NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; [email protected]

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,

(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.,

(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,

.

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,

& 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,

. 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,

(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,

,

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,

(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,

. 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,

, 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,

. 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,

[(2006)]."

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,

, quoting Boston Herald, Inc. v. Sharpe,

(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,

. 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

. 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."

, citing Gilmore v. Gilmore,

(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,

(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,

[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,

. 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."

.

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,

. 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,

(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,

& 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,

, 262 & n.9.

6 Indeed, while acknowledging this court's determination in M.C. I,

& 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,

, 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,

. 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,

. 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,

. 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."

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,

. 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,

. 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.

. 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,

(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,

, 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,

. 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,

.

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,

, 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.

citing

Adoption of Georgia,

(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,

, 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.,

(2003), quoting Commonwealth v. Bys,

(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,

(2009). This "latitude," however, "is

not unbounded."

. 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,

(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.