Thaddeus v. Sec'y of the Exec. Office of Health & Human Servs.

• Decision Date: 20 July 2022
• Docket Number: 21-P-398
• Citation: 101 Mass.App.Ct. 413,193 N.E.3d 472
• Parties: THADDEUS & others v. SECRETARY OF the EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES & another.
• Court: Appeals Court of Massachusetts

101 Mass.App.Ct. 413

193 N.E.3d 472

THADDEUS ¹ & others²

v.SECRETARY OF the EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES & another.³

No. 21-P-398

Appeals Court of Massachusetts, Suffolk.

Argued April 5, 2022.

Decided July 20, 2022.

Katherine B. Dirks, Assistant Attorney General (Jesse M. Boodoo, Assistant Attorney General, also present) for the defendants.

Lauren E. Russell, Committee for Public Counsel Services (Ann Balmelli O'Connor, Committee for Public Counsel Services, also present) for the plaintiffs.

Present: Meade, Englander, & Grant, JJ.

ENGLANDER, J.

The plaintiffs challenge a policy adopted by the Department of Children and Families (department) during the first several months of the COVID-19 pandemic, which limited in-person visitation between parents and their children in department custody, instead requiring (in most cases) video conferences or "virtual visitation." The plaintiffs are six parents whose children were subject to care and protection proceedings and in department custody when the pandemic began, as well as one similarly situated child. The plaintiffs claim that they have statutory and constitutional rights to parent-child visits in person, and that the department violated those rights by implementing its virtual visitation policy and by not first obtaining a court order. In proceedings in the Superior Court, a first judge denied the plaintiffs’ request for a preliminary injunction, but then a second judge (motion judge) declined to dismiss the case, ruling (1) that the claims presented "need not be dismissed for mootness," (2) that Mass. R. Civ. P. 12 (b) (9), as amended, 450 Mass. 1403 (2008), did not require dismissal, and (3) that the plaintiffs had stated claims that survived scrutiny under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). In response to a joint motion by the parties, the motion judge then reported his order to this court, under Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996).⁴

For the reasons that follow, we reach the merits of the plaintiffs’ claims, and rule that those claims fail as a matter of law. While visits between parents and children in department custody must ordinarily be in person, the circumstances in the spring of 2020 were far from ordinary. It was within the department's discretion to adopt a policy, for that time, that favored parental contact by video conference, and sharply limited in-person visits. Nor, under the circumstances, was the department required to secure court approval in advance. We accordingly remand the matter with directions to dismiss the case.

Background. As indicated, the plaintiffs in this action are parents, and one child, who were involved in care and protection proceedings in the Juvenile Court when the pandemic began. All of the children at issue were in department custody and attending in-person visits with their parents at that time.

In March of 2020, the department ended in-person visitation for all plaintiffs. In early April, the department issued "Interim Guidance for DCF Supervised Visitation Providers" and "Guidelines for Parent-Child Visitation During COVID-19 Outbreak" (collectively, interim policy). The interim policy stated:

"The novel coronavirus, COVID-19, poses an unprecedented challenge to the day-to-day operations of the [department] and the children and families we serve. In order to mitigate the spread of COVID-19 during this state of emergency, we will need to be innovative in the ways parents and children can maintain contact and connection with one another, while limiting in-person interactions as much as possible."

The interim policy accordingly "encourag[ed] video conference visitation for parents and children whenever possible," and stated that in-person visits would occur only if "needed," and if approved by department supervisors or managers. The interim policy also identified precautionary measures that the department should follow in the event of such in-person visitation.

After the department ceased in-person visitation for all the plaintiffs in March of 2020, several plaintiffs submitted requests to the department to reinstate in-person visitation; the department denied their requests. Two parents also sought relief, separately, in the Juvenile Court, but the Juvenile Court judges also declined to reinstate in-person visitation.

On May 29, 2020, the plaintiffs filed this lawsuit in Superior Court asserting two causes of action: one statutory and one constitutional. The first cause of action alleged that the department had "terminated" the plaintiffs’ visitation, in violation of G. L. c. 119, § 35. The second alleged that the department had violated the plaintiffs’ due process rights by denying them visitation without first obtaining a court order. The plaintiffs also filed a motion for injunctive relief, which a Superior Court judge denied in June of 2020.

In late June 2020, the department amended its policy to "provide guidelines to safely resume in-person Family Time for children" in its custody (amended policy). While it approved the resumption of in-person family time, the amended policy also stated that "Virtual Family Time can support and supplement in-person Family Time and is encouraged when in-person Family Time cannot occur."⁵ In-person visitation had resumed for all plaintiffs by August of 2020.

In September of 2020 the defendants moved to dismiss, arguing that (1) the complaint was moot because the interim policy had been superseded and in-person visitation had resumed, (2) the complaint should be dismissed pursuant to rule 12 (b) (9) because the plaintiffs had pending care and protection proceedings before the Juvenile Court, and (3) the plaintiffs had failed to state a claim. The motion judge denied the motion. As to mootness, he reasoned that "the issue ... may be repeated in regard to either these Plaintiffs in the future or any individuals engaged with the Department." He also ruled that dismissal was not required under rule 12 (b) (9), and that the complaint sufficiently stated a claim upon which relief could be granted.

Upon joint motion of the parties, the motion judge reported his decision to this court under rule 64. On appeal, the defendants filed affidavits with this court averring that, although some of the plaintiffs were still subject to ongoing care and protection proceedings, all plaintiffs had been reunited with their respective child or parent, or parental rights had been terminated,⁶ such that visitation rights were no longer an issue. In response, the plaintiffs filed affidavits from attorneys for the Committee for Public Counsel Services (CPCS) averring that the department continued to limit some CPCS clients (not the plaintiffs) to virtual contact with their children. The CPCS attorneys noted that the department had not sought a court order to authorize this virtual contact, and that in these instances the department had imposed virtual contact for reasons unrelated to the pandemic.

Discussion. 1. Mootness. The defendants first argue that this appeal should be dismissed as moot. We agree that the case likely is moot as to these seven plaintiffs, but we nevertheless exercise our discretion to consider the issues raised.

A case is moot when the party seeking relief "ceases to have a personal stake" in the case, such that the "court can order no further effective relief" (quotations and citations omitted). Branch v. Commonwealth Employment Relations Bd., 481 Mass. 810, 816-817, 120 N.E.3d 1163 (2019), cert. denied, ––– U.S. ––––, 140 S. Ct. 858, 205 L.Ed.2d 456 (2020). Here, none of the plaintiffs require visitation any longer. Moreover, the interim policy is no longer in effect.⁷ While it is true that several of the plaintiffs have ongoing care and protection cases, where the subject children have been returned to the care of their parents the suggestion that remote visitation may be imposed on these particular plaintiffs in the future is tenuous, and likely not sufficient in itself to create a concrete dispute.⁸ And mere disagreement over the scope of the department's authority -- without an ongoing personal stake in the controversy -- is not enough to survive a mootness challenge. See Lynn v. Murrell, 489 Mass. 579, 583, 185 N.E.3d 912 (2022) (recognizing mootness of dispute over validity of rescinded emergency COVID-19 orders).

Mootness, however, is not a jurisdictional bar in our courts. See Lynn, 489 Mass. at 583, 185 N.E.3d 912. We may exercise our discretion to consider a moot case upon consideration of whether

"(1) the issue was fully argued on both sides; (2) the question was certain, or at least very likely, to arise again in similar factual circumstances; (3) where appellate review could not be obtained before the recurring question would again be moot; and (4) most importantly, the issue was of public importance."

Ott v. Boston Edison Co., 413 Mass. 680, 683, 602 N.E.2d 566 (1992). Here, the issue has been briefed, and ably argued, by both sides. Furthermore, the issue -- the department's ability to limit parents’ contact with children in department custody solely to virtual means -- is one of public importance.

Thus, we turn next to whether this issue is likely to arise again in similar circumstances. The defendants argue that the department is unlikely again to substitute virtual contact for in-person visitation, given public health advancements and the declared end to the COVID-19 state of emergency. But while we acknowledge that the department is unlikely to reinstate the interim policy exactly as written, the issue whether the department may lawfully limit contact to virtual contact persists for other parents with children in department custody, now and in the future. The plaintiffs have submitted affidavits indicating that the department continues to restrict some families solely to virtual contact for reasons unrelated to the pandemic, such as geographic distance or lack of available staff. The defendants counter that such actions are...