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A.P. v. M.T.

Appeals Court of Massachusetts, Essex

September 1, 2017

A.P.
v.
M.T.

          Heard: January 6, 2017

         Complaint for protection from harassment filed in the Essex County Division of the Juvenile Court Department on October 30, 2015.

         The case was heard by Mark Newman, J.

          Benjamin L. Falkner for the defendant.

          Present: Kafker, C.J., Hanlon, & Agnes, JJ. [1]

          HANLON, J.

         After a hearing, a Juvenile Court judge extended a civil harassment order, pursuant to G. L. c. 258E, against a juvenile (the defendant, M.T.) who, along with another boy, was accused of committing an indecent assault and battery on a four year old neighbor girl (the plaintiff, A.P.). M.T. now appeals the ex parte order and the extension, arguing that (1) the evidence was insufficient to support the issuance of the order; (2) the judge abused his discretion in limiting the cross-examination of A.P.'s mother (mother); and (3) the mother's in-court identification of M.T. and the other boy was improper. M.T. asks this court to vacate the order and expunge all records or, in the alternative, to vacate the order and remand for further proceedings.[2] We affirm.

         Background.[3]

         A.P. and M.T. and their families live on a cul-de-sac. Their properties border one another, and are separated by a fence. The other boy's property is in the same cul-de-sac, but does not border A.P.'s property. At the time of the incident, A.P. was four years old and had developmental delays related to speaking and expression.

         At the ex parte hearing, A.P.'s father (father) appeared alone and testified that he was at work when he received a telephone call from the mother.[4] The father summarized the events as the mother had relayed them to him:

"[A.P.] was in the backyard in our fenced-in yard playing. We have a swing set, jungle gym, and some toys. And my wife's Vietnamese. She's pretty protective, generally won't let the kids out of her sight for more than [ten] to [twenty] minutes, if that. So I don't know how long she was out there.
"But my wife went to the back door and hollered [A.P.]'s name. And our jungle gym sort of blocks --there's a blind spot right behind the jungle gym. And [A.P.] came running from behind the jungle gym holding her underwear and no clothes. She was naked. And the two boys jumped the fence and just ran back to their homes . "

         Based on the father's testimony, the judge issued an ex parte order and scheduled a hearing after notice.

         At the hearing after notice before the same judge, the mother testified with an interpreter and was cross-examined; we summarize her testimony.[5] She explained that she knew the boys because they had played with A.P. and also with a third boy who had lived in her home; that boy had since returned to his home in Vietnam. On the day of the incident, she was painting a door when she heard her daughter's voice. "I heard her excitement because she loves to play with [M.T.]. And then I looked . . . out through the door, and I saw [M.T.] climbing the fence. . . . So [A.P.] pushed the door open and the two boys came . . . into the house." The mother said that the boys had climbed the fence before "just like in Vietnam, you know. That's what kids do." When M.T. asked about the third boy, she told the two boys that he had gone back to Vietnam.

         The boys played in the house for a few minutes, and then went outside. A.P. asked to follow the boys and the mother initially said no. The mother stated that she was reluctant to agree because the boys "play so rough and they make her cry." However, A.P. cried and begged to go; eventually, the mother allowed A.P. to follow the boys. "So I told her put on your shoes and your jacket and go outside because it's cold outside and Mommy will join you right away."[6]

         The mother testified that, after agreeing to let A.P. go, she did not "feel . . . good" about the situation and, eventually, decided to go outside herself. "[S]o I went and washed my hands . . . [and] after I washed my hands, I didn't even get out to the back door . . . and [A.P.] came running inside. She slammed the door and she said, 'Mom, help me, help me.'" A.P. was "holding onto her underwear, her panty" and wearing nothing else. "So I told her it's cold outside, why did you take -- remove your jacket." When the mother went outside to determine what had happened, she saw the boys running away. "As they were running, they turned back to look at us, and I just felt funny about that." A.P.'s clothes were piled outside near her toys. Inside, the mother inspected A.P. and saw "some spot and stain" on her underwear.

         The mother telephoned the father and, when he told her that the police were on their way, she took photographs of her daughter. The photographs were admitted in evidence at the hearing, and we have seen them as well. There is a photograph of A.P. from earlier in the day when she went to school; in the photograph, she is fully dressed in a pink dress, a white sweater, and pink shoes, with her arms outstretched in a yard with fallen leaves. As the father testified, "And then later on when the incident took place, she was still wearing that dress but with another jacket." Taken after the incident, three other photographs show A.P. lying with her legs spread and wearing only underpants. She was smeared with mud on her bare feet, her legs and knees, and on her underwear between her legs, in the area of her bottom up into her crotch area. The mother testified that she tried to ask A.P. what had happened, but the four year old would not say anything beyond "that person, that person." In addition, the father told the judge that a doctor's report included observations of fresh abrasions and bruising on A.P.'s body.[7]

         The judge then asked the mother if she could identify the two boys from that day. That exchange, with the defendants' objections, transpired as follows:

Judge: "Okay. And you described seeing two boys that day? Do you --"
Mother: "That's right."
Judge: "Do you see those two boys in the courtroom today?"
Counsel for the other boy: "Objection."
Mother: "One here, one here."
Counsel for M.T.: "Objection, Judge."
Judge: "Okay. I'll note your -- "
Mother: "[M.T.] was wearing an orange-color outfit, and I'm not sure what this -- his name. He was wearing something gray maybe, but I didn't pay much attention to what he was wearing. Because [M.T.] actually said hi."
Counsel for M.T.: "Judge, I object. That couldn't be a more suggestive identification."
Judge: "Right. But, again, this is not a penal or a criminal hearing. It's a civil ...

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