Adoption of Iris

• Decision Date: 03 June 1998
• Citation: 695 N.E.2d 645,427 Mass. 582
• Parties: ADOPTION OF IRIS. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 645

695 N.E.2d 645

427 Mass. 582

ADOPTION OF IRIS. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 9, 1998.

Decided June 3, 1998.

Deborah Sirotkin Butler, Arlington, for the parents.

Virginia A. Peel, Arlington, for Department of Social Services.

Leo J. Lydon, Boston, for the child.

Before WILKINS, C.J., and LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

IRELAND, Justice.

The parents of a minor child, Iris, have appealed from the denial of relief under G.L. c. 211, § 3, by a single justice of this court. The parents asked the single justice to vacate an interlocutory order for a new trial issued by a judge in the Boston Division of the Juvenile Court Department. The trial was based on the combined petition of the Department of Social Services (department) for care and protection of Iris under G.L. c. 119, § 24, and to dispense with parental consent to adoption under G.L. c. 210, § 3.

We have considered the parents' appeal and now affirm the single justice's order denying relief.

1. Background. We begin by tracing the procedural history and background of the case, some of which has previously been reported by the Appeals Court. Adoption of Iris, 43 Mass.App.Ct. 95, 680 N.E.2d 1188 (1997). In 1993, when she was one month old, Iris suffered a skull fracture causing hemorrhaging in her brain. The cause of and circumstances behind that injury have never been fully explained. The injury prompted the department to file a care and protection petition on Iris's behalf with the Juvenile Court, which led to the department's assuming temporary legal custody of the child. She was placed at that time in a foster home, where she presently remains.

Throughout the department's involvement with Iris, the parents have been unable to offer an explanation for the child's injury, although, apparently, they have cooperated with the department's numerous demands of them, including that they undergo psychological evaluations, participate in individual counseling, and visit Iris at every possible opportunity. See Adoption of Iris, supra at 104-105, 680 N.E.2d 1188. On May 21, 1996, following a three-day trial, the judge adjudicated Iris to be in need of care and protection and dispensed with her parents' rights to consent to her adoption. The parents appealed.

In Adoption of Iris, supra at 106, 680 N.E.2d 1188, the Appeals Court vacated the judgment and remanded the matter to the Juvenile Court for further proceedings. The Appeals Court concluded that the judge's findings, which focused primarily on a single, serious, and unexplained injury to the child, were "regrettably sparse," id. at 100, 680 N.E.2d 1188, and failed to show clearly and convincingly that the parents were unfit, id. at 101, 680 N.E.2d 1188. In pertinent part, the order of remand directed the Juvenile Court judge first to determine "whether the department's goal remains the termination of parental rights," id. at 106, 680 N.E.2d 1188, and, if so, to determine "whether the department has sufficient additional evidence to warrant a new trial." Id. Finally, the Appeals Court ordered that any new trial should proceed "forthwith." Id.

On October 6, 1997, the same Juvenile Court judge who had presided over the trial conducted a hearing at which the department stated its continued intentions both to pursue dispensing with the parents' rights to consent to Iris's adoption and, also, to place Iris for adoption with her current foster parent. The department then described the additional evidence that it hoped to present at a new trial. That evidence, according to the department, would include substantially more detail than was presented during the first trial concerning Iris's many special needs ² and the exceptionally high level of care that she currently requires. ³ Through her attorney, Iris supported the department's motion for a new trial and, herself, outlined other, similar evidence that she, too, intended to introduce at a new trial.

The department went on to describe additional evidence--much of it not presented during the first trial--pertaining to Iris's unexplained head injury. The "new" evidence would include expert testimony from the physicians at Children's Hospital who had examined and treated Iris after she was taken there by her parents, testimony of all other persons who had had any interactions with Iris during the several days preceding the injury, and testimony of professionals who currently provide services to the child. According to the department, that additional evidence would help to clarify whether Iris's injury was most likely the result of inflicted, versus accidental, trauma; whether either parent had injured the child or knew who had; and whether either parent knew or should have known, prior to taking the child to Children's Hospital, that she had been seriously injured.

For their part, the parents opposed the motion for a new trial. They requested that the petition be dismissed and that custody of Iris be returned to them. The judge allowed the department's motion for a new trial, denied the parents' motion to dismiss the petition, and granted the child's motions for a court-ordered family evaluation and for fees and costs for certain expert witnesses. At the parents' request, the judge issued a written ruling briefly setting forth the anticipated additional evidence that he believed warranted a new trial.

Thereafter, on December 2, 1997, the parents filed their petition with the single justice asking for relief under G.L. c. 211, § 3. It appears that the Juvenile Court proceedings were stayed pending the outcome of the proceedings before the single justice, who conducted a hearing on the parents' petition on December 10, 1997. At approximately the same time, the parents also filed a late motion with the Appeals Court asking for a rehearing or for clarification of the precise meaning of the order of remand. ⁴

In denying the G.L. c. 211, § 3, request for relief, the single justice restated the position that the parents could seek clarification from the Appeals Court as to the meaning of that court's opinion. She stated that, if the trial judge's written order allowing a new trial was inconsistent with that opinion, then the parents could seek relief through an alternate statutory provision, G.L. c. 231, § 118, and, on completion of a second trial, could also seek relief through normal appellate review. Pursuant to S.J.C. Rule 2:21, 421 Mass. 1303 (1995), the parents' appeal from the single justice's denial of relief was entered in this court.

2. Relief under G.L. c. 211, § 3. We note, first, that G.L. c. 231, § 118, does not afford the parents a possible basis for relief. That provision allows only appeals from interlocutory orders issued by the Superior Court, the Housing Court, or the Probate and Family Court, and not, as here, from an interlocutory order of the Juvenile Court. However, we grant extraordinary relief under G.L. c. 211, § 3, where it is shown both that substantive rights have been violated and that the error cannot readily be cured through ordinary appellate processes. See Care & Protection of Edith, 421 Mass. 703, 707, 659 N.E.2d 1174 (1996). We will exercise our discretionary powers under G.L. c. 211, § 3, "only in 'the most exceptional circumstances.' " Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706, 550 N.E.2d 1361 (1990), quoting Costarelli v. Commonwealth, 374 Mass. 677, 679, 373 N.E.2d 1183 (1978). Absent a clear abuse of discretion or plain error of law, we will not disturb the order of a single justice denying relief under G.L. c. 211, § 3. Department of Mental Retardation v. Kendrew, 418 Mass. 50, 53, 634 N.E.2d 109 (1994). We see no such error or abuse of discretion by the single justice in refusing to vacate that order.

The parents claim that subjecting them to a new trial on the combined care and protection and termination of parental rights matters violates their substantive constitutional right to be free from double jeopardy. The parents raise the double jeopardy issue for the first time on appeal, and cite no authority as support for this claim other than a single case from the United States Court of Appeals for the Third Circuit which concluded that New Jersey's sexual offender registration and notification procedures did not constitute punishment for purposes of double jeopardy. E.B. v. Verniero, 119 F.3d 1077, 1105 (3d Cir.1997), cert. denied sub nom. W.P. v. Verniero, --- U.S. ----, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998). The E.B. case arose in a completely different context from this matter. Moreover, the result does not even support the parents' claim of double jeopardy.

We have previously rejected the claim that double jeopardy applies to care and protection proceedings initiated under G.L. c. 119. Custody of a Minor, 375 Mass. 733, 746, 379 N.E.2d 1053 (1978). "Custody proceedings are not criminal in nature and, accordingly, the full panoply of constitutional rights afforded criminal defendants does not apply in these cases." Custody of Two Minors, 396 Mass. 610, 616, 487 N.E.2d 1358 (1986). See Petition of the Dep't of Social Servs. to Dispense with Consent to Adoption, 384 Mass. 707, 711 & n. 10, 429 N.E.2d 685 (1981) (certain constitutional rights that attach in criminal cases do not apply in termination proceedings; additionally, any retrial on the department's petition is aimed not at punishing the parents but, rather, at protecting the child); Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 592, 421 N.E.2d 28 (1981), and cases cited. In sum, the retrial that has been ordered does not implicate principles of double jeopardy.

The parents next maintain that a retrial violates their substantive due process rights to ...