We now turn to the mother's assertion that the judge impermissibly interfered with the conduct of the trial by participating—almost to the exclusion of the attorneys—in examination of the witnesses. Relying on Adoption of Seth, 29 Mass.App.Ct. 343, 350, 560 N.E.2d 708 (1990), the mother argues that the judge's conduct denied her the impartial justice to which she is entitled. There is no question that the judge assumed an active role and extensively questioned all the witnesses including the mother.
“It is established that an expert may ‘base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider formulating an opinion.’ “ Adoption of Seth, 29 Mass.App.Ct. 343, 352 (1990), quoting from Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986). The testimony of Janice Stubelefield–Tave was predicated on her communications with the department's social worker, the mother, Wendy's day care provider, and Wendy.
We recognize that a judge, who in these types of cases is the fact-finder, is entitled to question witnesses in order to obtain clarification or eliminate confusion. Adoption of Seth, 29 Mass. App. Ct. 343, 351 (1990). See Commonwealth v. Festa, 369 Mass. 419, 422-423 (1976); Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810 (1996).
We hold that the order was well within the judge's role in controlling the trial. See generally Adoption of Seth, 29 Mass. App. Ct. 343, 350 (1990). 4. Civil rights convictions.
The transcript reveals that the judge was not biased toward either party, and that his questioning of Maria, and his decision to allow Maria, who did have a fluent command of English, broadly to answer questions, were justified and reasonable in the circumstances. See Adoption of Seth, 29 Mass. App. Ct. 343, 351 (1990). Finally, Gabor claims that the judge improperly admitted a Hungarian court document in evidence which was not translated by a certified translator.
However, she asserts that, when the judge at the preliminary hearing stated that having children testify was his last preference, her counsel "understandably, fell silent." See Adoption of Seth, 29 Mass. App. Ct. 343, 350 (1990). She argues that her counsel's statement at the preliminary hearing, that he preferred that the children testify, should be interpreted as a continuing objection to the admission of Joyce's statements at trial.
The judge's comments did not demonstrate any impermissible bias requiring that she recuse herself from the case. See, e.g., Adoption of Seth, 29 Mass.App.Ct. 343, 350-351 (1990). The record does not indicate that the judge was improperly influenced by extrajudicial factors, but that she instead was commenting on information she had "acquired in court proceedings."
We do not find that the judge's questions and comments demonstrated any impermissible bias so as to violate due process. Cf. Adoption of Seth, 29 Mass.App.Ct. 343, 350-351 (1990).
Therefore, although the judge aptly considered the mother's behavior during visitation, he did not have the requisite information to assess or to recognize her parenting capabilities in the ordinary context -- amidst the everyday stresses of life. See Adoption of Seth, 29 Mass.App.Ct. 343, 349 (1990) . His failure to do so does not undermine our confidence in the outcome of the case.
We agree. See Adoption of Seth, 29 Mass. App. Ct. 343, 351-352, 560 N.E.2d 708 (1990). Nonetheless, the error in its admission did not prejudice the mother because the expert's testimony covered the substantive content of the report, and the judge solely relied on the expert's testimony in connection with the findings.