Care and Protection of Robert

Decision Date16 July 1990
Citation408 Mass. 52,556 N.E.2d 993
PartiesCARE AND PROTECTION OF ROBERT et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Michael F. Kilkelly, for the father.

Countess C. Williams, Asst. Atty. Gen., for Dept. of Social Services.

Steven G. Doyle (Catherine Booth Correia, Wakefield, with him), for two minors.

Rita E. Wahl, Malden, for five minors.

Barbara M. Egan, Wakefield, for a minor, joined in a brief.

Arnold R. Rosenfeld, Jinanne S.J. Elder, Jacquelynne J. Bowman, Boston, and Julie Mandell, Washington, D.C., for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Marjorie Heins, Boston, for Civil Liberties Union of Mass., amicus curiae, submitted a brief.

J. Walter Freiberg, III, Boston, for Massachusetts Child Welfare League of America and another, amici curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

In this case, the father of eight children named in a care and protection petition filed by the Department of Social Services (department) appeals from the judgment of a single justice of this court which dismissed the father's action for relief under G.L. c. 211, § 3 (1988 ed.), and for relief in the nature of certiorari. G.L. c. 249, § 4 (1988 ed.). The father had requested that the single justice invoke the general superintendence powers of this court to set aside an order of the Malden Division of the District Court Department which granted temporary custody of six of the father's children to the department.

In August, 1988, the department received a report pursuant to G.L. c. 119, § 51A, 1 which alleged that the eight children, who were living with their father at that time, were being neglected. The report alleged unsanitary living and housing conditions at the father's home. In response to the report, the department undertook an investigation of the allegation of neglect. A department social worker determined that the father's house was not clean and that there was a shortage of sufficient sleeping quarters for the children. The department began working with the father to improve the children's living conditions.

Shortly thereafter, the department received a new § 51A report regarding the children. This report contained allegations that the children lacked adequate supervision and that some of the children had ingested alcohol. The department also received a report which alleged that the oldest child had engaged in sexual misconduct with one of the younger children.

On December 22, 1988, DSS filed a petition pursuant to G.L. c. 119, § 24 (1988 ed.), with the Malden District Court, alleging that the eight children were in need of care and protection. 2 Pursuant to G.L. c. 119, § 24, a judge of the District Court held an emergency hearing on the § 24 petition that same day. The judge determined that, based on the factual allegations contained in the § 51A reports described above, "there is reasonable cause to believe that the children are in immediate danger of serious harm by neglect, and that immediate removal of the children from the parents at this time for 72 hours [is] necessary." The judge's conclusion did not apply to the oldest child, who was sixteen years old at the time of the hearing. The judge awarded the department temporary custody of the seven younger children. This custody was to continue until further hearings would be held on December 27, 1988, to determine whether custody of the seven children should remain with the department. 3

The second hearing, commonly referred to as a "seventy-two hour hearing," was held on December 27, 1988, and January 3, 1989. Another judge of the District Court allowed the introduction of fifteen exhibits and heard the testimony of seven witnesses. On the basis of this presentation, the judge made the following findings. The father's house was not kept clean and lacked sufficient sleeping quarters for the children. Seven of the children were sleeping in two bunk beds. Three of the children had been found asleep on one level of one bunk bed, while another had been found sleeping on a living room chair. There was no privacy barrier between the female children and the sixteen year old male child, as to whom there had been allegations of sexual misconduct with a younger female child. Supervision of the younger children was left to the other children for the majority of the time. All of the children had serious tardiness and absenteeism problems at school, and one child had emotional problems and was in need of counseling and inpatient evaluation. This same child had claimed that she was forced to drink alcohol, and suffered an injury whose cause was unknown but whose existence had been corroborated by her school teacher. The father had a drinking problem and admitted that he was "overwhelmed" by having to care for eight children. The judge determined that these findings demonstrated "reasonable cause to believe that the children are in immediate danger of serious neglect and that immediate removal of the children is necessary to protect them from such neglect." The judge ordered the department to retain custody of the children.

On February 3, 1989, the father filed his complaint with the single justice seeking relief from the judge's order. In his complaint, the father claimed that the judge's findings did not provide "reasonable cause" to believe that the children were in "immediate danger of serious neglect." The father also claimed that the judge's application of a "reasonable cause" standard of proof to the seventy-two hour hearing was erroneous because both the Federal and State Constitutions require the application of a "clear and convincing evidence" standard to a proceeding which can result in a parent's loss of custody of a child. Finally, the father claimed that the custody decision should be reversed because the judge failed to make certain findings required by G.L. c. 119, § 29C (1988 ed.).

On February 14, 1989, the single justice denied the father relief. On March 2, 1989, the father filed a notice of appeal to the full court from the decision of the single justice. 4

1. The standard of proof. The father claims that the due process protections of the Constitutions of both the United States and the Commonwealth require the application of a "clear and convincing evidence" standard of proof to a seventy-two hour hearing. Therefore, he argues, the judge's application of a "reasonable cause" standard of proof to the seventy-two hour hearing in this case was error and requires reversal of the judge's decision to maintain custody of the children with the department.

We begin our discussion with an examination of the language of G.L. c. 119, § 24, to determine which standard of proof, if any, the Legislature intended to be applied to a seventy-two hour hearing. General Laws c. 119, § 24, provides a three-part process by which a court may transfer custody of a child from that child's parent to DSS. Section 24 states that on the petition of any person alleging that a child is without: "(a ) necessary and proper physical or educational care and discipline; or (b ) is growing up under conditions or circumstances damaging to the child's sound character development; or (c ) who lacks proper attention of parent, guardian with care and custody, or custodian; or (d ) whose parents, guardian or custodian are unwilling, incompetent or unavailable to provide any such care," the court shall issue a notice to the department and summonses to the child's parents, and hold a hearing allowing for a presentation of facts as to the condition of the child. Due to the need for expedition in this type of proceeding, the emergency hearing, much like a hearing for a temporary restraining order, may be held ex parte. See, e.g., G.L. c. 209A, § 4 (1988 ed.). If, after this hearing, the court determines that there is "reasonable cause to believe that the child is suffering from serious abuse or neglect, or is in immediate danger of serious abuse or neglect, and that immediate removal of the child is necessary to protect the child from serious abuse or neglect, the court may issue an emergency order transferring custody of a child under this section to the department or to a licensed child care agency or individual described in clause (2) of section twenty-six." Id. Prior to the expiration of seventy-two hours from the time of the transfer of custody, the court must hold a second hearing, the "seventy-two hour hearing," to "determine whether such temporary custody should continue until a hearing on the merits of the petition for care and protection [the third hearing] is concluded before [the] court." Id. Prior to the care and protection hearing, the court must order a qualified person to investigate the child's situation. G.L. c. 119, § 24. The Commentary to Standard 4:02 of the Standards of Judicial Practice of the District Court Department of the Trial Court: Care and Protection Proceedings (1980), identifies four to six weeks as an appropriate amount of time in which to complete such an investigation.

Section 24 is explicit in its provision of a "reasonable cause" standard of proof for the initial emergency hearing. The father does not challenge the adequacy of a "reasonable cause" standard at this stage of the proceedings. Furthermore, while § 24 is silent as to the standard of proof to be applied to the hearing on the merits of the petition for care and protection (the third part of the process), it has been held by this court that any decision in this third phase must be based on clear and convincing evidence. See Care & Protection of Stephen, 401 Mass. 144, 150, 514 N.E.2d 1087 (1987); Custody of a Minor (No. 2), 392 Mass. 719, 725, 467 N.E.2d 1286 (1984); Custody of a Minor, 389 Mass. 755, 766-767, 452 N.E.2d 483 (1983).

Neither § 24 nor our previous decisions shed any light on the standard of proof which...

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