Heard: January 6, 2017
for protection from harassment filed in the Essex County
Division of the Juvenile Court Department on October 30,
case was heard by Mark Newman, J.
Benjamin L. Falkner for the defendant.
Present: Kafker, C.J., Hanlon, & Agnes, JJ.
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. We affirm.
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.
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. 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 . "
on the father's testimony, the judge issued an ex parte
order and scheduled a hearing after notice.
hearing after notice before the same judge, the mother
testified with an interpreter and was cross-examined; we
summarize her testimony. 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.
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
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
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.
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
Counsel for the other boy:
Mother: "One here, one here."
Counsel for M.T.: "Objection,
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
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 ...