Adoption of Iliana

NOTICE: All slip opinions and orders are subject to formal

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19-P-166 Appeals Court

ADOPTION OF ILIANA

(and a companion case1).

No. 19-P-166.

Worcester. July 8, 2019. - November 6, 2019.

Present: Green, C.J., Maldonado, & Hand, JJ.

Adoption, Dispensing with parent's consent. Parent and Child,

Dispensing with parent's consent to adoption. Minor,

Adoption. Child Abuse. Evidence, Hearsay, Unavailable

witness, Expert opinion. Practice, Civil, Adoption,

Hearsay, Bias of judge. Witness, Child, Competency,

Unavailability, Expert.

Petitions filed in the Worcester County Division of the

Juvenile Court Department on May 13, 2013.

The cases were heard by Carol A. Erskine, J.

Andrew D. Hoffman for the mother.

Maria B. Hickey for Department of Children and Families.

Shelli C. Hamer for the children.

HAND, J. The mother appeals from decrees issued by a judge

of the Juvenile Court finding her unfit to parent her two

1 Adoption of Susan. The children's names are pseudonyms.

2

daughters and terminating her parental rights. She focuses her

appeal on the pretrial hearing, held in accordance with G. L.

c. 233, § 82 (§ 82 hearing), regarding the admissibility of the

children's out-of-court statements describing allegations of

sexual abuse. The mother claims that the trial judge, who also

conducted the § 82 hearing, (1) was not impartial, (2)

misinterpreted § 82 in excluding the mother's experts from

testifying at that pretrial hearing, and (3) erred in admitting

at trial the children's hearsay statements (divulged at the § 82

hearing) regarding matters other than sexual abuse. Although we

decline the mother's invitation to read into the statute a

prohibition against the same judge presiding over both a § 82

hearing and the trial to which it pertains, and reject her

argument that the trial judge was biased in this case, we

conclude that the judge erred in limiting the mother's ability

to introduce expert testimony at the § 82 hearing to expert

witnesses who had treated the children. As the error was not

harmless and the hearsay evidence admitted through the § 82

process was essential to the judge's ultimate termination of the

mother's parental rights, we are constrained to vacate the

decrees.

1. Background. a. The investigations. We summarize the

relevant facts from the judge's comprehensive and detailed

findings, reserving certain facts for later discussion. On May

3

13, 2013, the Department of Children and Families (department)

filed an emergency petition seeking care and protection of

Iliana (born in 2005) and Susan (born in 2011), based on

allegations that Iliana had been physically abused and neglected

by the mother and Susan's biological father (father).2 The

department was granted temporary custody of both children; the

children were placed in foster care.3

b. The children. i. Iliana. In September 2013, while

the children were in foster care, a G. L. c. 119, § 51A, report

(51A report) was filed with the department that alleged neglect

and sexual abuse of Iliana;4 both the mother and the father

"vehemently denied" the allegations. The department doubted the

2 Susan's biological father has no parental rights as to

Iliana. On October 25, 2017, during the § 82 hearing, he

stipulated to a finding of unfitness and the termination of his

parental rights as to Susan, and he is not part of this appeal.

In addition, the mother informed the department of the name of

Iliana's biological father, but his name did not appear on

Iliana's birth certificate. Iliana's putative father contacted

the department by letter in June 2014, but did not participate

in the proceedings, and any parental rights he may have had as

to Iliana were terminated after trial on the merits. He also is

not part of this appeal.

Our use of "father" in this opinion refers to Susan's

biological father only.

3 In November 2013, Susan was reunited with her parents;

however, one year later, the department again removed Susan from

the parents after Iliana alleged sexual abuse by the father.

4 The father was not at that time alleged to have

perpetrated the sexual abuse.

4

allegations, and apparently credited the mother when she said

that Iliana made up stories, which the mother attributed to

Iliana's exposure to explicit Spanish-language soap operas

(telenovelas). After a department investigation, the

allegations were unsupported.

In November 2013, eight year old Iliana was referred to an

individual therapist; she met with the therapist in her foster

home once or twice each week until December 2014. Iliana

gradually made descriptive disclosures of sexual abuse to the

therapist.5

In February 2014, as a result of Iliana's disclosures to

her therapist, Dr. Heather Forkey conducted a physical

examination to determine whether Iliana had been the victim of

sexual abuse. Dr. Forkey opined, and the judge found credible,

that Iliana's genital examination revealed "evidence of repeated

and/or severe penetrating trauma" to Iliana's hymen consistent

with sexual abuse, "possibl[y] [by] multiple people." After

5 Iliana first disclosed to her therapist that she was on

occasion sexually assaulted and raped by the father and other

men, including by a boarder who lived with Iliana and her

family. She stated that the father allowed her to go off with

other men and that she was taken to a "brown house" where the

men touched her chest and vaginal area, and that one man kept

her underwear. She also disclosed that when she was living in

Ecuador (from September 2011 to February 2013), her grandmother

would send her out, wearing a skirt, with an older man who used

different objects to penetrate her, which included putting his

fingers inside her. During therapy sessions, Iliana drew

pictures of the men who sexually abused her.

5

this examination, another 51A report was filed alleging neglect

by the mother and father and sexual abuse by an unknown

perpetrator.

As trust developed between Iliana and her therapist, Iliana

revealed additional details about the sexual abuse she had

experienced, including the fact that the father was one of her

abusers, and that his abuse had begun when Iliana was only four

years old. Iliana disclosed to her therapist that the father

"touched [her] everyday and it hurt," and that on at least one

occasion, the father was "inside of [her]," "having sex with

[her]." Shortly after making detailed disclosures to the

therapist about the father's sexual abuse, Iliana had to be

hospitalized. Around this time, Iliana made similar disclosures

of sexual abuse to her foster mother. Ultimately, the

department concluded that Iliana had, in fact, been sexually

abused by the father.

ii. Susan. Susan also made spontaneous statements of

sexual abuse by the father. Two 51A reports were filed by two

different mandated reporters: in December 2015, four year old

Susan disclosed to her foster mother that she showered together

with the mother and the father;6 in March 2016, she disclosed to

her foster father that the father had touched her "soft[ly]"

6 As a mandated reporter, the foster mother filed with the

department a 51A report alleging sexual abuse of Susan.

6

"down there" while pointing to her vagina.7,8 Dr. Forkey

conducted three separate forensic examinations of Susan in

February and September 2014, and April 2016. Dr. Forkey did not

observe any scarring from penetration trauma, but did not rule

out occurrences of sexual abuse or penetration. Melanie Milde,

a licensed social worker and independent child trauma evaluator,

met with Susan for four one-hour sessions -- twice in December

2016 and twice in January 2017. During those sessions, in

conversation accompanied by Susan's drawings and independent

doll play, Susan revealed to Milde that she got "hit a lot" by

the mother and the father and that she was sometimes afraid of

them.9 In their fourth session, Susan disclosed to Milde that

the father went into the shower with her with no clothes on and

that "[she did]n't look at his privates, but he look[ed] at

[hers]."

c. Section 82 hearing. In September 2017, anticipating a

hearing on the merits of the care and protection petition, the

department moved to admit the children's out-of-court statements

7 As a mandated reporter, the foster father filed a 51A

report with the department, alleging sexual abuse of Susan.

8 Susan did not disclose any sexual abuse allegations during

her Sexual Assault Intervention Network interview.

9 Milde stated that her technique in evaluating children was

to be quiet and not to ask too many questions, and to let the

child talk freely.

7

regarding sexual abuse by the father. See G. L. c. 233, § 82.10

The mother vigorously opposed the motion.11 On seven

nonconsecutive days between October 16 and November 1, 2017, the

judge held the evidentiary hearing required under § 82, to

determine the admissibility of the children's hearsay

statements.12

At the outset of the hearing, the judge specifically stated

that the focus of the hearing was to obtain "testimony regarding

10As we discuss in more detail infra, G. L. c. 233, § 82,

creates an exception to the hearsay rule for out-of-court

statements made by a child under ten years of age describing

sexual contact with the child, provided the proponent of the

hearsay establishes that the child is "unavailab[le]" and the

statements are reliable.

11Although the mother initially rejected Iliana's reports

of being sexually abused, once informed of Dr. Forkey's

findings, the mother indicated that she believed that Iliana had

been raped. The mother, however, refused to believe that the

father or their boarder were the perpetrators of Iliana's abuse

(see note 5, supra); in fact, as the judge found, "there were

endless obsessive efforts by [the mother] to prove [Iliana] was

lying when she reported" that the father and the boarder had

raped her.

12Prior to the start of the § 82 hearing, in accordance

with Adoption of Olivette, 79 Mass. App. Ct. 141, 154-155

(2011), the judge conducted an individual voir dire with Iliana

in which the judge found Iliana to be highly intelligent,

articulate, and organized in her responses, and concluded that

she demonstrated a clear understanding of the need to tell the

truth. The judge did not conduct an individual voir dire with

Susan because she was "easily distracted, and fidgety"; however,

the judge observed the two children together and how Susan

interacted with Iliana. All counsel and the mother (the father

was not present) listened to the recording of the voir dire

prior to the start of the § 82 hearing.

8

[the children's] availability and reliability." She also

instructed the parties that "consistent with [G. L. c. 233,

§ 82,] . . . [a testifying expert witness] must be a treating

clinician" (emphasis added), advising them that she would "not

be taking expert testimony from any witness who ha[d] never met

the child[ren], seen the child[ren], evaluated the child[ren],

assessed the child[ren], or treated the child[ren]." Later, the

judge characterized the treating relationship of a testifying

expert as a "statutory requirement[]" and a "statutory mandate,"

and repeated that she would adhere strictly to the statute's

requirement that only treaters could provide expert testimony

about the children's reliability and availability. The judge

made other, similar rulings during the hearing, as we discuss

infra, in rejecting the mother's proffer of expert testimony.

During the hearing, the department was permitted to call

nine testifying witnesses, including laypeople to whom the

children had disclosed being sexually abused,13 and two experts,

Dr. Forkey and Milde, each of whom had personally examined or

evaluated Iliana or Susan. Although the mother sought to call

two additional expert witnesses to testify on issues of Iliana's

and Susan's availability and reliability, the judge declined to

13Those witnesses included the children's foster parents,

Iliana's former foster mother, Iliana's therapists, and Susan's

therapist and trauma evaluator.

9

allow the proffered witnesses to testify on the grounds that

they did not have a relationship with either child.14 The judge

precluded Dr. Eli Newberger, a physician and expert on child

abuse, from testifying at the § 82 hearing to critique the

department's experts' methodology because he had "never met,

evaluated, treated or assessed the child[ren] as is required by

the statute."15 Additionally, as to both Dr. Newberger and the

mother's second expert, Dr. Caroline Clauss-Ehlers,16 the judge

determined that "neither witness could testify to the time,

clarity or circumstances of the child's statements, or to the

child's psychological functioning" as required by G. L. c. 233,

§ 82.17

14 The judge noted that the proffered witnesses "have never

seen the child . . . . They've never talked to the child. . . .

They've never evaluated the child. They've never treated the

child."

15This evidence would have gone to the issue of the

children's availability.

16A practicing psychotherapist and associate professor at

Rutgers University, Dr. Clauss-Ehlers was expected to testify to

the effect of telenovelas on Iliana's reliability.

17Although the judge expressed well-founded reservations

about the relevancy of Dr. Clauss-Ehlers's testimony in light of

the limited evidence that Iliana had actually seen the

telenovelas about which Dr. Clauss-Ehlers was offered to

testify, the judge's findings are clear that, "[m]ost

importantly" in her view, Dr. Clauss-Ehlers had never met or

treated Iliana.

10

Ultimately, the judge determined that Iliana's and Susan's

statements satisfied the requirements of § 82 for admission at

trial; the judge deemed the children unavailable due to the

traumatic effect testifying at trial would have on their

psychological and emotional well-being, and concluded that their

respective statements were reliable. The case then proceeded to

a trial on the merits before the same judge; the judge's

thorough written findings of fact and rulings of law regarding

the admissibility and reliability of the children's statements

that described the allegations of sexual abuse made by the

children were admitted as the first trial exhibit. Although the

mother proffered Dr. Clauss-Ehlers as a trial expert regarding

"availability and reliability" of the children's hearsay

statements, the judge declined to allow Dr. Clauss-Ehlers to so

testify on the grounds that the witness did not "meet the

statutory criteria to be allowed to testify to that [issue]

because she never met the child"18 and "the [child's] statements

[were] in [evidence]." At the conclusion of the trial, the

judge found the mother unfit to parent the children, and

18The judge informed the mother at the beginning of the

trial that the § 82 findings were admitted as an exhibit, that

the judge could rely on them at trial, and that "[n]othing

prejudices the mother's case if [she's] allowed to have any of

those witnesses [that testified at the § 82 hearing] come back

[and testify at the trial] and [the mother could] further cross

examine them."

11

terminated her parental rights; with respect to Susan only, the

judge ordered posttermination and postadoption visitation of two

visits per year. The mother timely appealed.

2. Discussion. a. Section 82 expert testimony. We turn

first to the mother's argument that the judge erred in not

allowing her to present expert testimony at the § 82 hearing to

challenge the department's evidence of the children's

unavailability and reliability. The mother contends that the

judge misinterpreted G. L. c. 233, § 82, when she concluded that

the statute limited the mother's expert witnesses to clinicians

who had "treated" either or both of the children. We agree that

the judge's interpretation of the statute was incorrect. "We

review questions of statutory interpretation de novo." Meikle

v. Nurse, 474 Mass. 207, 209 (2016), quoting Commerce Ins. Co.

v. Commissioner of Ins., 447 Mass. 478, 481 (2006).

"Section 82 of c. 233 of the General Laws is one of a trio

of statutes enacted by St. 1990, c. 339, creating exceptions to

the hearsay rule for out-of-court statements of a child under

12

ten years of age describing sexual contact with the child."19,20

Adoption of Olivette, 79 Mass. App. Ct. 141, 146 (2011). See

G. L. c. 233, § 82 (a). The proponent of a child's hearsay

statement of sexual abuse "bears the burden of showing the

necessity for admitting the out-of-court statement by

establishing the declarant's unavailability to testify during

the trial." Commonwealth v. Colin C., 419 Mass. 54, 63 (1994)

(analyzing G. L. c. 233, § 81). See Adoption of Quentin, 424

Mass. 882, 892 (1997) ("The requirements outlined in § 82 are

analogous to § 81"). The statement "shall be admissible"

provided "that [it] is offered as evidence of a material fact

and is more probative on the point for which it is offered than

any other evidence which the proponent can procure through

reasonable efforts." G. L. c. 233, § 82 (a).

19Section 81 of G. L. c. 233 governs the admission of

hearsay statements of child victims in criminal matters; G. L.

c. 233, § 83, governs the admission of such statements in foster

care and care and protection proceedings. See Adoption of Tina,

45 Mass. App. Ct. 727, 732-734 (1998) (findings concerning

admissibility of child's hearsay statements should comply with

stricter requirements of statute governing admissibility of

hearsay in proceedings to dispense with parental consent to

adoption).

20Although Iliana was twelve years old at the time of the

§ 82 hearing and trial at issue here, both Iliana and Susan were

under the age of ten when they made their respective sexual

abuse disclosures. See Adoption of Daisy, 460 Mass. 72, 77

(2011) ("out-of-court statements of a child under the age of

ten" means statements made by child "before they were ten years

of age" describing their sexual abuse).

13

In order to have admitted the children's statements in this

case regarding occurrences of sexual abuse by the father, the

department (as the proponent) had the burden first to

demonstrate that the children were "unavailab[le]" as witnesses

at trial. G. L. c. 233, § 82 (b).21 "A finding of

unavailability shall be supported by specific findings on the

record, describing facts with particularity, demonstrating that

21 General Laws c. 233, § 82 (b), provides:

"The proponent of [an out-of-court] statement [of a child

under the age of ten describing any act of sexual contact

performed on or with the child] shall demonstrate a

diligent and good faith effort to produce the child and

shall bear the burden of showing unavailability. A finding

of unavailability shall be supported by specific findings

on the record, describing facts with particularity,

demonstrating that:

"(1) the child is unable to be present or to testify

because of death or existing physical or mental illness or

infirmity; or

"(2) by a ruling of the court, the child is exempt on the

ground of privilege from testifying concerning the subject

matter of such statement; or

"(3) the child testifies to a lack of memory of the subject

matter of such statement; or

"(4) the child is absent from the hearing and the proponent

of such statement has been unable to procure the attendance

of the child by process or by other reasonable means; or

"(5) the court finds, based upon expert testimony from a

treating psychiatrist, psychologist, or clinician, that

testifying would be likely to cause severe psychological or

emotional trauma to the child; or

"(6) the child is not competent to testify."

14

[as relevant here]: . . . (5) the court finds, based upon

expert testimony from a treating psychiatrist, psychologist, or

clinician, that testifying would be likely to cause severe

psychological or emotional trauma to the child" (emphasis

added). G. L. c. 233, § 82 (b) (5). The department called as

witnesses two of the children's treating clinicians whom the

judge qualified as experts; the judge relied upon this evidence,

as she was permitted to do. See G. L. c. 233, § 82 (c).

Although § 82 (b) (5) requires expert testimony from a

treating clinician in order to establish a child's

unavailability based on the traumatic effect of the child being

required to testify, nothing in § 82 limits a party challenging

a child witness's claim of unavailability to evidence presented

through a "treating psychiatrist, psychologist, or clinician,"

nor does it require that the opposing expert have any

relationship with the child. G. L. c. 233, § 82 (b) (5), (c)

(i). See Adoption of Daisy, 460 Mass. 72, 77 (2011) ("We do not

read into the statute a provision which the Legislature did not

see fit to put there, nor add words that the Legislature had an

option to, but chose not to include" [quotation omitted]).

While a judge could certainly consider the existence and nature

of any relationship between the child and an opposing expert in

assessing the weight of the opposing expert's testimony, see

Adoption of Olivette, 79 Mass. App. Ct. at 150 (deference

15

accorded to judge's assessment of weight of evidence at § 82

hearing), those factors were not statutory disqualifiers for the

mother's proffered experts.22 See G. L. c. 233, § 82 (b) (5),

(c) (i). In ruling that they were, and on that basis precluding

the mother from calling her expert witnesses, the judge

misinterpreted the statute, which was an error of law.23 See

Adoption of Ilona, 459 Mass. 53, 59 (2011) (termination of

parental rights reviewed for clear error of law or abuse of

discretion).

Although the department's evidence as to unavailability and

reliability of each child was strong, we cannot conclude that

the mother's expert testimony, if credited, would have been

22At the oral argument in this case, the department agreed

to this application of the statute, but argued that the judge

did not rely on this interpretation of the statute in excluding

the testimony of the mother's experts. We disagree, given the

judge's express statement in footnote one of her § 82 findings,

that the testimony must be excluded because the mother's "expert

[had] never met, treated, evaluated or assessed the child as is

required by the statute." It is clear that the overriding basis

for precluding the mother's experts was the judge's erroneous

belief that the statute required her to do so. We emphasize,

however, that the judge retained the discretion to exclude the

testimony on other, case-specific grounds, including relevance.

See, e.g., Palandjian v. Foster, 446 Mass. 100, 104 (2006) ("The

decision to exclude expert testimony rests in the broad

discretion of the judge").

23To the extent that the judge's rulings on this point

raise due process concerns, we need not, and do not, address

them.

16

ineffective in challenging it;24 the error in excluding that

evidence was therefore prejudicial.

The judge's findings and rulings of law on the

admissibility of the children's hearsay statements describing

allegations of sexual abuse were admitted at trial, over the

mother's objection, and the judge relied on them in finding the

mother unfit and terminating her parental rights. The

children's hearsay statements were the only evidence identifying

the father as their sexual abuser; without that evidence, the

judge's finding of the mother's unfitness was not sufficiently

supported. Because the judge's conclusion that the mother

cannot adequately protect the children from the father is based

on errors of law, the decrees must be vacated.25 See Adoption of

Yale, 65 Mass. App. Ct. 236, 240 (2005) (vacating decree

terminating parental rights where findings did not support

conclusion that mother was unfit).

24The mother made offers of proof that (1) she could

present evidence that Iliana watched telenovelas before her

reports of abuse were made; (2) Dr. Clauss-Ehlers would testify

that those telenovelas influenced Iliana, affecting the

reliability of her reports; and (3) Dr. Newberger would testify

concerning Iliana's availability.

25This was not the only basis on which the judge relied in

terminating the mother's parental rights, but the children's

hearsay testimony was a factor in most, if not all, of the other

bases on which the judge relied.

17

b. Alleged bias.26 Although our conclusion that the

children's hearsay statements were improperly admitted requires

that we vacate the decrees in this case, it does not bar

relitigation of the mother's parental rights. See Adoption of

Jacqui, 80 Mass. App. Ct. 713, 719 (2011) (father granted new

trial on termination of parental rights based on violation of

due process rights). As a practical matter, the mother's

challenges to the permissibility of having the same judge

preside over both the § 82 hearing and any subsequent trial are

likely to arise in any later proceedings in this case;

accordingly, we take the opportunity to address them. See

Kitras v. Aquinnah, 64 Mass. App. Ct. 285, 296 (2005) (because

of remand, "joinder issue is likely to arise again").

26 The mother's arguments on appeal that she was denied a

fair trial because the judge's impartiality must necessarily

have been compromised by the judge's having presided over the

§ 82 hearing that preceded the trial, or by the judge's personal

bias, were not preserved below. We generally do not consider a

claim of bias raised for the first time on appeal. "A party

having knowledge of facts possibly indicating bias or prejudice

on the part of an arbitrator, referee, juror or other person

having similar functions cannot remain silent and thereafter on

that ground successfully object to the decision" (quotation and

citations omitted). Doucette v. Massachusetts Parole Bd., 86

Mass. App. Ct. 531, 534-535 (2014). Although the argument is

waived, see Adoption of Willow, 433 Mass. 636, 651 (2001);

Adoption of Mary, 414 Mass. 705, 712 (1993), the particular

facts of this case persuade us to consider it. See Adoption of

Norbert, 83 Mass. App. Ct. 542, 545 (2013) ("given the serious

nature of the case, coupled with the fact that due process

governs these proceedings, we believe that it is appropriate to

consider the issue").

18

We are not persuaded by the mother's arguments. We are

aware of no authority that imposes an automatic or general

prohibition against the same judge's presiding over both a § 82

hearing and the trial of the same case -- indeed, the mother

concedes that no such authority exists -- and we decline to

create such a rule. In doing so, we would be invading

unnecessarily into the province of the trial court's

administration and imposing an unreasonable and impractical

burden on it.

The trial judge is presumed to be a neutral arbiter in any

matter before him or her, regardless of whether the judge has

previously been involved with the parties, the issues, or the

case. See Jenkins v. Chief Justice of the Dist. Court Dep't,

416 Mass. 221, 244 n.40 (1993) (use of term "judicial" "connotes

the neutral nature of the official making the probable cause

determination"). The strict ethical constraints to which judges

are subject not only require a judge to examine his or her own

conscience for disqualifying bias, and to act accordingly, but

also obligate the judge to recuse himself or herself from any

matter in which "the judge's impartiality might reasonably be

questioned." S.J.C. Rule 3:09, Code of Judicial Conduct, Canon

2, Rule 2.11 (A) (1) (2016) ("A judge shall disqualify himself

or herself in a proceeding in which the judge cannot be

impartial or the judge's impartiality might reasonably be

19

questioned, including but not limited to [instances where] . . .

[t]he judge has a personal bias or prejudice concerning a party

. . ."). See Lena v. Commonwealth, 369 Mass. 571, 575 (1976)

(citing prior version of relevant section of Code of Judicial

Conduct). We decline to superimpose on the statute a

requirement, not present there, that a judge's conduct of a

hearing pursuant to G. L. c. 233, § 82, necessarily disqualifies

the judge from presiding over the trial of the case to which

that hearing relates.

With regard to the mother's concerns about the judge who

conducted the § 82 hearing and trial in this challenging case,

we are likewise unpersuaded. The mother explicitly concedes

that there is no evidence of bias in the judge's findings based

on the § 82 hearing in this case, but points to a single excerpt

from the record as evidence that the judge was "predisposed to

rule against Mother, based on . . . the testimony she heard

during the § 82 hearing." We perceive no suggestion of bias in

the passage to which the mother directs us.27 See Demoulas v.

Demoulas Super Mkts., Inc., 424 Mass. 501, 524-525 (1997),

quoting Haddad v. Gonzales, 410 Mass. 855, 863 (1991) (judge's

27We read that passage to be the judge's effort to contrast

for the mother the risks and benefits of trial as a way of

highlighting the value of the available mediation services. Far

from expressing bias, the judge acknowledged the mother's

interest in going to trial and her right to do so.

20

impressions may properly carry over from one proceeding to

another provided they were "acquired . . . in [her] judicial

role and not from an extrajudicial source"). See also Demoulas,

supra at 525, quoting Liteky v. United States, 510 U.S. 540, 551

(1994) ("opinions held by [a judge] as a result of what [the

judge] learned in earlier proceedings" are not properly

characterized as bias or prejudice). The judge's comments

during the § 82 hearing, including those highlighted in the

mother's brief, emphasize the judge's appropriate concerns for

the efficient litigation of the case and her interest in

confirming that the mother understood the potential effects of

the strategic choices that she made during the § 82 hearing and

subsequent trial.28

c. Hearsay beyond § 82 exception. The mother's final

challenge on appeal is to the judge's admission at trial of

certain hearsay statements by the children which did not

describe sexual contact with them, and which were therefore not

28If the mother had any concerns about the judge's actual

bias or "predisposition," those concerns could have been

addressed through a motion to recuse the judge. See Adoption of

Norbert, 83 Mass. App. Ct. at 545-546 (deciding propriety of

motion to recuse in context of judge's termination of parental

rights). As the mother did not bring such a motion, we infer

that she was not concerned about the judge's bias until after a

decision had been rendered.

21

subject to the hearsay exception created by G. L. c. 233, § 82.29

The mother concedes, and we agree, that at trial, the statements

at issue were supported by other, independently admissible

evidence. To the extent that admission of any of the statements

that the mother challenges on this ground was error, the error

was harmless. See Adoption of Olivette, 79 Mass. App. Ct. at

156. As to the mother's argument that the admission of these

statements raises "grave concerns about the Court's

impartiality," for the reasons we have discussed supra, we are

unpersuaded.

3. Conclusion. We vacate the decrees and remand for

further proceedings in accordance with this opinion. The

judge's findings, as they relate to the sexual abuse of the

children, are struck.

So ordered.

Such statements include, for example, the children's

29

hopes for the outcome of the case, view of the father, and

references to domestic violence between the mother and father

and of physical abuse of the children; and Iliana's contact with

a "coyote" (a man with whom the mother sent Iliana to Ecuador).

See note 5, supra.