In re Doretta
| Decision Date | 30 August 2022 |
| Docket Number | 22-P-121 |
| Citation | 101 Mass.App.Ct. 584,194 N.E.3d 1269 |
| Parties | CARE AND PROTECTION OF DORETTA & others. |
| Court | Appeals Court of Massachusetts |
Cara M. Cheyette, for the children.
Dana C. Chenevert, for the father.
Jeanne M. Kaiser, for the mother.
Kristin Stone Braithwaite, for Department of Children and Families.
Present: Desmond, Ditkoff, & Walsh, JJ.
The mother, father, and the three children appeal from an order issued by a Juvenile Court judge granting temporary custody of the children to the Department of Children and Families (DCF). We conclude that affidavits filed with DCF's petition for temporary custody are not categorically inadmissible at a temporary custody hearing and may be admitted to the extent permitted by Adoption of Luc, 484 Mass. 139, 151-153, 139 N.E.3d 337 (2020). Further concluding that there was sufficient evidence that the children were in immediate danger of serious abuse or neglect if returned to the parents and that the judge did not deprive the father of due process by briefly limiting his participation in the proceedings when the father was disruptive, we affirm the order of temporary custody.
1. Background. a. The family. This appeal involves the parents’ three children: Doretta, Daniel, and Erik.2 Doretta is twelve years old. Daniel and Erik are eleven year old twins. All three children have autism spectrum disorder. Daniel is "severely autistic." He is nonverbal and cannot use the bathroom on his own. Daniel also suffers from a mood disorder, anxiety, and attention deficit hyperactivity disorder. Erik and Doretta, on the other hand, are "high functioning."
b. Incidents. Daniel has hit his head on walls, bitten his father and Erik, pulled his siblings’ and the mother's hair, pulled out his own hair, and hit a MassHealth driver. The father reported that conduct like this is "a daily occurrence and there is nothing they can do to stop [Daniel]."
In August 2014, personnel at a camp Daniel was attending observed a burn on his body. In October or November 2014, one of the children pushed the mother, breaking her back. In December 2019, Daniel's in-home therapist reported that Daniel runs from the home with no one able to retrieve him. Later that month, after a judge awarded temporary custody to DCF, DCF removed all three children from the home. Several days later, Erik explained "bruising and scarring" on his body by saying that Daniel bites him. DCF returned the children to the parents in March 2020.
In July 2020, a neighbor reported that Daniel had broken into their home three times over the past few months and, this time, had gone in their pool. In December 2020, Daniel punched a window while he was playing outside, requiring stitches. On another occasion, a doctor removed three of Daniel's teeth because he had been punching himself in the face.
In September 2021, the parents’ utility company shut off the electricity in the home. As the parents drove the children to another location, Daniel got upset and punched himself in the face multiple times, causing bruising and hemorrhaging around his eyes. One to three days later, the father notified Daniel's pediatrician.3 The pediatrician suggested that the father bring Daniel to be seen. The father said that he could not do so because he and the mother "couldn't safely transport [Daniel]."4
c. Education. All three children were in an educational program for students with autism at a public school. In spring 2020, the children's school switched to a virtual learning program because of the COVID-19 pandemic. Daniel struggled with virtual learning and became frustrated because he wanted to play outside. His frustration led him to break five computers, some of which were for his siblings’ use.
In January 2021, at the father's request, the public school system moved Daniel to an in-person program at a private school. Daniel attended this school for a few days, until it closed for two weeks because of a COVID-19 outbreak. When the private school reopened, the father refused to send Daniel back. Nonetheless, he did not reengage Daniel in his public school's virtual learning program, in which Daniel was still enrolled. Instead, the father began reading Erik's school work to Daniel at home, despite the father's not having requested approval or guidance for "home schooling" Daniel. The father continued to ignore school officials’ urging that Daniel's disabilities were "so significant" that he needed to attend school in person.
During this time, Erik and Doretta attended the public school's virtual learning program. On December 17, 2020, the children's principal told DCF that Erik and Doretta were "barely attending [the virtual learning program] and [were] missing many assignments." Despite this report, the special education supervisor at the children's school testified that Erik and Doretta's attendance was "good" during the 2020-2021 school year and that they "missed about five days when they were enrolled in the virtual academy." The father refused to send the children back to school in person when the school reopened for in-person learning in April 2021.
d. Parents’ refusal to cooperate. When providers, school officials, or DCF workers tried to talk to the father, he stated that the services being offered were inadequate, reiterated that his family's needs were going unmet, requested services that the person to whom he was speaking could not offer, demanded an attorney, spoke over others, appeared "erratic and volatile," talked about societal issues such as racism and xenophobia, and blamed DCF for issues beyond its control. The parents have refused to work with DCF in any capacity, and have forbidden DCF workers entry into the home. When DCF tried to offer services to the father, the father regularly refused to provide the necessary information.
e. Proceedings. On September 7, 2021, DCF filed a care and protection petition on behalf of the children. After an emergency hearing, a judge ordered that the children remain in the parents’ custody, conditioned on the parents’ cooperation with DCF. On September 17, 2021, DCF filed an emergency motion for temporary custody and removed the children from the home. On December 14, 2021,5 after a seventy-two hour hearing, the judge granted temporary custody of the children to DCF. The judge did not make written findings. The parents and children filed a joint petition for interlocutory review under G. L. c. 231, § 118. The single justice ultimately exercised her discretion to allow the parents and children leave to pursue an interlocutory appeal of the order of temporary custody. See Caffyn v. Caffyn, 441 Mass. 487, 488, 806 N.E.2d 415 (2004) ; Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 21, 421 N.E.2d 460 (1981).
2. Standard of review. "When [DCF] ‘has reasonable cause to believe a child's health or safety is in immediate danger’ and ‘removal is necessary to protect the child from abuse or neglect,’ it shall immediately take the child into temporary custody." Care & Protection of Rashida, 488 Mass. 217, 219, 172 N.E.3d 390 (2021) ( Rashida I ), S.C., 489 Mass. 128, 180 N.E.3d 428 (2022), quoting G. L. c. 119, § 51B (c ), (e ). Within twenty-four hours of removal, DCF must file a care and protection petition. See G. L. c. 119, § 51B (e ) ; Rashida I, supra. "On the day a petition is filed, a judge will conduct an emergency hearing." Rashida I, supra, quoting Care & Protection of Walt, 478 Mass. 212, 220, 84 N.E.3d 803 (2017). Within seventy-two hours of the filing of the petition and the emergency hearing, a judge must hold a second hearing (seventy-two hour hearing) "to determine whether temporary custody of the child will continue" beyond seventy-two hours. Rashida I, supra.
After the seventy-two-hour hearing, a judge may award temporary custody of a child to DCF if the judge finds that DCF has proven by a " ‘fair preponderance of the evidence’ that a 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.’ " Care & Protection of Sophie, 449 Mass. 100, 111, 865 N.E.2d 789 (2007), quoting G. L. c. 119, § 24. We will not disturb a judge's ruling simply because a party "views the evidence differently from how the judge viewed it." Adoption of Lisette, 93 Mass. App. Ct. 284, 295, 102 N.E.3d 1018 (2018). In the context of a seventy-two hour hearing, "the principal interest at stake is the child's immediate welfare." Care & Protection of Perry, 438 Mass. 1014, 1014, 782 N.E.2d 506 (2003). Thus, "the child's interest in freedom from abuse and neglect takes precedence over the child's interest in family integrity." Care & Protection of Robert, 408 Mass. 52, 62, 556 N.E.2d 993 (1990).
Here, the judge properly construed DCF's burden of proof. Her reference to a "low" standard merely reflects our law that, because "the stakes and purposes of the seventy-two hour hearing and the trial on the merits differ," Care & Protection of Orazio, 68 Mass. App. Ct. 213, 219, 861 N.E.2d 476 (2007), "[a] less demanding standard of proof is required" at a seventy-two hour hearing, Care & Protection of Robert, 408 Mass. at 68, 556 N.E.2d 993, and a "higher standard of proof ... governs the latter." Care & Protection of Orazio, supra.
3. Admissibility of social worker affidavits filed with a petition for temporary custody. a. Overview. The parents filed motions in limine objecting to the admission of affidavits by the DCF social worker on two grounds: (1) that the affidavits were inadmissible because they were pleadings, and (2) that portions of the affidavits contained inadmissible hearsay. The judge rejected the first argument out of hand. The judge deferred the second argument because she expected the social worker to testify. When the social worker ultimately did not testify, the judge admitted the affidavits with extensive...
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