ADOPTION OF RAHKEEM (No. 2).

• Court: Massachusetts Appeals Court
• Decided: June 3, 2024
• Docket: 23-P-1095
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1095

ADOPTION OF RAHKEEM (No. 2).1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After decrees entered in the Juvenile Court terminating the

mother's and the father's parental rights to Rahkeem, the

mother's great aunt (aunt) and the aunt's son (cousin), who

formerly were temporary custodians of Rahkeem, filed a combined

motion for counsel, a new trial, and visitation. The aunt and

cousin asserted, among other things, that as custodians, they

had a right to counsel under G. L. c. 119, § 29, both at the

emergency custody hearing at which the temporary custody order

was vacated,2 and during the third-party custody hearing held in

1The child's name is a pseudonym. For purposes of oral argument, this case was paired with A.C. Docket No. 23-P-880 (Adoption of Rahkeem), also released today.

2Contrary to the assertions of the aunt and cousin, and as the trial judge found, the emergency custody hearing took place on March 15, 2021, within seventy-two hours of Rahkeem's removal. See G. L. c. 119, § 24. conjunction with the termination trial, where each was called by

the father to testify. On March 7, 2023, the trial judge denied

the motion on the ground that the aunt and cousin lacked

standing. The aunt and cousin did not file a timely notice of

appeal from that order.

On August 9, 2023, the aunt and cousin filed in the Appeals

Court a motion for leave to file a late notice of appeal. A

single justice denied the motion, concluding that the aunt and

cousin had not shown good cause for filing the notice of appeal

late. See Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626

(2019). The aunt and cousin now appeal from the single

justice's order.

We review for an abuse of discretion or error a single

justice's decision on a motion for leave to file a late notice

of appeal. See Adoption of Patty, 489 Mass. 630, 636 n.9

(2022); Care & Protection of a Minor, 478 Mass. 1015, 1015

(2017). In child welfare cases such as this one, "the notice of

appeal shall be filed within 30 days from the date of the entry

of the . . . appealable order." Mass. R. A. P. 4 (a) (1), as

appearing in 481 Mass. 1606 (2019). Here, the time for the aunt

and cousin to file a notice of appeal from the trial judge's

order expired on April 6, 2023. The aunt and cousin did not

2 seek leave to file their notice of appeal late until August 9,

more than four months after the deadline.

If a party demonstrates both good cause and a meritorious

case, a single justice or appellate court may enlarge the time

for filing a notice of appeal up to one year from the date of

entry of the order from which an appeal is sought. See Mass. R.

A. P. 14 (b); Tisei v. Building Inspector of Marlborough, 3

Mass. App. Ct. 377, 379 (1975). To demonstrate good cause, the

movants must show that "the mistake, misunderstanding, or

neglect was excusable and was not due to [their] own

carelessness." Commonwealth v. Smith, 491 Mass. 377, 386

(2023), quoting Tai v. Boston, 45 Mass. App. Ct. 220, 223

(1998). A single justice does not have the discretion "to allow

late filing of a notice of appeal simply because the matter is

important to the parties, the issues to be raised in the appeal

are debatable, or the consequences to the losing party are

harsh. Rather, such discretion must focus on the nature of the

acts or failures to act that are offered up as excusable

neglect." Smith, supra, quoting Shaev v. Alvord, 66 Mass. App.

Ct. 910, 911-912 (2006). Good cause does not include "[g]arden-

variety oversight[s]" or "the usual excuse that the lawyer is

too busy" (quotation and citations omitted). Smith, supra at

387.

3 In arguing that their neglect in not filing a timely notice

of appeal was excusable, the aunt and cousin rely on an

affidavit of the mother's counsel averring that on April 5,

2023, she attempted to file a notice of appeal on their behalf,

but the Juvenile Court clerk's office refused to accept the

notice because the mother's counsel "d[id] not represent" the

aunt and cousin. The single justice concluded:

"Even assuming that this would be sufficient to establish excusable neglect for not filing a notice of appeal within thirty days of the judge's March 7, 2023, decision, the aunt and cousin do not explain why they waited over four additional months, until August 9, 2023, before seeking leave to file a late notice of appeal. For this reason alone, they have failed to demonstrate an entitlement to relief."

We discern no error or abuse of discretion in the single

justice's denial of the motion for leave to file a late notice

4 of appeal.3 See Care & Protection of a Minor, 478 Mass. at 1015.

Order of single justice dated August 21, 2023, affirmed.

By the Court (Henry, Grant & D'Angelo, JJ.4),

Assistant Clerk

Entered: June 3, 2024.

3 We further note that the "single, very limited issue that is properly before us is whether the single justice erred or abused h[er] discretion in denying" the motion for leave to file the notice of appeal late, but the brief of the aunt and cousin "focus[es] almost exclusively on the underlying merits" of the trial court rulings, and "address[es] only minimally the issue of the late notice of appeal." Care & Protection of a Minor, 478 Mass. at 1015. Because the appeal from the underlying merits is not before us, we do not reach those issues. 4 The panelists are listed in order of seniority.