Care & Protection of Jeremy

646 N.E.2d 1029, 419 Mass. 616, 1995 Mass. LEXIS 53
CourtMassachusetts Supreme Judicial Court
DecidedMarch 7, 1995
StatusPublished
Cited by10 cases

This text of 646 N.E.2d 1029 (Care & Protection of Jeremy) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Care & Protection of Jeremy, 646 N.E.2d 1029, 419 Mass. 616, 1995 Mass. LEXIS 53 (Mass. 1995).

Opinion

Greaney, J.

The question raised by this appeal from an order of a single justice of this court is whether a judge in the District Court, sitting in a juvenile session in a care and protection proceeding, has the authority to require the Department of Social Services (department), over its objection, to place a child who is in the department’s temporary cus[617]*617tody pursuant to G. L. c. 119, § 24 (1992 ed.), into a specific type of residential placement.

On September 29, 1993, the department filed a care and protection petition in the Salem District Court on behalf of Jeremy1 and two of his siblings. Temporary custody of the children was granted to the department. Jeremy initially resided in the home of the father’s former foster sister who subsequently moved from the Commonwealth to Florida. For this reason, around December 16, 1993, Jeremy was placed in a foster home. Between December, 1993, and March, 1994, he resided in a series of foster homes. He was removed from each of these homes due to aggressive and disruptive behavior.2 On March 17, 1994, the department requested the judge’s permission to place Jeremy in a long-term residential treatment program. The child’s attorney objected to the proposed residential placement and requested a hearing on the matter.3 He argued that Jeremy should be placed in the less restrictive setting of a specialized foster home. An evidentiary hearing commenced on April 11, 1994, and continued sporadically over the next four months. During this period, Jeremy resided in two short-term facilities.

On June 7, 1994, the judge entered an order requiring the department to place Jeremy in a specialized foster home pending completion of the hearing on placement.4 The de[618]*618partment attempted to comply with this order, without success. At the same time, it moved to stay the judge’s order, to vacate the order, and for relief from the order. These motions were denied, although the judge allowed so much of the motion for relief as related to time limits. On August 11, 1994, the department brought a petition under G. L. c. 211, § 3 (1992 ed.), for relief from the order before the single justice. Concluding that the judge had improperly substituted her “view of what is in the best interest of the child for that of the [department,” the single justice vacated the order.5 The father and counsel for the child appealed. We affirm the order of the single justice.

In Care and Protection of Isaac, ante 602, 610 (1995), this court concluded that a judge sitting in a juvenile session may not overrule a residential placement decision made by the department with respect to a child placed in the department’s permanent custody pursuant to G. L. c. 119, § 26 (1992 ed.), unless the judge finds that the department’s decision is arbitrary or capricious and amounts to an abuse of discretion. We inquire here about the extent of a judge’s authority to order a specific residential placement, over the department’s objection, for a child who has been placed in the temporary custody of the department under G. L. c. 119, § 24, pending an adjudication of the merits on the underlying care and protection petition. Some of the arguments made by the parties to this case about the scope and applicability of various provisions of G. L. c. 119 are addressed in Care & Protection of Isaac, supra. We now consider whether provisions of that statute referring specifically to temporary care and protection orders mandate a different result. We conclude that they do not.

[619]*619General Laws c. 119, §§ 24 and 25, set out the process by which a judge may transfer temporary custody from a child’s parent to the department or another custodian, pending a full adjudication on the merits of a petition for care and protection. See Care & Protection of Robert, 408 Mass. 52, 57 (1990). Neither § 24 or § 25 expressly authorizes a judge to order a particular residential placement for a child over the department’s objection.6 The father contends, however, that by providing alternative custodial options to a judge (the department, a licensed child care agency, or another suitable individual), the Legislature signaled its intent to assign to the judge primary authority for placement decisions. We disagree.

Sections 24 and 25 offer dispositional alternatives to a judge. See Care & Protection of Isaac, supra at 609 (use of word “or” indicates dispositional alternatives). When the department is selected as a child’s custodian from among those alternatives, “decisions related to normal incidents of custody, by the terms of [G. L. c. 119, §§ 21 and 32 (1992 ed.)], are committed to the discretion of the department.” Id. at 609. Nothing in the language of § 24 or § 25 suggests that the definition of “custody” set out in § 21, which includes the power “to determine the child’s place of abode, [620]*620medical care and education,” does not apply at this stage of a care and protection proceeding.7 Of equal importance, § 32 of G. L. c. 119 authorizes the department to decide when placement in a residential treatment program is warranted for a child “in the care or custody of the department.” Again, nothing in the language of § 32 suggests that this authority is limited to those cases in which a child has been committed to the custody of the department following an adjudication on the merits of a care and protection petition.8

It is suggested that the scope of a judge’s authority under §§24 and 25 to order a specific residential placement over the department’s objection should be resolved by reference to § 26 (2), which provides, in part, that if a judge finds that the allegations in a care and protection petition have been proved, the judge may commit a child to the custody of the department, “or make any other appropriate order with reference to the care and custody of the child as may conduce to [the child’s] best interests, including ... (2) .. . subject to [621]*621such conditions and limitations as [the judge] may prescribe, transfer temporary legal custody to . . . the department of social services.” In addition, the father argues that the last sentence of § 29, which refers to.a judge’s authority to “make such temporary orders as may be necessary to protect the child and society,” authorizes a judge to order a particular residential placement which the court determines is in the child’s best interests. Viewed in the context of the statute as a whole, see Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 538 (1992), neither of the provisions logically can be read to grant a judge authority to override a reasonable placement decision made by the department for a child in its temporary custody pursuant to §§ 24 and 25.

An order of temporary custody entered under § 26 (2) clearly is distinguishable from an order of temporary custody entered under § 24. A temporary custody order entered under § 24 reflects a judicial determination that immediate removal of a child from his home is necessary to protect the child from serious abuse or neglect. Care & Protection of Robert, supra at 57. Entry of an order at this stage represents “a temporary, but significant, stabilization of the factual situation at issue,” id.

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Bluebook (online)
646 N.E.2d 1029, 419 Mass. 616, 1995 Mass. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/care-protection-of-jeremy-mass-1995.