THERESA L. DURO vs. DANIEL H. DURO.

ABRAMS, J. We hold that, as a matter of statutory interpretation, [Note 1] reports of Probate Court probation officers made to a

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probate judge, pursuant to G. L. c. 276, Section 85B, inserted by St. 1969, c. 771, Section 3, must be in writing, and litigants must be afforded the opportunity to cross-examine the probation officer on the written report. In this case, the plaintiff appeals [Note 2] from a judgment awarding custody of two children to her former husband. The plaintiff's principal argument is that she was denied a fair trial before an impartial tribunal because the judge, in the absence of the parties and their counsel, received oral reports from a probation officer assigned to investigate the case. [Note 3] We conclude that the adjudication of custody must be reversed because the judge received extra-record information. We remand for new custody proceedings.

We summarize the facts. On December 8, 1980, the plaintiff filed a complaint seeking a divorce on the ground of cruel and abusive treatment, and custody of the children. The probate judge to whom the case was assigned entered an order on December 22, 1980, granting the plaintiff's motion for temporary custody of the children and the husband's motion for visitation rights. At a pretrial conference on April 13, 1981, the judge designated a probation officer employed in the Probate Court's Family Service Officer to investigate an allegation by the plaintiff that the husband was sexually abusing their daughter. The judge also modified the temporary order by making the husband's visitation rights "subject to [Family Service Office] conditions." The probation officer met privately with the judge on May 18, 1981, after interviewing the plaintiff, who was living with the children in her parents' home, and the defendant in his home, and after examining the children

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and their medical records. Following the meeting, the probation officer, pursuant to the judge's instructions, informed the parties' attorneys that the husband's visitation rights could be exercised at the husband's residence rather than where the children were living.

Subsequently, the judge asked the probation officer to shift the focus of her investigation to the issue of which parent should have custody of the children. On March 3, 1982, the probation officer visited the plaintiff at a house to which she had recently moved with the children. The plaintiff and the children were living in the apartment of a friend pending repairs to an upstairs apartment in which the plaintiff intended to reside. The probation officer spoke privately with the judge on the day following that visit. At a pretrial conference that had been scheduled for March 5, 1982, the judge entered a judgment of divorce nisi and transferred temporary custody of the children to the husband.

On July 7, 1982, the plaintiff filed a motion for recusal alleging that the judge's ex parte communications [Note 4] with the probation officer violated her right to a fair trial by an impartial adjudicator on the basis of evidence presented before all parties. The plaintiff also filed motions requesting that the judge refrain from receiving further ex parte oral reports from the probation officer, and that any future reports be written and made available to counsel. The judge took the motions under advisement, and on July 14, 1982, entered an order scheduling for September 9, 1982, an evidentiary hearing on the motion to recuse.

At the hearing, the probation officer was called to testify concerning her private reports to the judge. She stated that at the meeting preceding the judge's decision to allow visitation

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to take place at the husband's house, she told the judge that the husband's house "was a very good home" and "a very appropriate residence for visitation for the children." She also showed the judge the children's medical records, which, according to the officer, indicated that the plaintiff had submitted their daughter for medical examination as to alleged sexual abuse by the husband, and that "the doctors found [the allegations of sexual abuse] to be untrue."

The officer stated further that, at the meeting preceding the entry of the order transferring temporary custody to the husband, she informed the judge that the plaintiff "had left her family residence; that nobody knew where she was; [that] we had finally located her at her girlfriend's house; that I had made a visit to the house immediately and found the house to be in very poor condition," and that the house "was not appropriate for children." The officer also spoke to the judge concerning one of two daughters born to the plaintiff and the plaintiff's boyfriend following the plaintiff's separation from the husband. [Note 5] The officer informed the judge that the officer had received a telephone call from the boyfriend's mother stating that she (the boyfriend's mother) was caring for the elder granddaughter and that the plaintiff "didn't appear to take too much interest in the child." The officer did not discuss with the plaintiff this telephone call or the officer's disapproval of the house in which the plaintiff was living. [Note 6]

The judge did not rule on the motion to recuse, or on motions filed by the plaintiff on November 23, 1982, and December 5, 1982, seeking a return of temporary custody of the children. The issue of permanent custody was tried before the judge on

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January 26, 1983, and February 3, 1983. [Note 7] The probation officer was not called as a witness at the trial. The judge entered a judgment, accompanied by findings of fact and conclusions of law, on March 31, 1983, granting custody to the husband and visitation rights to the plaintiff.

The investigations of the probation officer in the instant case took place pursuant to a statutory provision authorizing Probate Court probation officers "to ascertain when requested to do so by the court the moral and general conditions surrounding . . . dependent minor children and [to] report the result of such findings to said court." G. L. c. 276, Section 85B, inserted by St. 1969, c. 771, Section 3. Although this provision is situated in a statute dealing with proceedings to enforce child support obligations, the parties do not contest the officer's authority under Section 85B to investigate matters relating to a custody award. See Hayden v. Hayden, 15 Mass. App. Ct. 915, 916 (1983). The husband argues, however, that because the statutory language

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does not contain an explicit requirement that the "report" be in writing it must be assumed that the Legislature sanctioned the private oral reports at issue in this case. We do not agree.

To ascertain the meaning of the word "report" in G. L. c. 276 Section 85B, we examine the entire statutory scheme governing investigatory reports in matters concerning children, mindful that "statutes in the same field are to be construed together, if possible, so as to form an harmonious whole." Mercy Hosp. v. Rate Setting Comm'n, 381 Mass. 34, 40 (1980). See Negron v. Gordon, 373 Mass. 199, 201-202 (1977). Had the probate judge assigned the investigation to a guardian ad litem rather than to a probation officer, a written report available to the parties for inspection would have been required. G. L. c. 215, Section 56A. A similar result would obtain had the probation officer performed the investigation pursuant to the authority of G. L. c. 209, Section 32, instead of under G. L. c. 276, Section 85B. Other statutory provisions governing the use of investigators in proceedings relating to the welfare of children likewise require a written report open to the scrutiny of the parents. See G. L. c. 119, Section 24 (report of expert in care and protection proceeding); G. L. c. 210, Section 5A (investigative report in adoption proceeding). We can think of no reason for reading G. L. c. 276, Section 85B, to permit a lower level of procedural protection.

The husband argues that we should read Section 85B as permitting private, oral reports in order to facilitate prompt reporting to the court and prompt action by the court in emergency situations affecting a child's welfare. Where the Legislature has specifically treated the procedures to be followed when a probation officer becomes aware of a situation inimical to the well-being of a child, however, it has not dispensed with the requirement of a written report. Thus, where a probation officer obtains information that a child's welfare is in jeopardy, the officer "shall immediately report such condition to the [Department of Social Services] by oral communication and by making a written report within forty-eight hours after such oral communication." G. L. c. 119, Section 51A, as amended through St. 1983,

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c. 222. [Note 8] Even if we assume the existence of an emergency situation, a circumstance not present in this case, that would warrant a probation officer's decision to communicate privately with the judge presiding over a custody dispute instead of following the procedures set forth in Section 51A, such a situation would not justify oral comments beyond those necessary to the resolution of the emergency presented.

By holding that the report of a probation officer appointed under Section 85B to investigate matters material to a custody dispute must be submitted in writing, we align Section 85B with the remainder of the statutory scheme relating to the use of court-appointed investigators in proceedings potentially involving the separation of parents from their children, and also render that section consistent with decisions of this court and other jurisdictions that fundamental 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. See Gilmore v. Gilmore, 369 Mass. 598, 605 (1976); Fewel v. Fewel, 23 Cal. 2d 431, 436 (1943); Wunsch v. Wunsch, 248 Wis. 29 (1945); Mazur v. Lazarus, 196 A.2d 477, 479 (D.C. 1964). See also Foster & Freed, Child Custody (Part II), 39 N.Y.U.L. Rev. 615, 620 (1964); Comment, Use of Extra-Record Information in Custody Cases, 24 U. Chi. L. Rev. 349, 356 (1957). Without a record to disclose the exact nature of the information communicated by the officer to the judge, the opportunity to cross-examine the officer at trial is an ineffective vehicle for eliciting, and attempting to rebut, allegations that may influence the judge's decision. See Comment, Use of Extra-Record Information in Custody Cases, supra. [Note 9]

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The judge's findings in awarding permanent custody to the husband indicate that the judge gave prominent consideration to the conditions of the apartment at which the probation officer visited the plaintiff and the children, as well as the environment in which the children would be situated at the husband's residence. We are in no position to discern whether the judge's findings were based exclusively on the evidence presented at trial or whether the probation officer's unexamined impressions and assertions concerning the two homes affected the findings. Further, we cannot tell whether the content of the judge's private conversations with the officer affected the judge's analysis of the facts and his determination as to custody. It is beyond question that "[a] judge may not rely on his private knowledge of particular facts that are not matters of which he can take judicial notice." Furtado v. Furtado, 380 Mass. 137, 140 n.1 (1980).

"The right of trial involves the right to confront and crossexamine adverse witnesses. This right was not easily won and must not be lightly lost either from frontal attack or erosion. We have no doubt that in the instant case an able and conscientious probation officer reported to an able and conscientious judge,but if the practice should be approved another decision might be made by a less able and conscientious judge upon the report of a less able and conscientious probation officer. After all there is no difference in principle between basing a judgment upon the report of a court's probation officers and basing one upon the report of a king's soldiers. In either instance the right of trial has been denied." Tumbleson v. Tumbleson, 117 Ind. App. 455, 456-457 (1947)

We therefore vacate the judgment of permanent custody and remand the case to the Probate Court for a new hearing on the issue of permanent custody. [Note 10] We intimate no opinion concerning

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the disposition of the permanent custody issue at the new hearing, an outcome which of course continues to be governed by the best interests of the children.

So ordered.