Adoption of Iliana

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19-P-166 Appeals Court
ADOPTION OF ILIANA
(and a companion case1).
No. 19-P-166.
Worcester. July 8, 2019. - November 6, 2019.
Present: Green, C.J., Maldonado, & Hand, JJ.
Adoption, Dispensing with parent's consent. Parent and Child,
Dispensing with parent's consent to adoption. Minor,
Adoption. Child Abuse. Evidence, Hearsay, Unavailable
witness, Expert opinion. Practice, Civil, Adoption,
Hearsay, Bias of judge. Witness, Child, Competency,
Unavailability, Expert.
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.
HAND, J. The mother appeals from decrees issued by a judge
of the Juvenile Court finding her unfit to parent her two
1 Adoption of Susan. The children's names are pseudonyms.
2
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
3
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
2 Susan's biological father has no parental rights as to
Iliana. On October 25, 2017, during the § 82 hearing, he
stipulated to a finding of unfitness and the termination of his
parental rights as to Susan, and he is not part of this appeal.
In addition, the mother informed the department of the name of
Iliana's biological father, but his name did not appear on
Iliana's birth certificate. Iliana's putative father contacted
the department by letter in June 2014, but did not participate
in the proceedings, and any parental rights he may have had as
to Iliana were terminated after trial on the merits. He also is
not part of this appeal.
Our use of "father" in this opinion refers to Susan's
biological father only.
3 In November 2013, Susan was reunited with her parents;
however, one year later, the department again removed Susan from
the parents after Iliana alleged sexual abuse by the father.
4 The father was not at that time alleged to have
perpetrated the sexual abuse.
4
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
5 Iliana first disclosed to her therapist that she was on
occasion sexually assaulted and raped by the father and other
men, including by a boarder who lived with Iliana and her
family. She stated that the father allowed her to go off with
other men and that she was taken to a "brown house" where the
men touched her chest and vaginal area, and that one man kept
her underwear. She also disclosed that when she was living in
Ecuador (from September 2011 to February 2013), her grandmother
would send her out, wearing a skirt, with an older man who used
different objects to penetrate her, which included putting his
fingers inside her. During therapy sessions, Iliana drew
pictures of the men who sexually abused her.
5
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]"
6 As a mandated reporter, the foster mother filed with the
department a 51A report alleging sexual abuse of Susan.
6
"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
7 As a mandated reporter, the foster father filed a 51A
report with the department, alleging sexual abuse of Susan.
8 Susan did not disclose any sexual abuse allegations during
her Sexual Assault Intervention Network interview.
9 Milde stated that her technique in evaluating children was
to be quiet and not to ask too many questions, and to let the
child talk freely.
7
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
10As we discuss in more detail infra, G. L. c. 233, § 82,
creates an exception to the hearsay rule for out-of-court
statements made by a child under ten years of age describing
sexual contact with the child, provided the proponent of the
hearsay establishes that the child is "unavailab[le]" and the
statements are reliable.
11Although the mother initially rejected Iliana's reports
of being sexually abused, once informed of Dr. Forkey's
findings, the mother indicated that she believed that Iliana had
been raped. The mother, however, refused to believe that the
father or their boarder were the perpetrators of Iliana's abuse
(see note 5, supra); in fact, as the judge found, "there were
endless obsessive efforts by [the mother] to prove [Iliana] was
lying when she reported" that the father and the boarder had
raped her.
12Prior to the start of the § 82 hearing, in accordance
with Adoption of Olivette, 79 Mass. App. Ct. 141, 154-155
(2011), the judge conducted an individual voir dire with Iliana
in which the judge found Iliana to be highly intelligent,
articulate, and organized in her responses, and concluded that
she demonstrated a clear understanding of the need to tell the
truth. The judge did not conduct an individual voir dire with
Susan because she was "easily distracted, and fidgety"; however,
the judge observed the two children together and how Susan
interacted with Iliana. All counsel and the mother (the father
was not present) listened to the recording of the voir dire
prior to the start of the § 82 hearing.
8
[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
13Those witnesses included the children's foster parents,
Iliana's former foster mother, Iliana's therapists, and Susan's
therapist and trauma evaluator.
9
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
14 The judge noted that the proffered witnesses "have never
seen the child . . . . They've never talked to the child. . . .
They've never evaluated the child. They've never treated the
child."
15This evidence would have gone to the issue of the
children's availability.
16A practicing psychotherapist and associate professor at
Rutgers University, Dr. Clauss-Ehlers was expected to testify to
the effect of telenovelas on Iliana's reliability.
17Although the judge expressed well-founded reservations
about the relevancy of Dr. Clauss-Ehlers's testimony in light of
the limited evidence that Iliana had actually seen the
telenovelas about which Dr. Clauss-Ehlers was offered to
testify, the judge's findings are clear that, "[m]ost
importantly" in her view, Dr. Clauss-Ehlers had never met or
treated Iliana.
10
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 conclusion of the trial, the
judge found the mother unfit to parent the children, and
18The judge informed the mother at the beginning of the
trial that the § 82 findings were admitted as an exhibit, that
the judge could rely on them at trial, and that "[n]othing
prejudices the mother's case if [she's] allowed to have any of
those witnesses [that testified at the § 82 hearing] come back
[and testify at the trial] and [the mother could] further cross
examine them."
11
terminated her parental rights; with respect to Susan only, the
judge ordered posttermination and postadoption visitation of two
visits per year. The mother timely appealed.
2. Discussion. a. Section 82 expert testimony. We turn
first to the mother's argument that the judge erred in not
allowing her to present expert testimony at the § 82 hearing to
challenge the department's evidence of the children's
unavailability and reliability. The mother contends that the
judge misinterpreted G. L. c. 233, § 82, when she concluded that
the statute limited the mother's expert witnesses to clinicians
who had "treated" either or both of the children. We agree that
the judge's interpretation of the statute was incorrect. "We
review questions of statutory interpretation de novo." Meikle
v. Nurse, 474 Mass. 207, 209 (2016), quoting Commerce Ins. Co.
v. Commissioner of Ins., 447 Mass. 478, 481 (2006).
"Section 82 of c. 233 of the General Laws is one of a trio
of statutes enacted by St. 1990, c. 339, creating exceptions to
the hearsay rule for out-of-court statements of a child under
12
ten years of age describing sexual contact with the child."19,20
Adoption of Olivette, 79 Mass. App. Ct. 141, 146 (2011). See
G. L. c. 233, § 82 (a). The proponent of a child's hearsay
statement of sexual abuse "bears the burden of showing the
necessity for admitting the out-of-court statement by
establishing the declarant's unavailability to testify during
the trial." Commonwealth v. Colin C., 419 Mass. 54, 63 (1994)
(analyzing G. L. c. 233, § 81). See Adoption of Quentin, 424
Mass. 882, 892 (1997) ("The requirements outlined in § 82 are
analogous to § 81"). The statement "shall be admissible"
provided "that [it] is offered as evidence of a material fact
and is more probative on the point for which it is offered than
any other evidence which the proponent can procure through
reasonable efforts." G. L. c. 233, § 82 (a).
19Section 81 of G. L. c. 233 governs the admission of
hearsay statements of child victims in criminal matters; G. L.
c. 233, § 83, governs the admission of such statements in foster
care and care and protection proceedings. See Adoption of Tina,
45 Mass. App. Ct. 727, 732-734 (1998) (findings concerning
admissibility of child's hearsay statements should comply with
stricter requirements of statute governing admissibility of
hearsay in proceedings to dispense with parental consent to
adoption).
20Although Iliana was twelve years old at the time of the
§ 82 hearing and trial at issue here, both Iliana and Susan were
under the age of ten when they made their respective sexual
abuse disclosures. See Adoption of Daisy, 460 Mass. 72, 77
(2011) ("out-of-court statements of a child under the age of
ten" means statements made by child "before they were ten years
of age" describing their sexual abuse).
13
In order to have admitted the children's statements in this
case regarding occurrences of sexual abuse by the father, the
department (as the proponent) had the burden first to
demonstrate that the children were "unavailab[le]" as witnesses
at trial. G. L. c. 233, § 82 (b).21 "A finding of
unavailability shall be supported by specific findings on the
record, describing facts with particularity, demonstrating that
21 General Laws c. 233, § 82 (b), provides:
"The proponent of [an out-of-court] statement [of a child
under the age of ten describing any act of sexual contact
performed on or with the child] shall demonstrate a
diligent and good faith effort to produce the child and
shall bear the burden of showing unavailability. A finding
of unavailability shall be supported by specific findings
on the record, describing facts with particularity,
demonstrating that:
"(1) the child is unable to be present or to testify
because of death or existing physical or mental illness or
infirmity; or
"(2) by a ruling of the court, the child is exempt on the
ground of privilege from testifying concerning the subject
matter of such statement; or
"(3) the child testifies to a lack of memory of the subject
matter of such statement; or
"(4) the child is absent from the hearing and the proponent
of such statement has been unable to procure the attendance
of the child by process or by other reasonable means; or
"(5) the court finds, based upon expert testimony from a
treating psychiatrist, psychologist, or clinician, that
testifying would be likely to cause severe psychological or
emotional trauma to the child; or
"(6) the child is not competent to testify."
14
[as relevant here]: . . . (5) the court finds, based upon
expert testimony from a treating psychiatrist, psychologist, or
clinician, that testifying would be likely to cause severe
psychological or emotional trauma to the child" (emphasis
added). G. L. c. 233, § 82 (b) (5). The department called as
witnesses two of the children's treating clinicians whom the
judge qualified as experts; the judge relied upon this evidence,
as she was permitted to do. See G. L. c. 233, § 82 (c).
Although § 82 (b) (5) requires expert testimony from a
treating clinician in order to establish a child's
unavailability based on the traumatic effect of the child being
required to testify, nothing in § 82 limits a party challenging
a child witness's claim of unavailability to evidence presented
through a "treating psychiatrist, psychologist, or clinician,"
nor does it require that the opposing expert have any
relationship with the child. G. L. c. 233, § 82 (b) (5), (c)
(i). See Adoption of Daisy, 460 Mass. 72, 77 (2011) ("We do not
read into the statute a provision which the Legislature did not
see fit to put there, nor add words that the Legislature had an
option to, but chose not to include" [quotation omitted]).
While a judge could certainly consider the existence and nature
of any relationship between the child and an opposing expert in
assessing the weight of the opposing expert's testimony, see
Adoption of Olivette, 79 Mass. App. Ct. at 150 (deference
15
accorded to judge's assessment of weight of evidence at § 82
hearing), those factors were not statutory disqualifiers for the
mother's proffered experts.22 See G. L. c. 233, § 82 (b) (5),
(c) (i). In ruling that they were, and on that basis precluding
the mother from calling her expert witnesses, the judge
misinterpreted the statute, which was an error of law.23 See
Adoption of Ilona, 459 Mass. 53, 59 (2011) (termination of
parental rights reviewed for clear error of law or abuse of
discretion).
Although the department's evidence as to unavailability and
reliability of each child was strong, we cannot conclude that
the mother's expert testimony, if credited, would have been
22At the oral argument in this case, the department agreed
to this application of the statute, but argued that the judge
did not rely on this interpretation of the statute in excluding
the testimony of the mother's experts. We disagree, given the
judge's express statement in footnote one of her § 82 findings,
that the testimony must be excluded because the mother's "expert
[had] never met, treated, evaluated or assessed the child as is
required by the statute." It is clear that the overriding basis
for precluding the mother's experts was the judge's erroneous
belief that the statute required her to do so. We emphasize,
however, that the judge retained the discretion to exclude the
testimony on other, case-specific grounds, including relevance.
See, e.g., Palandjian v. Foster, 446 Mass. 100, 104 (2006) ("The
decision to exclude expert testimony rests in the broad
discretion of the judge").
23To the extent that the judge's rulings on this point
raise due process concerns, we need not, and do not, address
them.
16
ineffective in challenging it;24 the error in excluding that
evidence was therefore prejudicial.
The judge's findings and rulings of law on the
admissibility of the children's hearsay statements describing
allegations of sexual abuse were admitted at trial, over the
mother's objection, and the judge relied on them in finding the
mother unfit and terminating her parental rights. The
children's hearsay statements were the only evidence identifying
the father as their sexual abuser; without that evidence, the
judge's finding of the mother's unfitness was not sufficiently
supported. Because the judge's conclusion that the mother
cannot adequately protect the children from the father is based
on errors of law, the decrees must be vacated.25 See Adoption of
Yale, 65 Mass. App. Ct. 236, 240 (2005) (vacating decree
terminating parental rights where findings did not support
conclusion that mother was unfit).
24The mother made offers of proof that (1) she could
present evidence that Iliana watched telenovelas before her
reports of abuse were made; (2) Dr. Clauss-Ehlers would testify
that those telenovelas influenced Iliana, affecting the
reliability of her reports; and (3) Dr. Newberger would testify
concerning Iliana's availability.
25This was not the only basis on which the judge relied in
terminating the mother's parental rights, but the children's
hearsay testimony was a factor in most, if not all, of the other
bases on which the judge relied.
17
b. Alleged bias.26 Although our conclusion that the
children's hearsay statements were improperly admitted requires
that we vacate the decrees in this case, it does not bar
relitigation of the mother's parental rights. See Adoption of
Jacqui, 80 Mass. App. Ct. 713, 719 (2011) (father granted new
trial on termination of parental rights based on violation of
due process rights). As a practical matter, the mother's
challenges to the permissibility of having the same judge
preside over both the § 82 hearing and any subsequent trial are
likely to arise in any later proceedings in this case;
accordingly, we take the opportunity to address them. See
Kitras v. Aquinnah, 64 Mass. App. Ct. 285, 296 (2005) (because
of remand, "joinder issue is likely to arise again").
26 The mother's arguments on appeal that she was denied a
fair trial because the judge's impartiality must necessarily
have been compromised by the judge's having presided over the
§ 82 hearing that preceded the trial, or by the judge's personal
bias, were not preserved below. We generally do not consider a
claim of bias raised for the first time on appeal. "A party
having knowledge of facts possibly indicating bias or prejudice
on the part of an arbitrator, referee, juror or other person
having similar functions cannot remain silent and thereafter on
that ground successfully object to the decision" (quotation and
citations omitted). Doucette v. Massachusetts Parole Bd., 86
Mass. App. Ct. 531, 534-535 (2014). Although the argument is
waived, see Adoption of Willow, 433 Mass. 636, 651 (2001);
Adoption of Mary, 414 Mass. 705, 712 (1993), the particular
facts of this case persuade us to consider it. See Adoption of
Norbert, 83 Mass. App. Ct. 542, 545 (2013) ("given the serious
nature of the case, coupled with the fact that due process
governs these proceedings, we believe that it is appropriate to
consider the issue").
18
We are not persuaded by the mother's arguments. We are
aware of no authority that imposes an automatic or general
prohibition against the same judge's presiding over both a § 82
hearing and the trial of the same case -- indeed, the mother
concedes that no such authority exists -- and we decline to
create such a rule. In doing so, we would be invading
unnecessarily into the province of the trial court's
administration and imposing an unreasonable and impractical
burden on it.
The trial judge is presumed to be a neutral arbiter in any
matter before him or her, regardless of whether the judge has
previously been involved with the parties, the issues, or the
case. See Jenkins v. Chief Justice of the Dist. Court Dep't,
416 Mass. 221, 244 n.40 (1993) (use of term "judicial" "connotes
the neutral nature of the official making the probable cause
determination"). The strict ethical constraints to which judges
are subject not only require a judge to examine his or her own
conscience for disqualifying bias, and to act accordingly, but
also obligate the judge to recuse himself or herself from any
matter in which "the judge's impartiality might reasonably be
questioned." S.J.C. Rule 3:09, Code of Judicial Conduct, Canon
2, Rule 2.11 (A) (1) (2016) ("A judge shall disqualify himself
or herself in a proceeding in which the judge cannot be
impartial or the judge's impartiality might reasonably be
19
questioned, including but not limited to [instances where] . . .
[t]he judge has a personal bias or prejudice concerning a party
. . ."). See Lena v. Commonwealth, 369 Mass. 571, 575 (1976)
(citing prior version of relevant section of Code of Judicial
Conduct). We decline to superimpose on the statute a
requirement, not present there, that a judge's conduct of a
hearing pursuant to G. L. c. 233, § 82, necessarily disqualifies
the judge from presiding over the trial of the case to which
that hearing relates.
With regard to the mother's concerns about the judge who
conducted the § 82 hearing and trial in this challenging case,
we are likewise unpersuaded. The mother explicitly concedes
that there is no evidence of bias in the judge's findings based
on the § 82 hearing in this case, but points to a single excerpt
from the record as evidence that the judge was "predisposed to
rule against Mother, based on . . . the testimony she heard
during the § 82 hearing." We perceive no suggestion of bias in
the passage to which the mother directs us.27 See Demoulas v.
Demoulas Super Mkts., Inc., 424 Mass. 501, 524-525 (1997),
quoting Haddad v. Gonzales, 410 Mass. 855, 863 (1991) (judge's
27We read that passage to be the judge's effort to contrast
for the mother the risks and benefits of trial as a way of
highlighting the value of the available mediation services. Far
from expressing bias, the judge acknowledged the mother's
interest in going to trial and her right to do so.
20
impressions may properly carry over from one proceeding to
another provided they were "acquired . . . in [her] judicial
role and not from an extrajudicial source"). See also Demoulas,
supra at 525, quoting Liteky v. United States, 510 U.S. 540, 551
(1994) ("opinions held by [a judge] as a result of what [the
judge] learned in earlier proceedings" are not properly
characterized as bias or prejudice). The judge's comments
during the § 82 hearing, including those highlighted in the
mother's brief, emphasize the judge's appropriate concerns for
the efficient litigation of the case and her interest in
confirming that the mother understood the potential effects of
the strategic choices that she made during the § 82 hearing and
subsequent trial.28
c. Hearsay beyond § 82 exception. The mother's final
challenge on appeal is to the judge's admission at trial of
certain hearsay statements by the children which did not
describe sexual contact with them, and which were therefore not
28If the mother had any concerns about the judge's actual
bias or "predisposition," those concerns could have been
addressed through a motion to recuse the judge. See Adoption of
Norbert, 83 Mass. App. Ct. at 545-546 (deciding propriety of
motion to recuse in context of judge's termination of parental
rights). As the mother did not bring such a motion, we infer
that she was not concerned about the judge's bias until after a
decision had been rendered.
21
subject to the hearsay exception created by G. L. c. 233, § 82.29
The mother concedes, and we agree, that at trial, the statements
at issue were supported by other, independently admissible
evidence. To the extent that admission of any of the statements
that the mother challenges on this ground was error, the error
was harmless. See Adoption of Olivette, 79 Mass. App. Ct. at
156. As to the mother's argument that the admission of these
statements raises "grave concerns about the Court's
impartiality," for the reasons we have discussed supra, we are
unpersuaded.
3. Conclusion. We vacate the decrees and remand for
further proceedings in accordance with this opinion. The
judge's findings, as they relate to the sexual abuse of the
children, are struck.
So ordered.
Such statements include, for example, the children's
29
hopes for the outcome of the case, view of the father, and
references to domestic violence between the mother and father
and of physical abuse of the children; and Iliana's contact with
a "coyote" (a man with whom the mother sent Iliana to Ecuador).
See note 5, supra.