In re Care & Prot. Jamison

• Decision Date: 20 February 2014
• Docket Number: SJC–11452.
• Citation: 467 Mass. 269,4 N.E.3d 889
• Parties: Care and Protection of JAMISON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 269

4 N.E.3d 889

Care and Protection of JAMISON.

SJC–11452.

Supreme Judicial Court of Massachusetts,

Franklin–Hampshire.

Argued Sept. 4, 2013.

Decided Feb. 20, 2014.

Ann Balmelli O'Connor, Committee for Public Counsel Services, for the siblings of Jamison.

Margaret M. Geary, Leominster, for the guardians.

Beth M. Nussbaum for Jamison.

Lynne M. Murphy for Department of Children and Families.

Cara M. Cheyette for the mother.

Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

We are called upon in this case to decide, first, whether the Juvenile Court has subject matter jurisdiction over petitions for sibling visitation pursuant to G.L. c. 119, § 26B ( b ), where the petitioning child is in State custody and his siblings are wards in the custody of legal guardians, and, second, whether the presumption of validity afforded parental decisions regarding grandparent visitation pursuant to G.L. c. 119, § 39D, recognized in Blixt v. Blixt, 437 Mass. 649, 657–658, 774 N.E.2d 1052 (2002), cert. denied, 537 U.S. 1189, 123 S.Ct. 1259, 154 L.Ed.2d 1022 (2003) ( Blixt ), applies also to the decisions of fit guardians regarding sibling visitation. Finally, we must decide whether the judge abused his discretion when mandating the visitation sought by the petitioning sibling.

In October, 2005, nine year old Jamison and three of his siblings—Christopher, then fifteen; Fergus, then five; and Rosalie, then four—became the wards of their maternal aunt, Darlene, and her spouse, Dorothy (guardians). ¹ The guardians voluntarily terminated their guardianship of Jamison in October, 2007, and, in April, 2008, he was placed in the permanent custody of the Department of Children and Families (DCF).² In April, 2011, Jamison petitioned the Juvenile Court for visitation with Fergus and Rosalie pursuant to G.L. c. 119, § 26B ( b ). After finding that visitation would be in the best interests of all three children, a Juvenile Court judge ordered supervised visitation four times a year, over the guardians' objection. The guardians and wards appealed to the Appeals Court; we transferred the case to this court on our own motion.

We conclude that the Juvenile Court has jurisdiction over a sibling visitation petition where the petitioning child is in DCF custody and his siblings are wards subject to guardianship, and that the Blixt presumption does not extend to the judgments of fit guardians in such circumstances. However, since we conclude that, here, there was insufficient information to inform the judge's determination whether visitation would serve the best interests of all three children, we remand for further proceedings.

1. Background and prior proceedings. Reserving some facts for later discussion, we recite the following from the judge's findings, made after an evidentiary hearing at which Christopher, Jamison, Jamison's social worker, and one of the guardians ³ testified. We supplement these facts with uncontroverted statements in the transcript and with information contained in the redacted report of the guardian ad litem (GAL), which was admitted in evidence at the hearing.

Jamison and his five siblings had a difficult childhood due to substance abuse by and domestic violence between their biological parents; DCF became involved with Jamison's family when he was an infant. For several years, Jamison often spent weekends visiting the home of his maternal aunt and her spouse, and generally enjoyed these visits in contrast to his home life. In 2005, DCF indicated to Jamison's father that the children would be placed in foster care if other arrangements were not made for them. Christopher, Jamison, Fergus, and Rosalie ⁴ were sent to live with Jamison's maternal aunt, her spouse, and the couple's young son, Hindley.⁵ On October 25, 2005, pursuant to a decree of the Probate and Family Court, the aunt and her spouse became the guardians of the four siblings; the biological parents, whose parental rights were not terminated, assented to the guardianship.

Jamison's relationship with the guardians thereafter grew strained; he exhibited behavioral issues that the guardians attempted to address. Between 2006 and 2007, he was hospitalized twice for emotional issues.⁶ Following the second hospitalization, Jamison alleged that his aunt had harmed him physically. As a result of these allegations, on September 27, 2007, DCF removed Jamison and his siblings from the guardians' custody, and Hindley from his parents' care, and then filed an emergency care and protection petition on behalf of the five children in the Juvenile Court. A Juvenile Court judge granted temporary custody of the children to DCF.⁷

Three weeks after their removal, all of the children except Jamison were returned to the guardians' custody. Jamison was hospitalized, and he remained in DCF custody. In April, 2008, Jamison was committed to the permanent custody of DCF. Since that time, he has been in foster care and has not seen the guardians, Christopher, Fergus, or Rosalie.⁸ Jamison does not wish to see the guardians, who voluntarily terminated their guardianship of him on April 11, 2008, and they have not attempted to visit, contact, or learn about him.⁹ Toward the end of 2008, after Fergus and Rosalie exhibited symptoms of trauma, a Probate and Family Court judge allowed the guardians' motion to terminate court-ordered visitation between Fergus, Rosalie, and their biological parents, and ruled that future visits were permissible solely at the guardians' discretion.¹⁰ He also recommended that the guardians “strongly consider [both] full mental health evaluations for [Fergus and Rosalie]” and “contact between [Fergus and Rosalie] and their siblings.”

On April 15, 2011, Jamison filed a motion for sibling visitation pursuant to G.L. c. 119, § 26B ( b ), in the Juvenile Court. Jamison's mother assented to this motion, and DCF supported it. In June, the judge determined that the Juvenile Court had jurisdiction over Jamison's petition, and ordered that counsel be appointed for Fergus and Rosalie.¹¹ In September, the judge ordered that a GAL be appointed for Fergus and Rosalie. In February, 2012, the guardians unsuccessfully sought dismissal of Jamison's motion. Thereafter, the siblings filed a petition for relief pursuant to G.L. c. 211, § 3, through the guardians; a single justice of the county court denied this petition.

At the subsequent evidentiary hearing in the Juvenile Court to determine whether sibling visitation would be “reasonable, practical, and in the best interests of the child[ren],” G.L. c. 119, § 26B ( b ), there was evidence that the then sixteen year old Jamison had exhibited no behavioral issues since 2009, and was “doing well” as a student in the tenth grade. He had seen a therapist for three and one-half years and “speaks thoughtfully” about his prior behavior. Jamison testified ¹² that he sought sibling visitation because “family has become a lot more important to [him]” and “nothing will ever stop that bond.” Jamison's social worker testified that she was supportive of the visitation, and that he had long desired such visitation. DCF's attorney also represented that DCF was supportive of Jamison's motion.

There was also testimony that the proposed visitation might disserve Fergus and Rosalie. Dorothy testified that she opposed visitation between the wards and Jamison until the wards were older, consistent with her opposition to contact between the wards and nearly all members of Darlene's family. Dorothy was concerned that visitation would be “inappropriate and possibly harmful” to the wards, “disruptive to their typical day-to-day behavior,” and “detrimental to their social relationships.” ¹³ The GAL report indicated also that Darlene was concerned that visitation would exacerbate the siblings' attention deficit hyperactivity disorder (ADHD), trigger Rosalie's night terrors, and aggravate Fergus's learning disorder. ¹⁴ At the time of the hearing, neither Fergus nor Rosalie wanted to visit Jamison, although Rosalie's opinion regarding visitation had changed several times. There was no expert testimony regarding the impact that visitation might have on Fergus and Rosalie.^15,16

The judge found that visitation would serve the best interests of all three children. While acknowledging that “[Fergus] and [Rosalie] oppose[d] contact with [Jamison],” he noted that their brother Christopher and their guardian Dorothy both “blame [Jamison]” for the temporary removal of Fergus, Rosalie, and Hindley in 2007, and that the guardians refuse to allow contact between Fergus and Rosalie and any member of their extended maternal family. The judge deemed the guardians' determination to “make decisions about [Jamison] and contact with [Jamison]” based on his behavior “five years in [the] past” “manifestly unreasonable.” He stated in his decision, “Without any specific reason to believe that [Fergus] and [Rosalie] would be harmed by structured, supervised contact with [Jamison] and that it would not be in their best interests, with a belief that sibling contact is generally in children's best interests, and with reason to believe that [Jamison] is being harmed by lack of contact, and that contact would be in his best interests, the Court orders contact according to [stated] parameters.”

Accordingly, the judge ordered an initial two-month period of screened written correspondence, followed by supervised, quarterly visits in a neutral setting. The judge's order stated that parties seeking to suspend visitation could petition the court at any time. The guardians and wards timely appealed and petitioned a single justice of the Appeals Court for a stay of visitation pending appeal; that petition was denied, and we transferred the case to this court on our own motion.

2. Discussion. The guardians and wards urge the dismissal of Jamison's petition seeking sibling visitation for three reasons. The wards maintain that the Juvenile Court lacks...