This is an appeal from a decision of a single justice
1. Background. The father, named as respondent
On July 12, 2006, the department received a report pursuant to G. L. c. 119, § 51 A, indicating physical abuse and neglect of the two children. During the subsequent investigation, the department’s social worker, Maria Gaffney, observed a bruise
After the supported report of abuse and neglect, the department assigned the case to an “ongoing social worker,” Sandra M. Pattinato, for assessment. She testified that, although the father met with her three times, she generally believed him to be “less than cooperative” because he missed or rescheduled several appointments. On October 4, 2006, the department received another report of abuse and neglect. Responding to the children’s day care center that same day, she observed three raised “welt marks” on the back of the younger child’s thighs. Pattinato interpreted one of the marks to be a “slashing mark,” three-to-four inches long and one inch wide. Another of the marks was circular in shape and three inches in diameter. Pattinato testified that the child told her that her father hit her with a soft belt for being noisy that morning. She also stated that her father often became angry and was “mean to her and her sister.” When Pattinato questioned the older child, she denied that her father hit them at all.
Pattinato further testified that she, along with other department workers, went to the family home that evening and met with the father. He denied having any knowledge of marks on his daughter’s legs or of hitting his children with a belt. Pattinato scheduled another appointment for a home visit on October 6, 2006. When Pattinato arrived at the house at the scheduled time, the family was not there. The father has resisted subsequent attempts by the department to contact and meet with him.
At the temporary custody hearing, the department was permitted, over objection of the children, to introduce the out-of-court statements of the children through the testimony of both Gaffney
At the conclusion of the hearing, the department was granted temporary custody of the children pending a trial in the Juvenile Court on the merits. The children filed a petition with the single justice pursuant to G. L. c. 211, § 3, seeking relief from the Juvenile Court judge’s award of temporary custody to the department.
2. G. L. c. 211, § 3. General Laws c. 211, § 3, confers on this court the authority of “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided.” We exercise this discretionary authority only sparingly, in exceptional circumstances where parties seeking relief “demonstrate both a substantial claim of violation of [their] substantive rights and error that cannot be remedied under the ordinary review process.” Planned Parenthood League of Mass., Inc. v. Operation Rescue,
The children argue persuasively that they are otherwise
We also agree that the petition raises a substantial claim of violation of substantive rights. The department argues that to accept this petition for review on its merits under G. L. c. 211, § 3, would expose the single justice to a torrent of petitions seeking to second-guess routine evidentiary rulings. This claim misunderstands the nature of the petition before the single justice as implicating only the right of the children to correct evidentiary rulings. At issue more fundamentally is the constitutionally protected interest of a parent in his relationship with his children. Care & Protection of Robert,
Our decision does not imply that every evidentiary ruling made in the course of a temporary custody hearing provides grounds for a G. L. c. 211, § 3, petition. The particular evidentiary issue raised here was not merely the sort of routine evidentiary matter that inevitably occurs in the course of any adversary proceeding. Rather, the question here has not been raised before this court previously, and our ruling affects the course of many future temporary custody hearings. In the context of this hearing, the statements were the only direct evidence that the father hit his children, providing the central evidentiary foundation on which the department built its case. In this manner, the fundamental interest in family integrity was centrally implicated by the claimed evidentiary error. In reviewing future petitions seeking review of temporary custody decisions under G. L. c. 211, § 3, a single justice may exercise discretion in determining whether the evidentiary error complained of was significant enough to be potentially determinative of this fundamental interest and to justify consideration on the merits.
3. Statement of a party opponent. The single justice denied the petition, reasoning that the “statements at issue are admissible as statements of a party opponent.” “Absent a clear abuse of discretion or plain error of law, we will not disturb the order of a single justice denying relief under G. L. c. 211, § 3.” Adoption of Iris, supra at 586, citing Department of Mental Retardation v. Kendrew,
It is well established under Massachusetts law that any extrajudicial statement by a party is admissible against that party if offered by a party opponent. See M.S. Brodin & M. Avery, Massachusetts Evidence § 8.6.1, at 501-502 (8th ed. 2007). It is beyond argument that the children are “parties” here. In both their brief and their oral argument, the children concede that they are parties. Children in care and protection cases also have the ability to exercise the rights of a party. See, e.g., G. L. c. 119, § 29 (right to counsel); G. L. c. 119, § 29B (right of appeal); Care & Protection of Manuel, supra at 532 (right to
The department argues that the statements are admissible here because the children, who are taking a position consonant with their father, are parties substantially adverse to the department. It is true, in some circumstances, that the admissibility of extrajudicial statements extends beyond party opponents in the pleadings sense to parties who take positions adverse to one another. Flood v. Southland Corp.,
In Flood v. Southland Corp., supra, the plaintiff was stabbed outside a convenience store. He brought a tort action against both the person who stabbed him (tortfeasor) and Southland Corporation, the owner of the property. Id. at 63-64. At issue in the case was the admissibility of the tortfeasor’s guilty pleas in the corresponding criminal action, offered by Southland, to show that the stabbing was intentional. Id. The court affirmed the trial judge’s exclusion of the guilty pleas on the basis that the evidence was inadmissible against the plaintiff and Southland failed to limit its offer to be against the tortfeasor alone. Id. at 71. In the present circumstances, the evidence similarly should have been disallowed against the father. Rule 801(d)(2) of the Proposed Rules of Massachusetts Evidence makes clear that its definition of nonhearsay extends only to the offer of an extrajudicial statement against the declarant.
We now turn to the difficult question whether extrajudicial statements, admissible against the children, who are subjects of the petition, but not against the parent opposing the department, should be admitted in evidence in a temporary custody hearing. In a somewhat incongruous argument, the department claims that the admissibility of the evidence against the children justified its admission in the temporary custody hearing because of the central focus of the proceedings on the children’s well-being. The children unquestionably have important interests to be determined in the care and protection process. Indeed, “the principal interest at stake is the child’s immediate welfare.” Care & Protection of Perry,
Yet, for the purposes of this evidentiary issue, it is important to note that the care and protection petition is not primarily intended to interfere with a right of the children to remain with their father.
We noted in Flood v. Southland Corp., supra at 71, that the general allowance of evidence admissible only against the tortfeasor, and not against the plaintiff, held potential to confuse the jury. The temporary custody hearing at issue here does not involve a jury as fact finder. Nevertheless, the possible confusion highlighted in the Flood case stems from the same principle of fairness that steers us away from allowing extrajudicial statements, admissible only against a father’s children, to form the evidentiary basis of a judge’s ruling to sever that father’s custodial rights.
Further, it is difficult to conceive of the probative worth of the extrajudicial statements when considered only against the children. In explaining the probative value of statements of a party opponent, Professor Wigmore propounds only two possibilities — first as a testimonial utterance, and second as a means of discrediting a position subsequently enunciated by the party, whether through his pleadings or through witnesses that support those pleadings.
The absence of probative value against the children and the issue of fairness both stem from the structure of this dispute as between the department and the father for custody of the children. In these circumstances, we cannot agree with the single justice as a matter of law that the extrajudicial statements of the children are admissible as statements of a party opponent.
As noted above, the children have failed to provide us with a transcript of the temporary custody hearing, opting instead to base their statement of facts on affidavits from trial counsel, which they characterize as uncontested. In light of the absence of a transcript or written findings of fact from the judge, we are unable to assess the sufficiency of the remainder of evidence supporting the judge’s decision. Cf. Commonwealth v. Best,
5. Conclusion. The decision of the single justice is reversed with instructions to remand the matter to the Juvenile Court for prompt reconsideration of the temporary custody of the children in keeping with the principles set forth above.
So ordered.
Notes
The father has argued the same position as the children throughout the proceedings.
We are regrettably without the benefit of a transcript from the temporary custody hearing. The facts outlined in this opinion are thus drawn from the petition under G. L. c. 211, § 3, the opposition of the department to the petition, and the affidavits of trial counsel present at the temporary custody hearing. The witnesses who testified at the hearing were two social workers, Maria Gaffney and Sandra Pattinato, and the father.
It does not affect our analysis that the objections to the extrajudicial statements were made by the children, rather than the father. See Commonwealth v. Seminara,
The department has moved to strike the appellate brief and appearance of the father before this court, noting that he did not file his own petition under G. L. c. 211, § 3, did not move properly to join the children’s petition, and filed his notice of appeal from the decision of the single justice twenty-two days after it was handed down. This motion overlooks the fact that the father was named as a respondent in the G. L. c. 211, § 3, petition. The father is properly before the court on appeal as an appellee, though he filed a brief as an appellant. We choose to consider his brief.
The department emphasizes the availability of the children to testify as a basis for the admissibility of their extrajudicial statements. Availability is not a requirement for the admission of statements of a party opponent for the reason that a party is assumed to be able to offer their own evidence, and thus has the opportunity to explain their own statement offered against them. See M.S. Brodin & M. Avery, Massachusetts Evidence § 8.6.1, at 503 (8th ed. 2007); 4 J. Wigmore, Evidence § 1048, at 4-5 (Chadboum rev. ed. 1972). Of course, child welfare cases require a judge to exercise special consideration as to the competency of child witnesses to testify. See M.S. Brodin & M. Avery, Massachusetts Evidence § 6.3, at 295 & n.12, quoting Commonwealth v. Monzon,
We disagree with the children’s argument that this question is foreclosed by the marginal reference in Adoption of Paula,
Rule 801(d)(2) of the Proposed Massachusetts Rules of Evidence reads, in relevant part: “Statements which are not hearsay. A statement is not hearsay if . . . [t]he statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity . . . .”
We find the children’s citation to In re Ty. B,
To be sure, the care and protection process implicates the children’s right to family integrity. See Care & Protection of Robert,
The adversary character of this case can be contrasted with the possibility that “[a] child (below the age of eighteen) could file a care and protection petition on his or her own behalf (e.g., in a situation where the parents will not allow an adolescent to remain in the house, and the department claims that it cannot locate a foster home after the adolescent signs a voluntary request for services).” R.L. Ireland, Juvenile Law § 3.7, at 53 (2d ed. 2006). Nor is this a case where the issue of parental unfitness is uncontested and the department opts to use the more expeditious route of G. L. c. 119, § 23 (C). Id. at § 3.6, at 50 & n.26.
It is fair to infer that this legal position is a result of either the children’s expression of a desire to remain with their father, or their counsel’s assessment that such an outcome was in their best interest after determining that the children themselves were “incapable of making ‘an adequately considered decision.’ ” Adoption of Nancy,
Although the ruling here only mandates the custodial arrangement pending a full hearing on the merits, “there exists a ‘substantial and impressive consensus’ among experts in the field of child development that ‘disruption of the parent child relationship carries significant risks’ for the child.” Care and Protection of Robert, supra at 59, quoting Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption,
Of course there is no requirement of admissibility that the statement of a party opponent be contradictory or against his own interest. There is no need so to require “because no party offers thus his opponent’s statement unless it does appear to be inconsistent.” 4 J. Wigmore, Evidence 4 (Chadbourn rev. ed. 1972).