author: VUONO, J.

text:
    COMMONWEALTH v. Walter CRAYTON.
    No. 17-P-431
    Appeals Court of Massachusetts, Middlesex..
    Argued December 13, 2017 Decided May 23, 2018
    David B. Hirsch, for the defendant.
    Timothy Ferriter, Assistant District Attorney, for the Commonwealth.
    Present: Vuono, Sullivan, & Massing, JJ.
   VUONO, J.

A Middlesex County grand jury returned two indictments charging the defendant, Walter Crayton, with possession of child pornography in violation of G. L. c. 272, § 29C. He was charged as a subsequent offender and, therefore, he faced imprisonment for "not less than five years." G. L. c. 272, § 29C(vii).

The charges stemmed from the defendant's viewing of child pornography on a computer at the Central Square branch of the Cambridge Public Library on January 21, 2009. He was convicted on both indictments and the subsequent offender portion of the first indictment following a bifurcated trial. See G. L. c. 278, § 11A. The convictions were vacated and a new trial ordered by the Supreme Judicial Court because, among other reasons, the admission of two in-court showup identifications resulted in unfair prejudice. See Commonwealth v. Crayton, 470 Mass. 228, 21 N.E.3d 157 (2014) ( Crayton I ). A new trial was conducted in 2015. The defendant was again convicted of the underlying offenses by a jury, after which a separate jury convicted him of the second and subsequent offense portion of the first indictment.

In this appeal, the defendant claims that he is entitled to a new trial because the trial judge erred in (1) allotting to each side six peremptory challenges instead of fourteen in connection with the first phase of the trial; (2) admitting in evidence an in-court identification of him by a library employee; and (3) imposing an allegedly harsher sentence than the one imposed following his first trial, in violation of his right not to be placed in double jeopardy.

We agree with the defendant that he was deprived of eight peremptory challenges to which he was entitled during the first phase of the trial. Because fourteen jurors were seated pursuant to Mass.R.Crim.P. 20(d)(1), 378 Mass. 889 (1979) ( rule 20 ), and the defendant was charged with a "crime punishable by imprisonment for life," rule 20(c)(1), he was entitled to fourteen peremptory challenges. Commonwealth v. Berardi, 88 Mass. App. Ct. 466, 469-470, 38 N.E.3d 765 (2015) ( Berardi ). Where, as here, the error was preserved, a new trial is required. In light of our conclusion, we briefly address the defendant's remaining claims, as those issues may arise in any retrial.

Background. The factual basis for the indictment is described in detail in Crayton I, 470 Mass. at 230-233, 21 N.E.3d 157, and need not be repeated here. What follows are the facts surrounding the defendant's exercise of peremptory challenges at his retrial. At the beginning of the first phase of the trial, the defendant requested twelve peremptory challenges, or more, depending on the number of jurors seated. Although the Commonwealth agreed that the defendant was entitled to additional peremptory challenges, the judge nonetheless denied the request and allotted each side six peremptory challenges for a jury of fourteen (twelve plus two alternates). The defendant objected and renewed his objection during the empanelment process when, after having exercised five peremptory challenges, he sought additional challenges to exclude Jurors nos. 50, 61, and 48. Trial counsel's reasons for wanting to exclude these three jurors were as follows.

Juror no. 50, a Baptist minister, hesitated when asked whether he would be willing to look at the evidence in order to decide whether it constituted pornography. When trial counsel asked the judge to inquire further, she refused to do so. Trial counsel objected to the denial of her request, but she did not request that Juror 50 be excused for cause. Juror no. 61 worked at a university and was employed as a librarian. As she had with Juror no. 50, trial counsel asked the judge to inquire further, specifically indicating her concern that the juror's "role as a librarian" would affect her ability to be fair and impartial in light of the fact that the offenses allegedly occurred in a library. This request was similarly rebuffed. Lastly, as to Juror no. 48, trial counsel observed that the juror's brother was a law enforcement officer and, although Juror no. 48 ultimately stated that he would not believe a police officer over another witness, he also stated that he trusted his brother.

Trial counsel expressed her concern over Juror no. 48's ability to remain impartial and reiterated her position that she would exclude all three jurors if she could. The defendant then used his sixth and last peremptory challenge to remove Juror no. 50, the Baptist minister. Jurors nos. 61 and 48 remained seated. When the judge asked the parties whether they were content with the jury, the prosecutor responded affirmatively, but trial counsel stated, "I don't have any more challenges." When pressed by the judge ("So you're content?"), trial counsel stated twice more that she was out of challenges, requested extra challenges, and explained her reasons.

After the verdict was returned, a second jury was empanelled for the second phase of the trial and the judge allotted each side fourteen peremptory challenges.

Discussion. 1. Peremptory challenges. The outcome of this case is controlled in all material respects by our decision in Berardi. In Berardi, we held that a defendant who faced a mandatory minimum sentence of five years, with no specified maximum sentence because he was charged as a subsequent offender, is presumed to face "imprisonment for life" and was entitled under rule 20 to "twelve peremptory challenges of the jurors called to try the case ... [plus] one additional peremptory challenge for each additional juror" for the first phase of the trial. 88 Mass. App. Ct. at 469-470, 38 N.E.3d 765. Berardi, a registered sex offender, was indicted for knowingly providing false information on a registration form, in violation of G. L. c. 6, § 178H(a ). He was allotted only five peremptory challenges for the trial on the underlying offense, even though thirteen jurors were empanelled and the judge intended to use the same jury for both phases of the bifurcated trial. Despite the "magnitude of th[is] error," we did not reverse the conviction because Berardi (1) had not preserved the error, and (2) failed to show that he did not receive a fair and impartial jury. Berardi, supra at 474, 38 N.E.3d 765. Berardi used all of his peremptory challenges, but he did not challenge the judge's determination that each seated juror was indifferent. Id. at 472-473, 38 N.E.3d 765.

"Although the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution guarantee the right to be tried by an impartial jury, there is no Federal or State constitutional right to exercise peremptory challenges." Commonwealth v. Mello, 420 Mass. 375, 396, 649 N.E.2d 1106 (1995). Rather, "peremptory challenges are a creature of statute," and, thus, a defendant is deprived of his constitutional right to an impartial jury "only if [he] does not receive that which state law provides." Ross v. Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

Here, at the time of the defendant's retrial, State law provided that "[n]o irregularity in ... [the] impanelling of jurors shall be sufficient to set aside a verdict, unless the objecting party has been injured thereby or unless the objection was made before the verdict." Berardi, 88 Mass. App. Ct. at 473, 38 N.E.3d 765, quoting from G. L. c. 234, § 32. As we explained in Berardi, "[n]o prejudice need be shown if the defendant timely objects before the verdict or if [his] 'exercise of a peremptory challenge is erroneously denied and the challenged juror is seated on the panel and participates in deciding the case.' " Ibid., quoting from Commonwealth v. Bockman, 442 Mass. 757, 763, 817 N.E.2d 717 (2004).

The defendant in the present case objected multiple times to the reduced number of peremptory challenges and asked for additional ones. When his requests were denied and he had only one remaining challenge, he set forth his reasons for eliminating three potential jurors. Two of these jurors then were seated after he had exhausted his peremptory challenges. These factors mandate a result different from the one we reached in Berardi.

The Commonwealth seeks to distinguish Berardi on the ground that, only one jury was empanelled in that case, where here it was clear from the outset that the judge intended to empanel two separate juries. This argument is unavailing. Our decision in Berardi unequivocally requires that a defendant facing "imprisonment for life" as a subsequent offender be allotted an increased number of peremptory challenges at the first phase of the bifurcated proceeding. See Berardi, 88 Mass. App. Ct. at 470, 38 N.E.3d 765 (" Rule 20 does not operate differently in bifurcated trials nor does it apply only to the subsequent offender phase of a bifurcated trial"). The defendant faced the possibility of life imprisonment when he was placed at bar during the first phase of the trial, and he was entitled under rule 20 to additional peremptory challenges. Id. at 469-470, 38 N.E.3d 765. To hold otherwise would force a defendant to choose one jury for both phases of a bifurcated trial in order to receive the increased number of peremptory challenges. We agree with the defendant that such a result would be impracticable, potentially unfair, and inconsistent with rule 20 and G. L. c. 278, § 11A.

2. Issues for retrial. We briefly comment on the defendant's remaining claims.

a. Identification. In Crayton I, 470 Mass. at 241-242, 21 N.E.3d 157, the Supreme Judicial Court announced a new rule governing the admissibility of in-court identifications of a defendant by eyewitnesses who were present during the commission of the crime but had not participated before trial in an identification procedure. The rule states that such in-court identifications will be treated as an "in-court showup," admissible "only where there is 'good reason.' " Id. at 241, 21 N.E.3d 157. The defendant argues that the judge abused her discretion and ignored the new rule announced in Crayton I by allowing Ricardo Ricard, an eyewitness who was not present during the commission of the crime, and did not participate in any out-of-court identification procedure, to make an in-court identification of the defendant. We disagree.

Ricard was employed as a senior technician at the library where the offenses occurred. He testified that the defendant came to the library once or twice a week to use the computers. At times when there was a wait list, the defendant used the initial "W" to sign up to use a computer. Ricard did not see the defendant using a computer on January 21, 2009, but, after he was informed of an "incident" relating to the use of a certain computer, Ricard disabled the software on that computer and observed a folder on the computer labeled "W." That folder contained the child pornography the defendant was accused of possessing. Ricard made an in-court identification of the defendant as the same person who used the initial "W."

We agree with the Commonwealth that the new rule announced in Crayton I does not bar Ricard's in-court identification. The court explicitly stated that the new rule "shall apply only to in-court identifications of the defendant by eyewitnesses who were present during the commission of the crime." Crayton I, 470 Mass. at 242, 21 N.E.3d 157. The court did not address whether the new rule "should apply to in-court identifications of the defendant by eyewitnesses [like Ricard] who were not present during the commission of the crime but who may have observed the defendant before or after the commission of the crime." Id. at 242 n.17, 21 N.E.3d 157. In any event, the judge did not abuse her discretion in allowing Ricard's in-court identification. Although not required, see Commonwealth v. Galipeau, 93 Mass. App. Ct. 225, 232, 101 N.E.3d 955 (2018), the judge conducted a voir dire of Ricard, after which she properly determined there was "good reason" to allow an in-court identification because, based on his interactions with the defendant at the library, Ricard was "familiar with the defendant before the commission of the crime." Crayton I, supra at 242, 21 N.E.3d 157.

b. Sentencing. Following his first trial, the defendant was sentenced on the first indictment to serve from five years to five years and one day in State prison. On the second indictment, he was sentenced to from three years of probation to be served on and after the prison sentence imposed on the first indictment. As we have noted, following his convictions at the retrial, the second indictment was dismissed as duplicative. See Commonwealth v. Rollins, 470 Mass. 66, 70-75, 18 N.E.3d 670 (2014). Thus, in determining the appropriate sentence after the retrial, the second judge no longer had the option of imposing a term of probation. The judge imposed a sentence of from five to eight years in State prison, so that the defendant would receive supervision in the event he was paroled. As the judge explained, although the sentence "may be stricter," it provided the opportunity for supervision in the future. The sentence was affirmed by the Appellate Division of the Superior Court. Compare id. at 75, 18 N.E.3d 670 (appropriate remedy for duplicative convictions is to "vacate the duplicative convictions and remand for resentencing").

The defendant claims that he was subjected to double jeopardy because the sentence imposed after retrial was more severe than the one originally imposed. Assuming without deciding that the defendant received a harsher sentence after his retrial, the principle of double jeopardy is not implicated because the prior sentence did not come about as a "result of acquittal with respect to an essential element required for imposition of the harsher sentence." Commonwealth v. Jarvis, 68 Mass. App. Ct. 538, 541, 863 N.E.2d 567 (2007), citing Sattazahn v. Pennsylvania, 537 U.S. 101, 111-112, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). The issue is more properly framed as one concerning the question of judicial vindictiveness. See Commonwealth v. Hyatt, 419 Mass. 815, 823, 647 N.E.2d 1168 (1995) (the issue of judicial vindictiveness arises from a judge's imposition on reconviction of a sentence more severe than that imposed after the first trial). Under our common law, "when a defendant is again convicted of a crime or crimes, the second sentencing judge may impose a harsher sentence or sentences only if the judge's reason or reasons for doing so appear on the record and are based on information that was not before the first sentencing judge." Ibid. Although we discern no vindictiveness in the judge's decision to impose a five to eight year State prison sentence, we need not reach the merits of the defendant's claim. Even if we were to agree with the defendant, the proper remedy would be to vacate the sentence. Given our conclusion that a new trial is required, this effectively has already taken place.

Judgment reversed.

Verdict set aside.

      The Commonwealth filed a notice of nolle prosequi in relation to the subsequent offender portion of the second indictment following the return of the jury's verdict at the conclusion of the first phase of the trial.

      At sentencing, upon the Commonwealth's request, the second indictment was dismissed as duplicative, and the defendant was sentenced to from five to eight years in State prison.

      The judge asked Juror 50 whether he would be "willing to look at and to discuss with ... fellow jurors the trial exhibits, [which included] images of a sexually explicit nature involving children." Juror no. 50 responded, "That's a hard question, your Honor. I find it hard in that, you know, as a minister, as well, and having worked with children, I'm torn in that. I'm not sure if I can or not." Juror no. 50 continued, "Well, I'm physically capable of looking at them; how they would affect-you know, how-what my reaction would be, I don't, you know-or whether it would-"The judge interjected, "I'm not looking for what your reaction is. If you're willing to ... look at them and discuss them with your fellow jurors, that's what's necessary. Is that something you're willing to do?" Juror no. 50 stated, "I suppose I could do that, yes." The judge then asked, "You're willing to?" and Juror no. 50 responded, "I am willing to."

      Counsel expressed concern that Juror no. 61 was "going to see herself in that role when she's deliberating."

      When asked by the judge whether he would "use whatever factors you use in evaluating every witness's credibility" when evaluating the testimony of a police officer, Juror no. 48 responded, "Again, my brother's a cop; I trust him. I know that there are good, bad, everything. So I really-I'd have to see each person, individual. I can't really answer that now and say I'm not going to trust someone just because they're a police officer. I'm also not going to trust someone just because they claim to be telling the truth."

      Counsel stated: "Your Honor, I have three people I want to challenge. I'd ask for an opportunity to have extra challenges. And I can give you the reasons for each challenge." The judge stated, "I don't get to do that. You get six." Trial counsel objected and put on the record the following reasons for the challenges: "I would challenge Juror 50 in Seat No. 8. He's a Baptist minister who was very, very hesitant in whether he could view these. I would also-I would challenge ... Juror 61 in Seat No. 13, who is a librarian. I think, given the nature of this case and that it takes place in a library, that she would be challengeable. And I would challenge No. 48 in Seat No. 7, who has a brother who is a police officer and said he had a hard-he couldn't decide whether he could be impartial ... those would be the three that I would challenge if I were given three challenges."

      Berardi was decided approximately one month after the conclusion of the defendant's retrial.

      Rule 20 provides, in pertinent part, that each defendant shall be entitled to twelve peremptory challenges upon the trial of an indictment for a crime punishable by imprisonment for life. In a trial of an indictment for a crime punishable by imprisonment for life in which additional jurors are empanelled pursuant to rule 20(d)(1), the defendant "shall be entitled to one additional peremptory challenge for each additional juror." Rule 20(c)(1).

      The judge so informed the defendant at the jury-waiver colloquy, and the defendant elected to proceed with a bench trial on the subsequent offense charge. Berardi, 88 Mass. App. Ct. at 468, 471, 38 N.E.3d 765.

      Berardi did not object to the number of peremptory challenges until he filed a motion for a new trial some two and one-half years after he had been convicted. 88 Mass. App. Ct. at 469, 38 N.E.3d 765.

      General Laws c. 234 was in full force and effect at all times pertinent to this appeal; the statute was subsequently repealed by St. 2016, c. 36, § 1. After the effective date of the repeal, May 10, 2016, a defendant seeking to overturn his conviction on the basis of defects in the empanelment process must both timely object and show that he was prejudiced by the procedure. See G. L. c. 234A, § 74 ; Commonwealth v. Sheehy, 412 Mass. 235, 237-238, 588 N.E.2d 10 (1992) ; Commonwealth v. Vuthy Seng, 456 Mass. 490, 495 n.7, 924 N.E.2d 285 (2010) ; Commonwealth v. Jackson, 471 Mass. 262, 271, 28 N.E.3d 437 (2015).

      We note that in Crayton I, no issue was raised as to any identification of the defendant by Ricard. See Crayton I, 470 Mass. at 229, 245, 21 N.E.3d 157.

      The sentence was later revised to from four and one-half to five years. Crayton I, 470 Mass. at 229 n.1, 21 N.E.3d 157.

      The judge stated that she was imposing the Commonwealth's recommended sentence "because it seems to me that the-well, first, the defendant wants Gardner. He wants the treatment center, to the extent there's a program there. And I want the mittimus to include my recommendation that [the Department of Correction], if any way possible, put him there. He's willing to deal with this issue that he has. It's replete in his criminal record. And I don't have any way now of giving him the probationary term of three years that the previous judge gave. I'm imposing five to eight. He will get credit for already serving almost six years. So I want him to be able to take advantage and for the parole board to be able to, if they release him, have some-parole is the equivalent of probation. So if they release him, it really would be the equivalent of probation. It may be stricter, but that's what I want him to have, some kind of supervision when he's out on the street, so-to be sure that he can learn to deal with, either at Gardner or in a program while on parole, that can help him deal with his sex offender past."


source: Caselaw Access Project

author: TRAINOR, J.

license: Public Domain

text:
    ADOPTION OF VIRGIL.
    No. 17-P-776
    Appeals Court of Massachusetts, Essex..
    Argued January 9, 2018 Decided May 30, 2018
    Lynn M. Isaman, Lowell, for the mother.
    Richard A. Salcedo for Department of Children and Families.
    Rachel T. Rose, Boston, for the child.
    Present: Trainor, Massing, & Singh, JJ.

      A pseudonym.

   TRAINOR, J.

The mother appeals from a decree of the Juvenile Court finding the child to be in need of care and protection, terminating her parental rights to the child, and declining to order posttermination and postadoption visitation. The mother argues that the judge erroneously found a nexus between the mother's substance abuse, poverty, and homelessness, and her ability to provide minimally adequate care of the child. The mother additionally argues that the judge erroneously admitted and relied upon her substance abuse treatment records in reaching his findings. We affirm.

Background. We summarize the relevant facts and procedural history as set forth in the judge's decision and as supported by the record. The child, Virgil, was born in February, 2010. The Department of Children and Families (department) first became involved with the mother and Virgil in August of 2014 when Virgil's pediatrician filed a G. L. c. 119, § 51A, report (51A report) alleging the mother's neglect of Virgil. The report specifically alleged that the mother was unable to attend to Virgil's hygiene due to her severe depression. Within the same month, another 51A report was filed alleging "deplorable conditions" in the mother's apartment. That report alleged that there were flies everywhere, trash on the floor and on the kitchen stove, and a strong odor of cat urine. Both 51A reports were supported by the department.

During an investigation conducted by the department, Virgil's doctor's office reported that the mother was inconsistent with Virgil's medical care, missing more than twenty scheduled appointments for Virgil. In September, 2014, the mother was charged with larceny pursuant to a single scheme of an amount over $250. In October, 2014, the mother was evicted from her apartment. Using funds provided by Compass for Kids, a jobs program for homeless parents, the mother moved to a new apartment. During that same month, the mother was arrested for open warrants pertaining to previous motor vehicle and larceny charges. The department was notified after the mother was unable to make arrangements for Virgil at the time of her arrest. After the mother posted bail, an emergency response worker from the department accompanied the mother to her new apartment to determine its suitability. The emergency response worker observed old food on the counters, dirty dishes piled in the sink, overflowing trash, black trash bags piled around the apartment, and clothes strewn throughout. On November 28, 2014, a department social worker made an unannounced visit to the mother's apartment. Upon arriving, the social worker heard the mother screaming and yelling obscenities at Virgil. Once inside the apartment, the social worker observed that the apartment was "filthy," filled with trash, piles of clothes, and broken items. The department removed Virgil from the mother's care that same day due to the mother's mental health issues and the apartment's condition.

On December 1, 2014, the department filed a petition with the Juvenile Court, pursuant to G. L. c. 119, § 24, asserting that Virgil was in need of care and protection. The department was granted emergency temporary custody. The mother thereafter signed a service plan with the department but ultimately was unable to complete any of the service plan tasks. Starting in June of 2015, the mother failed to attend any of the scheduled visits with Virgil. On August 18, 2015, the department filed its notice of intent to seek termination of the mother's parental rights to Virgil.

In September, 2015, the mother was referred to Habit Opco, a drug abuse treatment facility, after she had been admitted to Lawrence General Hospital for a drug overdose. Upon admission to Habit Opco, the mother tested positive for opiates, cocaine, and buprenorphine. The Habit Opco drug abuse treatment records indicate that the mother informed counsellors that she started using opiates five years prior to her admission and heroin four months prior, and that she was currently using two bags of heroin daily. From March of 2015 to March of 2016, the mother was in and out of several shelters, was arrested for trespassing, and was reprimanded by, as well as asked to leave, various shelters for aggressive behavior. On March 16, 2016, the mother entered a drug treatment program at Women's View, where it was noted that she had a significant risk of relapse. On April 8, 2016, in the middle of trial, the mother was arrested and charged with breaking and entering. A few days after her arrest she was allowed to reenter a shelter, where she tested positive for benzodiazepines.

On or about December 4, 2015, and March 30, 2016, the department filed motions for disclosure of the mother's substance abuse treatment records from Habit Opco and Women's View, respectively; both motions were allowed. After a seven-day trial, the judge found the mother unfit and the child in need of care and protection, terminated the mother's parental rights, and declined to order posttermination and postadoption visitation.

Discussion. 1. Termination of parental rights. In order to terminate a parent's rights, the department must first prove and the judge must find, based upon the record evidence, that the parent is currently unfit to further the best interests and welfare of the child, and, as a result, the child is in need of care and protection. See Custody of a Minor, 389 Mass. 755, 766, 452 N.E.2d 483 (1983) ; Adoption of Ramona, 61 Mass. App. Ct. 260, 262-263, 809 N.E.2d 547 (2004). A determination of parental unfitness must be supported by clear and convincing evidence, and the subsidiary findings upon which such unfitness determination is based must be "proved by a fair preponderance of the evidence." Adoption of Helen, 429 Mass. 856, 859, 712 N.E.2d 77 (1999). The judge must not only find that the parent is currently unfit, but must also find that the current parental unfitness is not a temporary condition. See Adoption of Jacques, 82 Mass. App. Ct. 601, 610, 976 N.E.2d 814 (2012). The determination of parental unfitness is not focused on whether the parent is a good one, but rather "whether the parent is so bad as to place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Adoption of Leland, 65 Mass. App. Ct. 580, 584, 842 N.E.2d 962 (2006), quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761, 694 N.E.2d 27 (1998). "Parental unfitness means ... more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style or inability to do as good a job as the child's foster parent.... '[P]arental unfitness' means 'grievous shortcomings or handicaps' that put the child's welfare much at hazard." Adoption of Leland, supra, quoting from Adoption of Katharine, 42 Mass. App. Ct. 25, 28, 674 N.E.2d 256 (1997). A judge, however, need not wait for disaster to happen but may rely upon past patterns of parental neglect or misconduct in determining current or future fitness. See Custody of a Minor (No. 1), 377 Mass. 876, 882-883, 389 N.E.2d 68 (1979) ; Care & Protection of Stephen, 401 Mass. 144, 152, 514 N.E.2d 1087 (1987) ; Adoption of George, 27 Mass. App. Ct. 265, 268, 537 N.E.2d 1251 (1989) ; Adoption of Jenna, 33 Mass. App. Ct. 739, 744, 604 N.E.2d 1325 (1992).

Next, in this bifurcated analysis, if a judge finds that the parent is currently unfit and that such unfitness is not a temporary condition, termination of parental rights requires the additional finding that such termination is in the child's best interests. "After ascertaining unfitness, the judge must determine whether the parent's unfitness is such that would it be in the child's best interests to end all legal relations between the parent and child." Adoption of Nancy, 443 Mass. 512, 515, 822 N.E.2d 1179 (2005). In making that determination, "the court shall consider the ability, capacity, fitness and readiness of the child's parents ... to assume parental responsibility," as well as the plan proposed by the department. G. L. c. 210, § 3(c ), as amended by St. 1999, c. 3, § 17.

"A judge, when deciding whether to dispense with consent to adoption [i.e., termination of parental rights], must focus on the present circumstances of the parent and the child, taking into account recent positive gains (if any), and, in appropriate cases, the likelihood of future improvement, in a parent's ability to care for the child. Predictions must be supported by credible evidence, meaning they must be more than hypothetical. A judge may not decline to dispense with consent based on a faint hope that the family will succeed if reunited. Evidence of future fitness must be more substantial in proceedings to dispense with consent to adoption than in a care and protection case. An estimate about the future rests on a more solid basis for justifying a temporary remedy ( [such as] keeping the child under care and protection) than for an irrevocable one such as dispensing with consent to adoption" (emphasis supplied). Adoption of Inez, 428 Mass. 717, 723, 704 N.E.2d 509 (1999) (quotations and citation omitted). "In determining whether that extreme step [of terminating parental rights] should be taken, consideration of the future is a necessity." Adoption of Carlos, 413 Mass. 339, 350, 596 N.E.2d 1383 (1992). See Adoption of Jacques, 82 Mass. App. Ct. at 610, 976 N.E.2d 814. "Consideration of future fitness, however, should never be made at the expense of the child, whose interest is paramount." Adoption of Inez, supra.

Here, the mother argues that the judge erroneously determined her to be unfit and subsequently terminated her parental rights based upon her homelessness and her inability to gain employment, and that the judge should not have considered her frequent change of housing because such ensuing instability did not occur while she was living with Virgil. While homelessness, poverty, and financial instability alone are not sufficient to terminate a person's parental rights, they are proper considerations in an unfitness determination. See Care & Protection of Three Minors, 392 Mass. 704, 713 & n.12, 467 N.E.2d 851 (1984) ; Petitions of the Dept. of Soc. Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 289, 503 N.E.2d 1275 (1987) (failure to maintain stable living arrangement or to maintain financial stability are proper considerations in unfitness determination). Moreover, contrary to the mother's argument, it is proper for a judge to consider a parent's living arrangements at the time of trial despite the fact that the child was not living with her at that time. Furthermore, in addition to the mother's housing and financial struggles, the judge also thoroughly considered the mother's ongoing substance abuse issues, her emotional and mental instability, her inability to attend to Virgil's hygiene (which affected his health and well-being), her past patterns of parental neglect and misconduct, her failure to engage in remedial services, and her criminal activity. The record reveals that the judge gave close and careful consideration to all the evidence presented before making his findings, none of which we find to be clearly erroneous.

2. Drug abuse treatment records. Relying on 42 U.S.C. § 290dd-2 (2012), the mother next argues that the judge improperly admitted and relied upon inadmissible evidence contained in her drug abuse treatment records. We disagree.

The general purpose of 42 U.S.C. § 290dd-2 is to protect the confidentiality of drug abuse treatment records. See Whyte v. Connecticut Mut. Life Ins. Co., 818 F.2d 1005, 1010 (1st Cir. 1987). However, both the statute and the applicable regulations recognize situations in which release is necessary. Such a situation exists "[i]f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor." 42 U.S.C. § 290dd-2(b)(2)(C). Good cause exists only if: "(1) [o]ther ways of obtaining the information are not available or would not be effective; and (2) [t]he public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services." 42 C.F.R. § 2.64(d) (1987).

The mother does not appear to be challenging whether there was good cause to disclose her drug abuse treatment records. While we have not yet explicitly held that disclosure of a parent's drug abuse treatment records in a care and protection case meets the requirement of "good cause," we have long held that "where a child's well-being is placed in issue, 'it is not the rights of the parents that are chiefly to be considered. The first and paramount duty is to consult the welfare of the child.' " Custody of a Minor, 375 Mass. 733, 749, 379 N.E.2d 1053 (1978), quoting from Purinton v. Jamrock, 195 Mass. 187, 199, 80 N.E. 802 (1907). The United States Supreme Court has addressed this issue and concluded that "[t]he dependent child's needs are paramount, and only with hesitancy would we relegate those needs, in the scale of comparative values, to a position secondary to what the mother claims as her rights." Wyman v. James, 400 U.S. 309, 318, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971). Other jurisdictions have specifically addressed this question.

We see no reason not to extend such logic to the disclosure of a parent's drug treatment records in a care and protection case. A child's interests in these proceedings outweigh any potential injury that the parent might face from disclosure of his or her drug treatment records. Any interest a parent may have in the confidentiality of treatment records must give way to the interests of a child in being protected from physical, mental, or emotional harm, as well as the interests of the Commonwealth, as parens patriae, in protecting the child's welfare. Here, because of the mother's significant history of drug abuse, her participation, or lack thereof, in her various treatment programs was highly relevant to the judge's determination of her current and future fitness as well as the child's best interests. See Adoption of Lisette, 93 Mass. App. Ct. 284, 292, 102 N.E.3d 1018, 2018 WL 2424408 (2018).

In addition to a showing of good cause, 42 C.F.R. § 2.64(e) (1987) requires that an order of disclosure limit the "disclosure to those parts of the patient's record which are essential to fulfill the objective of the order." Here, the judge stated in his orders allowing the department's motions that "[t]he safety and best interests of the child in this matter constitutes good cause, within the meaning of 42 U.S.C. § 290dd-2(b)(2)(C) to order disclosure of these records" and that the "records are subject to limited confidentiality under G. L. c. 111E, § 18 and 42 U.S.C. § 290dd et seq." We see no error.

Finally, the mother argues that she did not receive adequate notice to respond to the department's motions seeking disclosure of her drug abuse treatment records, as required by 42 C.F.R. § 2.64 (1987), because the department's motions were filed and allowed on the same day. We disagree. While it would have been better practice to have given her more advance notice and opportunity to be heard, under the circumstances of this case she was not prejudiced. The mother was present in open court at the time the department filed the motions. She had ample time to file appropriate motions, including a request for an in-camera hearing before the records were disclosed. She failed to make any such request and later waived any possible objection by testifying about the contents of the records at trial. We would be hard pressed to conclude that, under these circumstances, the mother was not provided with adequate notice and an opportunity to be heard. 3. Posttermination and postadoption visitation. The mother also argues that the judge erred in declining to order posttermination and postadoption visitation between the mother and Virgil. "The decision whether to grant posttermination visitation is within the judge's sound discretion." Adoption of Cecily, 83 Mass. App. Ct. 719, 727-728, 989 N.E.2d 532 (2013). However, such discretion is not unfettered; posttermination visitation "must be grounded in the over-all best interests of the child, based on emotional bonding and other circumstances of the actual personal relationship of the child and the biological parent, not in the rights of the biological parent [or] the legal consequences of their natural relation." Adoption of Terrence, 57 Mass. App. Ct. 832, 839, 787 N.E.2d 572 (2003), quoting from Adoption of Vito, 431 Mass. 550, 562, 728 N.E.2d 292 (2000). Although a psychologist recommended that supervised visits should continue if the mother can "maintain her emotional stability," the judge found that an order of visitation was not in Virgil's best interests. The judge based his decision on the mother's failure to maintain consistent visits with Virgil, her inability to address her ongoing mental instability and drug addiction, and her inability to obtain stable housing. The judge also took into consideration how the mother's instability has affected Virgil's emotional well-being. The record shows that the judge carefully considered the best interests of Virgil in declining to order posttermination and postadoption visitation. The judge did not abuse his discretion.

Decree affirmed.

      The father's parental rights were also terminated; he is not involved in this appeal.

      The pediatrician stated that Virgil was being treated for a severely infected penis caused by poor hygiene.

      Trial was conducted on March 18, 30, and 31; April 13 and 28; and May 11 and 19, 2016.

      A judge's subsidiary findings will not be disturbed on appeal unless clearly erroneous. See Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993) ; Adoption of Elena, 446 Mass. 24, 30-31, 841 N.E.2d 252 (2006). The unfitness determination is reviewed for clear and convincing evidence. Custody of Eleanor, supra at 800, 610 N.E.2d 938.

      Upon a finding of unfitness, the child may be committed to the custody of the department and the parent may retain all other noncustodial parental rights. See Adoption of Carlos, 413 Mass. 339, 350, 596 N.E.2d 1383 (1992). Termination of parental rights may or may not be in the child's best interests. See id. at 350-351, 596 N.E.2d 1383.

      Title 42 U.S.C. § 290dd-2(a) provides that certain substance abuse treatment records are "confidential and [can] be disclosed only for the purposes and under the circumstances expressly authorized." A disclosure is permitted "[i]f authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor .... In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services...." 42 U.S.C. 290dd-2(b).

      Title 42 C.F.R. § 2.63 (1987) provides in relevant part:
      "(a) A court order under these regulations may authorize the disclosure of confidential communications made by a patient to a ... program in the course of diagnosis, treatment, or referral for treatment only if:
      "(1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties;
      (2) The disclosure is necessary in connection with investigation or prosecution of an extremely serious crime, such as one which directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect." (Emphases added.)

      See Doe v. Daviess County Div. of Children & Family Servs., 669 N.E.2d 192, 195 (Ind. Ct. App. 1996) ("In child neglect proceedings, the mother's right to the nondisclosure of the records relating to her alcoholism, as well as testimony of her counselor, must give way before the duty of the court to prevent harm and to safeguard the physical, mental, and emotional well-being of the child"); Matter of Baby X, 97 Mich. App. 111, 120, 293 N.W.2d 736 (1980) ("[I]n neglect proceedings confidentiality must give way to the best interests of the child. Where treatment records are found to be 'necessary and material' ... to the state's proof of neglect, a court of competent jurisdiction may authorize disclosure"); Matter of Doe Children, 93 Misc. 2d 479, 481, 402 N.Y.S.2d 958 (N.Y. Fam. Ct. 1978) ("[T]he interest of these young children in living in secure surroundings outweighs any possible injury to the patient, or to the physician-patient relationship"); Matter of Maximo M., 186 Misc. 2d 266, 269, 710 N.Y.S.2d 864 (N.Y. Fam. Ct. 2000) ("Good cause for disclosure has been found under the Federal statutory standards in the context of a child protective proceeding"). See also In re Marvin M., 48 Conn. App. 563, 568-570, 711 A.2d 756 (1998).

      Title 42 C.F.R. § 2.64 provides, in pertinent part:
      "(b) Notice. The patient and the person holding the records from whom disclosure is sought must be provided:
      "(1) Adequate notice in a manner which does not disclose patient identifying information to other persons; and
      "(2) An opportunity to file a written response to the application, or to appear in person, for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order as described in § 2.64(d).
      "(c) Review of evidence: Conduct of hearing. Any oral argument, review of evidence, or hearing on the application must be held in the judge's chambers or in some manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceeding, the patient, or the person holding the record, unless the patient requests an open hearing in a manner which meets the written consent requirements of the regulations in this part. The proceeding may include an examination by the judge of the patient records referred to in the application."

      The department's motion seeking disclosure of Habit Opco's records was filed on December 4, 2015. The judge allowed the department's motion that same day. The subpoena for these records did not issue until February 11, 2016. The records were admitted in evidence on March 30, 2016, three months after the department filed its motion. The department's motion seeking disclosure of Women's View's records was filed on March 30, 2016. The judge allowed the department's motion that same day, and the subpoena issued on April 1, 2016. The records were admitted in evidence on April 28, 2016, almost one month after the department filed its motion.
      We note that "[a court] order does not compel disclosure. A subpoena or a similar legal mandate must be issued in order to compel disclosure. This mandate may be entered at the same time as and accompany an authorizing court order entered under the regulations in this part." 42 C.F.R. § 2.61(a) (1987).

      Disclosure of treatment records is authorized if "[t]he disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications." 42 C.F.R. § 2.63(a)(3).


author: McDONOUGH, J.

text:
    ADOPTION OF LISETTE (and a companion case ).
    No. 17-P-644
    Appeals Court of Massachusetts, Essex..
    Argued December 1, 2017 Decided May 30, 2018
    Robert E. Curtis, Jr., for the mother.
    Brian Pariser for Department of Children and Families.
    Debra Perrotta Dow for the children.
    Present: Agnes, Blake, & McDonough, JJ.

      Adoption of Adam. The children's names are pseudonyms.

   McDONOUGH, J.

In this case, we are called on to balance two compelling interests: the need to protect the privacy of persons seeking drug rehabilitation treatment from having their treatment records disclosed against their will, and the crucial need to protect children from abuse and neglect and promote their best interests. We conclude that under the limited circumstances of this case, the best interests of the children outweigh the mother's right to confidentiality in information concerning her treatment.

Following a trial in the Juvenile Court in 2016, the judge found the mother unfit to care for her two children, Lisette and Adam, and that termination of her parental rights was in their best interests. See G. L. c. 119, § 26 ; G. L. c. 210, § 3. On appeal, the mother contends that the judge erred by (1) ordering the drug rehabilitation program in which she was enrolled to produce an affidavit giving the reasons for her departure from that program; and (2) failing to find a nexus between her "shortcomings" and a risk of harm to the children. We affirm the decrees entered by the Juvenile Court judge terminating the mother's parental rights.

Background. The following facts found by the judge are amply supported by the record. In 2007, the mother gave birth to Lisette. The mother and Lisette's biological father were in a relationship at the time, but are no longer together. The mother later began a relationship with Adam's father, and Adam was born in December of 2013. The mother continued to have an on-and-off relationship with Adam's father up through the time of trial.

The mother has an extensive history with the Department of Children and Families (department), and a long history of substance abuse and domestic violence. She "has a consistent pattern of abusing heroin and failing to engage in services to help her maintain her sobriety." She tested positive for opiates when admitted to the hospital prior to Adam's birth in December of 2013, and tested positive for benzodiazepines in January of 2014. The mother also admitted that she used cocaine from September of 2015 until she enrolled, just before trial, in a rehabilitation program in March of 2016.

The mother also has a history of domestic violence with both of the children's fathers. In July of 2014, police responded to the mother's home for reports of a domestic disturbance between her and Adam's father. One month later, the mother obtained a G. L. c. 209A restraining order against Adam's father, stating in her affidavit that he spit in her face, grabbed her throat and choked her, then grabbed her hair and threatened to kill her. After she locked him out of the house, he tried to reenter through a window. When the mother tried to stop him, he pulled her halfway out the window by her hair. On another occasion, the mother testified that Adam's father tied her up with an electric cord. Despite her reported concerns about Adam's father and her active restraining order against him, the mother continued to allow him in her home. The department filed a care and protection petition on behalf of Lisette after receiving a report that Lisette found Adam's father in the mother's bed. After a temporary custody hearing, the judge granted the department custody of Lisette, and she has remained in the department's custody since then.

Adam first came to the department's attention in December, 2013, at just five days old. He was born when the mother was twenty-six weeks pregnant, and he tested positive for methadone at birth. The mother also tested positive for methadone and opiates when she arrived at the hospital to give birth to Adam. Adam was diagnosed with Klinefelter syndrome, a rare condition characterized by an XXY chromosome, resulting in medical and behavioral complications including delayed speech, learning disabilities, and behavioral problems. Due to his premature birth and his diagnosis of Klinefelter syndrome, Adam presented with challenging medical issues necessitating numerous specialty appointments. These conditions caused feeding problems requiring a special formula and special bottle nipples so he could eat.

The hospital set up training for the mother to teach her how to make Adam's special formula. When the mother failed to attend, the hospital rescheduled the training to the following day. The mother arrived late to the training, and she failed to purchase the necessary bottle nipples. The mother then failed to show up for another training session. Prior to Adam's expected discharge, the hospital encouraged the mother to spend more time at the hospital to ensure that she learned his proper care. The hospital's social worker described the mother's visits as "infrequent and sporadic." The hospital social worker informed the department that the mother failed to provide a prescription for Adam's seizure medication, failed to provide the special bottle nipples for his feedings, and failed to provide his insurance information. Several days later, the department filed a care and protection petition for Adam and took emergency custody of him. Following his hospital discharge, the department placed him in foster care, where he remains.

During trial, the department learned that the inpatient rehabilitation treatment program (program) where the mother had been enrolled had discharged her. The department subpoenaed the mother's program records relating to the reasons for her discharge. Citing the patient confidentiality provisions set forth in 42 U.S.C. § 290dd-2 (2012), the program manager objected to the department's subpoena. At a hearing on the program manager's objection, the judge suggested-as a less intrusive alternative-that he order the program manager to prepare an affidavit limited to the circumstances of the mother's discharge. The parties, including the mother's counsel, agreed, and the next day the program manager submitted the affidavit, which the judge admitted in evidence over the mother's objection. The mother contends that the judge admitted the program manager's affidavit in violation of the confidentiality provisions of 42 U.S.C. § 290dd-2.

Discussion. 1. Disclosure of treatment records. Title 42 U.S.C. § 290dd-2(a) provides that "[r]ecords of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall ... be confidential...." The broad purpose of the statute is to protect the confidentiality of persons seeking treatment for substance abuse. See Whyte v. Connecticut Mut. Life Ins. Co., 818 F.2d 1005, 1010 (1st Cir. 1987). However, while the statute protects treatment records and their content from disclosure absent patient consent, Congress recognized that in limited circumstances, release of protected information might be necessary. See 42 U.S.C. § 290dd-2(b) ; 42 C.F.R. § 2.64 (1987). One such circumstance is where disclosure is "authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor." 42 U.S.C. § 290dd-2(b)(2)(C). Regulations promulgated pursuant to that statute require that a court's determination of "good cause" be based on two findings: "(1) Other ways of obtaining the information are not available or would not be effective; and (2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services." 42 C.F.R. § 2.64(d). If good cause is established, the court must limit disclosure to those portions of the records that are "essential to fulfill the objective of the order." 42 C.F.R. § 2.64(e). In addition, 42 C.F.R. § 2.61(a) (1987) provides that "[a]n order of a court of competent jurisdiction entered under this subpart is a unique kind of court order. Its only purpose is to authorize a disclosure or use of patient information which would otherwise be prohibited by 42 U.S.C. [§] 290dd-2 and the regulations in this part. Such an order does not compel disclosure. A subpoena or a similar legal mandate must be issued in order to compel disclosure. This mandate may be entered at the same time as and accompany an authorizing court order entered under the regulations in this part."

a. Other available effective methods. Our first task is to determine whether there was another available effective way to obtain the program discharge information other than by affidavit based on facts derived from the mother's program records. In its subpoena to the program manager, the department sought "[a]ny documents and information regarding the discharge of [the mother]." At the hearing on the program manager's objection to the subpoena, the department's counsel made clear that the department sought only information about the circumstances of the mother's discharge from the program and any documentation relating to that narrow issue. The judge determined that an affidavit narrowly tailored to the reasons for the mother's discharge would sufficiently cover the issue the department sought to explore at trial. Counsel for both the mother and the program agreed that an affidavit so limited would be preferable to disclosing any of the mother's treatment records.

On appeal, the mother maintains that the department had other sources from which to obtain this evidence, namely, either her own testimony or the testimony of the department's social worker assigned to the mother's case. In making her argument, the mother overlooks significant evidentiary obstacles. Testimony from the department social worker about what the program's staff told her about the mother's discharge would constitute inadmissible hearsay. , See generally Mass. G. Evid. § 801 (2018). Furthermore, putting aside the hearsay problem, even were the mother to authorize the program to disclose to the department's social worker the details of the mother's discharge, regulations promulgated under 42 U.S.C. § 290dd-2 would bar the social worker from redisclosing that information in court, without the mother's consent. See 42 C.F.R. § 2.32(a)(1) (1987) (disclosures made with patient's consent must be accompanied by notice stating that "federal rules prohibit you from making any further disclosure of information in this record"). With regard to the mother's testimony explaining her discharge, the judge determined that absent an independent source, he doubted he could rely on the mother's testimony alone. This decision was well within the judge's discretion. See Care & Protection of Three Minors, 392 Mass. 704, 711, 467 N.E.2d 851 (1984) (judge is not required to view evidence from mother's perspective). Thus, we agree with the judge that there was no available effective way for the department to provide evidence of the circumstances surrounding the mother's discharge from the program, other than through the program manager's affidavit.

b. Need for disclosure. Having concluded that other than obtaining the program manager's affidavit, there existed no effective means for the department to obtain admissible evidence of the circumstances of the mother's program discharge, we turn to the second step of 42 C.F.R. § 2.64(d) : weighing the public interest and need for disclosure against the potential injury to the mother, the physician-patient relationship, and the treatment program. In assessing the public interest, our courts have long held that in care and protection matters, the interests of a child in being free from abuse and neglect, and the Commonwealth's interests in protecting the child's welfare, outweighs the concerns of the parent. See Custody of a Minor, 375 Mass. 733, 749, 379 N.E.2d 1053 (1978), quoting from Purinton v. Jamrock, 195 Mass. 187, 199, 80 N.E. 802 (1907) ("[W]here a child's well-being is placed in issue, 'it is not the rights of the parents that are chiefly to be considered. The first and paramount duty is to consult the welfare of the child' "); Care & Protection of Robert, 408 Mass. 52, 62, 556 N.E.2d 993 (1990) ("The child's interest in freedom from abusive or neglectful behavior, however, is absolute. In no situation may a child be legitimately subjected to abusive or neglectful conditions").

The need for the narrowly tailored evidence explaining the mother's discharge from the program also supports disclosure. The purpose of care and protection proceedings is "to insure the rights of any child to sound health and normal physical, mental, spiritual and moral development." G. L. c. 119, § 1, as amended by St. 2008, c. 176, § 82. Here, the judge decided that evidence of the circumstances of the mother's discharge from the treatment program was an important component of his fitness determination, and concluded that, "because the underlying allegations involve a significant repetitive history of substance abuse and her failure to engage in services that would remedy the circumstances that led to the filing of this care and protection [petition], I have to find that there is good cause for a disclosure of the records." Thus, both the public interest and the need for the judge to learn the circumstances of the mother's program discharge weigh heavily in favor of disclosure.

In contrast, any risk of injury to the mother, to the physician-patient relationship, and to the treatment program, is negligible. As the judge noted, the private nature of a Juvenile Court proceeding, and the fact that the records of the proceedings below are impounded and therefore not open to indiscriminate public inspection, minimizes the likelihood of the mother's treatment becoming a matter of public record. See G. L. c. 119, § 38 ; G. L. c. 210, § 5C. In addition, any impact on the mother's physician-patient relationship with the program is, at best, minimal because her treatment at that program had already ended by the time the department subpoenaed her records. Nor can she credibly contend that releasing the limited information derived from her records deterred her from seeking treatment elsewhere, because she subsequently identified a different program in which she intended to enroll. Finally, the mother herself opened the door to an exploration of her program compliance by testifying that she was in substantial compliance with its rules. And, as counsel for the parties agreed, the program manager's narrowly focused affidavit explaining the reasons for her discharge was preferable to the release of any of her treatment records. This limited disclosure, combined with the program's zealous protection of its patients' rights in contesting the department's subpoena, minimizes any risk of injury to the program.

Because the interests of the children in being free from abuse and neglect substantially outweigh any unlikely injury to the mother from this limited disclosure of confidential information, we conclude that the judge had good cause to order the program manager to disclose by affidavit the reasons for the mother's discharge from her treatment program, in accordance with 42 U.S.C § 290dd-2. See Adoption of Virgil, 93 Mass. App. Ct. 298, 305, 102 N.E.3d 1009, 2018 WL 2424393 (2018).

2. Determination of unfitness and termination of parental rights. The mother also argues that the judge erred in his unfitness conclusion because he failed to connect the unfitness finding to any risk of harm to the children. We review the decision of the judge to determine whether there was any abuse of discretion or error of law. Adoption of Hugo, 428 Mass. 219, 225, 700 N.E.2d 516 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034, 119 S.Ct. 1286, 143 L.Ed.2d 378 (1999). We review findings of fact under the familiar "clearly erroneous" standard. See Adoption of Adam, 23 Mass. App. Ct. 922, 924, 500 N.E.2d 816 (1986) ; Adoption of Jacques, 82 Mass. App. Ct. 601, 606-607, 976 N.E.2d 814 (2012). In doing so, we grant substantial deference to the judge's decision, because a "judge who hears the evidence, observes the parties, and is most familiar with the circumstances remains in the best position to make the judgment [regarding fitness]." Guardianship of Estelle, 70 Mass. App. Ct. 575, 579, 875 N.E.2d 515 (2007).

"The interest of parents in their relationship with their children [is] fundamental [and] constitutionally protected." Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587, 421 N.E.2d 28 (1981) (quotation omitted). A State's intervention into a family is justified only if the parents are "shown to have grievous shortcomings or handicaps that would put the child's welfare in the family milieu much at hazard."

Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646, 328 N.E.2d 854 (1975).

"[T]he term 'unfitness' signifies something more than a standard by which we measure the limits of acceptable parental conduct[; it] is a standard by which we measure the circumstances within the family as they affect the child's welfare." Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 589, 421 N.E.2d 28. It requires careful consideration, reflecting the unique facts present in each case, of the capacity of the parents to care for the child. See Freeman v. Chaplic, 388 Mass. 398, 405, 446 N.E.2d 1369 (1983). The department bears the burden of proving parental unfitness by clear and convincing evidence. Adoption of Lorna, 46 Mass. App. Ct. 134, 139, 704 N.E.2d 200 (1999).

The welfare of the child is the most important consideration when determining parental fitness. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. at 589, 421 N.E.2d 28. "[T]he critical question is whether the natural parents are currently fit to further the welfare and best interests of the child." Bezio v. Patenaude, 381 Mass. 563, 576, 410 N.E.2d 1207 (1980). The parental unfitness test and the best interests of the child test are not mutually exclusive, but rather reflect different degrees of emphasis on the same factors. See Adoption of Kimberly, 414 Mass. 526, 528, 609 N.E.2d 73 (1993).

We disagree with the mother's contention that the judge's findings of fact do not support his determination that she is unfit, and that he failed to connect his findings regarding her unfitness to any risk of harm to the children. On the contrary, the judge explicitly connected his findings to the risk of harm to the children should they be returned to her custody. Specifically, the judge found that "[the mother] has also failed to adequately address the domestic violence in the home or complete a domestic violence program." He found that she "was involved in several abusive relationships and suffered vicious beatings at the hands of her abusers." However, despite vowing to end her abusive relationships and even obtaining a restraining order against Adam's father, she continued to associate with him on numerous occasions. Finding that "[t]here is no evidence that [the mother] completed any domestic violence program or would not repeat this vicious cycle again," the judge concluded, "[the mother's] inability to extricate herself from these abusive relationships bears on her ability to protect the subject children from the grievous type of harm." See Adoption of Zak, 87 Mass. App. Ct. 540, 543, 32 N.E.3d 361 (2015), quoting from Custody of Vaughn, 422 Mass. 590, 595, 599, 664 N.E.2d 434 (1996) ("[W]itnessing domestic violence, as well as being one of its victims, has a profound impact on children.... [A] child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm").

With regard to drug abuse, the judge concluded that "[the mother] has longstanding addiction issues and has relapsed several times prior to and since the initiation of these petitions." He also found that "[i]n over two years since [Adam] has been removed from her custody, [the mother] has not been able to complete a substance abuse program," and that when she did enroll in such a program, the program terminated her for noncompliance after only ten weeks. The judge did not credit the mother's testimony that she had been drug-free since 2003 and that she only started abusing drugs again once the department removed the children from her care. That testimony conflicted with evidence of positive drug tests in December of 2013 and January of 2014, as well as an incident in September of 2015 when police found her incoherent with "track marks" on her arms. Finally, the judge noted that the mother failed to complete a substance abuse treatment program, having enrolled in a program shortly before trial some two years after the removal of the children. He concluded that "[the mother] has not taken action to remedy ... her repeated drug use ... and is unable to see how these issues negatively [a]ffect the subject children.... [The m]other has clearly demonstrated an enduring inability to parent the subject child[ren]."

As to Adam, the judge again connected his findings to the risk of harm to the child. Specifically, he found that "[Adam] has substantial medical and emotional needs due to his premature birth and genetic condition." The judge also found that "[the mother] does not fully understand the scope of his medical issues as she did not think that it was important to meet with his dietician[ ] or obtain the necessary feeding implements and stated to the court investigator that the [d]epartment was making it seem like he was sicker than he was." He concluded, "[the mother] has little understanding of [the child's] substantial medical issues, and developmental delays and is unwilling and/or unable to provide the constant supervision and consistency for his social, emotional, and physical well-being." The record well supports these findings. See Adoption of Oliver, 28 Mass. App. Ct. 620, 625-626, 554 N.E.2d 40 (1990) (parental unfitness can be established where child has substantial needs requiring extraordinary attentiveness from caregiver and where parent has little or no understanding of those needs, or willingness or ability to meet them); Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 799-800, 452 N.E.2d 497 (1983) (specialized needs of particular child considered with parent's character, temperament, capacity, or conduct may clearly establish parental unfitness).

Thus, we conclude that the record is replete with evidence supporting the judge's unfitness determination. The judge's findings are detailed and thorough, and show that he gave the case his close attention. See Custody of a Minor (No. 1), 377 Mass. 876, 886, 389 N.E.2d 68 (1979). The record belies the mother's argument that the judge's findings are insufficient to support his conclusions. We think it plain that the mother simply views the evidence differently from how the judge viewed it. The judge is not required to view the evidence from the parent's perspective. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 n.3, 786 N.E.2d 1233 (2003), quoting from Anderson v. Bessemer City, 470 U.S. 564, 573-574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous").

After a determination of unfitness, a "judge must determine whether the parent's unfitness is such that it would be in the child[ren]'s best interests to end all legal relations between parent and child[ren]." Adoption of Nancy, 443 Mass. 512, 515, 822 N.E.2d 1179 (2005). In order to terminate a parent's parental rights, the unfitness element must be so probative and persuasive that it can serve as a predicate for finding that the unfitness will continue undiminished into the future, affecting the welfare of the child. See Adoption of Carlos, 413 Mass. 339, 350, 596 N.E.2d 1383 (1992). While consideration of the reasonable likelihood that a parent's unfitness at the time of trial may only be temporary is appropriate, such a prediction must rely "upon credible evidence rather than mere hypothesis or faint hope." Adoption of Serge, 52 Mass. App. Ct. 1, 7, 750 N.E.2d 498 (2001) (quotation omitted). See Adoption of Carlos, supra.

As noted supra, the judge's finding that the mother is currently unfit was clearly and convincingly supported by the evidence presented at trial. The judge found, "[the mother] has longstanding issues with drug abuse and domestic violence which she has not adequately addressed.... She has not taken action to remedy either her repeated drug use or repeated abusive relationships and is unable to see how these issues negatively [a]ffect the subject children. She remains noncompliant with several service plan tasks." Based on these findings, the judge concluded that the mother remains unfit to care for the children and that her unfitness is likely to continue indefinitely. There was no error in the judge's conclusions.

In this case, the judge made meticulous findings, amply supported by the record, supporting his conclusion that the mother's long-standing substance abuse and her inability to extricate herself from violent relationships were unlikely to be resolved in the future. In addition, the record supports the judge's conclusion that the mother is unable to provide adequate medical care for Adam, for whom she has never been the primary caregiver. The judge noted in his findings that Adam's preadoptive parents, with whom he has lived since his hospital discharge, have provided satisfactory care for the child, and that notwithstanding his medical challenges, he continues to make improvements. The judge also found that Lisette has made significant improvements since her removal from the mother's custody, especially improving in school and with her behavioral issues. It has now been more than two years since the children's placement in the department's custody. At some point, the judge must say "enough," and act in the best interests of the children. Adoption of Nancy, 443 Mass. at 517, 822 N.E.2d 1179 ("[C]hildren deserve permanence and stability"). See Adoption of Ilona, 459 Mass. 53, 60, 944 N.E.2d 115 (2011) ("Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period").

Conclusion. For the reasons stated, there was no error in the termination of the mother's parental rights.

Decrees affirmed.

      Despite the moral overtones of the statutory term "unfit," the judge's decision is not a moral judgment, nor is it a determination that the parent does not love the children. The question for the judge is "whether the parent's deficiencies 'place the child[ren] at serious risk of peril from abuse, neglect, or other activity harmful to the child[ren].' " Adoption of Olivette, 79 Mass. App. Ct. 141, 157, 944 N.E.2d 1068 (2011), quoting from Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761, 694 N.E.2d 27 (1998).

      The mother does not challenge the judge's factual findings, aside from two specific findings discussed in more detail infra.

      Lisette's father stipulated to his unfitness at trial, and is not a party to this appeal.

      Adam's father did not participate in the proceedings below and has not appealed from the termination of his parental rights.

      The mother's counsel supported the judge's proposed affidavit alternative, saying: "I think the affidavit is great. I don't have a problem with that." Nevertheless, the judge made clear that the parties' acceptance of his affidavit alternative was "[w]ithout waiving any objection." The next day, when the department offered the program manager's affidavit in evidence, the mother's counsel objected.

      In her affidavit, the program manager stated that "[i]n accordance with the [program's] Progressive Discipline Policy, [the mother] was terminated from the [program] on May 16, 2016, after receiving four (4) Safety Notices." The mother received the notices after twice failing to sign back into the program after appointments and for having cigarettes in her room. The fourth notice issued after the mother (1) returned from an appointment apparently under the influence of "some substance," despite a drug screen that came back clean, and (2) for being unaccounted for on the next day for some two and one-half hours, returning apparently under the influence of an unknown substance. The program's disciplinary policy states that after receiving three notices, a resident may be terminated from the program.

      The Whyte decision refers to a prior version of the statute, before it was reorganized and renumbered in 1992; the language of the statute has not materially changed. See Act July 10, 1992, P.L. 102-321, Title I, Subtitle C, § 131, 106 Stat. 366. At the time of the decision in Whyte, regulations barred the disclosure of all communications; only "objective data" was subject to disclosure. See 42 C.F.R. § 2.63 (1975). After the decision in Whyte, the regulation was amended to allow for the court-ordered disclosure of "confidential communications" as well. See 42 C.F.R. § 2.63 (1987), which permitted court orders authorizing disclosure of confidential communications between a patient and treatment program only if:
      "(1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties;
      "(2) The disclosure is necessary in connection with investigation or prosecution of an extremely serious crime, such as one which directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect; or
      "(3) The disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications."
      We note that 42 C.F.R. § 2.63(2) was amended in 2017 to read as follows: "The disclosure is necessary in connection with investigation or prosecution of an extremely serious crime allegedly committed by the patient, such as one which directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect."

      Here, there was both a subpoena issued by the department to the program and an order issued by the judge, thereby compelling the production of the program manager's affidavit at issue.

      Indeed, when a different social worker testified, the judge sustained objections to questions about what the program's staff told him about the mother's level of compliance.

      While it is true that certain types of hearsay are admissible in care and protection proceedings, it does not appear that any of those exceptions would have governed this issue. See Care & Protection of Rebecca, 419 Mass. 67, 80-81, 643 N.E.2d 26 (1994) (child's hearsay statements regarding sexual abuse admissible pursuant to G. L. c. 233, § 83 ); Custody of Michel, 28 Mass. App. Ct. 260, 265-268, 549 N.E.2d 440 (1990) (hearsay contained in investigator's reports and in G. L. c. 119, §§ 51A and 51B, reports admissible). See also Mass. G. Evid. § 1115 (2018).

      Courts of other jurisdictions have reached similar conclusions when applying 42 U.S.C. § 290dd-2 to cases involving children's welfare. See Doe v. Daviess County Div. of Children & Family Servs., 669 N.E.2d 192, 195 (Ind. Ct. App. 1996) (mother's right to nondisclosure "must give way before the duty of the court to prevent harm and to safeguard ... the child"); Matter of Baby X, 97 Mich. App. 111, 120, 293 N.W.2d 736 (1980) ("[I]n neglect proceedings confidentiality must give way to the best interests of the child"). The Doe and Baby X opinions refer to the statute prior to the 1992 reorganization and renumbering. See note 8, supra.

      Therefore, the mother's contention that the judge was clearly erroneous in finding that her discharge from the program was based on "violations of policy" must fail. If the judge properly admitted the affidavit, there was evidence to support the judge's finding.

      Clear and convincing evidence is evidence that is "strong, positive and free from doubt." Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871, 330 N.E.2d 161 (1975) (quotation omitted).

      The mother's argument that any domestic violence occurred when the children were at school, and thus was not witnessed by or directed toward them, is unpersuasive. A parent's willingness to ignore or minimize abusive behavior can be an indicator of unfitness, regardless of whether the child is at risk of abuse or witnessing abuse. See Adoption of Anton, 72 Mass. App. Ct. 667, 674-675, 893 N.E.2d 436 (2008) (mother's refusal to end relationship with man convicted of child sexual abuse properly considered by judge despite no evidence that subject child was at risk of abuse).

      The mother takes issue with this finding because the judge relied on a statement contained in a G. L. c. 119, § 51A, report (51A report), admitted during Adam's temporary custody hearing, but not admitted at trial. Without expressing an opinion on the propriety of the judge's decision to consider a 51A report that was not admitted in evidence, we note that there is ample evidence in the record from which the judge could infer that the mother did not take Adam's medical issues seriously. Specifically, the judge found that the mother (1) did not appear for the initial appointment with the hospital, (2) was late to the rescheduled appointment and did not bring the necessary bottle nipples, (3) had infrequent and sporadic visits with Adam at the hospital, (4) failed to provide the prescription for Adam's seizure medication, and (5) told an investigator that Adam was not sickly and that the department made him out to be sicker than he actually was. The mother does not contest these findings.

      " '[A] condition which is reasonably likely to continue for a prolonged indeterminate period, such as alcohol or drug addiction ... [that] makes the parent ... unlikely to provide minimally acceptable care of the child' is not a temporary condition." Adoption of Elena, 446 Mass. 24, 31, 841 N.E.2d 252 (2006), quoting from G. L. c. 210, § 3(c )(xii).


text:
    COMMONWEALTH v. Steven STEPHEN.
    17-P-67
    Appeals Court of Massachusetts.
    Entered: February 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      The defendant's name on the indictments is "Steve Stephen," but a docket entry states that his name is "Steven Stephen" and "Steve Stephen" is an alias.

   The defendant, Steven Stephen, appeals from his convictions of one count of unlawful possession of a firearm, one count of unlawful possession of a loaded firearm, and an armed career criminal enhancement. We affirm.

Background. The following facts are drawn from the motion judge's decision and order, with additional details reserved for discussion of the issues. In January, 2014, Boston police began investigating the defendant and another individual, Tony Evans, regarding unlawful firearm possession. Police received tips from two "carded" informants. As "carded" informants, their identities were known to the Boston police and they were "registered" with the police.

The first confidential informant (CI-A) told police that they had seen both the defendant and Evans in possession of firearms and that each had a firearm on his person. CI-A previously provided information to Boston police that led to the recovery of contraband and an arrest and conviction. Based on this tip, the police stopped a vehicle in which the defendant was riding but found no firearm.

On February 7, 2014, police received a tip from a second informant (CI-B). CI-B told the officers that they had personally seen the defendant and Evans in possession of a firearm in a car that day, a "couple of hours" before the stop. They reported that Evans and the defendant were in a specific car in Mattapan.

On February 7, Detective Brian Smigielski observed a Honda and recognized the defendant and Evans as passengers. He did not recognize the driver. The detective's observations of the timing, location, and description of the vehicle were consistent with CI-B's tip. Additionally, the detective knew that the defendant had prior convictions for unlawful firearm possession and felony assault, and that the defendant did not have a license to carry a firearm. He also had knowledge of prior incidents involving the two men, one where the defendant and Evans were present and a firearm was recovered from a motor vehicle or from another person present, and a second where Evans was present and a firearm was recovered from a vehicle or from another person present. He also had knowledge of the stop conducted after CI-A's tip.

Shortly after Detective Smigielski observed the Honda, an unmarked police cruiser drove in front of the Honda and waited in traffic to make a left turn. The Honda stopped behind the unmarked cruiser to wait for it to turn. Simultaneously, several officers, including Detective Smigielski and Officer Brian Ball, left their vehicles and approached the Honda. As the police approached on foot, the defendant was seen to be moving in the right front seat of the Honda. Officer Ball was concerned, based on his training and experience with gun recoveries and arrests, that the defendant had a firearm. Officers ordered the occupants to show their hands and removed the defendant from the vehicle. Officers then observed a firearm in plain view "on one of the Honda's seats." In findings on a subsequent motion, the same judge found that "[t]he gun was found on the right front seat immediately upon officers getting the [defendant] off that seat." He also found that "[i]t is not implausible that Evans had the gun [and] put it on the [defendant's] seat while the officers approached the car."

Discussion. 1. Motion to suppress. When considering a ruling on a motion to suppress, we must accept the motion judge's subsidiary findings of fact, absent clear error. Commonwealth v. Carr, 458 Mass. 295, 298 (2010). We independently review the ultimate findings and conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646 (2004).

a. Challenged findings. The defendant contends that three of the motion judge's findings are clearly erroneous. "A finding is clearly erroneous when 'although 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.' " Commonwealth v. Castillo, 89 Mass. App. Ct. 779, 781 (2016), quoting from Green v. Blue Cross & Blue Shield of Mass., Inc., 47 Mass. App. Ct. 443, 446 (1999).

First, the defendant challenges the motion judge's finding that the officers had Edith White get out of the Honda. The Commonwealth concedes that there was no testimony at the motion hearing supporting this finding. Nonetheless, the challenged finding has no bearing on the issues on appeal.

Second, the defendant challenges the finding that "[t]he Honda paused briefly waiting for the unmarked police car to make its left turn." He contends that this finding was erroneous because the Honda was "unable to go around" the unmarked police cruiser. We discern no basis for concluding that this finding is clearly erroneous because the unmarked police cruiser in front of the Honda was simply waiting to make a routine left-hand turn. Moreover, there was no indication in the record that the turn took an inordinate amount of time to execute, nor was there any basis in the record for the defendant to believe that the unmarked cruiser was part of the surveillance team.

Third, the defendant challenges the finding that Officer Ball observed the defendant "moving around in the right front seat, moving his arms and keeping his hands in his crotch" and argues that the finding contradicts the officer's testimony. Although Officer Ball testified that he could not see the defendant's hands, Detective Smigielski testified that he observed the defendant "moving around in the front seat" and that the defendant was removed from the vehicle because "[t]he officers that approached from the front observed Mr. Stephens moving his hands down toward his crotch area." While the motion judge may have identified the wrong police personnel, given the entirety of the testimony, we cannot conclude that the substance of the finding about the defendant's furtive movements is clearly erroneous.

b. Seizure of the defendant. The motion judge ruled that the defendant was seized "when the officers on foot reached the doors of the Honda and told all occupants to show their hands." The Commonwealth agrees. The defendant contends that he was seized prior to the order to show his hands; he argues that he was seized when the police positioned their vehicles to prevent the Honda from moving and then got out of their vehicles to advance on the Honda from different positions. We need not decide this issue because, even assuming the defendant is correct about when the seizure occurred, we conclude that the officers had reasonable suspicion at that time.

A stop of a vehicle is proper if it "was predicated on 'reasonable suspicion, based on specific, articulable facts and reasonable inferences therefrom, that an occupant of the ... motor vehicle had committed, was committing, or was about to commit a crime.' " Commonwealth v. Edwards, 476 Mass. 341, 345 (2017), quoting from Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996). Where an investigatory stop is based on a tip supplied by a confidential informant, that tip must establish both the reliability and basis of knowledge prongs set forth under the Aguilar-Spinelli test. Since the information here was used to execute an investigatory stop requiring reasonable suspicion rather than probable cause, "a less rigorous showing in each of these areas is permissible" and "independent police corroboration may make up for deficiencies in one or both of these factors." Commonwealth v. Pinto, 476 Mass. 361, 364 (2017) (quotations omitted).

CI-A demonstrated both veracity and the basis of knowledge of their tip. Their basis of knowledge was established by personal knowledge that they saw the defendant and Evans with a firearm. See Alvarado, supra at 271 (anonymous caller's recent firsthand observation satisfies basis of knowledge test). Contrast Commonwealth v. Bottari, 395 Mass. 777, 784 (1985) (no probable cause where informant did not tell officers he personally saw defendant and description of criminal activity did not rise above a "casual rumor"). Additionally, CI-A had demonstrated sufficient veracity, as they previously provided information that led to the recovery of contraband and an arrest and conviction. See Commonwealth v. Perez-Baez, 410 Mass. 43, 44-46 (1991) (informant's veracity established by his prior information that led to arrest and seizure of contraband).

CI-B similarly demonstrated an adequate basis of knowledge, as their tip also was based on personal knowledge that the defendant and Evans possessed a firearm in a specific vehicle on that day. The Commonwealth concedes on appeal that the Commonwealth only offered testimony at the motion hearing about CI-A's history of providing information. Nevertheless, even if CI-B's veracity was not yet established at the time of the tip, CI-A's tip corroborated it. See Commonwealth v. Watson, 36 Mass. App. Ct. 252, 256-257 (1994), and cases cited ("The informants' mutually corroborative information, buttressed by the information gathered during police surveillance, provided probable cause for the search").

Furthermore, the police corroborated details of CI-B's tip, including observing the defendant and Evans together in the specific vehicle that CI-B identified only "a couple of hours" before the stop in the area CI-B identified. See ibid. Detective Smigielski also had personal knowledge of both the defendant and Evans's past history of weapons-related incidents, including the defendant's prior convictions for unlawful firearm possession. See Commonwealth v. Mendez, 476 Mass. 512, 518 n.7 (2017) ("[P]olice knowledge that a criminal history includes weapons-related charges can add to reasonable suspicion"). In its totality, the officers had sufficient information to form a reasonable suspicion that the defendant and Tony Evans unlawfully possessed a firearm at the time of the stop.

2. Motion for disclosure. The defendant also contends that the motion judge erred in ordering an in camera hearing with CI-B and assigning them counsel before denying the motion for disclosure.

a. In camera hearing. When a defendant requests disclosure of a confidential informant's identity, the defendant "is required to present some offering so that the trial judge may assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case and the defense offered thereto." Commonwealth v. Bonnett, 472 Mass. 827, 847 (2015) (quotation omitted). "In a case where it is not clear from the record that disclosure of an informant's identity would provide something material to the defense, a judge may hold an in camera hearing to assist in making that determination." Commonwealth v. Dias, 451 Mass. 463, 472 (2008).

The burden remained on the defendant to make an initial showing of materiality. The defendant's motion only vaguely asserted that CI-B's identity and information "is relevant and helpful to the defense of an accused." In the affidavit supporting the motion, defense counsel asserted that disclosure "is necessary to establish who entered the vehicle with a firearm," that it was necessary for the defendant to present his defense, and that failure to allow disclosure would permit the Commonwealth to elicit testimony that may be in direct contradiction to the information provided to the police. These speculative assertions were insufficient to compel disclosure. Contrast id. at 469 (informant's information conflicted with anticipated testimony). Because the defendant's initial showing was not clear that CI-B would provide something material to the defense, the judge did not abuse his discretion in ordering an in camera hearing. Id. at 472. Once the defendant failed to carry the necessary burden, even with the added benefit of an in camera hearing, the judge properly denied the defendant's motion.

b. Appointment of counsel. The defendant also contends that the motion judge erroneously appointed counsel to CI-B when they requested counsel when questioned by the judge about the events of February 7, 2014.

"The nature of the in camera hearing is left to the discretion of the judge, who may, in light of the particular facts, determine whether the presence of counsel is necessary or appropriate." Id. at 472 n.15. "Whether the informant could assert a valid Fifth Amendment privilege if called as a witness at trial is a distinct issue from whether the informant's identity must be disclosed before trial." Id. at 473.

The motion judge's decision explicitly stated that he denied disclosure "without considering any potential Fifth Amendment privilege of [CI-B]." Because the appointment of counsel did not interfere with the defense, we discern no abuse of discretion in the judge's order.

3. Jury instruction. Lastly, the defendant argues that the trial judge erred in instructing the jury on joint possession. The Commonwealth was not required to prove that the defendant exclusively possessed the firearm, and so the instruction was not erroneous. See Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 154 (2008) ("[T]he Commonwealth was not required to prove that the possession was exclusive, and instead could be accomplished jointly among the defendants").

Judgments affirmed.

      The jury found the defendant not guilty of one count of possession of firearm with a defaced serial number. The docket also reflects that the jury found the defendant not guilty of one count of possession of a sawed-off shotgun. The parties agree and the trial transcript reflects that instead, the jury found the defendant not guilty of one count of possession of ammunition.

      We use "they" as a singular pronoun for each informant for convenience because the genders of the confidential informants were not revealed at the motion hearing.

      There was no evidence that the persons in the Honda knew the vehicle in front of them (waiting to turn left) was an unmarked police car. Without such evidence, it is questionable that a reasonable person would have known he was in an encounter with the police, let alone whether he would believe that he was not free to leave that encounter. See Commonwealth v. Barros, 435 Mass. 171, 173-174 (2001) ("Police have seized a person in the constitutional sense only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave" [quotation omitted] ).

      See Aguilar v. Texas, 378 U.S. 108 (1964) ; Spinelli v. United States, 393 U.S. 410 (1969).

      To the extent that we do not address the defendant's other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).