CARE AND PROTECTION OF REBECCA & another. [Note 1]

GREANEY, J. On December 14, 1989, the Department of Social Services (department), field a care and protection petition pursuant to G. L. c. 119, Section 24 (1992 ed.), seeking custody of Rebecca and Ruth, [Note 2] twins born to Helen (mother) on April 15, 1981. The department was granted temporary custody of the twins on that day. On December 7, 1990, after a trial, a judge of the District Court adjudicated the children in need of care and protection and awarded custody to the department. In a memorandum issued pursuant to its Rule 1:28, the Appeals Court reversed the judgment and remanded the matter to the District Court for a further evidentiary hearing. 31 Mass. App. Ct. 1118 (1991). That hearing was held in February, 1992, before another District Court judge. On May 12, 1992, the judge entered a memorandum of decision, containing findings of fact, in which he concluded that the mother was incompetent to provide, for Rebecca and Ruth's emotional and educational needs, had failed to protect them from sexual abuse, and had herself participated in their sexual abuse. He adjudicated Rebecca and Ruth in need of care and protection, and awarded the department custody of them until their eighteenth birthday.

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On appeal, the mother and the children [Note 3] argue that the judge's finding that the mother participated in the sexual abuse of her children was based in large part on hearsay evidence (out-of-court statements made by Rebecca, Ruth, and Arnold) that should not have been considered for its truth. In this regard, she contends that: (1) out-of-court statements made by the twins when they were under the age of ten did not meet the criteria for admissibility under G. L. c. 233, Section 83 (1992 ed.), a statutory exception to the hearsay rule applicable to care and protection proceedings; [Note 4] (2) the statements should not have been admitted because Section 83 violates the due process and equal protection provisions of the Fourteenth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution; (3) in any event, the twins' out-of-court statements were not reliable evidence of sexual abuse; and (4) out-of-court statements made by the twins after their tenth birthday, relied on by the judge to bolster the evidence admitted under Section 83, also were improperly admitted. The mother also contends that certain opinion evidence given by two psychologists, who testified as experts, should not have

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been admitted. If the finding of sexual abuse is discounted, the argument continues, there remains insufficient evidence on which to base a decision that the mother was unfit as a parent. We transferred the case to this court on our own motion. We conclude that much of the evidence relied on by the judge to support the finding that the mother sexually abused the children was either unreliable or inadmissible, and that its consideration was prejudicial to the mother. For this reason, we reverse the decision and remand the case to the District Court for further proceedings in accordance with this opinion.

1. Background. The following factual background, none of which was disputed, is drawn from the judge's findings. Rebecca and Ruth are children with special needs. They have displayed cognitive delays since they were toddlers, were two years behind their peers when they started school, and have been described by their therapist as "mildly retarded." The twins' mother separated from their father before their birth. Their father has never been involved in their care. In July, 1986, their mother gave birth to William, their half-brother.

In November, 1987, the mother's stepbrother began sexually abusing Rebecca. Ruth witnessed the abuse, and may also have been a victim. The abuse continued for about two months, when Rebecca reported it to a relative. The relative told the mother, who then reported the abuse to the proper authorities and took the twins to their pediatrician. The stepbrother was found guilty of indecent assault and battery.

In October, 1988, the mother married Simon, who had custody of his two young sons, Arnold and James. The five children lived with the mother and Simon until December, 1989, when all of the children were removed from the home and temporary custody of them was granted to the department.

2. Evidence related to sexual abuse allegedly committed by the mother. The mother's arguments concerning its admissibility and sufficiency require that we set out in detail the evidence on which the judge relied for his conclusion that

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the mother had both condoned and participated in the sexual abuse of Rebecca and Ruth.

The children were removed from the home of the mother and Simon after Arnold reported sexual abuse inflicted by four persons including his father and his stepmother, both of whom were indicted. An investigator appointed by the court, see G. L. c. 119, Section 24 (1992 ed.), interviewed Arnold shortly after the allegations were made. He told the court-appointed investigator (as he had told the investigator for the district attorney's office) that his stepmother touched him inappropriately and asked him to touch her inappropriately. He also alleged that he had watched while his stepmother made Rebecca and Ruth touch her inappropriately. [Note 5]

Subsequently, Simon pled guilty to indecent assault and battery of Arnold and rape of James. The parties have stipulated that the criminal charges pending against the mother, based on Arnold's statement, were made subject to a nolle prosequi after Arnold disavowed his allegation concerning her. [Note 6]

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While the twins were in their first foster care placement, they talked "about some stuff their brothers had done sexually to them," but said nothing about sexual abuse committed by their mother. While in their second foster care placement, they discussed the sexual abuse committed by the mother's stepbrother. When asked, they denied that their mother had abused them.

The twins' third foster placement was with a family who had a six year old daughter. In February, 1991, the foster parents became aware that the twins and their daughter were "playing house." The game, initiated by the twins, was similar to one they said they had played with their stepbrother Arnold, and involved the children touching one another's genitals. The foster parents told the children that this behavior was not appropriate for children, and that it could do them harm. The judge found that, during the following weeks, in a series of conversations, "[Rebecca and Ruth], first separately and then together, disclosed that [Simon] and [the mother] had `touching problems;' that [Simon] had touched [Rebecca and Ruth] with his penis . . . that [their mother] was present when [Simon] touched the children and that she had touched their genitals and rubbed medicine on their privates. Both children indicated that the touching by both [Simon] and [their mother] hurt . . . that [Simon] and [their mother] told them not to tell anyone; that [Simon's] touching was with his hand and penis and [their mother's] was with her hands. Both [Ruth and Rebecca] indicated that rubbing of medicine on their vaginas by [their mother] was a `bad' touching." (There was evidence that both children had suffered from scabies infections. The treatment for scabies was the application of an ointment which had to be applied to the entire body, including the genital area.)

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As a result of these disclosures, the children commenced therapy with Dr. Edward Plimpton. [Note 7] He testified that, at some point during this therapy, Rebecca told him that her mother had touched her (Rebecca) "in her private parts." Ruth, although less forthcoming than Rebecca, said the same thing. Rebecca also told Dr. Plimpton that Simon had touched her with his penis, and that her mother's stepbrother had done the same thing. Based on his extensive interviews and therapy sessions with the children, Dr. Plimpton testified that, in his opinion, the mother's stepbrother "engaged in some inappropriate sexual conduct with [Rebecca]. That [Simon] engaged in some sexually inappropriate contact with [Rebecca]. [Note 8] The judge's written findings also indicate that, in Dr. Plimpton's opinion, the twins were abused by Simon in their mother's presence. [Note 9]

The court-appointed investigator interviewed Rebecca and Ruth on February 3, 1992, shortly before the trial began. The investigator reported: "I asked [Rebecca] why she was living in the [foster] home. She replied: `because my mother touched me.' When I asked what she meant, she stated `because my mother touched my vagina.' I asked what her mother touched her vagina with, and she said `her hand'. I asked if it hurt when she touched her, and she nodded yes." Rebecca also said she could not remember whether the touching happened once, twice or more often, or whether anyone else was present when it occurred. In response to similar

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questions, Ruth said she was in foster care because her mother "had touched her in `the privates.'" She could provide no information as to the frequency or circumstances of the touching. Ruth, but not Rebecca, also told the investigator that Simon had sexually abused her.

The court-appointed investigator also reported on her interview with the twins' third set of foster parents, who again recounted the twins' allegations of sexual abuse by their mother and Simon, adding some additional details concerning the alleged abuse by Simon, and an interview with Dr. Plimpton, who repeated his opinion that Simon had abused both girls in their mother's presence, and that the mother "`engaged in some inappropriate sexual behavior with these girls.'"

John Kolodin, therapist for the twins' half-brother William, testified to behavior on William's part that was, in his opinion, suggestive of sexual contact, and opined that the boy had been sexually abused.

Based on what he described as "the totality of the evidence," the judge concluded that Rebecca and Ruth had been sexually abused by Simon. As to the mother, the judge found:

"Based on the totality of the evidence . . . that [the mother] was present when [Ruth and Rebecca] were abused by [Simon] and that she touched the genitals of her daughters in sexually inappropriate ways. Moreover . . . [the mother] failed to protect her children from sexual abuse by [her stepbrother], [Simon] and [Arnold]; [and] she failed to give her daughters any sense of security or to define for them boundaries of acceptable sexual conduct. . . . [The mother], by act and omission, allowed her daughters to become defenseless prey to myriad sexual deviates."

The judge also found that the mother "engaged in inappropriate sexual touchings of [Arnold] and [James]." He based

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these findings "on the totality of the evidence including the testimony of the experts, the statements of [Ruth and Rebecca] made to [one of their foster parents in their third foster placement] prior to their tenth birthday, the investigator's reports, the stipulations of the parties, the exhibits, the convictions of [the mother's stepbrother] and [Simon] which gave credibility to the statements of [Rebecca and Ruth], the testimony and demeanor of [the mother] as a witness and her reactions to other testimony during the course of the trial, and the testimony of witnesses about the conduct of [Ruth, Rebecca, and William]. No one portion or piece of evidence was essential to this finding; it was the accumulation of vast evidence from multiple sources that made these findings inescapable, inevitable and unavoidable."

3. Admissibility and probative value of statements related to sexual abuse. Rebecca and Ruth, who did not testify, told their third set of foster parents that Simon had abused them sexually in their mother's presence, and that their mother had touched them inappropriately. These statements, describing acts of sexual misconduct, identifying a perpetrator, and made before the children's tenth birthday (April 15, 1991), were testified to by the person who heard them. The statements were admitted as substantive evidence of sexual abuse by the mother based on the provisions of Section 83. See note 4, supra. The mother argues, nonetheless, that the prerequisites for admission under Section 83 were not met because the legislation contains an implicit requirement that the judge find a child declarant unavailable before admitting such evidence. [Note 10]

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The mother bases this argument on language in Section 83 ("the statement [must be] offered as evidence of a material fact and [must be] more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable effort"), which tracks the language of Rules 803 (24) and 804 (5) of the Federal Rules of Evidence, the residual hearsay exceptions. Despite the fact that the availability of the declarant is immaterial to the admission of evidence under Fed. R. Evid. 803 (24), the mother contends the exception generally does not apply when the declarant is available, and she reasons from this that the Legislature would not have included the "more probative" language if it had intended to create a presumption that a child under the age of ten was unavailable. We disagree.

Section 83 was enacted by St. 1990, c. 339, which amended G. L. c. 233 by the insertion of three new sections addressing the admissibility of out-of-court statements of child sexual abuse victims. General Laws c. 233, Sections 81 and 82, also enacted by St. 1990, c. 339, which apply, respectively, to criminal proceedings and to civil proceedings other than care and protection proceedings, explicitly require the proponent of an out-of-court statement made by a child under the age of ten to "demonstrate a diligent and good faith effort to produce the child" and "specific findings on the record" demonstrating unavailability. The circumstances in which a declarant may be found unavailable are carefully delineated. This unavailability requirement is conspicuously absent from Section 83. "[W]here the Legislature has employed specific language in one [section of an act], but not in another, the language should not be implied where it is not present."

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Beeler v. Downey, 387 Mass. 609, 616 (1982). See Tilcon Mass., Inc. v. Commissioner of Revenue, 30 Mass. App. Ct. 264, 269 (1991). The Legislature obviously intended to authorize the introduction of out-of-court statements by a child under the age of ten concerning sexual abuse in care and protection proceedings without regard to the availability of the child, where the remaining statutory prerequisites for admissibility are met.

We also are satisfied that Section 83 satisfies the due process requirements of the United States Constitution and art. 12. Questions related to the standard of proof in care and protection proceedings are tested by reference to the due process analysis contained in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), which requires the balancing of three factors, "(1) `the private interest that will be affected by the official action'; (2) `the risk of an erroneous deprivation of such interest though the procedures used, and the probable value, if any of additional or substitute procedural safeguards'; and (3) `the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" Care & Protection of Robert, 408 Mass. 52, 59 (1990).

The interests implicated in a care and protection proceeding include the parent's and the child's very significant interests in the continuance of their familiar relationship. Those interests are not absolute; they are tempered by a child's paramount interest in freedom from abuse and neglect, including familiar sexual abuse, id. at 61-62, and they must be weighed against the Commonwealth's strong interest in the welfare of the children of the Commonwealth. Id. at 65. See Lassiter v. Department of Social Servs. of Durham County, N.C., 452 U.S. 18, 27 (1981); Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981).

The point in contention is whether the provisions of Section 83 increase the risk that a judge in a care and protection proceeding will conclude, erroneously, that sexual abuse has occurred. The mother argues that the legislation is infirm for

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several, related reasons. Unlike 81 and 82 of G. L. c. 233, 83 does not require that, before admitting a child's out-of-court statement related to sexual abuse, the judge make a specific finding that the statement carries with it strong guarantees of its reliability. [Note 11] The limitation on admissibility in 83, that the statement be "more probative on the point for which it is offered than any other evidence," might, in practice, prove to be no limitation. There are few, if any, witnesses to familial child abuse and physical corroboration is often absent. See Opinion of the Justice, 406 Mass. 1201, 1204-1205 (1989); Note, A Comprehensive Approach to Child Hearsay Statement in Sex Abuse Cases, 73 Colum. L. Rev. 1745, 1749-1750 (1983). Thus, a child's out-of-court statements could be viewed by a judge as the most probative evidence the department can produce when it is alleged that sexual abuse has occurred. The risk of error inherent in the admissibility of statements that have not been tested for reliability is compounded, according to the mother, because the legislation also presumes that a child whose statements were made when the child was under the age of ten is unavailable, thus ensuring the child's out-of-court statements will not be tested by cross-examination. Cf. Adoption of Carla, 416 Mass. 510, 514 (1993) (when child does not testify judge may not have means by which to assess credibility and accuracy of child's statements). As we shall explain below, we conclude that a judge who has before him out-of-court statements admitted under Section 83 must consider the reliability of those statements. So constructed, Section 83 strikes a permissible balance between the competing interests involved in a care and protection case.

Opinion of the Justices, supra, and much of the pertinent literature, confirm the difficulty in assessing an allegation of

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child sexual abuse. As has been previously noted, there generally are no witnesses to an act of abuse other than the victim and the perpetrator. Corroborative evidence often will be lacking. A youthful victim, although truthful, may be a poor witness, may refuse, or may be unable, to testify. Guilt about breaking up the family or a child's desire to remain with his or her parents may prompt a retraction of a truthful allegation of abuse. It also has been suggested that a child's memory fades rapidly, and that statements made closer in time to incidents of abuse may be more accurate. Id. at 1204-1205. See Finn, Child Witness Practice in Child Abuse Proceedings, 23 Suffolk U. L. Rev. 271, 275-276 (1989); Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, supra at 1751. Section 83 embodies a legislative judgment that out-of-court statements made by young victims of sexual abuse may be evidence of significant value to the judge who sits as the finder of fact in a care and protection case.

The judge in a care and protection case is required, however, to treat this evidence with caution. The proponent of evidence meeting the criteria for admissibility of Section 83 may offer the evidence, but implied in the statute is a requirement that a judge assess the reliability of such evidence in connection with deciding how much weight to accord to it. We infer this requirement from traditional principles governing the use of hearsay evidence and from the specific provisions of Section 83.

Statements admitted pursuant to Section 83, must be introduced through the person to whom the statement was made or who heard the child make the statement. This person, therefore, is subject to cross-examination regarding the timing of the statement, the circumstances in which it was made, the language used by the child, and the child's apparent sincerity, or motive, in making the statement. Cf. Gilmore v. Gilmore, 369 Mass. 598, 603-605 (1976); Adoption of George, 27 Mass. App. Ct. 265, 274 (1989). These are important factors bearing on the reliability of a young child's statement concerning an incident of sexual abuse. See People in the Interest

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of M.W., 374 N.W.2d 889, 893-894 (S.D. 1985) (in case of physical abuse, circumstances surrounding child's hearsay statements provided indicia of reliability). See also Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, supra at 1751, 1758. In addition, there may be evidence as to the consistency over time of a child's statements concerning abuse, or, as in this case, there may be expert testimony about a child's ability to remember and to relate his or her experiences, or other relevant personality traits. Although evidence may be admitted pursuant to Section 83, even if the child declarant is available, the legislation certainly does not foreclose the judge from holding a voir dire to assess the child's capacity to remember and to relate, and the child's ability to perceive the necessity of telling the truth.

In deciding what weight to give to statements admitted pursuant to Section 83, a judge also should consider whether other admissible evidence corroborates the existence of child abuse. This might include, for example, evidence that a child displays knowledge of sexual matters beyond his or her years or engages in sexually explicit behavior, see Commonwealth v. Amirault, 404 Mass. 221, 225 (1989), or physical evidence consistent with sexual abuse. Id. at 226.

Certain statutory exceptions to the hearsay rule, applicable in care and protection proceedings, appear to reflect a legislative judgment that the judge who sits as finder of fact requires access to evidence from many sources, some of which may be in hearsay form, but which may nevertheless be relied on for its truth. See Adoption of Carla, supra at 512, 514. See also Custody of Tracy, 31 Mass. App. Ct. 481, 485-486 (1991); Custody of Michel, 28 Mass. App. Ct. 260, 266 (1990). To ensure integrity in the decision-making process, we additionally require that the judge's reasons for relying on Section 83 evidence must appear clearly in the specific and detailed findings the judge is required to make in a care and protection case. See Care & Protection of Laura, 414 Mass. 788, 791 (1993). See also Custody of Eleanor, 414 Mass. 795, 799 (1993). So long as these safeguards are observed,

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we are satisfied that Section 83 will not increase the likelihood of an erroneous result in a care and protection proceeding. [Note 12]

4. Sufficiency of evidence of sexual abuse. Subsidiary evidentiary findings in a care and protection case, including a finding that sexual abuse has occurred, must be proved by a fair preponderance of the evidence properly before the judge. See Care & Protection of Laura, supra at 793. A judge's findings must be left undisturbed "absent a showing that they are clearly erroneous." See, e.g., Custody of Eleanor, supra at 799, and cases cited. "A finding is clearly erroneous when there is no evidence to support it, or when, `although

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there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Id., quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).

Here, there were circumstances casting serious doubt on the reliability of the statements made by Rebecca and Ruth to their third pair of foster parents that their mother had sexually abused them. The children's statements admitted pursuant to Section 83 appear to relate to the mother's application of medicine in the children's genital area, an act for which there was a medical justification. Due to possible confusion on this ground, the judge was unwilling to accept Dr. Plimpton's opinion that the mother had touched Rebecca and Ruth inappropriately. The statements admitted pursuant to Section 83, made immediately after the girls had been told that touching in the genital area was wrong, or bad, would appear to suffer from the same infirmity. Both Dr. Plimpton and the court-appointed investigator also indicated that the children were exceptionally eager to please; for this reason, they were not viewed as entirely reliable informants. Despite the mother's request, however (see note 10, supra), the judge did not conduct a voir dire to aid his assessment of the reliability of their allegations.

Much of the other evidence relied on by the judge to bolster the statements admitted under Section 83 was objected to and not properly before him. The twins' statements to the court-appointed investigator (that they were in foster care because their mother had touched them in the genital area) could not be relied on for their truth because the mother was foreclosed from cross-examining the children. See Adoption of Carla, supra at 514 (hearsay in investigator's report is allowable for its truth only when there is opportunity for cross-examination of the sources of the statements). [Note 13] The fact

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that the statements made by Rebecca and Ruth, which were admitted pursuant to Section 83, also appear in the investigator's report, does not render the statements admissible for their truth on the basis of G. L. c. 119, Sections 21 and 24. Hearsay contained in an investigator's report is admissible for its truth when there is an opportunity to "`refute the investigator and the investigator's sources through cross-examination and other means.'" Adoption of Carla, supra at 514, quoting Custody of Michel, supra at 266. With respect to the statement of a child under the age of ten related to sexual abuse, "other means" must refer to the determination required under Section 83 that such evidence is reliable. The service plans prepared by the department, which referred to sexual abuse allegedly committed by the mother, were admitted only as evidence that the department perceived this as a problem, and not for the truth of the assertion that the mother had committed sexual abuse.

Statements by the twins to Dr. Plimpton, about which he testified in the course of explaining the basis for his expert opinion, could not be relied on for their truth. See Nancy P. v. D'Amato, 401 Mass. 516, 524-525 (1988). P.J. Liacos, Massachusetts Evidence Section 7.10.3, at 422 (6th ed. 1994). Dr. Plimpton's expert opinion testimony, to the effect that the twins had been sexually abused, was inadmissible under cases decided by this court and the Appeals Court. See Commonwealth v. Colin C., ante 59-61, (1994); Commonwealth v. Rather, 37 Mass. App. Ct. 140, 147 (1994). His testimony identifying the persons who had abused the twins, and opining that their mother had been present, amounted in essence to testimony that he believed the statements made to him by the twins, and was equally inadmissible. Commonwealth v. Colin C., supra at 59-61. The testimony by William's psychologist was similarly flawed.

The judge relied on his conclusion that the mother had sexually abused Arnold and Joseph to support his finding

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that she also had abused her own daughters. However, the finding as to Joseph and Arnold also appears to lack adequate evidentiary support. The judge could not rely on the Section 51B report to support this finding. See Custody of Michel, supra at 266-267; Adoption of George, supra at 271-274. Because Arnold, the principal source of information on this point, was not available for purposes of cross-examination, his statements to the court-appointed investigator concerning sexual abuse by his stepmother were not admissible for their truth. See Adoption of Carla, supra. [Note 14] Their possible admissibility under Section 83 was not tested, and their reliability appears dubious in view of Arnold's later retraction of his accusations against his stepmother.

There was admissible evidence raising doubt about the mother's ability to provide an adequate home for Rebecca and Ruth. However, the finding that the mother had committed and condoned the sexual abuse of her daughters, a finding central to the judge's conclusion that she was an unfit parent, was based largely on a combination of unreliable and inadmissible evidence. "[T]he judge's reliance on evidence improperly considered by him makes it impossible for this court to say with confidence that the result would have been the same if the judge had not considered that evidence." Care & Protection of Benjamin, 403 Mass. 24, 27-28 (1988). The judgment adjudicating Rebecca and Ruth in need of care and protection and committing them to the custody of the department until their eighteenth birthday is vacated. The case is remanded for further proceedings in light of this opinion and any changes in the situation of the mother and the children since the February, 1992, hearing. [Note 15]

So ordered.