NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12652
CARE AND PROTECTION OF M.C.
Franklin-Hampshire. March 4, 2019. - October 28, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Impoundment. Minor, Care and protection. Parent and Child,
Care and protection of minor. Constitutional Law,
Impoundment order, Waiver of constitutional rights, Self-
incrimination. Witness, Self-incrimination. Evidence,
Communication between patient and psychotherapist,
Testimony at prior proceeding. Practice, Civil, Care and
protection proceeding, Impoundment order, Waiver.
Practice, Criminal, Impoundment order, Waiver. Waiver.
Petition filed in the Franklin and Hampshire Counties
Division of the Juvenile Court Department on May 5, 2015.
Following review by this court, 479 Mass. 246 (2018),
motions for relief from impoundment were heard by James G.
Collins, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Jeanne M. Kaiser for the mother.
Mark H. Bluver (John R. Godleski also present) for the
father.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
2
David J. Cohen, Committee for Public Counsel Services, for
the child.
GAZIANO, J. In this case, we consider the application of
the standard set forth in Care & Protection of M.C., 479
Mass. 246, 248-249 (2018) (M.C. I), governing requests for
limited relief from impoundment of records in a care and
protection proceeding in the Juvenile Court by a party in a
related criminal proceeding. In M.C. I, supra, we concluded
that "the requestor bears the burden of demonstrating that the
records should be released under the good cause standard of Rule
7 of the Uniform Rules on Impoundment Procedure."
When the matter previously was before this court, we
vacated a Juvenile Court judge's decision allowing the father's
and the Commonwealth's motions for release from impoundment, and
remanded the case to the Juvenile Court, so that the motion
judge could consider any renewed motions for release from
impoundment in light of our then newly announced standard. See
M.C. I, 479 Mass. at 263-264.
On remand, the Commonwealth and the father filed renewed
motions for relief from impoundment. The child changed position
and filed a motion in support of their requests. The same judge
conducted a hearing on the renewed motions, and then allowed
both motions in part. The mother commenced an appeal
challenging the judge's decision in its entirety, and the father
3
sought relief from so much of his request as had been denied.
We allowed the mother's petition for direct appellate review;
the petition includes both the mother's and the father's appeal.
We conclude that the judge properly applied the "good
cause" standard required by M.C. I and Rule 7 of the Uniform
Rules of Impoundment Procedure, Mass. Ann. Laws Court Rules,
Uniform Rules on Impoundment Procedure, at 968 (LexisNexis 2018)
(Rule 7), with respect to the father's motion, and much of the
Commonwealth's motion, but that the Commonwealth's request for
transcripts of the mother's and her psychotherapist's testimony
should have been allowed contingent on the occurrence of
specific events at the mother's trial.
1. Background. In August 2015, the father was indicted on
charges of attempted murder, G. L. c. 265, § 16; aggravated
assault and battery by means of a dangerous weapon, G. L.
c. 265, § 15A (c) (iv); and assault and battery on a child
causing substantial bodily harm, G. L. c. 265 § 13J (b), for an
incident involving his daughter that occurred one day in April
2015. See M.C. I, 479 Mass. at 250 & n.1. In November 2015, he
was indicted on three additional counts of assault and battery
on a child permitting substantial bodily harm, G. L. c. 265
§ 13J (b), for conduct from July 2013 through April 2015. At
the same time, the mother was indicted on two counts of assault
and battery on a child permitting substantial bodily harm and
4
two counts of assault and battery on a child causing substantial
bodily harm, G. L. c. 265, § 13J (b), for related conduct on the
same day in April 2015, as well as for conduct from July 2013
through April 2015.
The Department of Children and Families (department) filed
a care and protection petition in the Juvenile Court on behalf
of the child. See M.C. I, 479 Mass. at 250. A Juvenile Court
judge conducted a trial on the department's petition for
termination of parental rights, at which the mother and her
psychotherapist testified. On the advice of his criminal
attorney, the father took the stand but invoked his rights under
the Fifth Amendment to the United States Constitution in
response to virtually all of the Commonwealth's questions. Both
parents were found unfit, and their parental rights were
terminated. See Adoption of Henrietta, 92 Mass. App. Ct. 1130
(2018). Pursuant to G. L. c. 119, § 38, and standing orders of
the Juvenile Court, the records of the trial on the termination
of parental rights are impounded, as are all the other documents
in the case. See Juvenile Court Standing Order 1-84, Mass. Ann.
Laws Court Rules, Standing Orders of the Juvenile Court, at 1158
(LexisNexis 2018).
a. Motions for relief from impoundment. In June and July
2016, the father and the Commonwealth, respectively, first
sought relief from impoundment in order to prepare for the
5
pending criminal trials. The child and the mother each opposed
the release from impoundment, on different grounds.1 In April
2018, after this court's remand in M.C. I, 479 Mass. at 263-264,
the same Juvenile Court judge allowed the parties to withdraw
their motions and to file renewed motions in light of that
decision.
The Commonwealth's renewed motion requested access to the
transcripts of testimony and admitted evidence from the care and
protection proceeding that concern or relate to
"any medical treatment sought for or provided to M.C.;
written or verbal reports by either parent to medical
providers, school personnel, or anyone else, of medical
symptoms and/or descriptions of any physical ailments or
impairments allegedly suffered by M.C.; any medical or
other therapeutic measures administered to or performed on
M.C. by the parents; [and] the conduct, actions, and
movements of the parents during the time period from April
15 through April 18, 2015,"
including applicable testimony of the mother and her
psychotherapist. As grounds for its request, the Commonwealth
asserted that the alleged conduct underlying the indictments is
1 In their oppositions, both the mother and the child cited
privacy concerns. The mother also cited, inter alia,
circumvention of Rule 11 of the Uniform Rules on Impoundment
Procedure, Mass. Ann. Laws Court Rules, Standing Orders of the
Juvenile Court, at 974-975 (LexisNexis 2018); failure to follow
the procedures for discovery under Mass. R. Crim. P. 17, 378
Mass. 885 (1979); lack of relevance because the testimony would
not be admissible at a future trial; violations of the patient-
psychotherapist privilege; the rights of parents to raise their
own children and the chilling of their efforts to protect those
rights; and the mother's privilege against self-incrimination at
a criminal trial. M.C. I, 479 Mass. at 251.
6
largely the same as the conduct at issue in the care and
protection proceeding, and that the parties' privacy interests,
which they relinquished to a certain extent at the trial on the
termination of parental rights, should yield to public interest
in the just resolution of the criminal prosecutions of the
parents. The Commonwealth argued that "[t]he reason for the
Commonwealth's request is two-fold. First, any information and
evidence regarding the conduct of the parents that is related to
the harm suffered by M.C. is relevant and likely admissible at
the criminal trials. Second, the sought-after information or
evidence also may provide further investigatory links to other
heretofore unknown relevant evidence."
The father requested relief from impoundment with respect
to the same documents that he had sought in his first motion:
"1) [a] complete unredacted copy of the trial
transcript . . . ; 2) [a]ll exhibits received by the Court
in the referenced trial; 3) [t]he Court investigator's
[report(s)]; 4) [t]he [guardian ad litem (GAL)] report(s);
5) [a]ll pleadings filed in the referenced case; and 6) [a]
copy of the Court's Order in the Care and Protection case
as well as its Findings of Fact and Conclusions of Law."
The father argued that the allegations in both the care and
protection proceeding and the criminal cases are closely
related; many of the same witnesses will be appearing in the
criminal cases; the mother's expectation of privacy is
relinquished for the purposes of discoverability as to the
father because he was a party in the care and protection
7
proceeding; and his constitutional rights to a fair trial and to
confrontation require relief from impoundment. The father, who
intends to assert a defense that the mother committed the acts
at issue, also argued that the community has a right to see that
justice is done, and that the record of the proceedings may be
exculpatory as to him.
The mother opposed the Commonwealth's motion on the grounds
that the Commonwealth did not carry its burden under Rule 7; her
testimony and evidence of her mental state is not relevant at
her criminal trial unless she decides to testify or pursues a
mental health defense; and the Commonwealth did not act in good
faith. The mother opposed all requests for release by the
father, with the exception of the transcript of the testimony of
Dr. Rebecca Moles, who is expected to testify as the
Commonwealth's expert in both criminal trials. The mother
maintained that the father did not meet his burden of
establishing good cause under Rule 7 because he did not explain
which portions of the requested evidence would be exculpatory.
In June 2018, the child filed a motion in support of both
the father's and the Commonwealth's request for release from
impoundment.2
2 Citing this court's opinion in M.C. I, 479 Mass. at 261,
the child noted that she believed the father was "mistaken" that
his receipt of the transcripts of the mother's testimony would
8
b. Proceedings on remand. Applying the new standard,
after a hearing, on August 22, 2018, the same judge found that
the Commonwealth and the father had established good cause for
relief from impoundment of (a) the entirety of the care and
protection trial transcript; (b) access to the child's medical
records (for review but not copying); and (c) medical records
that were entered in evidence at the care and protection
proceeding, for review only, upon a showing of their
unavailability through discovery in the Superior Court.
As stated, the transcripts include testimony of the mother
and her psychotherapist. While the judge allowed the release
from impoundment of transcripts describing communications
between the mother and her psychotherapist, the judge did not
allow release of "the documentary evidence of communications
between Mother and her therapist." He qualified this ruling by
stating that "if Mother's mental health becomes an element of
her defense, the parties may again move this Court to determine
if good cause exists to release such documents." The judge
denied the release of all other documents requested. The judge
placed limitations on the use of the material that was released,
which was to be held protectively and confidentially, and to be
returned to the Juvenile Court at the conclusion of the criminal
mean that those transcripts could be introduced at his criminal
trial regardless of whether the mother decided to testify.
9
trials. He noted also that release to the requestors had no
bearing on the question of admissibility at trial. The judge
then allowed the mother's motion for a stay to permit her to
pursue an appeal.
The mother and father each filed timely notices of appeal.
In December 2018, we allowed the mother's petition for direct
appellate review of the case; that petition includes both the
mother's and the father's appeal. On appeal, the mother
contends that the Juvenile Court judge's order does not
sufficiently consider and weigh her constitutional rights in its
good cause determination; the order provides no justification
for releasing the transcripts of the mother's psychotherapist's
testimony at this point; and the judge abused his discretion in
not giving proper consideration to the mother's privacy rights.
The father argues that the judge erred in denying his motion for
relief from impoundment of the trial exhibits, GAL reports, and
court investigator reports.3
2. Discussion. a. Standard of review. Juvenile Court
Standing Order 1-84 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
3 On appeal, the father no longer seeks access to copies of
pleadings or the judge's order and findings of fact and
conclusions of law following the care and protection trial.
10
conclusion of the litigation, whichever occurs first.
Said reports shall not be further copied or released
without permission of the court."
Although all records of Juvenile Court proceedings are
impounded, pursuant to Rule 11 of the Uniform Rules of
Impoundment Procedure, Mass. Ann. Laws Court Rules, Standing
Orders of the Juvenile Court, at 974 (LexisNexis 2018), "[a]ny
party or interested nonparty may file a motion supported by
affidavit for relief from impoundment." In M.C. I, this court
adopted the good cause standard of Rule 7 as the appropriate
standard to use in evaluating requests by the parties or the
Commonwealth for access to the impounded records of care and
protection proceedings. See M.C. I, 479 Mass. at 254. In
adopting this standard, we recognized that "[b]ecause 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 [Commonwealth v.] Dwyer, 448 Mass. 122
[(2006)]." Id.
Rule 7(b) provides that, "[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 the community interest, (iv) constitutional
rights, and (v) the reason(s) for the request." In analyzing
11
the good cause standard, a trial judge must "balance the rights
of the parties based on the particular facts of each case."
M.C. I, 479 Mass. at 254, quoting Boston Herald, Inc. v. Sharpe,
432 Mass. 593, 604 (2000).
"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." M.C. I, 479 Mass. at
255. Care and protection proceedings "are not designed to be
discovery mechanisms for criminal proceedings," and do not
afford as many procedural protections as do criminal trials.
See id. at 256. Investigations in care and protection
proceedings involve "the most intimate details of the parents'
and 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." Id. at 255, citing Gilmore v. Gilmore, 369
Mass. 598, 604-606 (1976). Investigative reports, including GAL
reports, almost inevitably contain unsupported assertions by
third parties, and a judge will not rely upon them as evidence
in a care and protection proceeding unless a parent has the
opportunity to contest the report. M.C. I, supra at 255-256
("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
12
materials"). See Adoption of Mary, 414 Mass. 705, 710 (1993)
(addressing parents' right to contest GAL report).
Because of the Hobson's choice that confronts a parent in
deciding whether to testify at a care and protection proceeding
(where the department routinely draws adverse inferences if a
parent declines to testify, see Custody of Two Minors, 396 Mass.
610, 616 [1986]), and risk self-incrimination at a later
criminal trial, a parent's testimony at a care and protection
proceeding ordinarily is inadmissible at a subsequent criminal
proceeding. M.C. I, 479 Mass. at 262. Such testimony may be
introduced only if the parent decides to testify, and then only
as impeachment evidence. The testimony of the parent's
psychotherapist is not admissible at that parent's criminal
trial unless the parent "puts [his or] her mental health at
issue in [his or] her defense." Id. at 263.
With these standards in mind, we turn to the challenges to
the judge's decision on remand.
b. Finding of good cause. In finding good cause for
release of the transcript and limited release of the medical
records, the judge analyzed the enumerated factors set forth in
Rule 7(b), as examined by this court in M.C. I, 479 Mass. at
249. He also analyzed other "relevant factors" and undertook to
balance, as required, all the parties' interests. The judge
found that the nature of the parties in the cases is nearly
13
identical, with the district attorney's office stepping into the
department's role as a representative of the Commonwealth, and
that the parents have the advantage of having gone through
previous proceedings concerning the allegations in the criminal
cases. The judge noted that the purposes of care and protection
proceedings are entirely different from those of a criminal
trial, and the information sought by the father and the
Commonwealth is "of the most personal nature." The judge
observed, however, that "[t]he extent of community interest in
this case cannot be understated," the public has an interest in
seeing that justice is done in a case dealing with charges of
serious injury to a child, and the information would permit more
"expedient use of court resources" and would "promot[e] judicial
economy."
The judge also discussed the important, and sometimes
conflicting, constitutional rights that are implicated in a
motion to release impounded documents in care and protection
proceedings, including parents' fundamental rights to raise
their child, the right of a criminal defendant to put forth a
defense, and the right against self-incrimination, as well as
the child's and the parents' rights to privacy.
Ultimately, the judge determined that the father's right to
access prior sworn statements of potential witnesses outweighed
the mother's argument that release of the transcript would
14
infringe upon her Fifth Amendment right against self-
incrimination, as the mother had been adequately represented by
criminal counsel in deciding to testify at the care and
protection trial. Moreover, the judge observed, the mother
maintains the right against self-incrimination in the criminal
cases, where she cannot be compelled to testify.4,5 The judge
did not explicitly set forth his reasoning regarding the denial
of the release from impoundment of the other requested
documents.
c. Application of Rule 7(b) factors. In her appeal, the
mother focuses on the portions of the order allowing release of
her own testimony and that of her psychotherapist. Because the
mother does not appear to challenge the limited release of
portions of the child's medical records, and the release of the
other trial testimony, we consider those issues to be waived.
See Commonwealth v. Harrington, 379 Mass. 446, 449 (1980)
4 The judge did not state explicitly, but we presume that he
properly determined implicitly, that the mother's testimony at
the care and protection proceeding also could not be introduced
in lieu of her testimony, should she decide not to testify at
the pending criminal trials.
5 In addition to discussion of the stated factors, the judge
looked to the position of the child with respect to release from
impoundment. Notwithstanding that the documents contain
intimate details of the child's trauma, the child now supports
their release. The judge noted correctly that access to the
transcript does not ensure admissibility at the criminal trials.
15
("issues not . . . pursued in available appellate proceedings
are treated as waived").
Even assuming that those issues have not been waived, we
discern no abuse of discretion in the judge's decisions that
good cause has been established with respect to the release of
the other trial transcripts and the limited release from
impoundment of the child's medical records, to both the father
and the Commonwealth. Accordingly, we focus our discussion on
the transcripts of the mother's testimony and the testimony of
her psychotherapist.
i. Mother's testimony. The mother argues that, in
allowing release of the transcripts of her testimony, the judge
abused his discretion and misapplied the factors to be
considered in deciding a motion for release from impoundment;
focused far too heavily on judicial efficiency (not one of the
factors to be considered under Rule 7[b]), and speculated
inappropriately that "[b]oth sides having access to the
necessary information may allow for a more expedient use of
court resources, such as stipulating to the likely testimony of
certain witnesses based on their prior testimony." The mother
also argues that the judge did not sufficiently weigh the
mother's constitutional rights to privacy and to raise her own
child, and her right against self-incrimination, and instead
focused impermissibly on the "efficient resolution" of the
16
criminal cases. Even given the limitations on admissibility,
the mother maintains, permitting release of a parent's testimony
in a care and protection proceeding for examination by the
Commonwealth, regardless of whether that parent testifies at a
subsequent criminal trial, would have a "chilling effect" on
parents' decisions whether to testify in an effort to maintain a
parental role with their children. Hence, notwithstanding this
court's decision in M.C. I, 479 Mass. at 262 & n.9 ("prior
testimony at the care and protection proceeding would be
admissible as impeachment evidence"), the mother maintains that,
in considering the good cause standard, a Juvenile Court judge
"should regard the testimony of a parent in a care and
protection proceeding as presumptively out of bounds."6
The mother's argument is somewhat misguided. The fact that
a parent's prior testimony might be used for impeachment
purposes at a criminal trial necessitates that it be released
from impoundment in certain circumstances. See M.C. I, 479
Mass. at 254, 262 & n.9.
6 Indeed, while acknowledging this court's determination in
M.C. I, 479 Mass. at 262 & n.9, that a parent's testimony in a
care and protection proceeding is inadmissible against that
individual in a later criminal trial, other than for purposes of
impeachment in the event that the parent decides to testify, the
mother nonetheless maintains that "[t]his [c]ourt did not
comment specifically . . . on whether the parent's testimony
could ever be subject to relief from impoundment."
17
On the other hand, with respect to the reasons given by the
Commonwealth for the release of the transcripts of the mother's
testimony, we agree with the mother that the arguments advanced
by the Commonwealth do not establish good cause for release to
the Commonwealth prior to the mother's decision to testify.
A. Father's motion for release. With respect to the
father's argument that he needs the transcripts to prepare for
his third-party culprit defense and the cross-examination of
witnesses at his pending criminal trial, we agree with the
Juvenile Court judge that the father has established good cause
for the limited release the judge allowed.
The judge's decision indicates clearly that he considered
and weighed the parties' reasons for their requests for relief
from impoundment, along with the other Rule 7 factors, see
M.C. I, 479 Mass. at 249, as well as several additional
considerations. In addressing the reasons for the request, the
judge acknowledged the father's right to "fully mount a defense
in his criminal case," and the Commonwealth's argument regarding
the relevancy and materiality of the items sought in relation to
harm to the child, as well as the inability to obtain the
mother's testimony by ordinary means of discovery.
The judge carefully considered all the factors in the Rule
7(b) balancing test set forth in M.C. I, 479 Mass. at 249. He
noted that the nature of the parties in the cases is nearly
18
identical, with the district attorney's office, rather than the
department, serving as a representative of the Commonwealth at
the criminal trials. The decision properly indicated that the
proceedings in a care and protection case are entirely different
from those in a criminal trial, highlighted the differing
purposes and potential outcomes of the two, and addressed those
differing concerns. The judge began his analysis of the
interests of the parties by noting that the information sought
"is of the most personal nature." He recognized that access to
the records of care and protection proceedings implicates
privileges such as the psychotherapist-patient privilege and the
attorney-client privilege (such as with respect to electronic
mail messages between the mother and her attorney), as well as
confidential medical information. At the same time, the judge
emphasized that "[t]he extent of community interest" in this
case "cannot be overstated," where a serious injury has been
inflicted on a child. He noted that the public, along with the
parties to the criminal cases, has a "vested interest in seeing
that justice is done."
The mother argues that the judge did not sufficiently weigh
her constitutional rights, and the implications of relief from
impoundment: the chilling effect that the mother argues would
ensue in regards to a parent testifying at a care and protection
proceeding if the testimony could be discoverable by the
19
Commonwealth. M.C. I, 479 Mass. at 262. Indeed, to some
extent, the father could argue that the prospect of the use of
his testimony at his criminal trial did have a chilling effect
on his initial decision not to testify at the care and
protection proceeding, where he testified only to the extent of
asserting his Fifth Amendment privilege. At this point,
however, the interests of the father and the mother are adverse,
and the release from impoundment of the mother's testimony, for
the father's use in preparing for his own criminal trial and his
third-party defense, does not place him in the impossible
position of having to choose between two constitutionally
protected rights.
As the mother chose to offer her testimony at the care and
protection proceeding where the father was a party and heard all
the mother's statements, she has a lessened privacy interest
with respect to limited, confidential release of transcripts of
that testimony to the father. M.C. I, 479 Mass. at 261-262. To
obtain confidential access to the mother's testimony, the father
need not, as the mother suggests, indicate which specific
information in the mother's testimony might be exculpatory, and
receive only those portions of the transcript. The mother's
constitutional rights are protected by the limitation that her
testimony in the care and protection proceeding may be
introduced solely at her own criminal trial, if she decides to
20
testify at that proceeding, and then only for impeachment
purposes "should her testimony differ significantly from her
testimony at the care and protection proceeding." Id. at 262
n.9. With respect to her testimony concerning her
communications with her psychotherapist, that testimony would be
admissible at the mother's criminal trial only if she chooses to
introduce a mental health defense. The father's suggestion, in
his brief on appeal, that he could introduce transcripts of the
mother's testimony as exhibits at his own criminal trial is
unavailing.
B. Commonwealth's motion for release. Although the judge
determined that the Commonwealth had established good cause in
support of its request for relief from impoundment of the
mother's testimony, we conclude that the judge's determination
concerning that testimony was premature. The Commonwealth
stated that it requested relief from impoundment in order to
assist the parties in preparation for trial, and to ensure that
all parties in the criminal cases understand "previous testimony
of likely witnesses." In its motion, the Commonwealth asserted
that the requested evidence "likely" was "relevant" to the
criminal cases and that "the sought-after information or
evidence also may provide further investigatory links to other
heretofore unknown relevant evidence."
21
Undoubtedly, "the mother has a diminished privacy interest
in the records of [the care and protection] proceeding, with
respect to the parties seeking the records." M.C. I, 479 Mass.
at 259. The father was present throughout the care and
protection hearing, so her privacy interests are greatly
diminished with respect to him; that is not entirely the case
with the assistant district attorney. The motion judge properly
pointed out that the mother's privileges would not be deemed
waived in the criminal proceeding unless she chose to testify in
the criminal trial.
The mother argues that the judge did not sufficiently weigh
her constitutional rights, implicating the fourth factor of
Rule 7: the chilling effect that the mother argues would ensue
in regards to a parent testifying at a care and protection
hearing if that testimony could be discoverable by the
Commonwealth. M.C. I, 479 Mass. at 262. We made clear in
M.C. I that the waiver of the privilege against self-
incrimination at a care and protection proceeding does not
result in a waiver of that privilege at the subsequent criminal
trial. Id. at 261-262. As the mother has the ability to
reassert that privilege at the criminal trial, any chilling
effect should be minimized. The mother's testimony would be
admissible at the criminal trial, in the event that she decides
to testify, only for impeachment purposes, if her testimony at
22
the criminal trial is inconsistent with her statements under
oath at the care and protection hearing. See Commonwealth v.
Rivera, 425 Mass. 633, 637-638 (1997).
While the judge allowed the release of the mother's
testimony to the Commonwealth as a more "efficient" process, in
the event that the mother did choose to testify, in the
balancing of constitutional and privacy interests at this stage,
where the mother has not indicated that she will testify, the
Commonwealth's assertion that "the sought-after information or
evidence also may provide further investigatory links to other
heretofore unknown relevant evidence" remains a "vague and
general fishing expedition," M.C. I, 479 Mass. at 259, that does
not meet the good cause standard set forth in M.C. I, supra
at 262. See Rule 7(b) of the Uniform Rules on Impoundment
Procedure.
The Commonwealth's concerns with efficiency and the smooth
operation of the criminal trials can be met by allowing the
Commonwealth's motion for access to transcripts of the mother's
testimony, to be provided to the Commonwealth upon notice that
the mother has stated her intention to testify at the criminal
trials.7
7 If the mother does not decide whether to testify until
after the Commonwealth rests, the Commonwealth should be given a
brief recess to examine the mother's care and protection
testimony in order to prepare for cross-examination.
23
ii. Psychotherapist's testimony. The mother argues that
the judge abused his discretion in allowing the release of her
psychotherapist's testimony to the Commonwealth where she has
not stated an intention to pursue a mental health defense at
trial. See G. L. c. 233, § 20B (patient-psychotherapist
privilege); M.C. I, 479 Mass. at 263. We agree.
The judge properly limited access to information ordinarily
protected by the patient-psychotherapist privilege by denying
relief from impoundment of documentary evidence related to
communications between the mother and her therapist. While
there was no error in that ruling, it did not go far enough. As
with the release of the mother's testimony, in allowing the
release of the psychotherapist's testimony to the Commonwealth,
the judge clearly expressed his concerns about efficiency. This
concern, alone, does not serve to tip the balance toward release
from impoundment where the mother's Fifth Amendment rights and
the patient-psychotherapist privilege are both at play. Unless
and until the mother provides notice that she intends to pursue
a mental health defense, her psychotherapist's testimony should
not be released to the Commonwealth. Should she do so, at that
point the Commonwealth should be provided the transcripts of the
psychotherapist's testimony upon notice to the Juvenile Court of
the mother's intention.
24
iii. Trial exhibits, GAL reports, and court investigator
reports. The father asserts that the GAL reports and
investigative reports likely contain information about the
family circumstances that will aid him in his defense in the
criminal trial. The father argues that the judge abused his
discretion in denying the motion for relief from impoundment of
the trial exhibits, the GAL reports, and the court investigator
reports. The father maintains that his constitutional right to
present a defense establishes that he met the good cause
standard of Rule 7 with respect to all the requested documents,
and that his due process right to receive exculpatory evidence
has been violated by the denial of the motion for release from
impoundment.
We conclude that there was no error and no denial of due
process in the denial of the motion. The father was present
throughout the care and protection proceeding, received copies
of many of the documents introduced in that proceeding, and is
well aware of the tenor of the testimony insofar as it might
suggest a basis of his defense. Contrary to the father's
arguments, in denying the request for release, the judge
properly balanced the competing constitutional concerns at issue
in the context of allowing access to impounded records in care
and protection proceedings. See M.C. I, 479 Mass. at 248-249.
The judge's decision did not preclude the defendant from
25
pursuing a third-party culprit defense or from introducing
relevant evidence in his defense.
In M.C. I, 479 Mass. at 257, we observed that "[the
judge's] decision not to disclose the GAL report was
appropriate . . . . 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."
Our reasoning in that case, regarding the same GAL reports
requested here, applies equally to the same request in the
father's renewed motion. Similarly, as with the GAL reports,
the investigative reports likely contain multiple-level hearsay
that will not be relevant at the criminal trial. Id., citing
Adoption of Georgia, 433 Mass. 62, 68 (2000). There was no
error in the judge's decision not to allow the father's request
for access to the GAL reports and the investigative reports.
In addition to his assertion that his motion for relief
from impoundment met the good cause standard, the father argues
that the trial exhibits are necessary in order to understand the
trial testimony, and the transcript will be difficult to
understand without the exhibits. While this argument may have
superficial appeal, the judge did not find good cause to release
the documents, and we do not disturb his decision absent a clear
error of judgment. See L.L. v. Commonwealth, 470 Mass. 169, 185
26
n.27 (2014). As stated, the father was present throughout the
care and protection proceeding and able to see and hear the
witnesses testify. To disturb the judge's finding, the party
seeking to do so must demonstrate to our satisfaction that "no
conscientious judge, acting intelligently, could honestly have
taken the view expressed by him." Commonwealth v. Ira I., 439
Mass. 805, 809 (2003), quoting Commonwealth v. Bys, 370 Mass.
350, 361 (1976).
The father's assertion that he will be relying upon a
third-party culprit defense that the mother was the person
responsible for the child's injuries does not alter our view
that the exhibits8 that the father seeks likely contain
unsubstantiated hearsay that will not be admissible in a
criminal trial. The father is correct that, generally, a third-
party culprit defense supports the "admission of relevant
evidence that a person other than the defendant may have
committed the crime charged." Commonwealth v. Silva-Santiago,
453 Mass. 782, 800-801 (2009). This "latitude," however, "is
not unbounded." Id. at 801. The evidence "must have a rational
8 Should a specific portion of the testimony be determined
to be incomprehensible without access to a referenced exhibit,
the party making such an assertion may file a separate motion in
the Juvenile Court demonstrating that the testimony is indeed
not able to be understood absent that exhibit, and otherwise
establishing that confidential and limited release of that
exhibit would meet the requirements of good cause for relief
from impoundment under Rule 7(b).
27
tendency to prove the issue the defense raises, and the evidence
cannot be too remote or speculative." Commonwealth v. Rosa, 422
Mass. 18, 22 (1996). Investigative and GAL reports likely are
too speculative, full of lay opinion, and rife with hearsay to
be admissible at a criminal trial. We discern no error in the
judge's decision to deny the father's motion for access to the
GAL and investigative reports.
3. Conclusion. As stated, the judge allowed release from
impoundment of the entirety of the care and protection trial
transcript (at which numerous witnesses testified) to both the
father and the Commonwealth; access to the child's medical
records (for review but not copying) by both the father and the
Commonwealth; and access by both the father and the Commonwealth
to medical records that were entered in evidence at the care and
protection proceeding, for review only, upon a showing of their
unavailability through discovery in the Superior Court. The
judge properly placed limitations on the use of the documents
released, which were to be held protectively and confidentially,
and returned to the Juvenile Court at the conclusion of the
criminal trials. He noted that the limited release was for
trial preparation, and did not imply in any way admissibility at
trial.
The order allowing, in part, and denying, in part, the
father's motion for limited relief from impoundment is affirmed.
28
The father shall have access to the entire unredacted transcript
of the testimony at the care and protection proceeding, subject
to the limitations on confidentiality and release to others, and
return to the Juvenile Court at the end of the criminal trial,
that the motion judge ordered. The motion judge properly denied
the father's motion for release of exhibits, court
investigators' reports, GAL reports, all pleadings filed in the
care and protection case, and a copy of the court's findings and
rulings in that case.
With respect to the Commonwealth's motion for relief from
impoundment, the judge's order is affirmed except for so much of
the order as allows limited relief from impoundment of the
testimony of the mother and her psychotherapist. The
Commonwealth shall have access to the entirety of the transcript
of the care and protection proceeding, absent the mother's and
her psychotherapist's testimony, which the Commonwealth may
obtain contingent upon the mother's decision to testify or to
put her mental health at issue. By the terms of the judge's
order, the Commonwealth may examine without copying the child's
medical records, as well as all medical records that were
entered in evidence at the care and protection trial.
The matter is remanded to the Juvenile Court for entry of a
modified order (1) allowing the Commonwealth access to
transcripts of the mother's testimony if she should decide to
29
testify at trial, under the same conditions as the other
documents that have been released by the terms of the order; and
(2) allowing the Commonwealth to obtain transcripts of the
psychotherapist's testimony should the mother give notice that
she intends to pursue a mental health defense, under the same
conditions as the other documents that have been released.
So ordered.