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In re Hilary
Parents Right to Counsel in CHINS cases 450 Mass. 491,
880 N.E.2d 343
Mass.,2008. February 05, 2008 (C) 2008 Thomson/West. No Claim to Orig. US Gov. Works. |
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FN1. In the Matter of Annamaria. Both names are pseudonyms. Decided Feb. 5, 2008. Holding: The Supreme Judicial Court, Ireland, J., held that as a matter of first impression, after a child is adjudicated a CHINS, a parent is entitled to counsel at dispositional phase of the proceeding if custody of the child could be granted to the Department of Social Services. Decision of Worcester County Juvenile Court reversed and case remanded. [1] KeyCite Notes   106 Courts106VI Courts of Appellate Jurisdiction106VI(A) Grounds of Jurisdiction in General106k209 Procedure in General106k209(2) k. In Issuance of Writs. Most Cited CasesSupreme Judicial Court would focus on salient legal issues in indigent parent's petition for extraordinary relief in connection with trial court's denial of parent's motion for appointed counsel at dispositional phase of child in need of services (CHINS) proceeding, despite mootness of case arising from dismissal of CHINS petition, if only because those issues were important and capable of repetition. M.G.L.A. c. 119, § 39E et seq.; c. 211, § 3. [2] KeyCite Notes 92 Constitutional Law92XXVII Due Process92XXVII(G) Particular Issues and Applications92XXVII(G)18 Families and Children92k4396 k. Child Custody, Visitation, and Support. Most Cited CasesDue process is implicated whenever the state may deprive a parent of custody of a child. U.S.C.A. Const.Amend. 14. [3] KeyCite Notes 106 Courts106VI Courts of Appellate Jurisdiction106VI(A) Grounds of Jurisdiction in General106k209 Procedure in General106k209(2) k. In Issuance of Writs. Most Cited CasesDepartment of Social Services waived issue of whether relief was available, under Supreme Judicial Court's general superintendence of courts of inferior jurisdiction, to parents who were denied appointed counsel at dispositional phrase of child in need of services (CHINS) proceedings, where department's brief stated that Attorney General would assume, for purposes of the brief, that the availability of such relief had been or would be decided in parents' favor. M.G.L.A. c. 119, § 39E et seq.; c. 211, § 3. [4] KeyCite Notes 211 Infants211VIII Dependent, Neglected, and Delinquent Children211VIII(D) Proceedings211k205 k. Counsel or Guardian Ad Litem. Most Cited CasesFinding a right to counsel for parents at dispositional phrase of child in need of services (CHINS) proceedings, under statutory provision giving parents a right to counsel in any proceeding involving child custody in which the Department of Social Services or a licensed child placement agency is a party, would not render superfluous another provision that confers right on children to court-appointed counsel in CHINS proceedings but does not mention a right to counsel for parents in such proceedings; first provision, which also addresses a child's right to counsel, grants that right only in certain child protection proceedings other than a CHINS proceeding. M.G.L.A. c. 119, §§ 29, 39F. [5] KeyCite Notes 92 Constitutional Law92XXVII Due Process92XXVII(G) Particular Issues and Applications92XXVII(G)18 Families and Children92k4390 Parent and Child Relationship92k4393 k. Termination in General. Most Cited CasesIn addition to the explicit statutory right to counsel, parents facing termination of their parental rights have a right to counsel, including court-appointed counsel, under civil due process provisions of State Constitution. M.G.L.A. c. 119, § 29; M.G.L.A. Const. Pt. 1, Art. 10. [6] KeyCite Notes 211 Infants211VIII Dependent, Neglected, and Delinquent Children211VIII(D) Proceedings211k205 k. Counsel or Guardian Ad Litem. Most Cited CasesDispositional phase of a child in need of services (CHINS) proceeding involves child “custody,” within statutory provision giving parents a right to counsel in any proceeding involving child custody in which the Department of Social Services or a licensed child placement agency is a party, even though CHINS statute uses word “commit” rather than “custody” to describe removal of child from home, and parents are not declared unfit in CHINS proceedings; custody order at dispositional phase gives legal custody to Department of Social Services. M.G.L.A. c. 119, §§ 21, 29, 39G; Mass.Regs. Code title 110, §§ 2.00, 4.64, 4.65. [7] KeyCite Notes 211 Infants211VIII Dependent, Neglected, and Delinquent Children211VIII(D) Proceedings211k205 k. Counsel or Guardian Ad Litem. Most Cited CasesAs a practical matter, state Department of Social Services is, as a practical matter, a “party” at dispositional phase of child in need of services (CHINS) proceeding, within meaning of statute giving parents a right to counsel at any proceeding regarding child custody where Department or a licensed child placement agency is a party, if custody of child is at issue. M.G.L.A. c. 119, § 29. [8] KeyCite Notes 361 Statutes361VI Construction and Operation361VI(A) General Rules of Construction361k180 Intention of Legislature361k181 In General361k181(1) k. In General. Most Cited Cases361 Statutes KeyCite Notes 361VI Construction and Operation361VI(A) General Rules of Construction361k180 Intention of Legislature361k184 k. Policy and Purpose of Act. Most Cited Cases361 Statutes KeyCite Notes 361VI Construction and Operation361VI(A) General Rules of Construction361k187 Meaning of Language361k188 k. In General. Most Cited CasesA statute must be interpreted according to the intent of the legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated. [9] KeyCite Notes 211 Infants211VIII Dependent, Neglected, and Delinquent Children211VIII(D) Proceedings211k205 k. Counsel or Guardian Ad Litem. Most Cited CasesAfter a child is adjudicated a child in need of services (CHINS), parent is entitled to counsel at dispositional phase if custody of the child could be granted to the Department of Social Services, under statute giving parents a right to counsel in any proceeding involving child custody in which the Department or a licensed child placement agency is a party. M.G.L.A. c. 119, §§ 29, 39G. **344 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. [1]
*492 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**345
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. FN2FN2. Oral argument in these cases was held on October 2, 2007. At a subsequent hearing in the Essex County Juvenile Court, on October 26, 2007, Annamaria's CHINS petition was dismissed, making the case moot. “However, we focus on the salient legal issues if only because they are important and capable of repetition.” Care & Protection of Erin, 443 Mass. 567, 568, 823 N.E.2d 356 (2005), citing Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, 421 Mass. 502, 504, 658 N.E.2d 152 (1995). The petitioners filed a joint brief. 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,FN3 discussed in detail in Matter of Gail, 417 Mass. 321, 629 N.E.2d 1308
(1994).FN4 “ 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 *493 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.
FN3. General Laws c. 119, § 21, defines a “[c]hild in need of services” as “a child below the age of seventeen who persistently runs away from the home of his parents or legal guardian, or persistently refuses to obey the lawful and reasonable commands of his parents or legal guardian, thereby resulting in said parent's or guardian's inability to adequately care for and protect said child, or a child between the ages of six and sixteen who persistently and wilfully fails to attend school or persistently violates the lawful and reasonable regulations of his school.” FN4. In Matter of Gail, 417 Mass. 321, 321 n. 1, 629 N.E.2d 1308 (1994), the court used the version of the CHINS statute in effect in September, 1992. None of the statutory provisions relied on in this portion of the opinion has changed. “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 **346 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, § 39I.” 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 *494 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.
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.FN5
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.
FN5. The record indicates that in May, 2007, Hilary was on probation in a delinquency matter. 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 *495 by
counsel in the matter if her court-appointed attorney **347 would
do so pro bono FN6 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.
FN6. Her court-appointed attorney was with the Committee for Public Counsel Services. 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.FN7
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.FN8
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 appointment 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 *496 and
E.K. filed a joint petition FN9 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.
FN7. Several judges have been involved in Annamaria's case. FN8. The judge stated that Annamaria's mother could be heard if she retained counsel privately or appeared pro se. FN9. We need not address whether Annamaria had standing to raise issues that solely affected her mother, E.K., as it has no bearing on our decision. In our discussion of the arguments raised, we shall refer only to E.K. [2]
[3]
3. Liberty interest.FN10
We begin by noting that we are mindful that parents have a fundamental
liberty interest in the care, custody, and management of their **348 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 N.E.2d
1308 (1994),
this court held that a CHINS disposition is temporary and thus a
“minimal infringement” on a child's liberty interest in the family
relationship that is justified by the Commonwealth's interest in
protecting children, we overruled that conclusion in Matter of Angela, supra at 62[, 833 N.E.2d 575].
In
that
case, we held that even where a child is placed outside the home for
six months pursuant to a CHINS proceeding, the intrusion on the child's
liberty interest in the parent-child relationship is “substantial.” Id. A CHINS proceeding's intrusion on a
parent's
liberty
interest in the parent-child relationship is no less substantial. See
generally Brum v. Dartmouth, 428 Mass. 684, 709, 704
N.E.2d 1147
(1999) (Ireland J., concurring) (children are “those most dear” to
parents).FN10. In his reservation and report the single justice said, “The parties have been instructed to address the threshold question of whether relief pursuant to G.L. c. 211, § 3, is available.” The brief of the Department of Social Services (department) did not address this issue. In a footnote, the department stated, “Without conceding that G.L. c. 211, § 3, is the appropriate vehicle to appeal from the denial of a motion to intervene, and in light of the Single Justice's order of reservation and report, and recognizing the likelihood that the substantive issues raised herein will recur, the Attorney General will assume, for the purposes of this brief, that these threshold questions have been (or will be) decided in favor of the justiciability of the Petitioners' claims.” We consider the department's position to be a waiver of this issue. [4]
4. General Laws c. 119, § 29. Children
involved in
CHINS proceedings are entitled to counsel, including court-appointed *497 counsel.
G.L. c. 119, § 39F.FN11 Although parents are notified of the
proceedings in a CHINS case, G.L. c. 119, § 39E, seventh par., there is no
explicit concomitant right to counsel given to parents under G.L. c. 119, §§ 39E- 39I.FN11. In 2003, the Legislature amended G.L. c. 119, § 39F, to provide a specific amount a parent has to contribute toward the costs of a child's appointed counsel. St.2003, c. 26, § 169. If a parent is indigent but able to contribute something toward the cost of court-appointed counsel for the child, the court shall make the parent pay a reasonable amount. Id. |