Brantley v. Hampden Div. Of The Probate And Family Court Dep't & Others

• Decision Date: 30 June 2010
• Docket Number: SJC-10343.
• Parties: Gymetta BRANTLEYv.HAMPDEN DIVISION OF THE PROBATE AND FAMILY COURT DEPARTMENT & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 172

929 N.E.2d 272

Gymetta BRANTLEYv.HAMPDEN DIVISION OF THE PROBATE AND FAMILY COURT DEPARTMENT & others.¹

SJC-10343.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 4, 2010.

Decided June 30, 2010.

COPYRIGHT MATERIAL OMITTED

Peter R. Benjamin, Springfield, (John Reinstein, Boston, with him) for the petitioner.

William W. Porter, Assistant Attorney General, for the respondents.

Present: MARSHALL, C.J., IRELAND, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

MARSHALL, C.J.

For many years the judges of the Hampden Division of the Probate and Family Court Department (Hampden) have employed certain “protocols” or “procedures” (the terms are used by that court) in child-related litigation that are intended to assist them in making decisions concerning a child's best interests, often in emergency circumstances. Pursuant to these protocols, judges, with the assistance of probation officers assigned to the court, orally obtain confidential information about litigants from the Department of Children and Families (department) that judges are permitted to consider as substantive evidence, even in cases where the parties did not authorize the release of that material. We were informed at oral argument that Hampden is the only division of the Probate and Family Court to employ these “protocols,” which are at the core of the petitioner's appeal from portions of the judgment of a single justice in the county court.

Two petitioners filed an amended complaint in the county court seeking relief under G.L. c. 211, § 3, as well as declaratory and injunctive relief, to halt the respondents' use of the protocols on the ground that they infringed the petitioners' rights of due process under the Federal and Massachusetts Constitutions. They further asserted that the implementation of the protocols violated the statutory duties of the department under G.L. c. 119, §§ 51E and 51F, and the Fair Information Practices Act, G.L. c. 66A. The petitioners also sought class certification. See note 15 infra. After the case was filed, Hampden substantively revised its protocols several times.

The single justice concluded that the protocols employed in the petitioners' cases deprived them of an adequate opportunity to rebut hearsay adverse allegations against them, in violation of their rights of due process. He ordered that Hampden “make available to litigants at ex parte hearings the reports of the probation officers containing information obtained orally from [the department] and presented to the judge, and afford those same litigants the opportunity to rebut such information.” ² The respondents have not appealed from this aspect of the single justice's decision, and it is not before us.

The single justice also concluded that the petitioners lacked standing to challenge the protocols in effect after the date they filed their complaint in the county court; declined to certify a class; and ordered entry of a declaratory judgment that the department did not violate any of its statutory duties or regulations in acting pursuant to the protocols. The petitioner appeals from the judgment on the issues of standing, class certification, and the statutory claims. She seeks declaratory and injunctive relief on the merits of the revised protocols.³

We agree with the single justice that the petitioner has not demonstrated that she has been or will be harmed by the current protocols and affirm his ruling on standing. We also affirm the judgment of the single justice denying class certification and declaring the evidence insufficient to show that the department violated any of its statutory obligations or its regulations. Turning to the protocols currently in effect, we recognize the often daunting task of Probate and Family Court judges as they attempt to discern a child's best interests when parents are engaged in adversary litigation. We recognize that confidential department information concerning a parent or a family may be highly relevant in a legal dispute over a child's care or custody. Balancing the best interests of children with the rights of their parents or between adversary parents is always a delicate undertaking, not amenable to the drawing of bright lines. When these interests are balanced in the present case, certain aspects of Hampden's unique protocols do not withstand scrutiny. Specifically, we are concerned that the current protocols systemically may deny litigants in Hampden a meaningful opportunity to be heard on matters concerning the care and custody of their children. Because in the singular circumstances of this case dismissal would work a manifest injustice to nonparties, we exercise our broad discretion pursuant to G.L. c. 211, § 3, to direct Hampden to stay application of its current protocols or any revisions to those protocols. The Chief Justice of the Probate and Family Court may, if she chooses, promulgate a department-wide standing order concerning use of confidential department information to replace the current protocols in accordance with the Procedure Regulating the Issuance of Standing Orders, Mass. Ann. Laws, Rules of the Trial Court 1677 (LexisNexis 2008-2009), keeping in mind the concerns we discuss later. Because of the fundamental issues involved, any such proposed department-wide standing order shall be submitted to the Supreme Judicial Court rules committee for approval before implementation.

1. Background. We draw our summary from the single justice's orders and memoranda of decision, supplemented as appropriate by the parties' statement of agreed facts and other uncontroverted evidence of record.

a Hampden protocols. For a number of years, Hampden has employed a policy in actions seeking guardianship of a minor, temporary custody, temporary visitation, and protective orders pursuant to G.L. c. 209A that involve children. Under the policy, which is designed to assist Hampden judges in assessing a child's best interests, parties are required to notify the court on form “affidavits” developed specifically for this purpose whenever the party or a named child is presently or has been involved with the department. ⁴ When one or both of the parties disclose or the Court is otherwise aware of such department involvement, Hampden employs practices and procedures for orally contacting the department for information, and for transmitting that information to the judge for consideration.

The protocols have been revised on several occasions, a fact of significance to this litigation. We shall follow the organization used by the single justice and separate the protocols into “former protocols,” i.e., those in effect until May, 2006, the filing date of the complaint in the county court, and “current protocols,” i.e., those in effect from May, 2006, to the present.

b Former protocols. Although the respondents have not contested the single justice's determination that the former protocols violated the petitioners' constitutional rights, the former protocols provide useful context for this appeal.

The former protocols were not set out in writing until they were changed slightly, as we describe below, in April, 2005. Under the former protocols, whenever a party or a named child in the above types of litigation was involved or had been involved with the department, a member of the staff of the Hampden probation office would contact the department by telephone. The responding department employee would relay orally to the probation staff member information about the nature and status of department's involvement with the adult or child, about which the department employee may have had no firsthand knowledge. The probation staff member, who may have had no involvement in the case, would then memorialize the information conveyed orally by the department on a written “telephone report form” (telephone report), and give the telephone report to the probation officer assigned to the case. The probation officer would either give the telephone report directly to the judge hearing the case, or if the parties participated in “dispute intervention,” ⁵ the probation officer would use the telephone report in conducting the intervention, and then forward it to the judge conducting a hearing. This procedure was followed at each scheduled appearance in a case, except at trial.

The telephone reports were not kept in the Probate and Family Court case files; rather, they were kept in probation department files, to which neither the parties nor their attorneys had access. Neither the parties nor their counsel was given a copy of the telephone reports. In some, but not all cases, judges would read or summarize the content of the telephone reports to the parties at the hearing, but such disclosure was not a requirement of the former protocols. In other cases parties were unaware that such information existed.

In April, 2005, Hampden revised the former protocols and formalized them in writing. Under the revised protocols, litigants were required on their form affidavits to answer “yes” or “no” to the statement, “I give permission to the [department] to release any and all information concerning myself and my children.” ⁶ The form affidavits were docketed in the case docket as a department “affidavit.”

c Use of the former protocols in the petitioners' cases. In April, 2006, Billie Dee Smith and Ong Chonmany filed this action in the county court seeking relief pursuant to G.L. c. 211, § 3, and declaratory and injunctive relief against the respondents, as described earlier. Chonmany subsequently voluntarily withdrew from the case, and in November, 2006, Smith moved successfully to add Brantley as a named petitioner and further to amend her complaint. In the amended complaint, which was not verified, both Smith and Brantley alleged that, in 2005 and 2004, the probation office obtained information about them from the department without their authorization and without permitting them to have a copy of the telephone reports, and...