate sexual behavior with these girls.’ ”
John Kolodin, therapist for the twins’ half-brother William, testified to behavior on William’s part that was, in his opinion, suggestive of sexual contact, and opined that the boy had been sexually abused.
Based on what he described as “the totality of the evidence,” the judge concluded that Rebecca and Ruth had been sexually abused by Simon. As to the mother, the judge found:
“Based on the totality of the evidence . . . that [the mother] was present when [Ruth and Rebecca] were abused by [Simon] and that she touched the genitals of her daughters in sexually inappropriate ways. Moreover . . . [the mother] failed to protect her children from sex-' ual abuse by [her stepbrother], [Simon] and [Arnold]; [and] she failed to give her daughters any sense of se-curity or to define for them boundaries of acceptable sexual conduct. . . . [The mother], by act and omission, allowed her daughters to become defenseless prey to myriad sexual deviates.”
The judge also found that the mother “engaged in inappropriate sexual touchings of [Arnold] and [James].” He based
“on the totality of the evidence including the testimony of the experts, the statements of [Ruth and Rebecca] made to [one of their foster parents in their third foster placement] prior to their tenth birthday, the investigator’s reports, the stipulations of the parties, the exhibits, the convictions of [the mother’s stepbrother] and [Simon] which gave credibility to the statements of [Rebecca and Ruth], the testimony and demeanor of [the mother] as a witness and her reactions to other testimany during the course of the trial, and the testimony of witnesses about the conduct of [Ruth, Rebecca, and William]. No one portion or piece of evidence was essential to this finding; it was the accumulation of vast evidence from multiple sources that made these findings inescapable, inevitable and unavoidable.”
3. Admissibility and probative value of statements related to sexual abuse. Rebecca and Ruth, who did not testify, told their third set of foster parents that Simon had abused them sexually in their mother’s presence, and that their mother had touched them inappropriately. These statements, describing acts of sexual misconduct, identifying a perpetrator, and made before the children’s tenth birthday (April 15, 1991), were testified to by the person who heard them. The statements were admitted as substantive evidence of sexual abuse by the mother based on the provisions of § 83. See note 4, supra. The mother argues, nonetheless, that the prerequisites for admission under § 83 were not met because the legislation contains an implicit requirement that the judge find a child declarant unavailable before admitting such evidence.
Section 83 was enacted by St. 1990, c. 339, which amended G. L. c. 233 by the insertion of three new sections addressing the admissibility of out-of-court statements of child sexual abuse victims. General Laws c. 233, §§81 and 82, also enacted by St. 1990, c. 339, which apply, respectively, to criminal proceedings and to civil proceedings other than care and protection proceedings, explicitly require the proponent of an out-of-court statement made by a child under the age of ten to “demonstrate a diligent and good faith effort to produce the child” and “specific findings on the record” demonstrating unavailability. The circumstances in which a declarant may be found unavailable are carefully delineated. This unavailability requirement is conspicuously absent from § 83. “[W]here the Legislature has employed specific language in one [section of an act], but not in another, the language should not be implied where it is not pres
We also are satisfied that § 83 satisfies the due process requirements of the United States Constitution and art. 12. Questions related to the standard of proof in care and protectian proceedings are tested by reference to the due process analysis contained in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), which requires the balancing of three factors, “(1) ‘the private interest that will be affected by the official action’; (2) ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards’; and (3) ‘the Government’s interest, including the function in-valved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ ” Care & Protection of Robert, 408 Mass. 52, 59 (1990).
The interests implicated in a care and protection proceeding include the parent’s and the child’s very significant interests in the continuance of their familial relationship. Those interests are not absolute; they are tempered by a child’s paramount interest in freedom from abuse and neglect, including familial sexual abuse, id. at 61-62, and they must be weighed against the Commonwealth’s strong interest in the welfare of the children of the Commonwealth. Id. at 65. See Lassiter v. Department of Social Servs. of Durham County, N.C., 452 U.S. 18, 27 (1981); Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981).
The point in contention is whether the provisions of § 83 increase the risk that a judge in a care and protection proceeding will conclude, erroneously, that sexual abuse has occurred. The mother argues that the legislation is infirm for
Opinion of the Justices, supra, and much of the pertinent literature, confirm the difficulty in assessing an allegation of
The judge in a care and protection case is required, however, to treat this evidence with caution. The proponent of evidence meeting the criteria for admissibility of § 83 may offer the evidence, but implied in the statute is a requirement that a judge assess the reliability of such evidence in connectian with deciding how much weight to accord to it. We infer this requirement from traditional principles governing the use of hearsay evidence and from the specific provisions of § 83.
Statements admitted pursuant to § 83, must be introduced through the person to whom the statement was made or who heard the child make the statement. This person, therefore, is subject to cross-examination regarding the timing of the statement, the circumstances in which it was made, the language used by the child, and the child’s apparent sincerity, or motive, in making the statement. Cf. Gilmore v. Gilmore, 369 Mass. 598, 603-605 (1976); Adoption of George, 27 Mass. App. Ct. 265, 274 (1989). These are important factors bearing on the reliability of a young child’s statement concerning an incident of sexual abuse. See People ex rel. M.W.,
In deciding what weight to give to statements admitted pursuant to § 83, a judge also should consider whether other admissible evidence corroborates the existence of child abuse. This might include, for example, evidence that a child displays knowledge of sexual matters beyond his or her years or engages in sexually explicit behavior, see Commonwealth v. Amirault, 404 Mass. 221, 225 (1989), or physical evidence consistent with sexual abuse. Id. at 226.
Certain statutory exceptions to the hearsay rule, applicable in care and protection proceedings, appear to reflect a legislative judgment that the judge who sits as finder of fact requires access to evidence from many sources, some of which may be in hearsay form, but which may nevertheless be relied on for its truth. See Adoption of Carla, supra at 512, 514. See also Custody of Tracy, 31 Mass. App. Ct. 481, 485-486 (1991); Custody of Michel, 28 Mass. App. Ct. 260, 266 (1990). To ensure integrity in the decision-making process, we additionally require that the judge’s reasons for relying on § 83 evidence must appear clearly in the specific and detailed findings the judge is required to make in a care and protection case. See Care & Protection of Laura, 414 Mass. 788, 791 (1993). See also Custody of Eleanor, 414 Mass. 795, 799 (1993). So long as these safeguards are observed,
4. Sufficiency of evidence of sexual abuse. Subsidiary evidentiary findings in a care and protection case, including a finding that sexual abuse has occurred, must be proved by a fair preponderance of the evidence properly before the judge. See Care & Protection of Laura, supra at 793. A judge’s findings must be left undisturbed “absent a showing that they are clearly erroneous.” See, e.g., Custody of Eleanor, supra at 799, and cases cited. “A finding is clearly erroneous when there is no evidence to support it, or when, ‘although
Here, there were circumstances casting serious doubt on the reliability of the statements made by Rebecca and Ruth to their third pair of foster parents that their mother had sexually abused them. The children’s statements admitted pursuant to § 83 appear to relate to the mother’s application of medicine in the children’s genital area, an act for which there was a medical justification. Due to possible confusion on this ground, the judge was unwilling to accept Dr. Plimpton’s opinion that the mother had touched Rebecca and Ruth inappropriately. The statements admitted pursuant to § 83, made immediately after the girls had been told that touching in the genital area was wrong, or bad, would appear to suffer from the same infirmity. Both Dr. Plimpton and the court-appointed investigator also indicated that the children were exceptionally eager to please; for this reason, they were not viewed as entirely reliable informants. Despite the mother’s request, however (see note 10, supra), the judge did not conduct a voir dire to aid his assessment of the reliability of their allegations. .
Much of the other evidence relied on by the judge to bolster the statements admitted under § 83 was objected to and not properly before him. The twins’ statements to the court-appointed investigator (that they were in foster care because their mother had touched them in the genital area) could not be relied on for their truth because the mother was foreclosed from cross-examining the children. See Adoption of Carla, supra at 514 (hearsay in investigator’s report is allowable for its truth only when there is opportunity for cross-examination of the sources of the statements).
Statements by the twins to Dr. Plimpton, about which he testified in the course of explaining the basis for his expert opinion, could not be relied on for their truth. See Nancy P. v. D’Amato, 401 Mass. 516, 524-525 (1988); P.J. Liacos, Massachusetts Evidence § 7.10.3, at 422 (6th ed. 1994). Dr. Plimpton’s expert opinion testimony, to the effect that the twins had been sexually abused, was inadmissible under cases decided by this court and the Appeals Court. See Commonwealth v. Colin C., ante 56, 59-61 (1994); Commonwealth v. Rather, 37 Mass. App. Ct. 140, 147 (1994). His testimony identifying the persons who had abused the twins, and opining that their mother had been present, amounted in essence to testimony that he believed the statements made to him by the twins, and was equally inadmissible. Commonwealth v. Colin C., supra at 59-61. The testimony by WilHam’s psychologist was similarly flawed.
The judge relied on his conclusion that the mother had sexually abused Arnold and Joseph to support his finding
There was admissible evidence raising doubt about the mother’s ability to provide an adequate home for Rebecca and Ruth. However, the finding that the mother had committed and condoned the sexual abuse of her daughters, a finding central to the judge’s conclusion that she was an unfit parent, was based largely on a combination of unreliable and inadmissible evidence. “[T]he judge’s reliance on evidence improperly considered by him makes it impossible for this court to say with confidence that the result would have been the same if the judge had not considered that evidence.” Care & Protection of Benjamin, 403 Mass. 24, 27-28 (1988). The judgment adjudicating Rebecca and Ruth in need of care and protection and committing them to the custody of the department until their eighteenth birthday is vacated. The case is remanded for further proceedings in light of this opinion and any changes in the situation of the mother and the children since the February, 1992, hearing.
So ordered.
The petition filed by the Department of Social Services sought custody of Rebecca, Ruth, their younger half-brother, William, and their two stepbrothers, Arnold and James. The petition was dismissed as to Arnold and James on December 5, 1991. The May 12, 1992, order entered by the judge, from which the mother and the children have appealed, pertains only to Ruth and Rebecca. The department informs us that the mother also has filed a notice of appeal from the judge’s adjudication of William as a child in need of care and protection. That appeal is not before us, and the mother’s failure to address in her brief issues related to the custody of William cannot be construed as a waiver of her appeal as to William.
The mother and the children both have appealed. The issues raised by the children on appeal are identical to those raised by the mother. We shall refer in this opinion to issues raised by the mother.
General Laws c. 233, § 83, inserted by St. 1990, c. 339, provides as follows:
“(a) Any out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator offered in an action brought under subparagraph C of section twenty-three or section twenty-four of chapter one hundred and nineteen shall be admissible; provided, however that the person to whom the statement was made, or who heard the child make the statement testifies, and the judge finds that the statement is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence which the proponent can • procure through reasonable effort.
“(b) An out-of-court statement admissible by common law or by statute shall remain admissible notwithstanding the provisions of this section.”
On the mother’s motion, the judge agreed to strike the section of the court-appointed investigator’s report detailing Arnold’s allegations that the mother had sexually abused Rebecca and Ruth.
The only other source for this information was an attachment to a report prepared by the department pursuant to G. L. c. 119, § 51B (1992 ed.), describing in detail a videotape of Arnold’s responses to questions posed by an investigator for the district attorney’s office. (The description of the videotape was prepared by a department employee.) The mother objected to admission of the attachment, and she moved to strike it. It is not clear from the record provided to this court whether the judge acted on the motion to strike, and, if so, what decision he reached.
This material was admissible for purposes of explaining the department’s reasons for removing the children from the home of the mother and Simon. See Custody of Michel, 28 Mass. App. Ct. 260, 266-267 (1990) (§ 51A and § 5IB reports are admissible to explain bringing of care and protection petition); Adoption of George, 27 Mass. App. Ct. 265, 271-274 (1989).
In August, 1991, an assistant district attorney met with Arnold and told him charges were still pending against his stepmother, and that Arnold would have to testify about her actions. Arnold denied ever having said that his stepmother had “[done] anything” to him, and told a confused and improbable story suggesting that it was his brother, James, who had made the allegations. After having been shown a videotape of his ear-
Dr. Plimpton’s name appears as “Plinpton” in the transcript, and the department has adopted this spelling for use in its brief, but it is clear from documents in the record that his name is “Plimpton,” and we shall use the proper spelling.
Dr. Plimpton also testified that, in his opinion, “the mother engaged in some inappropriate fondling with both girls.” On objection by counsel for the mother, the judge struck this testimony. He explained in his written findings that “the record was not clear as to how Dr. Plimpton could distinguish between a sexual touching . . . and a touching required by the application of medicinal ointments for the treatment of scabies.”
The portions of the transcript provided to this court do not reflect such testimony by Dr. Plimpton, but the mother has not argued that the record lacks support for this finding.
The department’s contention that the mother failed to preserve this issue is without merit. The mother repeatedly objected to the admission of the children’s statements to the foster parents and explained to the judge the basis for her objection.
Also without merit is the department’s assertion that the mother made no attempt to call the children. The mother informed the judge that she
General Laws c. 233, §§ 81 and 82, also inserted by St. 1990, c. 339, both provide that an out-of-court statement made by a child under the age of ten related to sexual abuse is admissible if it is found that (a) a child is unavailable; and (b) the judge makes the additional finding that the statement “was made under circumstances inherently demonstrating a special guarantee of reliability,” based on a list of enumerated factors.
The mother also claims that her right to equal protection is violated because the threshold for the admission of an out-of-court statement related to sexual abuse made by a child under the age of ten is lower in care and protection proceedings than it is in the other civil proceedings governed by G. L. c. 233, § 82. This argument is without merit. Because the mother’s right to her familial relationship with her child is at stake in a care and protection proceeding, the Commonwealth is required to provide procedural safeguards adequate to ensure the fair and accurate resolution of such cases. See Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3-4 (1979) (substantive due process right in familial relationship requires adequate due process protection). The legislation at issue, St. 1990, c. 339, does not effect a classification based on race, alienage, national origin, or religion, see Commonwealth v. King, 374 Mass. 5, 21 (1977), nor do the statutory classifications, which are related to a point of procedure, “ ‘directly and substantially’ interfere with family living arrangements.” Lyng v. Castillo, 477 U.S. 635, 638 (1986). The distinction between care and protection proceedings, and other civil proceedings, therefore, needs only be rationally related to a legitimate government purpose. Id. at 638-639. See Michael H. v. Gerald D., 491 U.S. 110, 131 (1989). An adjudication under G. L. c. 119, § 26, that a child is in need of care and protection, while a significant intrusion, does not represent a total termination of parental rights, as does a proceeding to dispense with consent to adoption brought under G. L. c. 210, § 3 (1992 ed.), which is, therefore, appropriately governed by the more stringent standards of G. L. c. 233, § 82. As the mother points out, most of the other civil proceedings to which the more stringent standards of § 82 apply are between private parties. These proceedings do not implicate the Commonwealth’s interest in protecting children at risk of abuse and neglect. The Legislature rationally could conclude that the need for out-of-court statements is diminished in these circumstances. In addition, in private disputes over custody, it is possible that fewer resources will be devoted to investigation, thus increasing the risk that evidence in the form of a child’s out-of-court statements would not be properly evaluated in the absence of additional procedural safeguards.
The statements could not be admitted under § 83 because they were made after Rebecca and Ruth reached the age of ten. The mother’s right to cross-examination was brought to the judge’s attention during a eolio
The mother objected to the admissibility of this portion of the court-appointed investigator’s report, pointing out that since Arnold was living in Tennessee, she could not call him for cross-examination.
On remand, the finding that the mother has been resistant and uncooperative to the department’s efforts at reunification should be considered carefully. The department insisted that sexual offender counselling was a