Heard: July 8, 2019.
Petitions filed in the Worcester County Division of the
Juvenile Court Department on May 13, 2013. The cases were
heard by Carol A. Erskine, J.
D. Hoffman for the mother.
B. Hickey for Department of Children and Families.
C. Hamer for the children.
Present: Green, C.J., Maldonado, & Hand, JJ.
mother appeals from decrees issued by a judge of the Juvenile
Court finding her unfit to parent her two daughters and
terminating her parental rights. She focuses her appeal on
the pretrial hearing, held in accordance with G. L. c. 233,
§ 82 (§ 82 hearing), regarding the admissibility of
the children's out-of-court statements describing
allegations of sexual abuse. The mother claims that the trial
judge, who also conducted the § 82 hearing, (1) was not
impartial, (2) misinterpreted § 82 in excluding the
mother's experts from testifying at that pretrial
hearing, and (3) erred in admitting at trial the
children's hearsay statements (divulged at the § 82
hearing) regarding matters other than sexual abuse. Although
we decline the mother's invitation to read into the
statute a prohibition against the same judge presiding over
both a § 82 hearing and the trial to which it pertains,
and reject her argument that the trial judge was biased in
this case, we conclude that the judge erred in limiting the
mother's ability to introduce expert testimony at the
§ 82 hearing to expert witnesses who had treated the
children. As the error was not harmless and the hearsay
evidence admitted through the § 82 process was essential
to the judge's ultimate termination of the mother's
parental rights, we are constrained to vacate the decrees.
summarize the relevant facts from the judge's
comprehensive and detailed findings, reserving certain facts
for later discussion. On May 13, 2013, the Department of
Children and Families (department) filed an emergency
petition seeking care and protection of Iliana (born in 2005)
and Susan (born in 2011), based on allegations that Iliana
had been physically abused and neglected by the mother and
Susan's biological father (father) . The department
was granted temporary custody of both children; the children
were placed in foster care.
September 2013, while the children were in foster care, a G.
L. c. 119, § 51A, report (51A report) was filed with the
department that alleged neglect and sexual abuse of
Iliana; both the mother and the father
"vehemently denied" the allegations. The department
doubted the allegations, and apparently credited the mother
when she said that Iliana made up stories, which the mother
attributed to Iliana's exposure to explicit
Spanish-language soap operas (telenovelas). After a
department investigation, the allegations were unsupported.
November 2013, eight year old Iliana was referred to an
individual therapist; she met with the therapist in her
foster home once or twice each week until December 2014.
Iliana gradually made descriptive disclosures of sexual abuse
to the therapist.
February 2014, as a result of Iliana's disclosures to her
therapist, Dr. Heather Forkey conducted a physical
examination to determine whether Iliana had been the victim
of sexual abuse. Dr. Forkey opined, and the judge found
credible, that Iliana's genital examination revealed
"evidence of repeated and/or severe penetrating
trauma" to Iliana's hymen consistent with sexual
abuse, "possibl[y] [by] multiple people." After
this examination, another 51A report was filed alleging
neglect by the mother and father and sexual abuse by an
trust developed between Iliana and her therapist, Iliana
revealed additional details about the sexual abuse she had
experienced, including the fact that the father was one of
her abusers, and that his abuse had begun when Iliana was
only four years old. Iliana disclosed to her therapist that
the father "touched [her] everyday and it hurt,"
and that on at least one occasion, the father was
"inside of [her]," "having sex with
[her]." Shortly after making detailed disclosures to the
therapist about the father's sexual abuse, Iliana had to
be hospitalized. Around this time, Iliana made similar
disclosures of sexual abuse to her foster mother. Ultimately,
the department concluded that Iliana had, in fact, been
sexually abused by the father.
also made spontaneous statements of sexual abuse by the
father. Two 51A reports were filed by two different mandated
reporters: in December 2015, four year old Susan disclosed to
her foster mother that she showered together with the mother
and the father; in March 2016, she disclosed to her foster
father that the father had touched her "soft[ly]"
"down there" while pointing to her
Forkey conducted three separate forensic examinations of
Susan in February and September 2014, and April 2016. Dr.
Forkey did not observe any scarring from penetration trauma,
but did not rule out occurrences of sexual abuse or
penetration. Melanie Milde, a licensed social worker and
independent child trauma evaluator, met with Susan for four
one-hour sessions -- twice in December 2016 and twice in
January 2017. During those sessions, in conversation
accompanied by Susan's drawings and independent doll
play, Susan revealed to Milde that she got "hit a
lot" by the mother and the father and that she was
sometimes afraid of them. In their fourth session, Susan
disclosed to Milde that the father went into the shower with
her with no clothes on and that "[she did]n't look
at his privates, but he look[ed] at [hers] . "
Section 82 hearing.
September 2017, anticipating a hearing on the merits of the
care and protection petition, the department moved to admit
the children's out-of-court statements regarding sexual
abuse by the father. See G. L. c. 233, §
82.The mother vigorously opposed the
motion. On seven nonconsecutive days between
October 16 and November 1, 2017, the judge held the
evidentiary hearing required under § 82, to determine
the admissibility of the children's hearsay
outset of the hearing, the judge specifically stated that the
focus of the hearing was to obtain "testimony regarding
[the children's] availability and reliability." She
also instructed the parties that "consistent with
[G. L. c. 233, § 82, ] ... [a testifying expert
witness] must be a treating clinician"
(emphasis added), advising them that she would "not be
taking expert testimony from any witness who ha[d] never met
the child[ren], seen the child[ren], evaluated the
child[ren], assessed the child[ren], or treated the
child[ren]." Later, the judge characterized the treating
relationship of a testifying expert as a "statutory
requirement" and a "statutory mandate," and
repeated that she would adhere strictly to the statute's
requirement that only treaters could provide expert testimony
about the children's reliability and availability. The
judge made other, similar rulings during the hearing, as we
discuss infra, in rejecting the mother's proffer
of expert testimony. During the hearing, the department was
permitted to call nine testifying witnesses, including
laypeople to whom the children had disclosed being sexually
abused,  and two experts, Dr. Forkey and Milde,
each of whom had personally examined or evaluated Iliana or
Susan. Although the mother sought to call two additional
expert witnesses to testify on issues of Iliana's and
Susan's availability and reliability, the judge declined
to allow the proffered witnesses to testify on the grounds
that they did not have a relationship with either
child. The judge precluded Dr. Eli Newberger, a
physician and expert on child abuse, from testifying at the
§ 82 hearing to critique the department's
experts' methodology because he had "never met,
evaluated, treated or assessed the child[ren] as is required
by the statute." Additionally, as to both Dr.
Newberger and the mother's second expert, Dr. Caroline
Clauss-Ehlers,  the judge determined that "neither
witness could testify to the time, clarity or circumstances
of the child's statements, or to the child's
psychological functioning" as required by G. L. c. 233,
the judge determined that Iliana's and Susan's
statements satisfied the requirements of § 82 for
admission at trial; the judge deemed the children unavailable
due to the traumatic effect testifying at trial would have on
their psychological and emotional well-being, and concluded
that their respective statements were reliable. The case then
proceeded to a trial on the merits before the same judge; the
judge's thorough written findings of fact and rulings of
law regarding the admissibility and reliability of the
children's statements that described the allegations of
sexual abuse made by the children were admitted as the first
trial exhibit. Although the mother proffered Dr.
Clauss-Ehlers as a trial expert regarding "availability
and reliability" of the children's hearsay
statements, the judge declined to allow Dr. Clauss-Ehlers to
so testify on the grounds that the witness did not "meet
the statutory criteria to be allowed to testify to that
[issue] because she never met the child" and "the
[child's] statements [were] in [evidence]." At the