Care and Protection of M.C.

NOTICE: All slip opinions and orders are subject to formal
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SJC-12339

CARE AND PROTECTION OF M.C.

Suffolk. October 3, 2017. - April 9, 2018.

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

Impoundment. Minor, Care and protection. Parent and Child,
Care and protection of minor. Constitutional Law, Waiver
of constitutional rights, Impoundment order, Self-
incrimination. Witness, Self-incrimination. Evidence,
Communication between patient and psychotherapist.
Practice, Civil, Care and protection proceeding,
Impoundment order, Waiver. Waiver.

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.
 2

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
 3

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
 4

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-
 5

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, § 20B (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
 6

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;

1 A cecostomy tube is a thin tube placed in a child's
abdomen where the child has a blockage in the intestines; it is
used to flush stool out of the intestines. Stedman's Medical
Dictionary 331 (28th ed. 2006).
 7

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
 8

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.
 9

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 protected by privilege in the

criminal proceedings, notwithstanding her decision to testify at

the trial on the termination of parental rights.

The child opposed both parties' motions on the ground of

her privacy interests.2

After a hearing on the motions was held in August, 2016,

the Juvenile Court judge allowed both the father's motions and

the Commonwealth's motion. The judge found that the father and

the Commonwealth "met their burden of showing good cause for the

release of court records." In finding good cause, the judge

relied on the child's interest in justice for her severe

injuries and the parents' interest in just resolutions of their

criminal cases. The court allowed the parties access to the

2 On appeal, the child has changed position and now argues
that the Juvenile Court judge's order should be affirmed as
containing no abuse of discretion.
 10

docket sheets, the transcripts, the evidence introduced at

trial, and the judge's findings and decision in the care and

protection proceeding. Although he stated that the parties'

motions were allowed, the judge's order permitted the release of

"only trial records, not other files, including [GAL] reports

not marked and admitted during the trial." The judge stayed the

order for ten days to allow any party to appeal.

In December, 2016, the mother filed an emergency petition

to a single justice of the Appeals Court. The single justice

stayed the order allowing release of impoundment pending

resolution of the petition, then denied the petition a few weeks

later. The mother then filed an emergency petition for relief

in the county court, and a single justice of this court issued a

stay of the order allowing release. The single justice

subsequently reserved and reported the case to the full court,

and ordered the parties to address in their briefs the three

issues quoted supra: the standard the Juvenile Court should use

in evaluating whether impounded records should be disclosed and

which party should bear the burden; whether a waiver of patient-

psychotherapist privilege in a care and protection proceeding,

and a waiver to the privilege against self-incrimination, is

limited in scope to that proceeding; and whether the standard

for discovery of third-party documents in criminal proceedings,
 11

see Commonwealth v. Dwyer, 448 Mass. 122 (2006), should apply to

records in a care and protection case in the Juvenile Court.

2. Discussion. a. Appropriate standard of review. The

Legislature has determined that care and protection proceedings

are impounded and should be closed to the general public to

protect the privacy of all of the parties. See G. L. c. 119,

§ 38.3 To do so, Juvenile Court Standing Order 1-84, adopted by

this court on May 8, 1984, provides:

"All [J]uvenile [C]ourt case records and reports are
confidential and are the property of the court. Reports
loaned to or copied for attorneys of record, or such other
persons as the court may permit, shall be returned to the
court after their use or at the conclusion of the
litigation, whichever occurs first. Said reports shall not
be further copied or released without permission of the
court."

Mass. Ann. Laws Court Rules, Standing Orders of the Juvenile

Court, at 1107. The order effectuates the purpose of G. L.

3 Following this court's decision in Care & Protection of
Sharlene, 445 Mass. 756, 772 (2006), the Legislature amended the
statute to allow public access to hearings in the Juvenile Court
that are "related to court orders to not resuscitate or to
withdraw life-sustaining medical treatment for children in the
custody of the department under a care and protection order."
See G. L. c. 119, § 38. See also Care & Protection of Sharlene,
supra at 773-775 (Spina, J., concurring) (although statute
closes all care and protection hearings, "[a hearing about
withdrawing life support] does not implicate the public policy
concerns that provide the basis for closing care and protection
cases to the public because it involves no accusation of
parental unfitness, remediation of parental unfitness, or stigma
associated with parental unfitness that the child will carry
with her through life. If the order to withdraw life support is
made, it is expected that the child will not live to suffer any
stigma").
 12

c. 119, § 38 -- protecting the confidentiality of the parties --

by keeping the hearing and all records from public view. See

Care & Protection of Sharlene, 445 Mass. 756, 772 (2006)

(standing order "unambiguously makes all Juvenile Court case

records the property of the court").

While all proceedings in the Juvenile Court are statutorily

impounded, Rule 11 provides that "[a]ny party or interested

nonparty may file a motion supported by affidavit for relief

from impoundment." Beyond suggesting that "procedures set forth

[elsewhere] in these rules shall govern requests for relief from

impoundment to the extent practicable," Rule 11 does not provide

a standard to evaluate such a motion.

An examination of the other uniform rules on impoundment

procedure suggests one reasonable set of procedures that might

be practicable and appropriate in reviewing requests for the

release of records in a care and protection trial on termination

of parental rights. Where records are not statutorily

impounded, Rule 7 contains a standard to be followed in order to

permit impoundment of a document that otherwise presumptively

would be public.4 Pursuant to Rule 7(a), "[t]he court may enter

4 As stated, the presumption of the public's right of access
is reversed in care and protection proceedings. Compare Care &
Protection of Sharlene, 445 Mass. at 772, with Boston Herald,
Inc. v. Sharpe, 432 Mass. 593, 605 (2000) ("There is a well-
 13

an order of impoundment for good cause shown." Pursuant to Rule

7(b), "[i]n determining good cause, the court shall consider all

relevant factors, including, but not limited to, (i) the nature

of the parties and the controversy, (ii) the type of information

and the privacy interests involved, (iii) the extent of

community interest, (iv) constitutional rights, and (v) the

reason(s) for the request." The good cause standard of Rule 7

requires a court to "balance the rights of the parties based on

the particular facts of each case." See Boston Herald, Inc. v.

Sharpe, 432 Mass. 593, 604 (2000). We conclude that the good

cause standard of Rule 7, which ordinarily applies to motions

for impoundment, is appropriate in evaluating requests by the

parties or the Commonwealth for access to the impounded records

of care and protection proceedings. Because Rule 7 requires a

Juvenile Court judge to balance the rights of the parties based

upon the specific facts presented in each case, there is no need

to adopt standards and protocols similar to those set forth in

Dwyer, 448 Mass. 122. See discussion, infra.

b. Application of Rule 7 in care and protection context.

We turn to the application of the good cause standard in

Juvenile Court care and protection proceedings. Under the good

cause framework of Rule 7, specifically concerning "the type of

established common-law right of access to the judicial records
of civil proceedings").
 14

information and the privacy interests involved," the analysis

begins with the recognition that records held in care and

protection case files, which have not been introduced in

evidence at a trial on termination of parental rights, have

heightened privacy interests and should not be disclosed absent

compelling circumstances. "[T]he legitimate expectations of

privacy, possessed by most litigants in domestic relations

proceedings, would ordinarily constitute 'good cause' to justify

impoundment of discovery materials which are confidential in

nature." George W. Prescott Publ. Co. v. Register of Probate

for Norfolk County, 395 Mass. 274, 278 (1985) (concluding that

good cause to impound deposition of public official where

testimony included allegations of misconduct in office requires

showing of overriding necessity). See, e.g., Care & Protection

of Erin, 443 Mass. 567, 570 (2005).

The purposes of a care and protection proceeding, and the

evidence introduced in such proceedings, are entirely different

from the concerns of a criminal trial. An individual filing a

care and protection petition must allege "under oath" that a

child "(a) is without necessary and proper physical or

educational care and discipline; (b) is growing up under

conditions or circumstances damaging to the child's sound

character development; (c) lacks proper attention of the parent,

guardian with care and custody or custodian; or (d) has a
 15

parent, guardian or custodian who is unwilling, incompetent or

unavailable to provide any such care, discipline or attention."

Care & Protection of Lillian, 445 Mass. 333, 337 (2005), quoting

G. L. c. 119, § 24. Investigation of these types of assertions

necessarily involves the most intimate details of the parents'

and the child's lives, and reports undertaken by the department

may well include much that is hearsay, not relevant to the

events at issue in a criminal case, and specifically intended to

attack a parent's character. See Gilmore v. Gilmore, 369 Mass.

598, 604–606 (1976). See, e.g., Care & Protection of Frank, 409

Mass. 492, 494-495 (1991) ("Where a person's character is itself

in issue, as a parent's character generally is in custody or

adoption cases, courts have usually held that it may be proved

by evidence of specific acts of misconduct bearing on

character"). Such proceedings also may include evidence of

misconduct entirely unrelated to the particular events that led

to the criminal charges. See id. at 494 (evidence of possession

of marijuana and operating motor vehicle while under influence

of alcohol relevant to parent's character and fitness). While

important in determining parental fitness, such considerations

of character have no place in a criminal trial.

Similarly, investigative reports, such as the GAL report,

that are written to provide the court with a comprehensive

overview of all of the family circumstances, almost inevitably
 16

contain unsupported assertions by third parties. As a result,

the judge may only rely on GAL reports when the parent has the

opportunity to contest the information contained in the report.

Adoption of Mary, 414 Mass. 705, 710 (1993) ("Due process

concerns and fundamental fairness require that a parent have an

opportunity effectively to rebut adverse allegations [contained

in a GAL report] concerning child-rearing capabilities,

especially in a proceeding that can terminate all legal parental

rights"). See Gilmore v. Gilmore, 369 Mass. 598, 604–605 (1976)

(where judge relied on GAL report, error for judge to prevent

GAL from testifying, because "the parties should have the

opportunity to rebut the report, including the right to cross-

examine the investigator"). Such concerns, and the lack of

relevance of these types of materials in a criminal proceeding,

should guide judges in weighing whether good cause exists for

the release of such materials.

In addition, in an effort to retain custody or a

relationship with a child, parents themselves may feel compelled

to introduce much of the same type of material. Indeed, as the

department is permitted to draw an adverse inference from a

parent's decision not to testify, Custody of Two Minors,

396 Mass. 610, 616 (1986), the parties do not dispute that,

without parental testimony at a care and protection proceeding,

a parent's chance of retaining custody of a child is, as a
 17

practical matter, greatly diminished. "The liberty interest

. . . of parents in the care, custody, and control of their

children . . . is perhaps the oldest of the fundamental liberty

interests recognized by [the United States Supreme] Court."

Troxel v. Granville, 530 U.S. 57, 65 (2000). There is "no doubt

that '[t]he rights to conceive and to raise one's children' are

'essential . . . basic civil rights . . . far more

precious . . . than property rights.'" Department of Pub.

Welfare v. J.K.B., 379 Mass. 1, 3 (1979), quoting Stanley v.

Illinois, 405 U.S. 645, 651 (1972). "[F]undamental fairness, as

well as due process concerns, requires that a parent be given

the opportunity effectively to rebut adverse allegations

concerning his or her child rearing capabilities" (citation

omitted). Brantley v. Hampden Div. of the Probate & Family Ct.

Dept., 457 Mass. 172, 185 (2010).

While the "crucial fact [remains] that the focus of the

[care and protection] proceeding should be on the best interests

of the child," "the balance to be struck [with parental rights

is] complex" (citation omitted). J.K.B., 379 Mass. at 5. Care

and protection proceedings strike that balance, in part, through

certain procedural protections, such as a right to counsel. See

G. L. c. 119, § 29. "Custody proceedings are not criminal in

nature[, however,] and, accordingly, the full panoply of

constitutional rights afforded criminal defendants does not
 18

apply in these cases." Custody of Two Minors, 396 Mass. at 616.

Care and protection proceedings, where a parent's procedural

rights do not receive the full protection of criminal

adjudications, are not designed to be discovery mechanisms for

criminal proceedings.

In this case, the judge properly drew a distinction between

records that were admitted at the trial on the termination of

parental rights and those records that were provided to, and

used by, the Juvenile Court for other purposes, such as the GAL

report. The decision not to disclose the GAL report was

appropriate, in part, because "[GAL] reports may properly

contain hearsay information." Adoption of Georgia, 433 Mass.

62, 68 (2000). See Gilmore, 369 Mass. at 604–606 (where judge

relies on GAL report, GAL must testify in order to determine

"reliability and accuracy of a report" that is based on

interviews with other individuals). Where it was likely that

the reports contained information that not only was irrelevant

to the criminal proceedings, but also would not be admissible as

evidence, the trial judge properly withheld their disclosure.

Although many of the documents filed in a care and

protection proceeding focus on things not likely to be relevant

to a criminal trial, where the records were admitted at the

termination of parental rights trial, the parties had at least
 19

some opportunity to contest their admissibility.5 In addition,

by introducing some records in evidence and relying on them at

the care and protection trial, the mother relinquished some of

her privacy interests in those documents. Although a decision

to introduce documents, such as her medical records, is fraught

with some of the same considerations involving a parent's

decision whether to testify, see part 2.d, infra, the mother may

not have the same right to privacy in records she chose to

introduce at trial. This is particularly so where one of the

parties seeking access to the records was also a party to the

care and protection hearing.6 We emphasize, however, that a

decision to introduce records at trial, in an effort to retain

custody of a child, is not itself dispositive and, in deciding

whether records should be released, a trial judge must carefully

weigh all of the good cause factors under Rule 11.

c. Mother's arguments on Dwyer protocol. The mother

argues that the good cause standard is not sufficiently

5 At the hearing on the motion, the Commonwealth specified
that its request for "relevant" materials meant that it sought
"the entire file" in the care and protection case. The judge
allowed the Commonwealth and the father to access "only trial
records, not other files, including [GAL] reports not marked and
admitted during the trial."

6 The decision not to introduce records in evidence does not
necessarily shield them from disclosure, as the judge should
consider all of the good cause factors when making a
determination.
 20

protective, and that the procedures used in Dwyer proceedings

should apply in requests for release of records in care and

protection proceedings. She argues, in particular, that good

cause is not a sufficiently strict standard under which to

evaluate requests for release of her trial testimony concerning

her conversations with her psychotherapist, her therapist's

testimony, and the medical records of her psychotherapist that

were introduced at the trial on termination of parental rights.

In addition, the mother argues that allowing access to what

parents properly believed would be private communications with

psychotherapists could lead to critical information being

unavailable at a care and protection proceeding, as parents

would choose not to introduce communications with their

psychotherapists if they fear doing so would result in those

communications becoming discoverable in a criminal proceeding.7

7 The mother observes that under a Federal statute,
42 U.S.C. § 5106a(b)(2), there may be another reason that the
motions for release from impoundment should be denied. That
statute provides:

"A State plan submitted under paragraph (1) shall
contain a description of the activities that the State will
carry out using amounts received under the grant to achieve
the objectives of this subchapter, including . . . an
assurance in the form of a certification by the Governor of
the State that the State has in effect and is enforcing a
State law, or has in effect and is operating a statewide
program, relating to child abuse and neglect that includes
. . . methods to preserve the confidentiality of all
 21

We note, first, that Dwyer addresses access to third-party

records protected by statute or privilege that are not in the

court's possession. Pursuant to Juvenile Court Standing Order

1-84, however, records introduced in evidence at a care and

protection trial are the property of the Juvenile Court. See

Care & Protection of Sharlene, 445 Mass. at 772 ("Standing Order

1–84 . . . unambiguously makes all Juvenile Court case records

the property of the court . . ."). Accordingly, the test for

third-party records under Dwyer, 448 Mass. at 140-141, 145-147,

is not an appropriate test for determining discoverability of

these medical records or other third-party records introduced at

trial.

records in order to protect the rights of the child and of
the child's parents or guardians . . . ."

The statute, however, contains an exception to that
requirement of confidentiality: "records made . . . shall only
be made available to . . . Federal, State, or local government
entities, or any agent of such entities, as described in clause
(ix)." 42 U.S.C. § 5106a(b)(2)(viii)(II). Clause (ix) requires
the State plan to include "provisions to require a State to
disclose confidential information to any Federal, State, or
local government entity, or any agent of such entity, that has a
need for such information in order to carry out its
responsibilities under law to protect children from child abuse
and neglect." 42 U.S.C. § 5106a(b)(2)(ix).

As the Commonwealth seeks the records from the Juvenile
Court for the purposes of prosecuting alleged child abuse, the
disclosure is within the exception of clause (ix). See 42
U.S.C. § 5106a(b)(2)(ix).
 22

The privacy interests that underlie Dwyer, and that

motivate the mother's arguments, are adequately protected by the

good cause standard that we adopt today. In this case,

confidential access by the parties and the Commonwealth, where

the Commonwealth affirms that it is already aware, through the

department, of the substance of numerous departmental records,

would not result in release of the mother's therapeutic

conversations to the public. Relatedly, in this case, the

father was present throughout the care and protection trial,

heard the mother's testimony, and viewed many of the records

entered in evidence. Therefore, here, the mother has a

diminished privacy interest in the records of that proceeding,

with respect to the parties seeking the records.

We emphasize that the good cause standard we adopt today is

applicable only to the parties to a care and protection

proceeding and the Commonwealth; as does Dwyer, our decision

seeks to safeguard against public disclosure of private

materials. See Dwyer 448 Mass. at 148–149 (Appendix). A judge

considering release of Juvenile Court records in care and

protection proceedings may require that records released to

parties and the Commonwealth be kept confidential and may order

the parties to take steps to safeguard them against public

disclosure.
 23

We emphasize as well that a decision to allow the parties

limited access to records of care and protection trials, if a

judge of the Juvenile Court finds good cause to do so, is not a

decision that the records are admissible at a criminal trial. A

determination as to any further use will require an additional

weighing, with many additional factors to consider, and

opportunities to be heard, by the trial judge in the criminal

proceeding. The mother's testimony, however, as discussed, is

subject to further, constitutional limitations.

In sum, applying the good cause standard of Rule 7 to the

records of a care and protection trial is consistent with the

instruction in Rule 11 that the standard for release from

impoundment should follow "procedures set forth [elsewhere] in

the[] rules" where practicable. Under this standard, a Juvenile

Court judge should consider, among other things, "the reason(s)

for the request," as stated in Rule 7. This would suggest that

disclosure would be precluded if a request for access were based

on irrelevant considerations, sought documents that were not

material to the asserted purpose, were a vague and general

fishing expedition, or were redundant. Here, for example, the

Commonwealth sought the entire case file on the ground that its

contents "most likely provided significant information." A

party's choice to disclose records by admitting them in evidence

at a care and protection proceeding, on the other hand, could be
 24

a significant factor to consider in deciding whether good cause

exists, subject to the constitutional limitations discussed

below.

d. Burden of proof. Because of the presumption of public

access to records, a party seeking to impound a record under

Rule 7 has the burden to demonstrate good cause for impoundment.

Globe Newspaper Co., petitioner, 461 Mass. 113, 120-121 (2011).

In care and protection proceedings, however, the statute

requires that the record be impounded to protect the privacy

interests of the parties. Accordingly, it follows that a party

or the Commonwealth seeking to pierce this veil of privacy

should bear the burden of demonstrating good cause for release

from impoundment. We reject the Commonwealth's contention that,

rather than the proponent of the motion for release bearing the

burden of establishing good cause for such release, the

individual opposing release should bear the burden of showing

why the statutorily impounded record should remain impounded.

To impose the burden on the party opposing the release would be

contrary to the Legislature's reasons for requiring Juvenile

Court proceedings to be closed and Juvenile Court records to be

impounded. Moreover, it is inconsistent with our usual approach

of requiring the proponent of a motion to bear the burden of

establishing that it should be granted.
 25

e. Waiver of privilege. We turn to the question of

waiver. In her reservation and report, the single justice asked

whether a waiver of the privilege against self-incrimination in

a care and protection proceeding, and a waiver of the patient-

psychotherapist privilege, is limited in scope to that

proceeding.

i. Privilege against self-incrimination. We address first

whether the mother's testimony in the care and protection

proceeding extinguished her right to decline to testify in the

subsequent criminal trials. The mother argues that her waiver

of her rights under the Fifth Amendment to the United States

Constitution was limited to the context of the care and

protection trial. The Commonwealth argues, by contrast, that

the mother may not "retroactively" claim a privilege not to

testify where not only did she decide to testify in the closed

Juvenile Court proceeding, but both she and her attorney were

aware of the criminal proceeding pending against her, and, as

the judge found, her attorney reasonably should have been aware

of the potential future request for the trial record before the

mother testified. The Commonwealth further argues that the

mother's statements at the hearing are admissible in the future

criminal trial as both an admission by a party opponent and as

prior recorded testimony of an unavailable witness if she

chooses to invoke her privilege.
 26

Under the waiver by testimony rule, a testifying witness

waives the privilege against self-incrimination only for the

same proceeding. "The waiver, once made, waives the privilege

only with respect to the same proceeding; the witness may once

again invoke the privilege in any subsequent proceeding."

Commonwealth v. King, 436 Mass. 252, 258 n.6 (2002). See

Commonwealth v. Martin, 423 Mass. 496, 501 (1996), citing

Commonwealth v. Borans, 388 Mass. 453, 457-458 (1983)

("testimony before a grand jury should not be considered a

waiver of a witness's privilege against self-incrimination for

the purpose of offering testimony at a subsequent trial on an

indictment returned by that grand jury"); Taylor v.

Commonwealth, 369 Mass. 183, 190-191 (1975); Commonwealth v.

Fiore, 53 Mass. App. Ct. 785, 786, 789-790 (2002) (witness's

deposition testimony in criminal defendant's civil action

against insurance company was not waiver of witness's privilege

against self-incrimination at defendant's arson trial because

events were "clearly separate proceedings"). Contrast King,

436 Mass. at 258 n.6 (if victim's testimony at voir dire

evidentiary hearing on defendant's motion to exclude victim's

statements to police were voluntary and waived privilege against

self-incrimination, witness could not later invoke privilege at

criminal trial because hearing and trial are same proceeding);

Commonwealth v. Judge, 420 Mass. 433, 445 n.8 (1995) (same for
 27

pretrial hearing on motion to suppress); Luna v. Superior Court,

407 Mass. 747, 750-751 (1990) (same for pretrial hearing on

motion to dismiss).

A care and protection trial focuses on the child's best

interests and whether the parents should retain custody of the

child, while a criminal trial is concerned with whether an

individual committed a crime; the two are entirely different

proceedings. As discussed, to retain custody of a child, a

parent has little choice but to testify at the care and

protection proceeding. See Custody of Two Minors, 396 Mass. at

617.

Due to the separate concerns of a trial on the termination

of parental rights and a criminal trial, we conclude that the

waiver of the privilege against self-incrimination at a trial on

the termination of parental rights does not result in a waiver

of that privilege in a subsequent criminal trial. In any future

criminal proceeding, with entirely different stakes and rights

at issue, the mother may reassert the privilege against self-

incrimination.

ii. Admission of prior testimony. Fifth Amendment

jurisprudence consistently has treated testimony at an earlier

proceeding as being inadmissible at a separate, subsequent

proceeding. In Simmons v. United States, 390 U.S. 377 (1968),

the United States Supreme Court held that a defendant's
 28

statements from a hearing on the suppression of evidence could

not be admitted at the defendant's criminal trial for the

purpose of determining guilt or innocence. Id. at 382, 389-390,

394. By holding that the statements were inadmissible, the

Court eliminated the "Hobson's choice" that the defendant

otherwise would have faced: whether to forgo a potentially

valid claim under the Fourth Amendment to the United States

Constitution or effectively to surrender the Fifth Amendment

right to avoid self-incrimination. Id. at 391, 394. Similarly,

in Bridgeman v. District Attorney for the Suffolk Dist., 471

Mass. 465, 493 (2015), S.C., 476 Mass. 298 (2017), this court

relied on Simmons to hold that a defendant's testimony at a

hearing on a motion to withdraw a guilty plea following

government misconduct was inadmissible at any future criminal

trial.

"Th[e] interest of parents in their relationship with their

children is a fundamental right and is constitutionally

protected." Custody of Two Minors, 396 Mass. at 617. If the

mother's testimony from the care and protection trial were

admissible at a future criminal trial, the mother would confront

an intolerable Hobson's choice: testify in the hope of

retaining her right to care for her child and sacrifice her

Fifth Amendment right against self-incrimination, or choose her

right not to incriminate herself over any possibility of
 29

retaining custody of her child.8 See Santosky v. Kramer, 455

U.S. 745, 759 (1982). This choice would be particularly

poignant because the Juvenile Court is permitted to draw adverse

inferences from a parent's refusal to testify. See Custody of

Two Minors, supra at 616. In light of Simmons and its progeny,

we conclude that the mother's testimony from the care and

protection proceeding ordinarily is not admissible at a future

criminal proceeding.9

iii. Psychotherapist privilege. Lastly, we turn to the

question whether the mother's introduction of psychiatric

evidence at the care and protection trial served as a waiver of

her right to assert the patient-psychotherapist privilege at a

subsequent criminal trial. The mother argues that her testimony

regarding conversations with her psychotherapist should not be

admissible at a future criminal proceeding because her waiver of

psychotherapist privilege was specific to the care and

protection trial. The Commonwealth does not agree that the

waiver was limited to that trial.

8 Adoption of Don, 435 Mass. 158, 168 (2001), citing Little
v. Streater, 452 U.S. 1, 13 (1981).

9 Should the mother choose to testify at her criminal trial,
however, and should her testimony differ significantly from her
testimony at the care and protection proceeding, her prior
testimony at the care and protection proceeding would be
admissible as impeachment evidence. See Commonwealth v. Rivera,
425 Mass. 633, 637–638 (1997).
 30

The patient-psychotherapist privilege is set forth in G. L.

c. 233, § 20B. The statute provides, in relevant part:

"[I]n any court proceeding . . . a patient shall have
the privilege of refusing to disclose, and of
preventing a witness from disclosing, any
communication, wherever made, between said patient and
a psychotherapist relative to the diagnosis or
treatment of the patient's mental or emotional
condition."

See Mass. G. Evid. § 503 (2017). This privilege is case-

specific; the language of G. L. c. 233, § 20B, explicitly

contemplates that the privilege exists for a particular

proceeding. At this time, then, the mother retains her

psychotherapist privilege for any future criminal trial. The

psychotherapist evidence is not admissible at the mother's trial

unless she puts her mental health at issue in her defense. If

she indicates at that point that she intends to do so,

admissibility at the criminal trial is a matter to be decided by

the Superior Court judge, who is required to determine whether a

defendant "'introduce[d] his [or her] mental or emotional

condition as an element of his [or her] . . . defense,' G. L.

c. 233, § 20B (c), such that he [or she] waived the privilege."

Commonwealth v. Dung Van Tran, 463 Mass. 8, 19 (2012). If the

mother, as a defendant in a criminal proceeding, chooses not to

present a defense that includes mental health as an element,

then the psychotherapist testimony will not be admissible. See

id. Because it is uncertain whether the mother will place her
 31

mental or emotion condition at issue in a future criminal trial,

at this stage the question of the mother's waiver of the

psychotherapist privilege is premature.

f. Application of good cause test. The judge made his

determination in a proceeding where there was no prior

precedent; he was guided only by a single decision of a single

justice in the Appeals Court, upon which he relied extensively.

In his decision, the judge correctly assigned the burden of

proof to the moving parties, and required all of the parties to

protect privacy interests by keeping the records confidential.

In relying on the single justice's decision, the judge stated

that he found good cause for release for "trial preparation"

only.

Nonetheless, while many aspects of the decision are

appropriate, as the parties acknowledge in their briefs, the

judge does not appear to have applied the good cause analysis as

set forth in Rule 7. Among other things, he appears to have

based his reasoning on the purpose of the care and protection

proceeding rather than on the competing factors under Rule 7.

More generally, he appears to have considered issues of

"convenience" for the parties, who state that they have other

means of accessing many of the requested documents, or already

have done so, rather than under the good cause rubric. We
 32

remand this case to the Juvenile Court to apply the good cause

test in the first instance.

3. Conclusion. 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.

So ordered.