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Adoption of Iliana

Appeals Court of Massachusetts, Worcester

November 6, 2019

ADOPTION OF ILIANA (and a companion case [1]).

          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.

          Andrew D. Hoffman for the mother.

          Maria B. Hickey for Department of Children and Families.

          Shelli C. Hamer for the children.

          Present: Green, C.J., Maldonado, & Hand, JJ.

          HAND, J.

         The 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.

         1. Background.

         a. The investigations.

         We 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) .[2] The department was granted temporary custody of both children; the children were placed in foster care.[3]

         b. The children.

         i. Iliana.

         In 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;[4] 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.

         In 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.[5]

         In 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 unknown perpetrator.

         As 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.

         ii. Susan.

         Susan 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;[6] in March 2016, she disclosed to her foster father that the father had touched her "soft[ly]" "down there" while pointing to her vagina.[7] [8] Dr. 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.[9] 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] . "

         c. Section 82 hearing.

         In 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.[10]The mother vigorously opposed the motion.[11] 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 statements.[12]

         At the 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, [13] 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.[14] 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."[15] Additionally, as to both Dr. Newberger and the mother's second expert, Dr. Caroline Clauss-Ehlers, [16] 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, § 82.[17]

         Ultimately, 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"[18] and "the [child's] statements [were] in [evidence]." At the ...


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