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SJC-12652

CARE AND PROTECTION OF M.C.

Franklin-Hampshire. March 4, 2019. - October 28, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.

Impoundment. Minor, Care and protection. Parent and Child, 

Care and protection of minor. Constitutional Law, 

Impoundment order, Waiver of constitutional rights, Selfincrimination. Witness, Self-incrimination. Evidence, 

Communication between patient and psychotherapist, 

Testimony at prior proceeding. Practice, Civil, Care and 

protection proceeding, Impoundment order, Waiver.

Practice, Criminal, Impoundment order, Waiver. Waiver.

Petition filed in the Franklin and Hampshire Counties 

Division of the Juvenile Court Department on May 5, 2015.

Following review by this court, 479 Mass. 246 (2018), 

motions for relief from impoundment were heard by James G. 

Collins, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

Jeanne M. Kaiser for the mother.

Mark H. Bluver (John R. Godleski also present) for the 

father.

Bethany C. Lynch, Assistant District Attorney, for the 

Commonwealth.
2

David J. Cohen, Committee for Public Counsel Services, for 

the child.

GAZIANO, J. In this case, we consider the application of 

the standard set forth in Care & Protection of M.C., 479 

Mass. 246, 248-249 (2018) (M.C. I), governing requests for 

limited relief from impoundment of records in a care and 

protection proceeding in the Juvenile Court by a party in a

related criminal proceeding. In M.C. I, supra, we concluded 

that "the requestor bears the burden of demonstrating that the 

records should be released under the good cause standard of Rule 

7 of the Uniform Rules on Impoundment Procedure."

When the matter previously was before this court, we 

vacated a Juvenile Court judge's decision allowing the father's 

and the Commonwealth's motions for release from impoundment, and 

remanded the case to the Juvenile Court, so that the motion 

judge could consider any renewed motions for release from 

impoundment in light of our then newly announced standard. See 

M.C. I, 479 Mass. at 263-264.

On remand, the Commonwealth and the father filed renewed 

motions for relief from impoundment. The child changed position 

and filed a motion in support of their requests. The same judge

conducted a hearing on the renewed motions, and then allowed

both motions in part. The mother commenced an appeal 

challenging the judge's decision in its entirety, and the father 
3

sought relief from so much of his request as had been denied. 

We allowed the mother's petition for direct appellate review; 

the petition includes both the mother's and the father's appeal.

We conclude that the judge properly applied the "good 

cause" standard required by M.C. I and Rule 7 of the Uniform 

Rules of Impoundment Procedure, Mass. Ann. Laws Court Rules, 

Uniform Rules on Impoundment Procedure, at 968 (LexisNexis 2018) 

(Rule 7), with respect to the father's motion, and much of the 

Commonwealth's motion, but that the Commonwealth's request for 

transcripts of the mother's and her psychotherapist's testimony 

should have been allowed contingent on the occurrence of 

specific events at the mother's trial.

1. Background. In August 2015, the father was indicted on 

charges of attempted murder, G. L. c. 265, § 16; aggravated 

assault and battery by means of a dangerous weapon, G. L. 

c. 265, § 15A (c) (iv); and assault and battery on a child 

causing substantial bodily harm, G. L. c. 265 § 13J (b), for an 

incident involving his daughter that occurred one day in April 

2015. See M.C. I, 479 Mass. at 250 & n.1. In November 2015, he 

was indicted on three additional counts of assault and battery 

on a child permitting substantial bodily harm, G. L. c. 265 

§ 13J (b), for conduct from July 2013 through April 2015. At 

the same time, the mother was indicted on two counts of assault 

and battery on a child permitting substantial bodily harm and 
4

two counts of assault and battery on a child causing substantial 

bodily harm, G. L. c. 265, § 13J (b), for related conduct on the 

same day in April 2015, as well as for conduct from July 2013 

through April 2015.

The Department of Children and Families (department) filed 

a care and protection petition in the Juvenile Court on behalf 

of the child. See M.C. I, 479 Mass. at 250. A Juvenile Court 

judge conducted a trial on the department's petition for 

termination of parental rights, at which the mother and her 

psychotherapist testified. On the advice of his criminal 

attorney, the father took the stand but invoked his rights under

the Fifth Amendment to the United States Constitution in 

response to virtually all of the Commonwealth's questions. Both 

parents were found unfit, and their parental rights were 

terminated. See Adoption of Henrietta, 92 Mass. App. Ct. 1130 

(2018). Pursuant to G. L. c. 119, § 38, and standing orders of 

the Juvenile Court, the records of the trial on the termination 

of parental rights are impounded, as are all the other documents

in the case. See Juvenile Court Standing Order 1-84, Mass. Ann. 

Laws Court Rules, Standing Orders of the Juvenile Court, at 1158

(LexisNexis 2018).

a. Motions for relief from impoundment. In June and July

2016, the father and the Commonwealth, respectively, first 

sought relief from impoundment in order to prepare for the 
5

pending criminal trials. The child and the mother each opposed 

the release from impoundment, on different grounds.1 In April

2018, after this court's remand in M.C. I, 479 Mass. at 263-264, 

the same Juvenile Court judge allowed the parties to withdraw 

their motions and to file renewed motions in light of that 

decision.

The Commonwealth's renewed motion requested access to the 

transcripts of testimony and admitted evidence from the care and 

protection proceeding that concern or relate to

"any medical treatment sought for or provided to M.C.;

written or verbal reports by either parent to medical 

providers, school personnel, or anyone else, of medical 

symptoms and/or descriptions of any physical ailments or 

impairments allegedly suffered by M.C.; any medical or 

other therapeutic measures administered to or performed on 

M.C. by the parents; [and] the conduct, actions, and 

movements of the parents during the time period from April 

15 through April 18, 2015,"

including applicable testimony of the mother and her 

psychotherapist. As grounds for its request, the Commonwealth 

asserted that the alleged conduct underlying the indictments is 

 

1 In their oppositions, both the mother and the child cited 

privacy concerns. The mother also cited, inter alia, 

circumvention of Rule 11 of the Uniform Rules on Impoundment 

Procedure, Mass. Ann. Laws Court Rules, Standing Orders of the 

Juvenile Court, at 974-975 (LexisNexis 2018); failure to follow 

the procedures for discovery under Mass. R. Crim. P. 17, 378 

Mass. 885 (1979); lack of relevance because the testimony would 

not be admissible at a future trial; violations of the patientpsychotherapist privilege; the rights of parents to raise their 

own children and the chilling of their efforts to protect those 

rights; and the mother's privilege against self-incrimination at 

a criminal trial. M.C. I, 479 Mass. at 251.
6

largely the same as the conduct at issue in the care and 

protection proceeding, and that the parties' privacy interests, 

which they relinquished to a certain extent at the trial on the 

termination of parental rights, should yield to public interest 

in the just resolution of the criminal prosecutions of the 

parents. The Commonwealth argued that "[t]he reason for the 

Commonwealth's request is two-fold. First, any information and 

evidence regarding the conduct of the parents that is related to 

the harm suffered by M.C. is relevant and likely admissible at 

the criminal trials. Second, the sought-after information or 

evidence also may provide further investigatory links to other 

heretofore unknown relevant evidence."

The father requested relief from impoundment with respect 

to the same documents that he had sought in his first motion:

"1) [a] complete unredacted copy of the trial 

transcript . . . ; 2) [a]ll exhibits received by the Court 

in the referenced trial; 3) [t]he Court investigator's 

[report(s)]; 4) [t]he [guardian ad litem (GAL)] report(s); 

5) [a]ll pleadings filed in the referenced case; and 6) [a]

copy of the Court's Order in the Care and Protection case 

as well as its Findings of Fact and Conclusions of Law."

The father argued that the allegations in both the care and 

protection proceeding and the criminal cases are closely 

related; many of the same witnesses will be appearing in the 

criminal cases; the mother's expectation of privacy is 

relinquished for the purposes of discoverability as to the 

father because he was a party in the care and protection 
7

proceeding; and his constitutional rights to a fair trial and to 

confrontation require relief from impoundment. The father, who 

intends to assert a defense that the mother committed the acts 

at issue, also argued that the community has a right to see that 

justice is done, and that the record of the proceedings may be 

exculpatory as to him.

The mother opposed the Commonwealth's motion on the grounds 

that the Commonwealth did not carry its burden under Rule 7; her

testimony and evidence of her mental state is not relevant at 

her criminal trial unless she decides to testify or pursues a 

mental health defense; and the Commonwealth did not act in good 

faith. The mother opposed all requests for release by the 

father, with the exception of the transcript of the testimony of 

Dr. Rebecca Moles, who is expected to testify as the 

Commonwealth's expert in both criminal trials. The mother

maintained that the father did not meet his burden of 

establishing good cause under Rule 7 because he did not explain 

which portions of the requested evidence would be exculpatory.

In June 2018, the child filed a motion in support of both 

the father's and the Commonwealth's request for release from 

impoundment.2

 

2 Citing this court's opinion in M.C. I, 479 Mass. at 261, 

the child noted that she believed the father was "mistaken" that 

his receipt of the transcripts of the mother's testimony would 
8

b. Proceedings on remand. Applying the new standard, 

after a hearing, on August 22, 2018, the same judge found that 

the Commonwealth and the father had established good cause for

relief from impoundment of (a) the entirety of the care and 

protection trial transcript; (b) access to the child's medical 

records (for review but not copying); and (c) medical records 

that were entered in evidence at the care and protection 

proceeding, for review only, upon a showing of their 

unavailability through discovery in the Superior Court.

As stated, the transcripts include testimony of the mother 

and her psychotherapist. While the judge allowed the release 

from impoundment of transcripts describing communications

between the mother and her psychotherapist, the judge did not 

allow release of "the documentary evidence of communications

between Mother and her therapist." He qualified this ruling by 

stating that "if Mother's mental health becomes an element of 

her defense, the parties may again move this Court to determine 

if good cause exists to release such documents." The judge 

denied the release of all other documents requested. The judge 

placed limitations on the use of the material that was released, 

which was to be held protectively and confidentially, and to be 

returned to the Juvenile Court at the conclusion of the criminal 

 

mean that those transcripts could be introduced at his criminal 

trial regardless of whether the mother decided to testify.
9

trials. He noted also that release to the requestors had no 

bearing on the question of admissibility at trial. The judge 

then allowed the mother's motion for a stay to permit her to 

pursue an appeal.

The mother and father each filed timely notices of appeal. 

In December 2018, we allowed the mother's petition for direct 

appellate review of the case; that petition includes both the 

mother's and the father's appeal. On appeal, the mother 

contends that the Juvenile Court judge's order does not 

sufficiently consider and weigh her constitutional rights in its 

good cause determination; the order provides no justification 

for releasing the transcripts of the mother's psychotherapist's

testimony at this point; and the judge abused his discretion in 

not giving proper consideration to the mother's privacy rights. 

The father argues that the judge erred in denying his motion for 

relief from impoundment of the trial exhibits, GAL reports, and 

court investigator reports.3

2. Discussion. a. Standard of review. Juvenile Court 

Standing Order 1-84 provides:

"All [J]uvenile [C]ourt case records and reports are 

confidential and are the property of the court. 

Reports loaned to or copied for attorneys of record, 

or such other persons as the court may permit, shall 

be returned to the court after their use or at the 

 

3 On appeal, the father no longer seeks access to copies of 

pleadings or the judge's order and findings of fact and 

conclusions of law following the care and protection trial.
10

conclusion of the litigation, whichever occurs first. 

Said reports shall not be further copied or released 

without permission of the court."

Although all records of Juvenile Court proceedings are 

impounded, pursuant to Rule 11 of the Uniform Rules of 

Impoundment Procedure, Mass. Ann. Laws Court Rules, Standing 

Orders of the Juvenile Court, at 974 (LexisNexis 2018), "[a]ny 

party or interested nonparty may file a motion supported by 

affidavit for relief from impoundment." In M.C. I, this court 

adopted the good cause standard of Rule 7 as the appropriate 

standard to use in evaluating requests by the parties or the 

Commonwealth for access to the impounded records of care and 

protection proceedings. See M.C. I, 479 Mass. at 254. In 

adopting this standard, we recognized that "[b]ecause Rule 7 

requires a Juvenile Court judge to balance the rights of the 

parties based upon the specific facts presented in each case, 

there is no need to adopt standards and protocols similar to 

those set forth in [Commonwealth v.] Dwyer, 448 Mass. 122

[(2006)]." Id.

Rule 7(b) provides that, "[i]n determining good cause, the 

court shall consider all relevant factors, including, but not 

limited to, (i) the nature of the parties and the controversy, 

(ii) the type of information and the privacy interests involved, 

(iii) the extent of the community interest, (iv) constitutional 

rights, and (v) the reason(s) for the request." In analyzing 
11

the good cause standard, a trial judge must "balance the rights 

of the parties based on the particular facts of each case." 

M.C. I, 479 Mass. at 254, quoting Boston Herald, Inc. v. Sharpe, 

432 Mass. 593, 604 (2000).

"The purposes of a care and protection proceeding, and the 

evidence introduced in such proceedings, are entirely different 

from the concerns of a criminal trial." M.C. I, 479 Mass. at 

255. Care and protection proceedings "are not designed to be 

discovery mechanisms for criminal proceedings," and do not 

afford as many procedural protections as do criminal trials. 

See id. at 256. Investigations in care and protection 

proceedings involve "the most intimate details of the parents' 

and child's lives, and reports undertaken by the department may 

well include much that is hearsay, not relevant to the events at 

issue in a criminal case, and specifically intended to attack a 

parent's character." Id. at 255, citing Gilmore v. Gilmore, 369 

Mass. 598, 604-606 (1976). Investigative reports, including GAL 

reports, almost inevitably contain unsupported assertions by 

third parties, and a judge will not rely upon them as evidence

in a care and protection proceeding unless a parent has the 

opportunity to contest the report. M.C. I, supra at 255-256 

("Such concerns, and the lack of relevance of these types of 

materials in a criminal proceeding, should guide judges in 

weighing whether good cause exists for the release of such 
12

materials"). See Adoption of Mary, 414 Mass. 705, 710 (1993)

(addressing parents' right to contest GAL report).

Because of the Hobson's choice that confronts a parent in

deciding whether to testify at a care and protection proceeding

(where the department routinely draws adverse inferences if a 

parent declines to testify, see Custody of Two Minors, 396 Mass. 

610, 616 [1986]), and risk self-incrimination at a later 

criminal trial, a parent's testimony at a care and protection 

proceeding ordinarily is inadmissible at a subsequent criminal 

proceeding. M.C. I, 479 Mass. at 262. Such testimony may be 

introduced only if the parent decides to testify, and then only 

as impeachment evidence. The testimony of the parent's

psychotherapist is not admissible at that parent's criminal 

trial unless the parent "puts [his or] her mental health at 

issue in [his or] her defense." Id. at 263.

With these standards in mind, we turn to the challenges to 

the judge's decision on remand.

b. Finding of good cause. In finding good cause for 

release of the transcript and limited release of the medical 

records, the judge analyzed the enumerated factors set forth in 

Rule 7(b), as examined by this court in M.C. I, 479 Mass. at 

249. He also analyzed other "relevant factors" and undertook to 

balance, as required, all the parties' interests. The judge 

found that the nature of the parties in the cases is nearly 
13

identical, with the district attorney's office stepping into the 

department's role as a representative of the Commonwealth, and 

that the parents have the advantage of having gone through 

previous proceedings concerning the allegations in the criminal 

cases. The judge noted that the purposes of care and protection 

proceedings are entirely different from those of a criminal 

trial, and the information sought by the father and the 

Commonwealth is "of the most personal nature." The judge 

observed, however, that "[t]he extent of community interest in 

this case cannot be understated," the public has an interest in 

seeing that justice is done in a case dealing with charges of 

serious injury to a child, and the information would permit more 

"expedient use of court resources" and would "promot[e] judicial 

economy."

The judge also discussed the important, and sometimes 

conflicting, constitutional rights that are implicated in a 

motion to release impounded documents in care and protection 

proceedings, including parents' fundamental rights to raise 

their child, the right of a criminal defendant to put forth a 

defense, and the right against self-incrimination, as well as 

the child's and the parents' rights to privacy.

Ultimately, the judge determined that the father's right to 

access prior sworn statements of potential witnesses outweighed 

the mother's argument that release of the transcript would 
14

infringe upon her Fifth Amendment right against selfincrimination, as the mother had been adequately represented by 

criminal counsel in deciding to testify at the care and 

protection trial. Moreover, the judge observed, the mother 

maintains the right against self-incrimination in the criminal 

cases, where she cannot be compelled to testify.4,5 The judge 

did not explicitly set forth his reasoning regarding the denial 

of the release from impoundment of the other requested 

documents.

c. Application of Rule 7(b) factors. In her appeal, the 

mother focuses on the portions of the order allowing release of 

her own testimony and that of her psychotherapist. Because the 

mother does not appear to challenge the limited release of

portions of the child's medical records, and the release of the 

other trial testimony, we consider those issues to be waived. 

See Commonwealth v. Harrington, 379 Mass. 446, 449 (1980)

 

4 The judge did not state explicitly, but we presume that he 

properly determined implicitly, that the mother's testimony at 

the care and protection proceeding also could not be introduced 

in lieu of her testimony, should she decide not to testify at 

the pending criminal trials.

5 In addition to discussion of the stated factors, the judge 

looked to the position of the child with respect to release from 

impoundment. Notwithstanding that the documents contain 

intimate details of the child's trauma, the child now supports 

their release. The judge noted correctly that access to the 

transcript does not ensure admissibility at the criminal trials.
15

("issues not . . . pursued in available appellate proceedings 

are treated as waived").

Even assuming that those issues have not been waived, we 

discern no abuse of discretion in the judge's decisions that 

good cause has been established with respect to the release of 

the other trial transcripts and the limited release from 

impoundment of the child's medical records, to both the father 

and the Commonwealth. Accordingly, we focus our discussion on 

the transcripts of the mother's testimony and the testimony of 

her psychotherapist.

i. Mother's testimony. The mother argues that, in 

allowing release of the transcripts of her testimony, the judge 

abused his discretion and misapplied the factors to be 

considered in deciding a motion for release from impoundment; 

focused far too heavily on judicial efficiency (not one of the 

factors to be considered under Rule 7[b]), and speculated 

inappropriately that "[b]oth sides having access to the 

necessary information may allow for a more expedient use of 

court resources, such as stipulating to the likely testimony of 

certain witnesses based on their prior testimony." The mother 

also argues that the judge did not sufficiently weigh the 

mother's constitutional rights to privacy and to raise her own 

child, and her right against self-incrimination, and instead 

focused impermissibly on the "efficient resolution" of the 
16

criminal cases. Even given the limitations on admissibility, 

the mother maintains, permitting release of a parent's testimony 

in a care and protection proceeding for examination by the 

Commonwealth, regardless of whether that parent testifies at a 

subsequent criminal trial, would have a "chilling effect" on 

parents' decisions whether to testify in an effort to maintain a 

parental role with their children. Hence, notwithstanding this 

court's decision in M.C. I, 479 Mass. at 262 & n.9 ("prior 

testimony at the care and protection proceeding would be 

admissible as impeachment evidence"), the mother maintains that, 

in considering the good cause standard, a Juvenile Court judge 

"should regard the testimony of a parent in a care and 

protection proceeding as presumptively out of bounds."6

The mother's argument is somewhat misguided. The fact that 

a parent's prior testimony might be used for impeachment 

purposes at a criminal trial necessitates that it be released 

from impoundment in certain circumstances. See M.C. I, 479 

Mass. at 254, 262 & n.9.

 

6 Indeed, while acknowledging this court's determination in 

M.C. I, 479 Mass. at 262 & n.9, that a parent's testimony in a 

care and protection proceeding is inadmissible against that 

individual in a later criminal trial, other than for purposes of 

impeachment in the event that the parent decides to testify, the 

mother nonetheless maintains that "[t]his [c]ourt did not 

comment specifically . . . on whether the parent's testimony 

could ever be subject to relief from impoundment."
17

On the other hand, with respect to the reasons given by the 

Commonwealth for the release of the transcripts of the mother's 

testimony, we agree with the mother that the arguments advanced 

by the Commonwealth do not establish good cause for release to 

the Commonwealth prior to the mother's decision to testify.

A. Father's motion for release. With respect to the 

father's argument that he needs the transcripts to prepare for 

his third-party culprit defense and the cross-examination of 

witnesses at his pending criminal trial, we agree with the 

Juvenile Court judge that the father has established good cause 

for the limited release the judge allowed.

The judge's decision indicates clearly that he considered 

and weighed the parties' reasons for their requests for relief 

from impoundment, along with the other Rule 7 factors, see 

M.C. I, 479 Mass. at 249, as well as several additional 

considerations. In addressing the reasons for the request, the 

judge acknowledged the father's right to "fully mount a defense 

in his criminal case," and the Commonwealth's argument regarding 

the relevancy and materiality of the items sought in relation to 

harm to the child, as well as the inability to obtain the 

mother's testimony by ordinary means of discovery.

The judge carefully considered all the factors in the Rule 

7(b) balancing test set forth in M.C. I, 479 Mass. at 249. He 

noted that the nature of the parties in the cases is nearly 
18

identical, with the district attorney's office, rather than the 

department, serving as a representative of the Commonwealth at 

the criminal trials. The decision properly indicated that the 

proceedings in a care and protection case are entirely different 

from those in a criminal trial, highlighted the differing 

purposes and potential outcomes of the two, and addressed those 

differing concerns. The judge began his analysis of the 

interests of the parties by noting that the information sought 

"is of the most personal nature." He recognized that access to 

the records of care and protection proceedings implicates 

privileges such as the psychotherapist-patient privilege and the 

attorney-client privilege (such as with respect to electronic 

mail messages between the mother and her attorney), as well as 

confidential medical information. At the same time, the judge 

emphasized that "[t]he extent of community interest" in this 

case "cannot be overstated," where a serious injury has been 

inflicted on a child. He noted that the public, along with the 

parties to the criminal cases, has a "vested interest in seeing 

that justice is done."

The mother argues that the judge did not sufficiently weigh 

her constitutional rights, and the implications of relief from 

impoundment: the chilling effect that the mother argues would 

ensue in regards to a parent testifying at a care and protection

proceeding if the testimony could be discoverable by the 
19

Commonwealth. M.C. I, 479 Mass. at 262. Indeed, to some 

extent, the father could argue that the prospect of the use of 

his testimony at his criminal trial did have a chilling effect 

on his initial decision not to testify at the care and 

protection proceeding, where he testified only to the extent of 

asserting his Fifth Amendment privilege. At this point, 

however, the interests of the father and the mother are adverse, 

and the release from impoundment of the mother's testimony, for 

the father's use in preparing for his own criminal trial and his 

third-party defense, does not place him in the impossible 

position of having to choose between two constitutionally 

protected rights.

As the mother chose to offer her testimony at the care and 

protection proceeding where the father was a party and heard all 

the mother's statements, she has a lessened privacy interest 

with respect to limited, confidential release of transcripts of 

that testimony to the father. M.C. I, 479 Mass. at 261-262. To 

obtain confidential access to the mother's testimony, the father 

need not, as the mother suggests, indicate which specific 

information in the mother's testimony might be exculpatory, and 

receive only those portions of the transcript. The mother's 

constitutional rights are protected by the limitation that her 

testimony in the care and protection proceeding may be 

introduced solely at her own criminal trial, if she decides to 
20

testify at that proceeding, and then only for impeachment 

purposes "should her testimony differ significantly from her 

testimony at the care and protection proceeding." Id. at 262 

n.9. With respect to her testimony concerning her 

communications with her psychotherapist, that testimony would be 

admissible at the mother's criminal trial only if she chooses to 

introduce a mental health defense. The father's suggestion, in 

his brief on appeal, that he could introduce transcripts of the 

mother's testimony as exhibits at his own criminal trial is 

unavailing.

B. Commonwealth's motion for release. Although the judge 

determined that the Commonwealth had established good cause in 

support of its request for relief from impoundment of the 

mother's testimony, we conclude that the judge's determination

concerning that testimony was premature. The Commonwealth 

stated that it requested relief from impoundment in order to 

assist the parties in preparation for trial, and to ensure that 

all parties in the criminal cases understand "previous testimony

of likely witnesses." In its motion, the Commonwealth asserted 

that the requested evidence "likely" was "relevant" to the 

criminal cases and that "the sought-after information or 

evidence also may provide further investigatory links to other 

heretofore unknown relevant evidence."
21

Undoubtedly, "the mother has a diminished privacy interest 

in the records of [the care and protection] proceeding, with 

respect to the parties seeking the records." M.C. I, 479 Mass. 

at 259. The father was present throughout the care and 

protection hearing, so her privacy interests are greatly 

diminished with respect to him; that is not entirely the case 

with the assistant district attorney. The motion judge properly 

pointed out that the mother's privileges would not be deemed 

waived in the criminal proceeding unless she chose to testify in 

the criminal trial.

The mother argues that the judge did not sufficiently weigh 

her constitutional rights, implicating the fourth factor of 

Rule 7: the chilling effect that the mother argues would ensue 

in regards to a parent testifying at a care and protection 

hearing if that testimony could be discoverable by the 

Commonwealth. M.C. I, 479 Mass. at 262. We made clear in 

M.C. I that the waiver of the privilege against selfincrimination at a care and protection proceeding does not 

result in a waiver of that privilege at the subsequent criminal 

trial. Id. at 261-262. As the mother has the ability to 

reassert that privilege at the criminal trial, any chilling 

effect should be minimized. The mother's testimony would be 

admissible at the criminal trial, in the event that she decides 

to testify, only for impeachment purposes, if her testimony at 
22

the criminal trial is inconsistent with her statements under 

oath at the care and protection hearing. See Commonwealth v. 

Rivera, 425 Mass. 633, 637-638 (1997).

While the judge allowed the release of the mother's 

testimony to the Commonwealth as a more "efficient" process, in 

the event that the mother did choose to testify, in the 

balancing of constitutional and privacy interests at this stage, 

where the mother has not indicated that she will testify, the 

Commonwealth's assertion that "the sought-after information or 

evidence also may provide further investigatory links to other 

heretofore unknown relevant evidence" remains a "vague and 

general fishing expedition," M.C. I, 479 Mass. at 259, that does 

not meet the good cause standard set forth in M.C. I, supra

at 262. See Rule 7(b) of the Uniform Rules on Impoundment 

Procedure.

The Commonwealth's concerns with efficiency and the smooth 

operation of the criminal trials can be met by allowing the 

Commonwealth's motion for access to transcripts of the mother's

testimony, to be provided to the Commonwealth upon notice that 

the mother has stated her intention to testify at the criminal 

trials.7

 

7 If the mother does not decide whether to testify until 

after the Commonwealth rests, the Commonwealth should be given a 

brief recess to examine the mother's care and protection 

testimony in order to prepare for cross-examination.
23

ii. Psychotherapist's testimony. The mother argues that 

the judge abused his discretion in allowing the release of her 

psychotherapist's testimony to the Commonwealth where she has

not stated an intention to pursue a mental health defense at 

trial. See G. L. c. 233, § 20B (patient-psychotherapist 

privilege); M.C. I, 479 Mass. at 263. We agree.

The judge properly limited access to information ordinarily 

protected by the patient-psychotherapist privilege by denying

relief from impoundment of documentary evidence related to 

communications between the mother and her therapist. While 

there was no error in that ruling, it did not go far enough. As 

with the release of the mother's testimony, in allowing the 

release of the psychotherapist's testimony to the Commonwealth, 

the judge clearly expressed his concerns about efficiency. This 

concern, alone, does not serve to tip the balance toward release 

from impoundment where the mother's Fifth Amendment rights and 

the patient-psychotherapist privilege are both at play. Unless 

and until the mother provides notice that she intends to pursue 

a mental health defense, her psychotherapist's testimony should 

not be released to the Commonwealth. Should she do so, at that 

point the Commonwealth should be provided the transcripts of the 

psychotherapist's testimony upon notice to the Juvenile Court of 

the mother's intention.
24

iii. Trial exhibits, GAL reports, and court investigator

reports. The father asserts that the GAL reports and 

investigative reports likely contain information about the 

family circumstances that will aid him in his defense in the 

criminal trial. The father argues that the judge abused his 

discretion in denying the motion for relief from impoundment of 

the trial exhibits, the GAL reports, and the court investigator 

reports. The father maintains that his constitutional right to 

present a defense establishes that he met the good cause

standard of Rule 7 with respect to all the requested documents, 

and that his due process right to receive exculpatory evidence 

has been violated by the denial of the motion for release from 

impoundment.

We conclude that there was no error and no denial of due 

process in the denial of the motion. The father was present 

throughout the care and protection proceeding, received copies 

of many of the documents introduced in that proceeding, and is 

well aware of the tenor of the testimony insofar as it might 

suggest a basis of his defense. Contrary to the father's 

arguments, in denying the request for release, the judge 

properly balanced the competing constitutional concerns at issue 

in the context of allowing access to impounded records in care 

and protection proceedings. See M.C. I, 479 Mass. at 248-249.

The judge's decision did not preclude the defendant from 
25

pursuing a third-party culprit defense or from introducing 

relevant evidence in his defense.

In M.C. I, 479 Mass. at 257, we observed that "[the 

judge's] decision not to disclose the GAL report was 

appropriate . . . . Where it was likely that the reports 

contained information that not only was irrelevant to the 

criminal proceedings, but also would not be admissible as

evidence, the trial judge properly withheld their disclosure." 

Our reasoning in that case, regarding the same GAL reports 

requested here, applies equally to the same request in the 

father's renewed motion. Similarly, as with the GAL reports, 

the investigative reports likely contain multiple-level hearsay 

that will not be relevant at the criminal trial. Id., citing 

Adoption of Georgia, 433 Mass. 62, 68 (2000). There was no 

error in the judge's decision not to allow the father's request 

for access to the GAL reports and the investigative reports.

In addition to his assertion that his motion for relief 

from impoundment met the good cause standard, the father argues 

that the trial exhibits are necessary in order to understand the 

trial testimony, and the transcript will be difficult to 

understand without the exhibits. While this argument may have 

superficial appeal, the judge did not find good cause to release 

the documents, and we do not disturb his decision absent a clear 

error of judgment. See L.L. v. Commonwealth, 470 Mass. 169, 185
26

n.27 (2014). As stated, the father was present throughout the

care and protection proceeding and able to see and hear the 

witnesses testify. To disturb the judge's finding, the party 

seeking to do so must demonstrate to our satisfaction that "no 

conscientious judge, acting intelligently, could honestly have 

taken the view expressed by him." Commonwealth v. Ira I., 439 

Mass. 805, 809 (2003), quoting Commonwealth v. Bys, 370 Mass. 

350, 361 (1976).

The father's assertion that he will be relying upon a 

third-party culprit defense that the mother was the person 

responsible for the child's injuries does not alter our view 

that the exhibits8 that the father seeks likely contain 

unsubstantiated hearsay that will not be admissible in a 

criminal trial. The father is correct that, generally, a thirdparty culprit defense supports the "admission of relevant 

evidence that a person other than the defendant may have 

committed the crime charged." Commonwealth v. Silva-Santiago, 

453 Mass. 782, 800-801 (2009). This "latitude," however, "is 

not unbounded." Id. at 801. The evidence "must have a rational 

 

8 Should a specific portion of the testimony be determined 

to be incomprehensible without access to a referenced exhibit, 

the party making such an assertion may file a separate motion in 

the Juvenile Court demonstrating that the testimony is indeed 

not able to be understood absent that exhibit, and otherwise 

establishing that confidential and limited release of that 

exhibit would meet the requirements of good cause for relief 

from impoundment under Rule 7(b).
27

tendency to prove the issue the defense raises, and the evidence 

cannot be too remote or speculative." Commonwealth v. Rosa, 422 

Mass. 18, 22 (1996). Investigative and GAL reports likely are 

too speculative, full of lay opinion, and rife with hearsay to 

be admissible at a criminal trial. We discern no error in the 

judge's decision to deny the father's motion for access to the

GAL and investigative reports.

3. Conclusion. As stated, the judge allowed release from 

impoundment of the entirety of the care and protection trial 

transcript (at which numerous witnesses testified) to both the 

father and the Commonwealth; access to the child's medical 

records (for review but not copying) by both the father and the 

Commonwealth; and access by both the father and the Commonwealth 

to medical records that were entered in evidence at the care and 

protection proceeding, for review only, upon a showing of their 

unavailability through discovery in the Superior Court. The 

judge properly placed limitations on the use of the documents 

released, which were to be held protectively and confidentially, 

and returned to the Juvenile Court at the conclusion of the 

criminal trials. He noted that the limited release was for 

trial preparation, and did not imply in any way admissibility at 

trial.

The order allowing, in part, and denying, in part, the 

father's motion for limited relief from impoundment is affirmed. 
28

The father shall have access to the entire unredacted transcript 

of the testimony at the care and protection proceeding, subject 

to the limitations on confidentiality and release to others, and 

return to the Juvenile Court at the end of the criminal trial, 

that the motion judge ordered. The motion judge properly denied 

the father's motion for release of exhibits, court 

investigators' reports, GAL reports, all pleadings filed in the 

care and protection case, and a copy of the court's findings and 

rulings in that case.

With respect to the Commonwealth's motion for relief from 

impoundment, the judge's order is affirmed except for so much of 

the order as allows limited relief from impoundment of the 

testimony of the mother and her psychotherapist. The 

Commonwealth shall have access to the entirety of the transcript 

of the care and protection proceeding, absent the mother's and 

her psychotherapist's testimony, which the Commonwealth may 

obtain contingent upon the mother's decision to testify or to 

put her mental health at issue. By the terms of the judge's 

order, the Commonwealth may examine without copying the child's 

medical records, as well as all medical records that were 

entered in evidence at the care and protection trial.

The matter is remanded to the Juvenile Court for entry of a 

modified order (1) allowing the Commonwealth access to 

transcripts of the mother's testimony if she should decide to 
29

testify at trial, under the same conditions as the other 

documents that have been released by the terms of the order; and 

(2) allowing the Commonwealth to obtain transcripts of the 

psychotherapist's testimony should the mother give notice that 

she intends to pursue a mental health defense, under the same 

conditions as the other documents that have been released.

So ordered.