Parents of Two Minors v. Bristol Div. of Juvenile Court Dept.

• Decision Date: 09 July 1986
• Parties: . 1 Supreme Judicial Court of Massachusetts, Bristol
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1306

494 N.E.2d 1306

397 Mass. 846

PARENTS OF TWO MINORS v. BRISTOL DIVISION OF the JUVENILE COURT DEPARTMENT et al.

¹

Supreme Judicial Court of Massachusetts,

Bristol.

Argued March 3, 1986.

Decided July 9, 1986.

Catherine E.M. Sullivan (Thomas G. Shapiro and Marjorie Heins, Boston, with her) for the parents.

William L. Pardee, Asst. Atty. Gen., for Bristol Div. of the Juvenile Court Dept. & another.

Before HENNESSEY, C.J., and WILKINS, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

This case raises the question whether a judge of a Juvenile Court has authority to order parents of minor children to submit to a nonemergency home visit by an employee of the Department of Social Services (DSS), investigating an anonymous report of child abuse. Our answer to that question is "no."

By a petition filed on May 15, 1985, and amended on May 16, the DSS requested the Juvenile Court to order the plaintiff parents of two minor children to allow DSS personnel "to enter the [parents'] home and view and speak with the children." In support of its petition, DSS submitted an affidavit from one of its employees. The affidavit stated that the DSS "Child Abuse Hot-Line" received an anonymous telephone call on May 8, 1985, reporting that the plaintiffs were abusing their children. In substance, the affidavit averred that the caller had seen the parents committing many acts of abuse against their children, a six year old girl and a five year old boy. According to the affidavit, the caller, who claimed to have been in close contact with the family for approximately four years, had said that on numerous occasions she had observed bruises on the children allegedly caused by parental physical abuse.

The affidavit further stated that on May 9, 1985, the case had been assigned to a DSS investigator, who had made an attempt to substantiate the allegations of abuse. The parents, however, explaining that they wished to consult an attorney first, chose not to cooperate with the investigation. On May 14, 1985, the affidavit continued, the parents' attorney informed the DSS that he would not advise his clients to cooperate with the DSS's proposed investigation within the home.

A hearing on the DSS amended petition was held on May 16, 1985, the day on which it was filed. The evidence consisted of the aforementioned affidavit and testimony by the chief of social services, who stated that the DSS file on the plaintiffs consisted entirely of the anonymous G.L. c. 119, § 51A (1984 ed.), report referred to in the affidavit. Reasoning that the DSS had a "plain right" to investigate under the statute, and that the parents had no right to resist the investigation, the judge ordered the parents to allow DSS to enter the home and speak to the children. The plaintiffs moved to stay the order pending appeal, but the judge denied their motion.

Following the issuance of the order of entry, also on May 16, the plaintiffs filed a petition in the Supreme Judicial Court seeking relief under G.L. c. 211, § 3 (1984 ed.). The petition requested that the order be quashed, that the judges of the Juvenile Court be restrained from issuing such orders, and that the DSS be restrained from taking action pursuant to the order. After a hearing, a single justice of this court denied the petition without opinion. The plaintiffs appealed to the full court.

On September 6, 1985, the DSS moved in this court that the petition be dismissed for mootness. Accompanying its motion, the DSS filed an affidavit stating that on May 31, 1985, two employees of the DSS had gone to the plaintiffs' home, had spoken with the children, and had concluded the investigation. The affidavit also stated that the family had moved to a location unknown to the DSS. We deferred action on the motion to dismiss until now.

In addition to raising the mootness issue, the defendants argue on appeal that the single justice properly denied the parents' claim under G.L. c. 211, § 3, since their petition failed to state a case for extraordinary relief or, alternatively, that the single justice properly denied the petition on substantive grounds. The parents oppose those arguments and assert that the Juvenile Court judge's order of entry was unauthorized and violated their rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.

For reasons expressed below, we reject the defendants' procedural arguments, and we consider on its merits the question whether the judge had statutory or common law authority to order the plaintiffs to allow an employee of the DSS to enter their home to investigate an anonymous nonemergency report of child abuse. In view of our conclusion that the judge did not have that authority, we do not reach the constitutional issues argued by the parties. 1. Mootness.

According to an affidavit filed in this court in conjunction with the DSS motion to dismiss for mootness, two DSS employees conducted their investigation at the plaintiffs' home on May 31, 1985, and the investigation was concluded on that date. When the parties no longer have a stake in the determination of an issue, the issue is moot. Attorney Gen. v. International Marathons, Inc., 392 Mass. 370, 372, 467 N.E.2d 51 (1984). Hashimi v. Kalil, 388 Mass. 607, 608, 446 N.E.2d 1387 (1983). It appears, therefore, that the question whether the judge had the authority to order the plaintiffs to permit DSS employees to enter their home to investigate is moot. Nevertheless, "we have on occasion answered questions in moot cases where the issue was one of public importance, where it was fully argued on both sides, where the question was certain, or at least very likely, to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot." Lockhart v. Attorney Gen., 390 Mass. 780, 783, 459 N.E.2d 813 (1984). Those conditions are met here. Therefore, we do not dismiss this case as moot. See Brach v. Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 533, 437 N.E.2d 164 (1982). ²

2. Propriety of relief under G.L. c. 211, § 3. "Our cases have emphasized that relief under G.L. c. 211, § 3, may not be sought merely as a substitute for normal appellate review.... The supervisory power of this court is used sparingly.... It should be exercised only in exceptional circumstances and where necessary to protect substantive rights in the absence of an alternative, effective remedy." (Citations omitted.) Soja v. T.P. Sampson Co., 373 Mass. 630, 631, 369 N.E.2d 975 (1977). See Francis v. District Attorney for the Plymouth Dist., 388 Mass. 1009, 1010, 446 N.E.2d 712 (1983); Hadfield v. Commonwealth, 387 Mass. 252, 255 & n. 2, 439 N.E.2d 279 (1982). Unquestionably, the present litigation involves a substantive right. Furthermore, there is no alternative, effective remedy. No statute provides a right of appeal in the circumstances presented by this case. An adjudication by a Juvenile Court judge that a child is in need of care and protection may be appealed under G.L. c. 119, § 27 (1984 ed.). Appeal from an adjudication that a child is in need of services is provided in c. 119, § 39I (1984 ed. & Supp.1985), and c. 119, § 56 (1984 ed.), provides for appeals from adjudications of delinquency. However, c. 119 is silent about a right of appeal from an order of a judge of the Juvenile Court requiring parents to grant entry to their home to DSS personnel and no such right is provided by any other statute.

Analogizing the judge's order to an interlocutory discovery order, the defendants argue that the plaintiffs do have an alternative and effective means of obtaining review. The defendants point out that the plaintiffs could have obtained appellate review by refusing to comply with the order, incurring an adjudication of contempt, and appealing from that adjudication. The defendants direct our attention to the case of Cronin v. Strayer, 392 Mass. 525, 529, 467 N.E.2d 143 (1984), in which we dismissed an appeal of nonparty witnesses from an order requiring them to submit to discovery. In that case, we acknowledged the interlocutory nature of such an order, id. at 529-530, 467 N.E.2d 143, and we adopted the reasoning of the United States Court of Appeals for the Seventh Circuit expressed in Marrese v. American Academy of Orthopaedic Surgeons, 726 F.2d 1150, 1158 (7th Cir.1984), rev'd on other grounds, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), that "[c]onfining the right to get appellate review of discovery orders to cases where the party [or witness] against whom the order was directed cared enough to incur a sanction for contempt is a crude but serviceable method ... of identifying the most burdensome discovery orders and in effect waiving the finality requirement for them." Cronin v. Strayer, supra 392 Mass. at 529, 467 N.E.2d 143. We concluded that nonparty witnesses have no right of appeal from a discovery order, and that their only remedy is to incur contempt and then to appeal. Id. at 530, 467 N.E.2d 143. Our holding was consistent with our holdings in other cases in which we have refused to consider appeals from interlocutory orders because such appeals tend to interfere with the progress of ongoing litigation. See Beit v. Probate & Family Court Dep't, 385 Mass. 854, 857, 434 N.E.2d 642 (1982); Borman v. Borman, 378 Mass. 775, 779, 393 N.E.2d 847 (1979).

The G.L. c. 211, § 3, petition in this case does...