In re Hilary

• Decision Date: 05 February 2008
• Docket Number: SJC-10036.
• Citation: 880 N.E.2d 343,450 Mass. 491
• Parties: In the Matter of HILARY (and a consolidated case<SMALL><SUP>1</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

880 N.E.2d 343

450 Mass. 491

In the Matter of HILARY (and a consolidated case¹).

SJC-10036.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 2, 2007.

Decided February 5, 2008.

Margaret Clapp Winchester, Committee for Public. Counsel Services, Fitchburg (Dawn M. Messer, Committee for Public Counsel Services, with her) for the mother of Hilary.

Claudia Leis Bolgen, Woburn (Pedro R. Lara with her) for the mother of Annamaria.

Daniel J. Hammond, Assistant Attorney General, for Department of Social Services.

Michael F. Kilkelly, for Annamaria, was present but did not argue.

Lisa H. Thurau-Gray & Frank Laski, for Parent/Professional Advocacy League & others, amici curiae, submitted a brief.

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

IRELAND, J.

The issue of first impression that we decide in these consolidated cases from the Worcester County and Essex County Divisions of the Juvenile Court Department, which are here on a reservation and report, without decision, from a single justice of this court, is whether, after a child is adjudicated a child in need of services (CHINS), a parent is entitled to counsel at the dispositional phase of the proceeding, if custody of the child is at issue. G.L. c. 119, § 39G. Two Juvenile Court judges denied, among other things, the indigent mothers' requests for such court-appointed counsel. Because we conclude that, pursuant to G.L. c. 119, § 29, parents are entitled to counsel at the dispositional phase of a CHINS proceeding if the judge is considering awarding custody to the Department of Social Services (department), and have a concomitant right to intervene in the case, see note 18, infra, we reverse the decision of the Worcester County Juvenile Court judge and remand that case for further action consistent with this opinion.²

1. Statutory scheme. An overview of the CHINS statute is necessary to understand the issues raised. CHINS proceedings are governed by G.L. c. 119, §§ 39E-39I,³ discussed in detail in Matter of Gail, 417 Mass. 321, 629 N.E.2d 1308 (1994).⁴ "Section 39E provides that a parent or guardian, a police officer, or a school `supervisor of attendance' may apply to the Juvenile Court for issuance of a petition seeking a determination that a child is in need of services .... Once an application for a petition is filed, the Juvenile Court is directed to `set a date for a hearing to determine whether a petition should issue, ... notify the child of such hearing and ... request the chief probation officer or his designee to conduct a preliminary inquiry to determine whether in his opinion the best interests of the child require that a petition be issued.' G.L. c. 119, § 39E. A Juvenile. Court judge then conducts this preliminary hearing to determine whether there exists probable cause to believe that the child is in need of services. Id." Matter of Gail, supra at 324-325, 629 N.E.2d 1308.

"If a CHINS petition issues, the Juvenile Court sets a date for a trial on the merits to determine whether the child is a child in need of services. The trial is conducted before a jury, unless waived by the child, G.L. c. 119, § 39E, and the child must be present at the proceeding, accompanied by counsel. G.L. c. 119, § 39G. `If the court finds the allegations in the petition have been proved at the hearing beyond a reasonable doubt, it may adjudge the child named in such petition to be in need of services.' Id. On a finding that the child is in need of services, the statute provides the judge three alternatives for disposition ... (a ) permit ... the child [to] remain in the custody of the parent or guardian, subject to certain conditions; (b) ... place the child in the custody of a relative, probation officer, other qualified adult, private charitable or childcare agency, or private organization, which the judge finds to be qualified to care for the child; or (c) ... commit the child to the department. Id. The child has the right to appeal for a trial de novo, and thereafter may seek review in the Appeals Court. G.L. c. 119, § 391." Matter of Gail, supra at 325, 629 N.E.2d 1308.

If the judge decides to commit the child to the department, G.L. c. 119, § 39G, first par. (c), states in relevant part that "the court shall consider the provisions of [G.L. c. 119, § 29C,] and shall make the written certification and determinations required by [§ ]29C." General Laws c. 119, § 29C, first par., requires, inter alia, that the judge shall "certify that the continuation of the child in his home is contrary to his best interests."

"The duration of any court-ordered CHINS disposition may not exceed six months. G.L. c. 119, § 39G. After this period, the court must conduct another hearing to determine whether the child is still in need of services. Id. If the child is still in need of services, the judge may order an extension of the original disposition for a period of up to six months. Id." Matter of Gail, supra. Moreover, under the statute, there is "no prerequisite of parental consent to [or right to withdraw a child from] CHINS proceedings or court-ordered dispositions." Matter of Gail, supra at 326, 629 N.E.2d 1308.

Pursuant to G.L. c. 119, § 29B, first par., if a judge has extended the original disposition and the child is still in the department's care after twelve months, the judge must conduct a permanency hearing at which the department must file a permanency plan. Although the plan may be to return the child to the parent, it potentially could be to place the child in another permanent living arrangement or to place the child for adoption. Id. Under the plain language of G.L. c. 119, § 29, if the child is subject to a permanency plan, both the parent and child are entitled to counsel and, if either the parent or child is indigent, counsel will be appointed.

2. Facts and procedure. The parties submitted a joint statement of facts.

a. Hilary. In May, 2007, Hilary was the subject of two care and protection petitions. The first was dismissed, but as a result of the second, she was placed in a foster home. Within a few days, she ran away. Consequently, the department, which had temporary custody of Hilary pursuant to the care and protection matter, filed a CHINS petition.⁵ A judge in the Worcester County Juvenile Court issued the CHINS petition, dismissed the second care and protection petition, and scheduled a hearing on the merits of the CHINS matter for June, 2007.

Hilary's mother, L.R., had been appointed counsel for the care and protection matters. At the June hearing, L.R.'s counsel in the care and protection matter filed an emergency motion to intervene and for court-appointed counsel for L.R. in the CHINS proceeding. The judge granted the motion to intervene so that L.R. could participate in the CHINS matter. Concerning the appointment of counsel, the judge stated that the law did not allow appointment of counsel, but that L.R. could be represented by counsel in the matter if her court-appointed attorney would do so pro bono⁶ or if the mother secured private counsel. L.R. filed a petition in the county court pursuant to G.L. c. 211, § 3, stating that the judge violated her statutory right to counsel pursuant to G.L. c. 119, § 29, as well as her right to due process and to equal protection of the laws, and asking the single justice to reverse the judge's denial of her motion for appointed counsel.

b. Annamaria. A Haverhill High School attendance officer, acting pursuant to G.L. c. 119, § 39E, third par., filed an application for a CHINS petition concerning Annamaria that an Essex County Juvenile Court judge issued on March 24, 2006.⁷ Another judge (motion judge) adjudicated Annamaria a child in need of services in April, 2006, and committed her to the department until October, 2006, but she remained in her home. In September, 2006, a third judge ordered that Annamaria be placed outside of her home. At the scheduled October, 2006, hearing, Annamaria's mother, E.K., brought a motion to intervene and for court-appointed counsel, which the motion judge denied.⁸ Annamaria stipulated that the goals of her CHINS petition had not been met and was committed to the department for another six months. E.K. appealed from the denial of her motion and in February, 2007, her appellate counsel filed a motion to reconsider her motion to intervene and for am pointment of counsel, which also was denied. In his written findings, the motion judge stated that E.K. did not have a constitutional or statutory right to counsel, that she was not a party to the CHINS petition, that she had no enforceable legal rights in the CHINS proceeding, and that she had no right to be heard except at a judge's discretion. He also found that the department does not become a party to a CHINS proceeding whenever the court commits a child to the department. E.K. appealed from the denial of her motion for reconsideration. In April, 2007, the motion judge found that Annamaria was still a child in need of services but returned custody to E.K., with a hearing set for October 26, 2007. See note 2, supra. Annamaria and E.K. filed a joint petition⁹ in the county court pursuant to G.L. c. 211, § 3, asking the single justice to reverse the denial of E.K.'s motion to intervene and for court-appointed counsel, citing the same grounds as L.R.

3. Liberty interest.¹⁰ We begin by noting that we are mindful that parents have a fundamental liberty interest in the care, custody, and management of their children. Matter of Angela, 445 Mass. 55, 61-62, 833 N.E.2d 575 (2005), citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). See M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). Due process is implicated whenever the State may deprive a parent of custody of a child. Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3, 393 N.E.2d 406 (1979), and cases cited. Although in Matter of Gail, 417 Mass. 321, 327, 629...