Adoption of Daisy.1

• Decision Date: 20 June 2011
• Docket Number: SJC–10889.
• Citation: 948 N.E.2d 1239,460 Mass. 72
• Parties: ADOPTION OF DAISY.1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 72

948 N.E.2d 1239

ADOPTION OF DAISY.1

SJC–10889.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 8, 2011.Decided June 20, 2011.

Henry C. Porter for the mother.Muriel Ann Finnegan for Department of Children and Families.Roberta Mann Driscoll for the child.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.GANTS, J.

The Department of Children and Families (department) filed a petition under G.L. c. 119, § 24, alleging that Daisy was a child in need of care and protection.² After trial, a judge in the Juvenile Court concluded that Daisy was a child in need of care and protection and dispensed with the need for her parents' consent to adoption, guardianship, custody, or other disposition of the child pursuant to G.L. c. 119, § 26, which effectively terminated the parents' rights. Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696, 698, 467 N.E.2d 861 (1984). Only the mother appealed. The Appeals Court affirmed, holding that “the judge was well-justified in concluding that it was in the best interests of Daisy that the parental rights of the mother be terminated.” Adoption of Daisy, 77 Mass.App.Ct. 768, 784, 934 N.E.2d 252 (2010). We granted the mother's application for further appellate review but limited our review to a single issue: whether G.L. c. 233, § 82, which in certain circumstances allows the admission in evidence in a civil proceeding of “out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child,” applies where the child was under the age of ten when she made the statements but ten years of age or older at the time of trial. We conclude that the statute applies where the child was under the age of ten when she made the statements, regardless of her age at the time of trial.

Background. Because the factual background of this case is carefully detailed in the Appeals Court's opinion, Adoption of Daisy, supra at 769–777, 934 N.E.2d 252, and because we have limited further appellate review to a single issue of statutory interpretation, we briefly summarize the facts as found by the judge. When Daisy was nine years of age, she reported to a school social worker that her father had been repeatedly sexually abusing her; the social worker filed a report of abuse. After this first revelation, while still nine years of age, she told at least three other persons of the sexual abuse her father inflicted on her: the program director of the residential program she attended, a court-appointed investigator, and a clinician specializing in trauma evaluation. The mother refused to believe Daisy's allegations against the father. The department removed Daisy to a foster home, but her mother visited on an “every other week” schedule. In December, 2007, Daisy stated that she no longer wanted to visit with her mother after the mother's repeated failure to believe Daisy's accounts of the father's sexual abuse. Daisy never resumed the visits with her mother.

In August and September, 2008, when Daisy was eleven years of age, the judge conducted a hearing under G.L. c. 233, § 82, regarding the admissibility of the out-of-court statements that Daisy made before she was ten years of age describing her sexual abuse. Relying on the testimony of an expert who provides clinical treatment to children traumatized by sexual abuse, the judge found that Daisy was “unavailable” as a witness under § 82 ( b ) (5) because “testifying as a witness would likely cause severe psychological or emotional trauma.” The judge held under § 82 ( c ) that Daisy's out-of-court statements “were made under circumstances inherently demonstrating a special guarantee of reliability,” finding that each of the four witnesses had documented her statements to him or her; that the clarity of each statement was “unequivocal” and the meaning was “direct, straightforward and unambiguous”; that the time and circumstances of disclosure made each statement reliable; that there was sufficient corroborative evidence of the substance of her statements; and that Daisy was “sincere and genuine” when she made each statement. The judge ruled that the statements could be admitted as substantive evidence under § 82 at the parental termination of rights trial, which began in September, 2008, and concluded in October, 2008. Daisy did not testify at trial.

Discussion. Under G.L. c. 233, § 82, the “out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child ... shall be admissible as substantive evidence” in a civil proceeding (except those brought under G.L. c. 119, § 23 or § 24), where the statement is offered as evidence of material fact and is more probative on the point than any other evidence the proponent can procure through reasonable efforts; the person who heard the statement testifies; the child is unavailable as a witness as defined in § 82 ( b ); and the statement is reliable, as defined in § 82 ( c ). The full text of § 82 appears below.^3,4 Because Daisy was the age of eleven years when these statements were admitted at trial, we must consider the meaning of the phrase, “out-of court statements of a child under the age of ten.” Daisy's out-of-court statements are properly admissible under § 82 only if this clause refers to the age of the child at the time the statements are made rather than to the age of the child at the time the statements are offered in evidence at trial.

In interpreting a statute, we look first to its language as the “principal source of insight into legislative intent.” Water Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744, 920 N.E.2d 33 (2010), quoting Providence & Worcester R.R. v. Energy Facilities Siting Bd., 453 Mass. 135, 142, 899 N.E.2d 829 (2009). Where the meaning of the language is plain and unambiguous, we will not look to extrinsic evidence of legislative intent “unless a literal construction would yield an absurd or unworkable result.” Boston Hous. Auth. v. National Conference of Firemen & Oilers, Local 3, 458 Mass. 155, 162, 935 N.E.2d 1260 (2010). See Halebian v. Berv, 457 Mass. 620, 630, 931 N.E.2d 986 (2010). Where the meaning of a statute is not plain from its language, we consider the “cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” DiFiore v. American Airlines, Inc., 454 Mass. 486, 490, 910 N.E.2d 889 (2009), quoting Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364, 326 N.E.2d 1 (1975).

Applying that standard of statutory interpretation, we believe that it is adequately clear, albeit not perfectly clear, that the phrase, “out-of-court statements of a child under the age of ten,” means statements made out-of-court by a child who was under the age of ten.⁵ The alternative interpretation argued by the mother—that the phrase means statements made by a child who is under ten at the time the statement is offered in evidence—adds language to the statute that the Legislature chose not to include. “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.” Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 126, 842 N.E.2d 926 (2006).

Because the meaning of the language is not crystal clear, we consider whether our interpretation of the statute is consistent with its purpose, which we have earlier characterized as striking a “balance between the parents' due process right to rebut evidence and the State's need to protect children.” Adoption of Quentin, 424 Mass. 882, 892, 678 N.E.2d 1325 (1997). We conclude that it is consistent. Because the out-of-court statement of a child declarant is fixed in time and precedes the admission of the statement in evidence, this interpretation protects all children who describe their sexual abuse before they were ten years of age, no matter how long it takes before the sexual abuse becomes the subject of a civil proceeding. It also protects young children from the risk that a delay in the investigation or trial of a sexual abuse case may render inadmissible their out-of-court statements, and it eliminates a sexual abuser's incentive to delay the trial to prevent the admission of the child's damaging hearsay statements. Finally, this interpretation also protects young children from a dilemma that Daisy may have faced had the judge adopted the mother's interpretation—either testify and endure the psychological or emotional trauma that likely will result from testifying in court, or avoid the trauma of testifying and endure the psychological or emotional trauma that likely will result if the parent's abuse cannot be proved and the child returns to the custody of the abusive parent.

The mother argues that this interpretation of § 82 must be rejected because it will lead to the “absurd result” that hearsay statements made by a child under ten years of age may be admitted in evidence even though the child at the time of trial is substantially older, perhaps sixteen or seventeen years of age. We do not believe this result is absurd, because the hearsay statements will only be admissible under § 82 if the...