IMPOUNDED
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
Appeals Court Docket No. _____
Juvenile Court Docket No. CP______
______
)
Andre J. (Father), )
Petitioner )
v. )
Department of Children )
and Families, )
Respondent )
______)
In re: )
)
Care and Protection of )
Allen and Kasey J. )
______)
MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR RELIEF
PURSUANT TO G.L. c. 231, § 118
Preliminary Statement
Andre J.[1], the Father in the above action (“Father”), files this Memorandum of Law in support of his “Petition for Relief Pursuant to G.L. c. 231, § 118,” filed herewith. The Juvenile Court has improperly denied Father a 72-hour hearing under G.L. c. 119, § 24, and Father asks that this Court remand to the Juvenile Court with instructions to hold a 72-hour hearing forthwith.
Summary of Facts and Procedure
Father’s sons, Allen and Kasey J. (“the Children”), are the subject of a care and protection petition under G.L. c. 119, § 24. Father seeks interlocutory relief from rulings of the Middlesex Juvenile Court (______, J.) (the “Juvenile Court” or “court”), denying his requests for a 72-hour hearing after the court removed custody of the Children on an ex parte basis from their aunt and gave custody to the Department of Children and Families (“DCF” or “the department”) (Ex. B).
In January 2012, DCF filed the underlying care and protection petition, and was awarded custody of the Children on an emergency basis. (Ex. B). On January 27, 2012, the parents and Children stipulated that temporary custody should remain with DCF. (Ex. B). On August 9, 2012, the court returned custody to Father and Mother, with conditions. (Ex. A; Ex. B). On November 19, 2012, the court modified the custody order to make Father the sole custodian of Allen and Kasey. (Ex. A; Ex. B).
The Children remained in the care and custody of Father until March 7, 2013 when DCF removed them from Father’s home. (Ex. A). The next day the court granted custody to DCF. (Ex. A; Ex. B). At the 72-hour hearing, Father asked that the court award temporary custody of the Children to his Aunt (the Children’s Great-Aunt) (“Aunt”) under G.L. c. 119, § 24. (Ex. A; Ex. B). The court awarded temporary custody of the Children to Aunt. (Ex. B).
On May 17, 2013, DCF appeared before the court ex parte and requested custody of the Children. (Ex. A; Ex. B). The court granted DCF’s request. (Ex. A; Ex. B). The parties returned to court on May 23, 2013, and Father asserted his right to have a 72-hour hearing under G.L. c. 119, § 24 because the court had transferred custody to DCF. (Ex. A). The court denied Father’s request for a hearing. (Ex. A).
On May 31, 2013, father filed a Motion for a Temporary Custody Hearing. (Ex. A; Ex. B). On June 13, 2013, following argument, the court denied this motion. (Ex. A; Ex. B). The court reasoned that Father’s waiver of his right to a 72-hour hearing on March 18, 2013 constituted a waiver of his right to a hearing when the court transferred custody from Aunt to DCF on May 17, 2013.
ARGUMENT
THE COURT ERRED IN DENYING FATHER HIS right to a 72-HOUR HEARING AFTER his children were Removed from their custodian.
Parents and children enjoy a fundamental, constitutionally-protected right to family integrity. See Santosky v. Kramer, 455 U.S. 745 (1982); Custody of a Minor, 377 Mass. 876, (1979) (“[L]oss of a child may be as onerous a penalty as the deprivation of the parents' freedom”). Moreover, it is the public policy of the Commonwealth of Massachusetts that a child’s welfare is best served in the care and custody of his parent. See Petition of Department of Public Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981). In a care and protection case, the integrity of the family is threatened by government intervention; in order to protect the rights at issue, the requirements of due process must be met throughout the proceedings. See Department of Public Welfare v. J.K.B., 379 Mass. 1, 3 (1979).
General Laws Chapter 119 lays out the rules and procedures for care and protection cases. Under Section 24 of the statute, a care and protection petition must be filed before custody may be removed from a parent or a “custodian.” G.L. c. 119, § 24. Even if custody is removed from a custodian, the parent must be provided notice to appear before the court to be heard on the question whether someone other than the parent should remain the child’s custodian pending trial. Id. This stage of the process is known as the “72-hour hearing.” Though only a temporary transfer of custody is contemplated, it is settled that constitutionally protected rights of the parties are implicated. Care and Protection of Robert, 408 Mass. 52, 58 (1990); Care and Protection of Zita, 455 Mass. 272, 278 (2009).
Parents and children must be given an opportunity to be heard at the 72-hour hearing. See G.L. c. 119, § 24; Zita, at 278. The 72-hour hearing also provides a chance “to discover and correct any errors that may have occurred during the initial hearing” (the ex parte removal hearing) because of the low standard of proof at that hearing. Zita at 275-276.
In this case, the Juvenile Court removed the Children from a custodian and transferred custody to DCF at an ex parte emergency hearing. Father was denied an opportunity to be heard following this removal as both § 24 and due process plainly require. Father has a fundamental right to be heard when the custodial disposition of his children is at issue.
In Care and Protection of Manuel, 428 Mass. 527 (1999), the Supreme Judicial Court emphasized the rights of parents and children to a 72-hour hearing even when they had a previous opportunity for such a hearing, and even when the court had merely changed the child’s temporary custodian. The Court held that “whenever a child's legal custodian is to be changed pursuant to G. L. c. 119, § 24 . . . the parties . . . have the right to be heard and to have the judge consider their nominations of possible legal custodians for the child.” Id. at 536.
Manuel is on all fours with this case and is controlling precedent. In Manuel, as in this case, DCF alleged that a child was at risk of serious abuse or neglect and took custody of him at an initial emergency hearing. Id. at 529-530. The 72-hour hearing resulted in an award of temporary custody to the child’s great-aunt by agreement of the parties.[2] Id. Approximately eleven months later, DCF removed the child from the great-aunt based on concerns about the great-aunt’s care; custody was granted to DCF at an ex parte initial hearing. Id. The child sought a temporary custody hearing at which he planned to nominate a new third-party custodian, but the court denied his request. Id. The child appealed, and ultimately the Supreme Judicial Court overruled the trial court and ordered that a temporary custody hearing be conducted forthwith. Id. at 528.
In its ruling, the SJC cited the “vital interests at stake” in state-intervention child custody cases. Id. at 535. The Court observed that the parties had the right to receive notice of the change in custody, and that it “would be a hollow gesture” to provide them with notice to such a hearing but then deny them the right to be heard. Id. at 535 (“It is axiomatic that notice and the opportunity to be heard are the most basic requirements of due process”).
The Court explained that these rights existed even though the earlier stipulation of the parties was indeed a waiver of right to the original temporary custody hearing, and concluded that “when that [third party] custody arrangement was terminated by an emergency order of the court, Manuel had the right to be heard anew as to who should now become his legal custodian.” Id.
That is precisely the situation that confronted the court in this case. The court denied Father a 72-hour hearing based on his waiver on March 18, 2013, two months before this ex parte removal and under very different circumstances. (Ex. A). The court’s reliance on a previous waiver is misplaced; it is settled that a new temporary custody hearing must be held whenever custody is transferred to the state, even “where the §24 hearing had already been held or waived.” Manuel, at 531 (emphasis added).
The court also reasoned that, in Manuel, the child had been in the custody of his great-aunt for a more significant period of time than the Children had been in Aunt’s custody. The SJC did not deem the length of the child’s placement dispositive but, relying upon Constitutional principles, was clear that
whenever temporary legal custody of the child named in a care and protection petition is to be awarded to the department pursuant to either G. L. c. 119, § 24, or § 25, the judge, absent a valid waiver, must hold a hearing, first, to determine whether custody should be removed from the child's parentsor present legal custodian and, second, to consider any nomination by the child or his Parents of a relative or other individual to become the temporary legal custodian for the child during the pendency of the care and protection matter.
Manuel, at 528-29 (emphasis added). Accordingly, Father is entitled to a 72-hour hearing. The Juvenile Court’s denial of his request for one violates Father’s due process rights and his rights under G.L. c. 119, § 24.
WHEREFORE, Father respectfully requests that this Court vacate the orders denying Father’s requests for a 72-hour hearing and remand this matter with instructions that the Juvenile Court hold a 72-hour hearing forthwith.
Dated: November 21, 2013
Respectfully submitted,
Andre J. (Father)
By his Counsel
______
[Counsel] [BBO# _____]
[address]
[phone number]
[email address]
1
[1] Under Rule 16(m) of the Massachusetts Rules of Appellate Procedure, the parties’ last names are withheld.
[2] Manuel recognized this agreement or stipulation constituted a waiver of the parties’ rights to a 72-hour hearing. Id. at 528.