J.W. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-121-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us     12‑P‑1760                                       Appeals Court   J.W.[1]  vs.  DEPARTMENT OF DEVELOPMENTAL SERVICES & another.[2] No. 12‑P‑1760. Middlesex.     June 6, 2013.  ‑  October 3, 2013. Present:  Vuono, Brown, & Sikora, JJ.   Division of Administrative Law Appeals.  Department of Developmental Services.  Intellectually Disabled Person.  Administrative Law, Judicial review.  Statute, Construction.     Civil action commenced in the Superior Court Department on September 15, 2011.   The case was heard by Douglas H. Wilkins, J., on a motion for judgment on the pleadings.     Timothy J. Casey, Assistant Attorney General, for the defendants. Stephen M. Sheehy for the plaintiffs.       BROWN, J.  In a thoughtful and comprehensive seventy-six page decision, an administrative magistrate of the Division of Administrative Law Appeals (DALA) approved the involuntary transfer of J.W., a severely intellectually disabled individual, from his residence at Malone Park 23 at the Fernald Developmental Center (FDC) to Heffron Hall A, apartment 4 at the Wrentham Developmental Center (WDC).  See G. L. c. 123B, § 3, as amended through St. 2010, c. 239, §§ 46-48. On review, a judge of the Superior Court concluded that while “there [was] no lack of substantial evidence for the decision,” the magistrate erred by limiting his consideration of J.W.’s best interest to placements at either Malone Park 23 or the single alternative proposed by the Department of Developmental Services (DDS).  See G. L. c. 30A, § 14(7)(c).  On this basis, judgment entered vacating DALA’s decision and remanding the matter to DALA for further proceedings.  This appeal followed.  Although we agree with the judge’s conclusion that substantial evidence supported DALA’s decision, we disagree with his statutory construction.  Accordingly, we vacate the judgment of the Superior Court and remand the case for entry of a judgment affirming DALA’s decision. Because this appeal turns on an issue of statutory interpretation, we set out the terms of the governing transfer statute, G. L. c. 123B, § 3 (transfer statute or § 3), in some detail.  The transfer statute provides a specific process that must be followed by DDS in every case where it seeks to transfer an intellectually disabled individual “from one residential facility for the intellectually disabled to another.” G. L. c. 123B, § 3, first par.  The first paragraph of § 3 establishes that DDS must consult with the permanent guardians (or nearest relative) of the individual and give notice “at least forty-five days prior […]

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