DCYF strikes again!-SJC says newborn removed too fast

SJC says newborn removed too fast
Seeks to clarify emergency cases involving custody
By John R. Ellement
Globe Staff / November 5, 2009
In a sharply worded rebuke, the state’s high court yesterday said that a judge and the state Department of Children and Families moved too fast to remove a newborn from a Western Massachusetts mother who had already lost custody of two older children because they were not being properly cared for.

In a unanimous ruling written by Chief Justice Margaret H. Marshall, the Supreme Judicial Court said that judges handling emergency custody cases must wipe from their minds any information gleaned from other cases involving the same mother or family.

The baby was identified only as Zita.

“It may be impossible to erase a judge’s memory of the prior case,’’ Marshall wrote. “But each party is entitled to an impartial magistrate and a decision based on the evidence presented in her case . . . Zita’s removal by the Commonwealth from her custodial parent implicates constitutional rights of the highest order.’’

The high court ruled that a new custody hearing that could lead to the mother regaining custody of the girl must be held “forthwith.’’

The SJC said it took on the case because it wanted to clearly spell out the rules that judges must follow.

Marylou Sudders, president of the Massachusetts Society for the Prevention of Cruelty to Children, said she feared that the decision may lead judges to completely ignore the history of a mother or a family.

“Parental history is a factor in child abuse and neglect cases,’’ Sudders said. “It doesn’t predict the future, but it is obviously an issue.’’

The Department of Children and Families, she said, “first and foremost has to be a child protection agency.’’

She added: “It is concerning, if, over time, courts do not take into account prior history that is properly introduced in court hearings. Without appreciation for the history, I think that will not be in a child’s best interest.’’

The attorney for the mother, whose name was not released, said she could not discuss specifics because she had not been given permission by her client.

Speaking generally, attorney Dorothy Meyer Storrow said the SJC was right to force judges to rule only on evidence presented in individual cases and to require the Department of Children and Families to meet basic legal rules, especially since the agency has the information at its fingertips.

“There are issues that are specific to one child that aren’t specific to another,’’ said Meyer Storrow, of Greenfield. “If you don’t know what the judge is relying on, she may be relying on something that is inaccurate and you have no way to fix that.’’

She added: “When you are dealing with constitutional rights, we want to make sure that it’s done in a fair way. Sometimes, the fact that a parent can’t meet the needs of one child is actually not relevant to whether she can meet the needs of a different child with different needs.’’

Alison Goodwin, a spokeswoman for the Department of Children and Families, said the SJC ruling does not limit the agency’s efforts to protect children.

“We have an obligation to evaluate each individual situation on its own merits at that time,’’ Goodwin said in an e-mail. “However, there is nothing in this ruling that prevents the department or the courts from considering a past history on fitness nor is the department or the courts required to wait until a child is harmed before custody is granted.’’

In its ruling, the SJC gave an outline of the woman’s history that led the department to decide three months before the child was born that it needed to take emergency action to protect the newborn.

The court said the woman had two children who were removed from her care on May 23, 2008. Two days after the child was born on Dec. 18, 2008, the DCF took emergency custody of the child and prepared to justify its actions at a hearing required by law to be held no more than 72 hours later.

The high court said the most powerful evidence the department provided at the hearing was an unsworn letter from a department social worker that discussed the woman’s prior failures as a mother. The hearing was held before Hampshire-Franklin Juvenile Court Judge Lillian Miranda, who had ordered the older children taken from the home, according to court records.

Miranda granted temporary custody of Zita to the department, a decision the SJC reversed yesterday.

“The judge erred, and therefore violated Zita’s substantive rights, in both respects: her reliance on the petition that was not in evidence, and her reliance on her recollection of the facts of the earlier proceedings involving the other children,’’ Marshall wrote.





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