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Care and Protection of M.C.

Supreme Judicial Court of Massachusetts, Suffolk

April 9, 2018

CARE AND PROTECTION OF M.C.

          Heard: October 3, 2017.

          Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 28, 2016. The case was reported by Lenk, J.

          Jeanne M. Kaiser (Bonnie G. Allen also present) for the mother.

          Mark H. Bluver for the father.

          Steven Greenbaum, Assistant District Attorney, for the Commonwealth.

          Scott R. Chapman, Committee for Public Counsel Services (Jessica McArdle, Committee for Public Counsel Services, also present) for the child.

          Present (Sitting at Greenfield): Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GAZIANO, J.

         In this case, we consider the appropriate standards and procedures for requests by the parties and the Commonwealth for the release of impounded records in a care and protection proceeding in the Juvenile Court. The mother and the father are the subjects of a care and protection proceeding commenced in the Juvenile Court by the Department of Children and Families (department), and are defendants in criminal child abuse cases pending in the Superior Court. The records from the care and protection proceeding, including the transcripts and exhibits from a trial to terminate parental rights, are impounded, pursuant to G. L. c. 119, § 38, and Juvenile Court Standing Order 1-84, Mass. Ann. Laws Court Rules, Standing Orders of the Juvenile Court, at 1107 (LexisNexis 2016).

         The father sought access to impounded records from the care and protection proceeding in conjunction with his upcoming criminal trial. The Commonwealth also sought access to the records for its use in preparation for both the father's and the mother's pending criminal trials. The mother opposed portions of the father's motion, and opposed the Commonwealth's motion in its entirety. The child opposed the release of any records on privacy grounds. Concluding that both the father and the Commonwealth had met the burden of demonstrating that there was good cause to grant the requested relief from impoundment, a Juvenile Court judge allowed both motions. After the mother's application for relief in the Appeals Court was denied, she filed a petition for relief in the county court, pursuant to G. L. c. 211, § 3; the single justice reserved and reported the case to the full court.

         In her report, the single justice asked the parties to address three specific issues, in addition to any other questions they thought relevant. Those issues are the following:

"1. In determining whether Juvenile Court case records of care and protection proceedings should be released to the Commonwealth or a defendant in a related criminal proceeding, what standard should be used to evaluate the request for disclosure; whether the moving party or the party opposing disclosure has the burden of proof.
"2. Where a party to a care and protection proceeding voluntarily has disclosed therapeutic communications and records in connection with that proceeding, whether the waiver of the statutory patient-psychotherapist privilege and the constitutional privilege against self-incrimination is limited in scope to the care and protection proceeding.
"3. Whether standards and protocols similar to those applicable to discovery of third party documents in criminal proceedings, see Commonwealth v. Dwyer, 448 Mass. 122 (2006); Mass. R. Crim. P. 17, [378 Mass. 885 (1978), ] should apply where the documents are sought by the Commonwealth or a defendant and consist of Juvenile Court case records of care and protection proceedings."

         We conclude that, where a party to the proceeding or the Commonwealth seeks access to the impounded records of a care and protection proceeding in the Juvenile Court, the requestor bears the burden of demonstrating that the records should be released under the good cause standard of Rule 7 of the Uniform Rules on Impoundment Procedure, Mass. Ann. Laws Court Rules, Uniform Rules on Impoundment Procedure, at 930 (LexisNexis 2016) (Rule 7). If the proponent of release meets the good cause standard, records may be disclosed, for limited, confidential review and use, as the order in this case specified. That these records may be discoverable, however, does not also make them admissible at a subsequent criminal proceeding. Admissibility is a separate inquiry, best left, as the motion judge did here, to the trial judge, to weigh the multiple, at times competing, privacy interests and the constitutional rights involved.

         We conclude further that a parent's decision to present evidence at a care and protection proceeding does not result in a waiver of the constitutional privilege against self-incrimination at other proceedings. Accordingly, at a subsequent criminal trial, where the rights involved and the stakes at issue are quite different, a party may rely on the privilege against self-incrimination and choose not to testify. In addition, we conclude that a parent's prior testimony at a care and protection trial is not admissible in a subsequent criminal proceeding. Finally, as to the question whether the mother's waiver of her psychotherapist privilege at the care and protection proceeding would serve as a waiver of that privilege at a criminal trial, we conclude that the privilege is case- specific. Should a parent decide to introduce his or her mental state as a defense at a subsequent criminal trial, the provisions of G. L. c. 233, § 2OB (c), would be applicable to psychotherapist testimony introduced at a care and protection proceeding.

         The judge in this case determined that the confidential records from the care and protection trial should be released to the father and to the Commonwealth, but were not to be copied or disclosed to others, and were to be returned to the court at the end of the criminal proceedings. He did not, however, discuss in his decision, nor appear to have considered, certain of the factors required in order to make a finding of good cause. That is understandable, as the judge had no definitive guidance on the proper standard of review in questions of release from impoundment in a care and protection trial. Accordingly, the matter is remanded to the county court for entry of an order vacating and setting aside the decision of the Juvenile Court judge and remanding the matter to the Juvenile Court for further proceedings consistent with this opinion.

         1. Background.

         For purposes of this appeal, the parties agreed to the following facts. The mother and the father are defendants in criminal cases pending in the Superior Court. The charges arose out of allegations that the father injected a caustic substance into the child's cecostomy tube.[1] The father is charged with attempted murder, assault and battery on a child by means of a dangerous weapon, two counts of assault and battery on a child causing substantial injury, and two counts of assault and battery on a child by permitting substantial bodily injury. The mother is charged with two counts of assault and battery on a child causing substantial injury and two counts of assault and battery on a child by permitting substantial bodily injury.

         Based on related allegations, the department filed a care and protection petition on behalf of the child in the Juvenile Court. A judge of that court held a trial on the department's care and protection petition on multiple days between May 2, 2016, and July 8, 2016. The record from that hearing, including the transcripts and exhibits, is impounded. See G. L. c. 119, § 38.

         In June, 2016, the father, who was present throughout the course of the care and protection trial, filed a motion requesting access to records from that proceeding, specifically "1) A complete unredacted copy of the trial transcript . . .; 2) All exhibits received by the [c]ourt in the referenced trial; 3) The [c]ourt investigator's report(s); 4) The [guardian ad litem (GAL)] report(s); [and] 5) All pleadings filed in the referenced case." The father's motion stated that he needed the records to prepare for his criminal trial and argued that his "due process rights to a fair trial require that his criminal counsel be allowed to review the requested records." The father added that "many, if not all of the witnesses who have testified for" the department in the care and protection proceeding would be called by the Commonwealth in the criminal case. Moreover, the father argued that much of the material must be disclosed because it is exculpatory, and also must be released to prepare him to cross-examine the witnesses against him, pursuant to his right to cross-examination under the Sixth Amendment to the United States Constitution. In October, 2016, the father filed a supplemental motion requesting access to the court's order, findings of fact, and conclusions of law in the care and protection trial.

         In July, 2016, the Commonwealth moved to intervene in the care and protection proceeding and to obtain access to the impounded trial record, as well as the other documents in the file. The Commonwealth asserted an interest in the litigation because it is prosecuting the father and the mother, in separate proceedings, for crimes allegedly committed against the child. Specifically, the Commonwealth's motion sought access to witness testimony and "[GAL reports], medical records, recordings and other relevant materials"; it asserted, without discussion, that the record in the care and protection proceeding "most likely provided significant information" that "is extremely relevant" to the criminal proceedings.

         The mother opposed portions of the father's motion; she did not oppose his request for transcripts of testimony from witnesses called by the department, the GAL report, or the investigator's report, but did oppose release of a transcript of her own testimony, which concerned, inter alia, her communications with her psychotherapist. The mother argued that the father had failed to show good cause and was "attempt[ing] to circumvent the more restrictive and robust criminal discovery rules that govern production of many of the same materials in the criminal case, " which "is expressly prohibited by Rule 11 of the Uniform Rules [on] Impoundment [Procedure, Mass. Ann. Laws Court Rules, Uniform Rules on Impoundment Procedure, at 937 (LexisNexis 2016) (Rule 11)]." The mother maintained further that her privacy interest in the testimony and the records of her psychologist, in conjunction with the lack of relevance of that material to the father's criminal trial, weighed against releasing it to the father. She argued also that her testimony should not be released because it would not be admissible at the father's trial, where she retained the privilege not to testify.

         The mother opposed the entirety of the Commonwealth's motion on other grounds. She asserted that the Commonwealth had failed to identify relevant documents, and that it was attempting to use the Juvenile Court to circumvent the ordinary procedure for obtaining third-party and confidential documents in the criminal proceedings. The mother argued that the Commonwealth had not shown good cause to obtain the medical records, medical testimony, and her own testimony, because that testimony and the records were ...


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