Heard: March 27, 2019.
Complaints received and sworn to in the Suffolk County
Division of the Juvenile Court Department on October 6 and
14, 2014. A proceeding for revocation of probation was heard
by Peter M. Coyne, J.
Benjamin L. Falkner for the juvenile.
Houston Armstrong, Assistant District Attorney, for the
Present: Rubin, Milkey, & McDonough, JJ.
juvenile appeals from a judge's order revoking his
probation, arguing that the judge erroneously based his
decision exclusively on unreliable hearsay testimony from a
Department of Children and Families (DCF) case worker. We
agree and reverse.
recite the facts based on the testimony and documentary
evidence from the probation violation hearing. On August 17,
2016, the juvenile pleaded delinquent to kidnapping and armed
robbery in the Juvenile Court. On the same day, in a separate
case, the juvenile also pleaded delinquent to larceny of a
credit card and credit card fraud over $250. On all four
charges, the judge sentenced the juvenile to remain in the
custody of the Department of Youth Services (DYS) until his
eighteenth birthday, but suspended the sentence and placed
the juvenile on probation until his eighteenth birthday. The
conditions of the probation included, among other things,
obeying a curfew as set by "DCF placement" and
"comply[ing] with all DCF services and all
19, 2017, a probation violation notice (violation notice)
issued alleging that the juvenile violated his probation by
committing a new criminal offense, receiving a stolen motor
vehicle. The probation department thereafter
amended the violation notice, alleging that the juvenile
violated two additional probation conditions: complying with
and successfully completing his residential placement program
at Journey Home (program). Specifically, the violation notice
alleged that the juvenile was "AWOL" from the
program on various specified dates.
October 2, 2017, probation revocation hearing, the
Commonwealth presented the testimony of one witness, the
juvenile's DCF case worker. The case worker testified that he
met with the program director, who told him that the juvenile
"ha[d] broken all the rules and . . . wasn't
cooperating with DCF and . . . ha[d] been AWOL from the
program several times." The case worker testified that
he understood "AWOL" to mean "the child is not
at the program and his whereabouts are. . . . unknown or he.
. . . hasn't called the program to report where he
is." Specifically, the case worker testified that the
program director told him that the juvenile was given a
"day pass" that permitted the juvenile to visit his
uncle "just for a day and . . . return to the program
the same day," but the juvenile "didn't return
to . . . the program . . . for several days." The case
worker further testified that the juvenile was not attending
school consistently, had "unauthorized contact with his
mother," and "had a substance abuse issue at the
program." Based on those purported violations of the
program rules, the case worker testified that it was decided
to remove the juvenile from the program and to "close
out [his] bed."
on cross-examination, the case worker conceded that he never
read the program rules or regulations and did not know how
the program defined "AWOL." He also conceded that
he did not know the dates that the juvenile was
"AWOL," or that on certain occasions program staff
had apparently allowed the juvenile to stay with his uncle
overnight after speaking with the juvenile and determining,
with DCF's consent, that the juvenile was safe and would
return the following day. The case worker also admitted that he
was not assigned to the juvenile's case when the alleged
violations occurred, and that his testimony was based
exclusively on his conversations with the program director
and notes in the juvenile's DCF case file.
judge ultimately found that the juvenile violated the
conditions of his probation by "fail[ing] to comply with
. . . and . . . being AWOL from the program," and
revoked his probation, committing him DYS custody until his
eighteenth birthday. The judge stated that "[p]robation
ha[d] met its burden" based on "the witness [being]
credible in his testimony about the [juvenile's]
compliance with the [program] . . . and base[d] further upon
[the witness's] statements of . . . what he was informed
by the program director that the [juvenile] had been AWOL
from the program and non-compliant in the program."
According to the probation violation finding and disposition
form, the judge found that the case worker's hearsay
testimony was substantially reliable because it was
"provided by a disinterested witness,"
"provided under circumstances that support the veracity
of the source," "factually detailed," and
Commonwealth must prove any "violation of probation by a
preponderance of the evidence." Commonwealth v.
Bukin, 467 Mass. 516, 520 (2014) . The determination
that a probation violation occurred "lies within the
discretion of the hearing judge," Id., who must
assess the weight of the evidence against the probationer.
Id. at 521. Accordingly, we review an order revoking
probation for an abuse of discretion. Id. at
519-520. We determine "whether the record discloses
sufficient reliable evidence to warrant the findings by the
judge that [the ...