NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]
SJC-13854
PIPER P. vs. BARRON B.1
Worcester. April 8, 2026. – October 5, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Harassment Prevention. Expungement. Juvenile Court,
Jurisdiction. Jurisdiction, Juvenile Court. Practice,
Civil, Record, Reconsideration.
Complaint for protection from harassment filed in the Worcester County Division of the Juvenile Court Department on April 24, 2024.
The case was heard by Anthony J. Marotta, J., motions for reconsideration and for relief from judgment were also heard by him, and a motion for clarification or reconsideration regarding expungement was considered by him.
The Supreme Judicial Court granted an application for direct appellate review.
Amy S. DiDonna for the defendant.
Kirk G. Hanson, Special Assistant Attorney General, for Massachusetts Probation Service, amicus curiae, submitted a brief.
1 The parties' names are pseudonyms.
2
GEORGES, J. This appeal involves the intersection of
juvenile proceedings, harassment prevention orders issued under
G. L. c. 258E, and the limits of judicial authority. The
juvenile, who was in the fourth grade when these events
occurred, asks this court to recognize a broader equitable
authority to expunge harassment prevention orders later vacated
for insufficient corroboration of the alleged harassment.
A harassment prevention order entered against the defendant
(juvenile), following a hearing during which a Juvenile Court
judge credited the testimony of the plaintiff, the juvenile's
classmate, that the juvenile had engaged in several instances of
harassing behavior. A subsequent school investigation failed to
substantiate that the juvenile intentionally injured the
plaintiff. The same Juvenile Court judge (motion judge) later
terminated2 the order, concluding that the evidence did not
establish harassment. The motion judge nevertheless determined
that expungement was unavailable because there was no clear and
convincing evidence of fraud on the court.
The juvenile argues that this result is fundamentally
unfair, particularly where the order was issued against a child
and where the order remains within record-keeping systems
2 For harassment prevention orders, "trial courts have used 'vacated' and 'terminated' interchangeably." J.S.H. v. J.S., 91 Mass. App. Ct. 107, 108 n.2 (2017).
3
notwithstanding the later judicial determination of insufficient
evidence.3 We recognize the force of those concerns. A juvenile
who successfully challenges a previously issued harassment
prevention order understandably may view the continued existence
of that order in governmental databases as difficult to
reconcile with a later determination that subsequently presented
evidence did not support continued relief.
The issue before us, however, is not whether expungement
would be sound policy. The question is whether there is
statutory or inherent judicial authority for expungement in
these circumstances. We conclude that there is none.
General Laws c. 258E does not expressly authorize a judge
to order the expungement of records concerning harassment
prevention orders. Nor can such authority be implied within the
statute, for essentially the same reasons we stated in Vaccaro
v. Vaccaro, 425 Mass. 153, 157-159 (1997). Finally, although a
narrow authority to expunge records has been recognized in order
to remedy fraud on the court, see Commissioner of Probation v.
Adams, 65 Mass. App. Ct. 725, 733-734 (2006), the judge here
expressly found that no fraud on the court had been established,
and we decline to expand this authority.
3 See G. L. c. 258E, § 9.
4
Thus, as the motion judge was without authority to order
expungement, the judge correctly denied the juvenile's request
to expunge. We therefore affirm.4
Background. We summarize the facts consistent with the
motion judge's rulings based on the record before us. See
E.C.O. v. Compton, 464 Mass. 558, 559 (2013).
On April 24, 2024, the plaintiff, also in fourth grade,
sought an ex parte harassment prevention order against the
juvenile in the Juvenile Court. A judge declined to issue an ex
parte order and referred the matter to mediation, which the
plaintiff's family later declined.
A two-party hearing occurred before the motion judge on May
2, 2024. The plaintiff testified that the juvenile pushed her
into a corner during gym class, kicked her in the head, and
stepped on her hand. She further asserted that she suffered a
concussion and went to a hospital's emergency room following the
incident; she provided the judge with her medical records from
the incident. She also described several other interactions
with the juvenile that she characterized as bullying. The
juvenile disputed the allegations.
At the hearing, the juvenile's counsel informed the motion
judge that the school district was investigating the allegations
4 We acknowledge the amicus brief submitted by the
Massachusetts Probation Service.
5
of bullying and expected to issue a written report shortly. The
motion judge issued the harassment prevention order effective
through November 1, 2024, crediting the plaintiff's testimony.
The motion judge also stated that he would revisit the order
once the school investigation was completed.
Several weeks later, the school district completed its
investigation pursuant to the antibullying statute, G. L. c. 71,
§ 37O. See Cormier v. Lynn, 479 Mass. 35, 42 n.15 (2018) ("the
schools of the Commonwealth are now statutorily required to
address bullying"). According to the investigator's report,
interviews with students and staff did not substantiate the
allegations that the juvenile intentionally made physical
contact with the plaintiff. Further, the report concluded that
"there [was] not a preponderance of evidence that [the juvenile
had] repeatedly targeted [the plaintiff] with inappropriate,
malicious or disparaging verbal statements, physical acts or
gestures such as would be necessary to support a finding of
bullying or cyberbullying under [G. L.] c. 71, § 37O." The
juvenile submitted the report to the Juvenile Court and moved
for reconsideration.
Following a further hearing, in July 2024, the motion judge
terminated the harassment prevention order. In doing so, the
judge wrote:
6
"After further hearing, there is no evidence[,] physical or
anecdotal, of an intentional blow to the plaintiff[']s
face[.] [Ten] students and several staff were interviewed
and provide little insight or evidence[.] [There was] no
bruising[,] no outward signs of [a] kick to [her] face/head
or stomping on [her] fingers[, and] no evidence of
intentional injury[.] Harassment order terminated."
The juvenile then moved to expunge all records associated with
the harassment prevention order. The motion judge initially
allowed the motion. The Massachusetts Probation Service
intervened and moved for reconsideration, arguing that
expungement was unavailable absent fraud on the court. The
judge reconsidered the ruling and vacated the expungement order.
The juvenile appealed, and we granted the juvenile's
application for direct appellate review.
Discussion. The juvenile urges us to expand our
jurisprudence to recognize a Juvenile Court judge's authority to
expunge a harassment prevention order, even absent fraud in its
procurement, where subsequently gathered evidence fails to
corroborate the allegations that formed the basis for the order.
In considering that argument, we first turn to the
legislative source and limits of the Juvenile Court's authority.
"The Juvenile Courts, like all the courts of the Commonwealth,
except the Supreme Judicial Court, are creatures of the
Legislature and derive their powers, other than those powers
that are inherent in all courts, . . . from the Legislature"
(citation omitted). School Comm. of Worcester v. Worcester Div.
7
of the Juvenile Court Dep't, 410 Mass. 831, 834 (1991).
Accordingly, any legislative grant of authority to the Juvenile
Court "must either be articulated expressly or be capable of
being deduced by necessary and inevitable implication"
(quotation and citation omitted). Id.
1. Statutory authority. We begin with the governing
statutory framework under G. L. c. 258E. See Makis M. v.
Commonwealth, 494 Mass. 23, 30 (2024).
The Juvenile Court is vested with exclusive jurisdiction of
harassment prevention proceedings under G. L. c. 258E where the
defendant is under the age of eighteen. G. L. c. 258E, § 2.
See G. L. c. 258E, § 1 (defining "Court" for purposes of G. L.
c. 258E to include Juvenile Court). Pursuant to G. L. c. 258E,
§ 9, whenever the Juvenile Court issues a harassment prevention
order, the clerk is required to transmit information concerning
the order to the Commissioner of Probation for inclusion in
designated record-keeping systems, including the Statewide
domestic violence record-keeping system (DVRS).5 The directive
5 "The DVRS is a registry of sorts, established by the commissioner of probation pursuant to [St. 1992, c. 188, § 7], and includes, among others, records of the issuance of and any violations of criminal or civil restraining or protective orders." Commonwealth v. Dossantos, 472 Mass. 74, 77–78 (2015). General Laws c. 258E, § 9, more specifically directs that information on harassment prevention orders be maintained within the DVRS, the court activity record information (CARI) system, or "a recordkeeping system created by the commissioner of probation to record the issuance of, or violation of,
8
is mandatory. Nothing in G. L. c. 258E expressly authorizes the
removal or expungement of those records from the DVRS when an
order is later vacated because the evidence is ultimately deemed
insufficient. Cf. Vaccaro, 425 Mass. at 156 ("There is nothing
. . . in G. L. c. 209A . . . that permits a record to be removed
or that authorizes . . . judicial . . . expungement of a record
from the [DVRS]"). The statutory text likewise draws no
distinction, for purposes of retaining DVRS records, between
orders that remain active and those later terminated or vacated.6
In short, the authority the juvenile seeks is not expressly
stated in the statute.
[harassment] prevention orders." CARI records are included in the DVRS. St. 1992, c. 188, § 7.
6 The statute does require a court to notify the
"appropriate law enforcement agency" in writing when a harassment prevention order is vacated, and to direct that agency to destroy all record of the vacated order. G. L. c. 258E, § 9. But the "appropriate law enforcement agency" is not the office of the Commissioner of Probation. It is the agency that received the order for service on the defendant. See id. See also Guideline 4:06 of the Guidelines for Judicial Practice: Harassment Prevention Proceedings (Oct. 2025) (defining "appropriate law enforcement agency" as "the police department with jurisdiction over the defendant's residence" or "any police department of the municipality where the defendant is most likely to be found").
For that reason, the record-destruction provision in G. L. c. 258E, § 9, does not apply to the DVRS records maintained by the office of the Commissioner of Probation. Cf. Vaccaro, 425 Mass. at 156-157 (reaching same conclusion as to virtually identical language in G. L. c. 209A, § 7).
9
Nor are we persuaded that such authority may be implied.
The Legislature's intent, reflected in the statutory framework
and legislative history, is particularly instructive. When the
Legislature enacted G. L. c. 258E in 2010, it expressly directed
that harassment prevention orders be incorporated into the DVRS,
the same centralized record-keeping system that maintains abuse
prevention orders issued under G. L. c. 209A. See St. 2010,
c. 23; St. 1992, c. 188, § 7. That decision reflects a
deliberate legislative judgment that prior harassment prevention
orders, like prior abuse prevention orders, should remain
available to law enforcement officials and judges evaluating,
among other things, subsequent requests for protective relief.
See Commonwealth v. Dossantos, 472 Mass. 74, 77–78 (2015).
Against that backdrop, our decision in Vaccaro controls.
There, we considered whether a judge had authority to expunge
abuse prevention order records maintained in the DVRS. See
Vaccaro, 425 Mass. at 154-158. We concluded that the
Legislature had created a comprehensive statutory scheme
requiring retention of those records and that "no power to order
expungement can be implied." Id. at 157. The same reasoning
applies here. See Tom T. v. Lewis L., 97 Mass. App. Ct. 698,
700–701 (2020) ("Chapters 209A and 258E are particularly similar
in their treatment of records following the issuance of an
order, as well as after an order is vacated" [citation
10
omitted]). Cf. O'Brien v. Borowski, 461 Mass. 415, 417-418
(2012), abrogated on another ground by Seney v. Morhy, 467 Mass.
58, 61-62 (2014) (determining proper avenue of review for G. L.
c. 258E order based on G. L. c. 209A precedent).
Like G. L. c. 209A, G. L. c. 258E reflects a legislative
determination that retaining these records serves continuing
judicial and law enforcement needs. Prior filings, including
inactive orders, may assist judges who are evaluating future
requests for harassment prevention orders in assessing risk,
credibility, escalation, and patterns of alleged conduct. See
Vaccaro, 425 Mass. at 157-158. Preserving those records
therefore advances the central purpose of G. L. c. 258E:
protecting victims of harassment. See J.S.H. v. J.S., 91 Mass.
App. Ct. 107, 109 (2017). Reading an implied judicial power of
expungement into the statute would thus conflict with the
statute's "manifest purpose." Vaccaro, supra at 158.
The juvenile argues that the government's interest in
retaining these records largely disappears once an order has
been vacated for insufficient evidence. That concern is
understandable. A vacated order does not carry the same weight
as one that remains valid and enforceable. But, as noted, even
vacated orders "can provide meaningful information,
notwithstanding their inactive status and regardless of the
reason for termination," Vaccaro, 425 Mass. at 158 n.5, at least
11
where the order was not procured through fraud on the court, see
Adams, 65 Mass. App. Ct. at 735-736.
In sum, G. L. c. 258E neither expressly nor implicitly
authorizes the expungement of harassment prevention orders from
the DVRS or any other repository. We shall not read such a
mechanism into the statute where the Legislature has not seen
fit to put it there -- particularly where such a mechanism would
be contrary to the Legislature's intent. See Entergy Nuclear
Generation Co. v. Department of Envtl. Protection, 459 Mass.
319, 329 (2011) ("We will not create provisions the Legislature
did not see fit to include . . . "). See also School Comm. of
Worcester, 410 Mass. at 834.
2. Inherent authority and fraud on the court. The
juvenile next argues that courts possess broader inherent
equitable authority to expunge records where a harassment
prevention order is later determined to lack evidentiary
support. We disagree.
The Appeals Court has recognized a narrow inherent judicial
authority to expunge records of both abuse prevention orders and
harassment prevention orders in one limited circumstance: where
the order was procured through fraud on the court. See J.S.H.,
91 Mass. App. Ct. at 112 (G. L. c. 258E orders); Adams, 65 Mass.
App. Ct. at 737 (G. L. c. 209A orders). That authority does not
arise from generalized equitable concerns. Rather, it stems
12
from the judiciary's obligation to protect the integrity of the
judicial process itself. See Adams, supra at 731. Fraud on the
court involves conduct that corrupts the adjudicative process;
it is not established from the mere fact that evidence is later
determined to be inaccurate, mistaken, or unsupported. See id.
at 729 ("Fraud on the court implies corrupt conduct and embraces
only that species of fraud which does, or attempts to, defile
the court itself" [citation omitted]). See also Matter of
Neitlich, 413 Mass. 416, 422-423 (1992) (were court to "condone"
actions of respondent who "perpetrate[d] a fraud on the court,"
"the integrity of the judicial process would be vitiated").
For that reason, the standard is exacting and requires
clear and convincing evidence. See Adams, 65 Mass. App. Ct. at
737. Here, as expressly noted in a margin endorsement, the
judge did not find by clear and convincing evidence that the
plaintiff had committed fraud on the court.7 Instead, the judge
had concluded only that subsequently developed evidence failed
to establish any intentional injury or willful and malicious
conduct necessary to justify continued relief under G. L.
c. 258E. Those are materially different conclusions.
A witness, particularly a child witness, may sincerely
recount events later determined to be inaccurate or unsupported
7 The juvenile does not challenge this finding on appeal.
13
by corroborating evidence. See Commonwealth v. Gomes, 470 Mass.
352, 373 (2015), S.C., 478 Mass. 1025 (2018) ("memories of
witnesses . . . are highly malleable" [citation omitted]). See
also Commonwealth v. A Juvenile, 21 Mass. App. Ct. 121, 124
& n.5 (1985) (age of witness factored into assessment of witness
credibility). A subsequent failure of proof does not itself
establish intentional deception. See Smith v. Jones, 67 Mass.
App. Ct. 129, 138 (2006) ("That a plaintiff presents a claim
that fails does not mean that she has perpetrated a fraud on the
court . . . "). Nor does a judge's decision to terminate an
order retroactively transform the original proceeding into a
fraud on the court.
The juvenile nevertheless urges us to expand the
judiciary's inherent authority beyond cases involving fraud on
the court and to recognize a broader equitable power to expunge
records whenever an order is later vacated for insufficient
evidence. We decline to do so. "[T]he inherent powers of the
courts are those whose exercise is essential to the function of
the judicial department, to the maintenance of its authority, or
to its capacity to decide cases." Sheriff of Middlesex County
v. Commissioner of Correction, 383 Mass. 631, 636 (1981). That
is, the judiciary's inherent authority is implicated where the
absence of statutory authority "impairs the function of the
court or threatens the maintenance of its authority." Vaccaro,
14
425 Mass. at 159 n.7. See Makis M., 494 Mass. at 33 (scope of
court's inherent authority is "concurrent with its purpose: to
allow judges to perform core functions necessary for the proper
administration of justice" [quotation and citation omitted]).8
That concern is directly implicated where an order is obtained
through fraud on the court because such fraud strikes at the
judiciary's ability "impartially to adjudicate a matter."
Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598
(1994). In that circumstance, some judicial remedy must exist
and the absence of express statutory authorization for
expungement becomes "immaterial" (citation omitted). Adams, 65
Mass. App. Ct. at 731.
No similar concern exists here. Maintaining an accurate
record of the issuance of the harassment prevention order, as
well as its subsequent termination, in the DVRS does not
8 Compare Makis M., 494 Mass. at 33 ("establishment of pretrial remediation programming for incompetent juveniles strays beyond . . . the scope of the court's inherent authority" [quotation and citation omitted]), with Commonwealth v. Teixeira, 475 Mass. 482, 483 (2016) ("because [Boston Municipal Court] judges have inherent authority to issue orders essential to their capacity to decide cases, they may . . . order prehearing discovery"), and Gray v. Commissioner of Revenue, 422 Mass. 666, 672-673 (1996) (courts have inherent power to grant change of venue to secure impartial trial, use contempt proceedings to ensure orderly administration of justice, order county to pay adequate resources to ensure proper operation of courts, make rules governing internal organization of courts, and revoke judgment obtained by fraud on court, because "[s]uch powers are inseparable from a judge's power to hear and decide cases").
15
"impair[] the court's function or threaten[] its authority or
ability to decide cases so as to require an exercise of any
inherent power of expungement."9 Vaccaro, 425 Mass. at 159 n.7.
To nonetheless recognize such an inherent authority would
effectively create a new expungement regime untethered to any
threat or impairment to the integrity of the judiciary itself.
Courts would be required to determine when later evidentiary
developments justify erasing otherwise properly issued orders
from legislatively mandated databases, even without any
attendant threat to the integrity of the judicial system or
9 Applying this framework, courts have repeatedly declined to expunge the records of a vacated harassment prevention order in the absence of fraud, even when the equities of the individual case seem to favor expungement, as doing so would override the legislative command that a record of all orders, vacated or not, be maintained. See, e.g., Silva v. Carmel, 468 Mass. 18, 24-25 (2014) (expungement not available even though initial ex parte abuse prevention order should not have issued because parties were not household members); J.S.H., 91 Mass. App. Ct. at 112-113 (expungement not available where plaintiff failed to make adequate evidentiary showing for extension of harassment prevention order, but record did not establish that plaintiff's statements were fabricated or motivated by deceptive scheme); B.C. v. F.C., 90 Mass. App. Ct. 345, 350-351 (2016) (expungement not available where both parties agreed abuse prevention order was premised on "fantastical representations from a plaintiff then suffering a psychotic episode with delusions" but there was no "conscious fabrication of abuse" or perjury by plaintiff); M.C.D. v. D.E.D., 90 Mass. App. Ct. 337, 342-343 (2016) (expungement not available where although plaintiff wife's allegation of abuse was false, she did not recant allegation; it was defendant husband's own view that plaintiff suffered from alcohol addiction and did not knowingly make false complaint; and judge found no "larger plan intended to harass the defendant or to undermine the judicial process").
16
impairment to the courts' ability to adjudicate cases, and
notwithstanding the Legislature's evident intent that such
records be retained. See id. at 158 (expungement powers "would
be inconsistent with the manifest purpose of G. L. c. 209A and
other abuse prevention statutes").
That determination involves competing policy considerations
regarding public safety, record retention and access,10 and the
treatment of juveniles. The Legislature is institutionally
better equipped to balance those interests and determine whether
a broader expungement remedy should exist. See Decker v. Black
& Decker Mfg. Co., 389 Mass. 35, 42 (1983) ("conflicting policy
considerations are best resolved in the Legislature where the
resolution can be based on full consideration of the competing
interests and the ramifications involved with any change of the
legislative scheme" [citation omitted]). Consistent with our
constitutional role, and in the absence of a threat to the
judiciary or its ability to carry out its adjudicatory
functions, we decline to use the court's inherent authority to
override the Legislature's policy choice.
10Records maintained in the DVRS are not public; "the records in the system are available only to trial court judges through the court's computer system and to law enforcement agencies through the criminal justice information system," and such authorized persons or agencies may use the information contained therein only "to further the protective purpose[s] of . . . statutes aimed at preventing abuse." Vaccaro, 425 Mass. at 159 n.6. See St. 1992, c. 188, § 7.
17
3. Juvenile status. The juvenile further argues that
Juvenile Court judges possess broader equitable authority
because proceedings involving children are guided by
rehabilitative principles and concern the welfare of minors.11
We do not disagree that juvenile proceedings differ in important
respects, nor do we minimize the significance of placing a
child's name in databases accessible to law enforcement agencies
indefinitely.
Even so, we have declined to recognize the power of the
Juvenile Court to expunge probation records where the
Legislature enacted a statutory scheme governing confidentiality
and retention that did not confer such power, notwithstanding
the "unique goals of the juvenile justice system" (citation
omitted). Commonwealth v. Gavin G., 437 Mass. 470, 472–473
(2002). In addition to the limitation governing vacated orders
discussed above, G. L. c. 258E, § 10, provides that records
involving a juvenile "shall be withheld from public inspection,"
11In his postargument letter filed pursuant to Mass. R. A. P. 22 (c), as appearing in 481 Mass. 1651 (2019), the juvenile points to several provisions of G. L. c. 119 governing the powers of the Juvenile Court and contends that they supply the authority necessary to expunge records of vacated harassment prevention orders. See G. L. c. 119, §§ 26, 29, 39E, 53. Those statutes, however, are inapplicable. They concern the Juvenile Court's authority in matters involving care and protection proceedings, proceedings for children requiring assistance, and delinquency proceedings, not the retention or expungement of harassment prevention orders governed by G. L. c. 258E.
18
with limited exceptions. Where the Legislature has specifically
addressed confidentiality in this manner, a recognition of an
expungement power would be particularly "inappropriate." Gavin
G., supra at 475.
That conclusion remains true even if the juvenile believes
the statutory protections are inadequate. As we explained in
Gavin G., 437 Mass. at 476:
"The juvenile cannot, merely by pointing to ostensible
holes or inadequacies in the legislative scheme protecting
his records, pretend that the Legislature has not provided
the protections that it deems appropriate and sufficient.
The Legislature has struck its own balance between the
juvenile's interest in not being unfairly prejudiced by his
record and the needs of courts and law enforcement agencies
for information pertaining to juvenile proceedings. . . .
Where the Legislature has determined that a very few
limited persons . . . are entitled in certain circumstances
to know that proceedings were brought against a particular
juvenile, the juvenile's contention that those limited
persons should not have access to that information, that
they do not need it, or that they will misuse it, is a
contention that should be addressed to the Legislature, not
to a Juvenile Court judge."
Thus, even accounting for the Juvenile Court's special
concern for the welfare of children, judges may not disregard
the Legislature's explicit directives. See Vaccaro, 425 Mass.
at 158. The Legislature mandated retention of harassment
prevention order records and did not authorize discretionary
expungement based solely on equitable considerations or juvenile
status. And, as explained by the Appeals Court in Adams, 65
Mass. App. Ct. at 731, the judiciary's limited inherent
19
authority to expunge exists to protect the integrity of the
judicial process itself, not to override legislative judgments
whenever perceived fairness concerns arise.
Conclusion. No statute authorized the motion judge to
expunge the juvenile's records associated with the harassment
prevention order, and the judge had no inherent authority to do
so. The order denying the juvenile's motion to expunge is
affirmed.
So ordered.
KAFKER, J. (concurring, with whom Wendlandt, J., joins).
The 2018 Criminal Justice Reform Act, St. 2018, c. 69 (criminal
justice reform act or 2018 act), fundamentally changed the
jurisdiction of the Juvenile Court. In recognition of the harm
caused by involvement in the juvenile justice system and the
continuing damage caused by the records created by such
involvement, the Legislature excluded from the definition of
"[d]elinquent child," and thus the jurisdiction of the Juvenile
Court, children below the age of twelve accused of committing
criminal offenses, and children who commit "a civil infraction
. . . or a first offense of a misdemeanor." St. 2018, c. 69,
§ 72. It stands to reason that the Legislature also intended at
that time to exclude from the jurisdiction of the Juvenile Court
the issuance of G. L. c. 258E harassment prevention orders
against a child under twelve; after all, the issuance of such an
order also necessitates involvement of such a young child in the
juvenile justice system and the creation of a damaging record of
such involvement, thereby contradicting a fundamental purpose of
the 2018 reform. For that reason, I concur here.
As we have previously explained, "[t]he Juvenile Court is a
court of limited jurisdiction, which has no . . . authority in
the absence of a specific statutory authorization" (quotation
2
and citation omitted). Commonwealth v. Mogelinski, 473 Mass.
164, 167 (2015).1
The scope of the Juvenile Court's jurisdiction over
delinquency proceedings underwent a substantial change in April
2018, after the Legislature enacted St. 2018, c. 69, entitled
"An Act relative to criminal justice reform." For over one-half
century prior to the enactment of the criminal justice reform
act, the term "delinquent child" was broadly defined as "a child
between seven and seventeen who violates any city ordinance or
town by-law or who commits any offence against a law of the
commonwealth."2 G. L. c. 119, § 52, as amended through St. 1960,
c. 353, § 1. The criminal justice reform act considerably
narrowed this definition by excluding children below the age of
twelve, as well as children who commit a civil infraction or a
first offense of certain minor misdemeanors. G. L. c. 119,
§ 52, as amended through St. 2018, c. 69, § 72.
The purpose of this change was well documented. As we
explained in Lazlo L. v. Commonwealth, 482 Mass. 325, 333-334
(2019):
1 "[W]henever a problem of subject matter jurisdiction becomes apparent to a court, the court has both the power and the obligation to resolve it." Doherty v. Civil Serv. Comm'n, 486 Mass. 487, 491 (2020), quoting Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 547 (2018).
2 This definition was amended in 2013 to include children between seven and eighteen. See St. 2013, c. 84, § 7.
3
"The legislative history of the act indicates that the
Legislature understood that children who enter the juvenile
justice system have a higher risk of reoffending for the
remainder of their lives, and that their risk of recidivism
is greater the earlier they enter the system. See State
House News Service (House Sess.), Nov. 13, 2017 (statement
of Rep. Claire D. Cronin, co-chair, Joint Committee on
Judiciary) ('the earlier a child become[s] involved' in
justice system, 'the more likely that child will remain in
the system through his or her life'); State House News
Service (House Sess.), Apr. 4, 2018 (statement of Rep. Kay
Khan, co-chair, Joint Committee on Children, Families and
Persons with Disabilities) (amendment that 'raises juvenile
jurisdiction from [seven] to [twelve],' among other
amendments, 'will give young people a second chance');
State House News Service (Senate Sess.), Oct. 26, 2017
(statement of Sen. William N. Brownsberger, co-chair, Joint
Committee on Judiciary) ('decriminalizing childhood
behaviors' part of effort to 'cut the chains that hold
people down when they're trying to get back up on their
feet'). . . . In so doing, the Legislature implicitly
declared that the juvenile justice system is not the
appropriate forum to address offenses committed by children
under twelve, or civil infractions, or first offenses of a
minor misdemeanor committed by any child, and that such
matters should not result in a juvenile record that may
later adversely affect a child and increase his or her risk
to recidivate."
See Commonwealth v. Carson C., 489 Mass. 54, 63 n.4 (2022)
(juvenile records may lead to difficulties in accessing
educational services, obtaining employment, serving in military,
finding and maintaining housing, and gaining admission to and
securing financial aid from colleges and universities).
There is no question that delinquency proceedings could not
be brought against the child in question for the alleged
conduct. He was nine years old at the time the events at issue
occurred and thus was too young to be considered a delinquent
4
child. The Juvenile Court therefore has no jurisdiction on
these grounds.
The Juvenile Court does, however, have jurisdiction over
harassment prevention orders issued pursuant to G. L. c. 258E
(harassment order statute) against minors. See G. L. c. 258E,
§§ 2, 3. Such proceedings are civil in nature, while violations
of orders issued thereunder are criminal in nature. G. L.
c. 258E, § 4. The hybrid nature of these proceedings for
children under twelve is particularly confusing, as delinquency
proceedings can no longer be brought against such children.
The impact of the amended definition of "delinquent child"
on c. 258E harassment proceedings is not clear from the 2018 act
itself. The Legislature did not expressly address the issue in
the legislation. Contrast A.T. v. C.R., 88 Mass. App. Ct. 532,
539 n.9 (2015) ("In addition, when the Legislature changed the
age for determining who was a juvenile from under seventeen to
under eighteen, § 2 of the harassment order statute was amended
to reflect that change. See G. L. c. 258E, § 2, as amended by
St. 2014, c. 284, § 74"). No such change was made after 2018,
even though there are obvious conflicts between the 2018 act and
the harassment order statute, at least when the child against
whom the order is sought is under twelve. If such a child
violates the order, as explained above, no delinquency
proceedings can be brought to enforce it, even though the
5
principal remedy provided by c. 258E for violation of harassment
prevention orders is criminal in nature. Indeed, under § 9
thereof, each harassment prevention order issued must state that
"VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE," and any
violation "shall be punishable by a fine . . . , or by
imprisonment . . . , or both." G. L. c. 258E, § 9.3 Moreover,
the fundamental purpose of the 2018 act is defeated in the
circumstances of this case. A child, at the tender age of nine,
has been brought into the juvenile justice system, with the
negative consequences the 2018 reform was meant to prevent,
including the record the defendant (juvenile) seeks to expunge
here.
The Legislature also provided an alternative means of
addressing the very type of misconduct alleged here by very
young children at school. In fact, the misconduct at issue
occurred, in part, during a game of "beanbag tag" in gym class
and Wiffle ball at recess. The antibullying statute, G. L.
c. 71, § 37O, prohibits bullying both on and off school grounds,
G. L. c. 71, § 37O (b), and requires school districts to develop
procedures for "promptly responding to and investigating reports
Section 9 of the harassment order statute also states:
3
"Criminal remedies provided herein are not exclusive and do not preclude any other available civil or criminal remedies. The court may enforce by civil contempt procedure a violation of its own court order." G. L. c. 258E, § 9.
6
of bullying or retaliation," disciplining perpetrators,
"restoring a sense of safety for a victim and assessing that
victim's needs for protection," notifying the parents or
guardians of the perpetrator and victim, and "providing
counseling or referral to appropriate services for perpetrators
and victims," among other things, G. L. c. 71, § 37O (d) (2).
In fact, this restorative justice process was applied in the
instant case, and although the Juvenile Court judge here issued
the harassment prevention order initially, he vacated the order
following the school's investigation under the antibullying
statute, concluding that the allegations that the juvenile had
engaged in bullying behavior could not be substantiated.4
The limited case law involving harassment prevention orders
and children under twelve that existed before the passage of the
2018 criminal justice reform act also demonstrates the problems
with the application of the harassment order statute to such
young children. In these rare cases, the courts have struggled
with the difficulty of applying the standard to such young
children. See A.P. v. M.T., 92 Mass. App. Ct. 156 (2017); A.T.,
88 Mass. App. Ct. at 538-540. Although the Appeals Court upheld
4 I recognize that the antibullying statute says that "[n]othing in this section shall supersede or replace existing rights or remedies under any other general or special law." G. L. c. 71, § 37O (i). For children twelve and over, there is of course no question that delinquency proceedings could also be brought against the offending child.
7
the standard's application in A.P., it described the child's age
as "concerning." A.P., supra at 161. To support its conclusion
that the Legislature expressly meant to provide the Juvenile
Court with jurisdiction over children of this age, the Appeals
Court relied specifically on the former statute that provided
the Juvenile Court with delinquency jurisdiction for children as
young as seven. Id. at 161-162. Such reasoning is no longer
applicable to such young children, at least with respect to
delinquency jurisdiction, after the criminal justice reform act
of 2018.5 See Commonwealth v. Ambrose A., 495 Mass. 135, 135-136
(2024) (declining to expunge delinquency finding against eleven
year old that was entered in 2013); F.A.P. v. J.E.S., 87 Mass.
App. Ct. 595, 596-597 (2015) (remanding harassment order
proceedings for eleven year old boy who was also subject to
delinquency proceedings for digital rape of seven year old).
Those dissenting and concurring in these decisions were
particularly focused on the very young age of the child and the
5 Such reasoning also flies in the face of the fact that the decision to raise the age of criminal responsibility from seven to twelve "resulted from a recognition that the brains of young children are still developing and that addressing unlawful behaviors of children under the age of [twelve] through the delinquency system is neither fair nor developmentally appropriate." Juvenile Justice Policy and Data Board, Early Impacts of "An Act Relative to Criminal Justice Reform" 48 (Nov. 2019), https://www.mass.gov/doc/early-impacts-of-an-actrelative-to-criminal-justice-reform-november-2019/download [https://perma.cc/UK9D-T4RQ].
8
difference that made in the analysis. See A.P., supra at 168
(Kafker, C.J., concurring) ("I write separately, however, to
stress the importance of M.T.'s very young age -- he was
apparently only eight years old at the time of the incident --and how that age complicates the analysis and distinguishes this
case from those on which the majority relies that involve
adults"); A.T., supra at 542 (Blake, J., dissenting) ("Equally
important to the analysis is the fact that the defendant was
eleven years old and in the sixth grade when the acts occurred.
While the language of G. L. c. 258E does not delineate between
adult and juvenile defendants, with the exception of
jurisdiction, the age of the defendant cannot be ignored").
Given the manifold problems associated with application of
the harassment order statute to very young children,
particularly after the 2018 act, it is not apparent why the
Legislature failed to make corresponding changes in the
harassment order statute. Contrast Commonwealth v. Gavin G.,
437 Mass. 470, 481-482 (2002) (holding that there was no
evidence of Legislature's inadvertence given sophisticated
statutory structure in place governing juvenile court and
probation records; "[c]onspicuously absent from that entire
legislative scheme governing court and probation records,
whether for adults or juveniles, is any suggestion that the
Legislature intended such records be destroyed").
9
At a minimum, where delinquency proceedings are no longer
available to enforce the violation of harassment prevention
orders by children under twelve as provided by the criminal
justice reform act, clarification of how the violation of such
orders are meant to be enforced is required. The required
reference to criminal enforcement is misleading and confusing at
best. Whether, if not why, such orders are required to be
retained by the Commissioner of Probation in designated recordkeeping systems, when the orders could not be subject to
enforcement through delinquency proceedings, particularly after
having been vacated as was done in the instant case, also merits
further clarification.6 More significantly, as explained above,
it is not at all clear how the issuance of such orders to
children under the age of twelve squares with the fundamental
objectives of the criminal justice reform act.
Based on my review of the statutory language and the
legislative history, I cannot determine whether the Legislature
I note that in the 2018 criminal justice reform act, see
6
St. 2018, c. 69, § 195, the Legislature, without again addressing age limitations related to delinquency jurisdiction, included harassment prevention orders in the long list of offenses for which no expungement could be ordered, except where the petitioner meets the requirements of G. L. c. 276, § 100K (reason-based expungement). See G. L. c. 276, § 100J (a) ("No criminal record resulting from a disposition of the following offenses shall be eligible for expungement pursuant to [§ 100F, 100G, or 100H]: . . . [16] any offense in violation of an order issued pursuant to [c.] 258E).
10
considered these problems, as harassment prevention orders
against children under twelve do not appear to have been
discussed during the legislative hearings and sessions on the
criminal justice reform act, and the harassment order statute
was not in any way revised to take into account the changes,
including the age change that excludes children under twelve
from delinquency proceedings. The text of the harassment order
statute without any such amendment provides for the issuance of
such orders against all minors, regardless of their age. While
that may have been consistent with the law prior to the criminal
justice reform act when the Juvenile Court had jurisdiction over
children as young as seven for delinquency proceedings, it seems
the Legislature underwent a sea change in its thinking in 2018.
Is it still, after 2018, the Legislature's intention that nine
year olds, seven year olds, or even kindergartners shall be
subject to harassment orders? And to have such records retained
by the Commissioner of Probation in various record-keeping
systems, even though those orders cannot be enforced through
delinquency proceedings and they leave very young children with
a potentially damaging record?
Unfortunately, despite these problems, I cannot be sure
what that age limitation is, if any, based on the text and
legislative history of the relevant statutes. For that reason,
I agree with the court that the statutory text allowing the
11
issuance of harassment prevention orders against minors, without
further age qualification, supports the Juvenile Court's
jurisdiction over the nine year old in the instant case and the
enforcement of the law as written here, which includes retention
and not expungement of the order. I would hope, however, that
the Legislature addresses these evident problems and further
considers the question whether the issuance of c. 258E
harassment orders against children under twelve is consistent
with the fundamental principles underlying the criminal justice
reform act and, if not, makes corresponding changes in the
harassment order statute. If the Legislature does not intend
for nine year olds to be subject to such orders, it surely can
easily clarify the age requirements in the statute and prevent
another very young child from unnecessarily entering the
juvenile system and suffering negative consequences as this
little boy did here.
BUDD, C.J. (dissenting). The facts here are undisputed,
and the court ably captures the unusual and unfortunate events
that unfolded. After a judge issued a harassment prevention
order against the defendant child at the request of the
plaintiff child, the judge later concluded that no evidence
supported the order and terminated it. Ante at . The
defendant child has appealed from the denial of his motion to
expunge the record of an order that had no basis to be issued in
the first place.
I agree with the court that there is nothing, either
express or implied, in G. L. c. 258E that authorizes the
expungement of a record of a harassment prevention order when an
order is later vacated because the evidence is ultimately deemed
insufficient. See ante at . Indeed, G. L. c. 258E, § 9,
instructs that records of all harassment prevention orders,
without exception, are to be kept permanently.
But clearly, exceptions have been made. See generally
Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 733-735 (2006). And although there are limits on the court's
inherent powers, it is beyond dispute that these powers exist
"without statutory authorization and cannot be restricted or
abolished by the Legislature." Brach v. Chief Justice of the
Dist. Court Dep't, 386 Mass. 528, 535 (1982). Accord Adams,
supra at 734 ("the judge's inherent power to fashion an
2
appropriate remedy is not vitiated by the statute's omission
regarding expungement"). Moreover, "[t]he very conception of
inherent power carries with it the implication that its use is
for occasions not provided for by established methods" (citation
omitted). O'Coin's, Inc. v. Treasurer of the County of
Worcester, 362 Mass. 507, 516 (1972). Here the court concludes
that the Juvenile Court has no authority to exercise its
inherent power because the facts here do not mirror the one case
to have considered this issue, where the defendant failed to
demonstrate that the plaintiff child perpetrated a fraud on the
court. This, despite the fact that the unsupported order was
obtained by a young child against another young child, who may
well suffer serious consequences as a result. Given these
circumstances, I believe that there is flexibility in the
standard to account for the differences between adults and
children. I therefore respectfully dissent.
1. Reexamining the standard in a case of first impression.
While I agree with the court that creating a broader equitable
authority for vacated orders is not the answer here, and
assuming proper subject matter jurisdiction exists, see ante
at (Kafker, J., concurring), I cannot join the court in
concluding that the court's inherent authority is so inflexible
as to bar relief. Because the court's inherent powers are
"essential to the function of the judicial department," Sheriff
3
of Middlesex County v. Commissioner of Correction, 383 Mass.
631, 636 (1981), the ability to exercise them must be more than
theoretical, see O'Coin's, Inc., 362 Mass. at 514 ("regardless
of any statute, every judge must exercise his inherent powers as
necessary to secure the full and effective administration of
justice" [emphasis added]). Given the unique characteristics of
these parties, a tailored application of the existing standard
is required.
The analysis to determine whether to use the court's
inherent powers was applied straightforwardly in Adams, 65 Mass.
App. Ct. at 733-735. There the court concluded that the
plaintiff's conduct, which was, among other things, "part of a
larger pattern of harassment" perpetrated through a "calculated
pattern of false statements to the court," constituted fraud.
Id. at 730. The court then determined that the "potential harm
to the courts and to [the person requesting expungement]
outweigh[ed] the governmental interest in maintaining and
disseminating the fraudulently obtained [G. L. c.] 209A order,
because the order contains absolutely no informational purpose."
Id. at 736. Consequently, expungement by way of the court's
inherent powers was affirmed. Id. at 737.
This case, however, presents an issue of first impression
for the court: whether the existing standard can and should be
applied when the litigants are young children. The fraud
4
standard is not well suited for the circumstances presented
here, as it is entirely unclear whether young children even have
the capacity to commit fraud. See J.D.B. v. North Carolina, 564
U.S. 261, 274 (2011) ("'[o]ur history is replete with laws and
judicial recognition' that children cannot be viewed simply as
miniature adults" [citation omitted]); Thompson v. Oklahoma, 487
U.S. 815, 835 (1988) ("The reasons why juveniles are not trusted
with the privileges and responsibilities of an adult also
explain why their irresponsible conduct is not as morally
reprehensible as that of an adult").
Moreover, the law has long excluded younger children from
even the limited punishments and procedures applicable to older
juveniles. See Thompson, 487 U.S. at 836-837 (capital
punishment's goals of retribution and deterrence "simply
inapplicable" to child as young as fifteen). Perhaps the most
obvious example of differential legal treatment of young
children is the jurisdictional limit of the Juvenile Court. The
Legislature has made clear that children under twelve years of
age cannot be subject to delinquency proceedings.1 See G. L.
c. 119, § 52, as amended through St. 2018, c. 69, § 72 (defining
"[d]elinquent child" in part as "a child between 12 and 18 years
1 Children under the age of fourteen are excluded from the definition of youthful offender. G. L. c. 119, § 52.
5
of age"). See also Lazlo L. v. Commonwealth, 482 Mass. 325, 333
(2019) ("the Legislature implicitly declared that the juvenile
justice system is not the appropriate forum to address offenses
committed by children under twelve"). This legal demarcation,
recognizing that children below a certain age are simply not
legally or morally responsible for their actions, brings into
serious question whether a young child is capable of forming
specific, criminal intent at all. Cf. In re Gault, 387 U.S. 1,
16 (1967) ("At common law, children under seven were considered
incapable of possessing criminal intent"). Although
jurisdictional age limits vary (they typically are between
twelve and fourteen years of age), other States similarly
recognize, through common law or statute, that young children
either are presumptively incapable of forming criminal mental
states, are incompetent to participate in legal proceedings, or
both.2
2 See, e.g., Ark. Code Ann. § 9-27-502(b)(1)(A) (juveniles under age thirteen presumed incapable of mental states required for capital murder, murder in first degree, and capital rape); Cal. Penal Code § 26 (rebuttable presumption that juvenile under fourteen incapable of committing crimes); Me. Rev. Stat. tit. 15, § 3318-A(8) (burden to prove juvenile's competence to commit crimes lies with State before age fourteen); Mich. Comp. Laws § 330.2062(1) (juveniles not presumed competent to commit crimes until age ten); Ohio Rev. Code Ann. § 2152.52(A)(2) (rebuttable presumption of competency only for juveniles age fourteen or older); Okla. Stat. tit. 10A, § 2-2-401.2(A)(3) (rebuttable presumption of competency only for juveniles age thirteen or older); W. Va. Code § 49-4-727(c) (juveniles under age thirteen presumed incompetent). See also A.G. v. State, 895 So. 2d 473,
6
In light of the fundamental limitations of young children,
requiring a defendant to present proof that a young child
plaintiff had formed a specific and substantial intent to
manipulate and defraud the court is ill suited to the
circumstances. Indeed, it is not clear that a judge would ever
be able to find a young child capable of the specific "corrupt
conduct" intended to "defile the court" as contemplated in
Adams, 65 Mass. App. Ct. at 729, even if the testimony provided
by a young child plaintiff is patently untrue.3 Cf. B.C. v.
475 (Fla. Dist. Ct. App. 2005) ("there is a legitimate question of competency when a child, aged nine, will be subjected to delinquency proceedings"); Matter of Registrant J.G., 169 N.J. 304, 326-327 (2001) (children under age seven conclusively presumed incapable of forming criminal intent; children between ages seven and fourteen rebuttably presumed incapable of criminal intent).
3 The court acknowledges as much, see ante at , as did the motion judge when he at one point questioned whether the plaintiff child "has a wherewithal to fabricate." Our Legislature similarly understands that young children possess significant limitations when testifying under oath, not because they intend to lie, but because they are young. See G. L. c. 119, § 1 (noting children under twelve years of age not entitled to "presumption of competency" in care and protection proceedings). Massachusetts is not alone in this recognition. See, e.g., Ariz. Rev. Stat. Ann. § 12-2202(2) (children under ten may not testify if they cannot discern or relate truth); Colo. Rev. Stat. § 13-90-106(1)(b) (same); Idaho Code Ann. § 9-202(2) (same); Mo. Ann. Stat. § 491.060(2) (same); Ohio Rev. Code Ann. § 2317.01 (same). See also N.Y. Fam. Ct. Act § 343.1 (children under nine cannot testify unless they understand nature of witness's oath); State v. Butcher, 165 W. Va. 522, 525 (1980) (rebuttable presumption that witnesses under fourteen not competent to testify).
7
F.C., 90 Mass. App. Ct. 345, 350 (2016) (false allegations not
part "of a conscious fabrication of abuse"); M.C.D. v. D.E.D.,
90 Mass. App. Ct. 337, 342 (2016) (plaintiff's false accusations
"while suggesting a deliberate purpose . . . did not add up to a
larger plan intended to harass the defendant or to undermine the
judicial process").
In the existing framework, a finding of fraud is what
permits the court to move to the balancing analysis where the
judge considers the harm not only to the court but also to the
defendant. Here, the defendant is a young child under the
jurisdiction of the Juvenile Court that has a mandate to protect
him. See Police Comm'r of Boston v. Municipal Court of the
Dorchester Dist., 374 Mass. 640, 667 (1978) (Police Comm'r)
("Juvenile Courts have a broad mandate to act in furtherance of
a child's welfare"). Assuming it is not possible to find that a
plaintiff child has committed fraud, under this limited
Moreover, young children are especially vulnerable to coercion and suggestion. Cf. Commonwealth v. Evelyn, 485 Mass. 691, 699, (2020) ("the naiveté, immaturity, and vulnerability of a child will imbue the objective communications of a police officer with greater coercive power"); Commonwealth v. Allen, 40 Mass. App. Ct. 458, 462 (1996) ("leading or coercive questioning can distort a child's memory"); United States v. Rouse, 100 F.3d 560, 572 (8th Cir. 1996) (noting "children's susceptibility to suggestive interview practices"). I note that here the parent of the plaintiff child was significantly involved at the initial two-party hearing, attempting to supplement the plaintiff's own testimony while vigorously lobbying for the issuance of the order.
8
framework, there is no opportunity to consider harm either to
the court or to the defendant child. Thus, it leaves the
Juvenile Court vulnerable to misuse and exposes the young child
defendant -- a person the Juvenile Court is tasked to protect -–
to potential injustice without any meaningful opportunity for
relief. In short, it renders the court's inherent power to
expunge a harassment prevention order recognized under Adams
illusory for young defendants. Cf. Commonwealth v. Long, 485
Mass. 711, 721 (2020) (unduly high evidentiary burden, in
practice, meant "right of drivers to be free from racial
profiling will remain illusory").
Because the parties in Adams were adults, there is no
reason to believe that the standard articulated in that case was
ever contemplated to apply to children this young. Indeed, it
appears that neither this court, nor the Appeals Court, has ever
considered the standard to expunge records of a harassment
prevention order obtained by a young child plaintiff. This case
provides the court with a unique opportunity to consider the
appropriate standard to apply when the parties involved are
young children. As discussed supra, in most other respects, the
law treats children as categorically different from adults, and
children under twelve years of age as categorically different
from older children. It stands to reason, then, that this court
9
should consider how the material differences between adults and
children should be taken into account in this context.
With the aforementioned considerations in mind, in my view
the use of the court's inherent power to expunge a vacated
harassment prevention order may be appropriately considered
where the plaintiff is a child under twelve years of age,4 and a
judge has determined that the allegations of harassment
underlying the original order lack factual support or are
otherwise untrue.
2. Balancing the interests. As the judge has already made
the requisite finding as to the underlying facts alleged by the
plaintiff child, that is, there was "no evidence –- physical or
anecdotal" -- in support of the original allegation of harm, I
turn to the balancing analysis. To determine whether
expungement would be appropriate in this case, the interest the
government has in maintaining the record is measured against the
harm suffered from doing so. See Adams, 65 Mass. App. Ct. at
735.
First, as the court observes, ante at , the Legislature
has determined that retention of harassment prevention order
This analysis would apply only where the plaintiff child
4
is the reporting party completing the affidavit in support of the harassment protection order. The typical fraud standard applies to adults seeking protection orders who may list their minor children as additional plaintiffs.
10
records serves important judicial and law enforcement functions,
mainly protecting victims of harassment. However, in the
context of orders that are later vacated on the basis that the
order was insupportable when originally issued, that interest is
significantly diminished. See, e.g., Police Comm'r, 374 Mass.
at 658 ("there are situations where the maintenance of criminal
records of a particular individual cannot be said to serve any
valid law enforcement purpose because the events whose happening
they reflect are of little or no relevance to the individual's
likelihood of participation in future criminal activities or
necessary to the achievement of other ancillary goals of the
criminal justice system"); Adams, 65 Mass. App. Ct. at 736
(minimal government interest in maintaining fraudulent record
containing "absolutely no informational purpose"). See also
Police Comm'r, supra at 656-657, and cases cited (noting
propriety of expungement for records denoting exoneration of
underlying conduct). The interest in maintaining the record is
even further reduced here: because the Juvenile Court does not
have jurisdiction over delinquency complaints against children
under twelve years of age, see G. L. c. 119, § 52, the order
lacks an enforcement mechanism. Thus, the government's interest
in retaining a record of the erroneous harassment prevention
order in this case is ostensibly reduced to nil.
11
With regard to the potential nature of harm in retaining
the record to the individual seeking expungement, G. L. c. 258E,
§ 10, provides that records involving minor defendants "shall be
withheld from public inspection" except by court order.
However, as the court points out, ante at , records of all
harassment prevention orders are kept permanently in the
Statewide domestic violence record-keeping system (DVRS). See
G. L. c. 258E, § 9. Thus, the defendant child in this case will
be identifiable as having had a harassment prevention order
issued against him for the rest of his life. The record will
also be maintained in the court activity record information
(CARI) system.5 We previously have noted the weighty
consequences for juveniles with information stored in CARI and
criminal offender record information (CORI) databases, including
the potential that the information can be "used to enhance
5 CARI stands for "[c]ourt activity record information" and "include[s] an individual's criminal offender record information (CORI) and all court appearances related to juvenile delinquency and civil protective order proceedings." Commonwealth v. Humberto H., 466 Mass. 562, 572 n.7 (2013). It is also possible, if not likely, that record of the vacated order will be captured by the interstate identification index of criminal history records retained by the Federal Bureau of Investigation (FBI), commonly referred to as "Triple I." See St. 1992, c. 188, § 7 (noting information contained in DVRS "shall be made available to law enforcement agencies"). Cf. Fowlkes v. Rodriguez, 584 F. Supp. 2d 561, 567 (E.D.N.Y. 2008) (State disseminated noncriminal sex offender information to FBI for national dissemination "through its interstate identification index of criminal history records").
12
future sentencing or affect charging or probation decisions."
Commonwealth v. Manolo M., 486 Mass. 678, 686 (2021).
Importantly, unlike delinquency records, which are subject
to a strict sealing procedure, see infra, civil harassment
records maintained in these databases are freely accessible by
certain agencies and organizations. Further, in certain
employment and childcare sectors, such records must be reviewed
as a condition of employment or engagement.6 Thus, at a minimum,
the maintenance of a record here can be a barrier to employment
opportunities, including providing child care, teaching,
coaching or other volunteering activities with minors, and
fostering or adopting children. These consequences all await
the defendant child despite the fact that a judge ultimately
found that the original order lacked factual support, a finding
no one contests on appeal. Significantly, this final
disposition will be absent from the defendant child's probation
records. According to the Commissioner of Probation, only three
6 See, e.g., G. L. c. 6, §§ 172B, 172F (sealed juvenile records "shall be available" to Department of Children and Families and adoption and foster placement agencies for evaluating potential adoptive and foster placements); G. L. c. 6, § 172G ("operators of camps for children shall obtain all available [CORI] and juvenile data as found in the [CARI]" for potential employees or volunteers); G. L. c. 71, § 38R (public and private school administrators "shall obtain . . . all available [CORI]" for prospective employees, volunteers, subcontractors, or laborers). See also St. 1992, c. 188, § 7 (establishing DVRS, noting records maintained therein "shall be made available to judges . . . [and] law enforcement agencies").
13
codes exist pertinent to c. 258E orders: "closed-denied,"
"closed-expired," or "closed-vacated." There is no way to
specify that an order lacked factual support from the start, as
is the case here.
Turning to the harm caused to the court system, the court's
integrity sustains damage in these extraordinary circumstances
both because the underlying order obtained by one child against
another child was baseless, and because the record to be
retained in the DVRS will not accurately reflect that fact. See
Adams, 65 Mass. App. Ct. at 732 ("Although labels such as
'dismissed' or 'closed' are applied to records in the system, no
explanation is provided as to why the order was dismissed or the
case closed"). The court should not be required to stand by and
permit other entities to incorrectly rely on the retained
record, in perpetuity. Cf. id. (noting concern for court's
integrity "when law enforcement officials rely on inaccurate
information produced by the court").
The Juvenile Court's duty to protect the children who
appear before it makes this outcome particularly troubling.7 See
Commonwealth v. Gavin G., 437 Mass. 470, 472 (2002) ("'[T]he
7 Although the statutory mandate refers specifically to delinquency proceedings, see G. L. c. 119, § 53, we have interpreted it broadly. See, e.g., Commonwealth v. Quahir Q., 496 Mass. 748, 750 (2025) (Juvenile Courts possess broad discretion to avoid attachment of "the stigma of a criminal" to juveniles [citation omitted]).
14
Juvenile Courts have a broad mandate to act in furtherance of a
child's welfare,' and therefore must have 'the power to take the
necessary steps to ensure that in proper circumstances the
juvenile shall suffer no injury as a result of involvement with
the judicial process by the dissemination of records which have
in some ways an impact equivalent to criminal records'"
[citation omitted]); Police Comm'r, 374 Mass. at 667-668 (order
of expungement "motivated . . . by the same concerns regarding
adverse present and future consequences of a juvenile record of
police or court involvement that lie behind a number of
legislative enactments"). Indeed, "[t]here would be a
considerable irony if a court charged with exercising its
function in a manner consistent with [G. L. c. 119, § 53,] was
viewed not to have the power to take the necessary steps to
ensure that in proper circumstances the juvenile shall suffer no
injury as a result of involvement with the judicial process by
the dissemination of records which have in some ways an impact
equivalent to criminal records." Police Comm'r, supra at 668.
The result of balancing the government's interest in
maintaining the record against the harm caused by maintaining
the record weighs heavily in favor of the Juvenile Court
exercising its inherent powers to expunge the record, to protect
itself against the kind of misuse of the court in a situation
15
like this one where the plaintiff is a young child as well as to
protect the defendant child.
3. Prior precedent does not foreclose expungement here.
Pointing to Gavin G., 437 Mass. at 475-476, the court suggests
that we have already considered, and rejected, the exercise of
inherent powers to expunge certain juvenile records held by
probation. Ante at . I do not agree.
In Gavin G., 437 Mass. at 471, the juvenile sought to
expunge records related to a delinquency complaint that had been
dismissed without prejudice after key witnesses failed to appear
at trial. The court acknowledged the important role of the
Juvenile Court in protecting juveniles but determined that the
existing detailed statutory scheme shielding the records of
juveniles adequately protected the records maintained by the
Juvenile Court as well as the probation department. Id. at 473-474. Critically, the applicable statutory scheme included the
ability to seal the juvenile's records.8 See, e.g., G. L.
c. 119, § 60A (no public access to delinquency court records);
G. L. c. 276, § 100A (existence of delinquency and child in need
of services probation records known only to law enforcement
agencies, courts, and appointing authorities, and juvenile may
The court observed that the juvenile was incorrect to
8
assert that certain statutory protections, such as sealing, were unavailable to him. Gavin G., 437 Mass. at 476-477.
16
truthfully report "no record" to prospective employer); G. L.
c. 276, § 100B (any person may move to seal delinquency records;
sealing protects records from view by law enforcement agencies,
appointing authorities, and public employers). The protection
afforded by G. L. c. 258E, § 10, discussed supra, does not
compare to the legislative scheme that shielded the juvenile in
Gavin G.9
Finally, the court in Gavin G. did not consider whether use
of the court's inherent powers would be necessary to protect the
court itself and the "integrity of the pending litigation."
Adams, 65 Mass. App. Ct. at 731.10
4. Conclusion. The circumstances of this case are as
unusual as they are unfortunate. The available precedent is
logical as far as it goes, but is ultimately inadequate here
9 Indeed, G. L. c. 258E, § 10, merely brings record-keeping measures for harassment prevention orders in line with most other records retained by the Juvenile Court as it pertains to the denial of access to the general public. See, e.g., G. L. c. 119, § 38 (care and protection hearings "closed to the general public"); G. L. c. 119, § 60A (delinquency records "withheld from public inspection").
10The juvenile in Gavin G., 437 Mass. at 471, claimed innocence, asserting that he was wrongfully identified as a perpetrator when in fact he was a victim. However, there was no determination that the delinquency complaint lacked factual support. Instead, the complaint was dismissed for want of prosecution. See Police Comm'r, 374 Mass. at 662 (expungement not appropriate "if there is a disposition of the case favorable to the juvenile due to matters not necessarily supportive of a finding of noninvolvement in delinquent behavior").
17
because it does not contemplate a situation where both parties
are young children. This court has never determined that fraud
on the court is the only circumstance in which a judge may use
the inherent power of the court to expunge a restraining order
that has no factual basis, and "[t]he very conception of
inherent power carries with it the implication that its use is
for occasions not provided for by established methods" (citation
omitted). Brach, 386 Mass. at 536. This is such an occasion.
I would therefore order expungement of the records in
question based on the modified standard proposed supra. The
appropriate findings of fact, fully supported by the record
before us, have been made, and whatever government interest
remains in retaining such records does not outweigh the harms to
the defendant child, particularly when considered under the
special protection of the Juvenile Court, and to the court
itself.