Posts tagged "Care"

Care and Protection of M.C. (Lawyers Weekly No. 10-054-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   SJC-12339   CARE AND PROTECTION OF M.C.       Suffolk.     October 3, 2017. – April 9, 2018.   Present (Sitting at Greenfield):  Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Impoundment.  Minor, Care and protection.  Parent and Child, Care and protection of minor.  Constitutional Law, Waiver of constitutional rights, Impoundment order, Self-incrimination.  Witness, Self-incrimination.  Evidence, Communication between patient and psychotherapist.  Practice, Civil, Care and protection proceeding, Impoundment order, Waiver.  Waiver.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 28, 2016.   The case was reported by Lenk, J.     Jeanne M. Kaiser (Bonnie G. Allen also present) for the mother. Mark H. Bluver for the father. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. Scott R. Chapman, Committee for Public Counsel Services (Jessica McArdle, Committee for Public Counsel Services, also present) for the child.     GAZIANO, J.  In this case, we consider the appropriate standards and procedures for requests by the parties and the Commonwealth for the release of impounded records in a care and protection proceeding in the Juvenile Court.  The mother and the father are the subjects of a care and protection proceeding commenced in the Juvenile Court by the Department of Children and Families (department), and are defendants in criminal child abuse cases pending in the Superior Court.  The records from the care and protection proceeding, including the transcripts and exhibits from a trial to terminate parental rights, are impounded, pursuant to G. L. c. 119, § 38, and Juvenile Court Standing Order 1-84, Mass. Ann. Laws Court Rules, Standing Orders of the Juvenile Court, at 1107 (LexisNexis 2016). The father sought access to impounded records from the care and protection proceeding in conjunction with his upcoming criminal trial.  The Commonwealth also sought access to the records for its use in preparation for both the father’s and the mother’s pending criminal trials.  The mother opposed portions of the father’s motion, and opposed the Commonwealth’s motion in its entirety.  The child opposed the release of any records on privacy grounds.  Concluding that both the father and the Commonwealth had met the burden of demonstrating that there was good cause to grant the requested relief from impoundment, a Juvenile Court judge allowed both motions.  After the mother’s application for relief in the Appeals Court was denied, she […]

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Posted by Massachusetts Legal Resources - April 9, 2018 at 5:36 pm

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Care and Protection of a Minor (Lawyers Weekly No. 10-182-17)

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   SJC-12403   CARE AND PROTECTION OF A MINOR.     November 10, 2017.     Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Notice of appeal.  Notice, Timeliness.     The father of a child who is the subject of a care and protection proceeding in the Norfolk County Division of the Juvenile Court Department filed a petition pursuant to G. L. c. 211, § 3, with a single justice of this court seeking relief pursuant to the court’s general superintendence power.  The father is an attorney who is representing himself.  The record of material he has put before us is confusing, to say the least.  It appears that the child has been removed from his parents’ custody and that the father contests the removal.  In his G. L. c. 211, § 3, petition he sought, among other things, a jury trial in the care and protection proceeding.  He also claimed that the Department of Children and Families has violated his due process rights and that “non-party participants” in the care and protection proceeding should have been sequestered during certain motion hearings in the Juvenile Court.   The single justice denied the petition without a hearing on May 5, 2017.  The petitioner then filed a petition for a writ of certiorari with the United States Supreme Court on May 10, 2017.  While the certiorari petition was pending, the petitioner filed a motion with the single justice, on August 7, 2017, for leave to file a late notice of appeal from the denial of the G. L. c. 211, § 3, petition.  The single justice denied the motion on September 12, 2017.  The petitioner then filed a notice of appeal from the denial of that motion, and his appeal was entered in this court on September 22, 2017.  Shortly thereafter, the United States Supreme Court denied his certiorari petition, on October 2, 2017.   The petitioner’s appeal to this court involves only the denial of his motion for leave to file a late notice of appeal.  The single, very limited issue that is properly before us is whether the single justice erred or abused his discretion in denying that motion.  Nevertheless, the multitude of papers that the petitioner has filed in this court focus almost exclusively on the underlying merits of his G. L. c. 211, § 3, petition, and address only minimally the issue of the late notice of appeal.  He has […]

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Posted by Massachusetts Legal Resources - November 10, 2017 at 9:56 pm

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Care and Protection of Walt (Lawyers Weekly No. 10-167-17)

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   SJC-12295   CARE AND PROTECTION OF WALT.[1]       Worcester.     May 1, 2017. – October 20, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[2]     Department of Children & Families.  Minor, Custody, Temporary custody.  Parent and Child, Custody of minor.  Appeals Court, Appeal from order of single justice.  Jurisdiction, Equitable.       Petition filed in the Worcester County Division of the Juvenile Court Department on June 2, 2016.   A hearing on continuation of an ex parte emergency order granting temporary custody was had before Anthony J. Marotta, J.   A petition for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J.; motions for reconsideration and for a stay were also heard by him, and his order was reported by him to a panel of the Appeals Court.  The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Ann Balmelli O’Connor, Committee for Public Counsel Services, for the father. Bryan K. Clauson (Marianne W.B. MacDougall also present) for the child. Richard A. Salcedo for Department of Children and Families. Evan D. Panich, Katrina C. Rogachevsky, Jessica Berry, Susan R. Elsen, & Jamie Ann Sabino, for Children’s Law Center of Massachusetts & others, amici curiae, submitted a brief.     GANTS, C.J.  Under G. L. c. 119, § 29C, if a Juvenile Court judge grants temporary custody of a child to the Department of Children and Families (department), the judge “shall certify that the continuation of the child in his home is contrary to his best interests and shall determine whether the department . . . has made reasonable efforts prior to the placement of a child with the department to prevent or eliminate the need for removal from the home.”  In this opinion, we resolve three legal issues regarding the reasonable efforts determination. First, we hold that a judge must make a reasonable efforts determination when issuing an order transferring custody of the child to the department for up to seventy-two hours at the emergency hearing, and must revisit that determination at the temporary custody hearing that must follow, commonly known as the “seventy-two hour hearing,” if the judge continues the department’s temporary custody of the child. Second, § 29C provides that reasonable efforts by the department prior to removal of a child from the home are not required […]

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Posted by Massachusetts Legal Resources - October 20, 2017 at 5:53 pm

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Care and Protection of Vieri (Lawyers Weekly No. 11-136-17)

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   16-P-1706                                       Appeals Court   CARE AND PROTECTION OF VIERI.[1]     No. 16-P-1706.   Berkshire.     September 11, 2017. – October 18, 2017.   Present:  Green, Sullivan, & Sacks, JJ.     Minor, Care and protection.  Parent and Child, Care and protection of minor.  Practice, Civil, Care and protection proceeding.  Department of Children & Families.       Petition filed in the Berkshire County Division of the Juvenile Court Department on October 26, 2015.   The case was heard by Judith A. Locke, J.     Daniel R. Katz for the mother. Andrew J. Haile, Assistant Attorney General, for Department of Children and Families. William A. Comeau for the child.     SULLIVAN, J.  Vieri’s adoptive mother, who is also his maternal grandmother (mother), appeals from an adjudication that Vieri is in need of care and protection pursuant to G. L. c. 119, § 26.  On appeal the mother challenges the Juvenile Court judge’s determination that she is currently unfit to parent Vieri.  We affirm. Background.  We summarize the judge’s findings and the evidence consistent with those findings.  Vieri was born in September, 2001.  The mother adopted Vieri and his older brother, Alan (a pseudonym), in November of 2006, when Vieri was five years old and Alan was seven.[2] In June, 2014, the Department of Children and Families (department) began an investigation arising from concerns that Vieri was neglected.  A little over a week later, the town health department, which had had ongoing contact with the mother over various issues in the home, responded to complaints of a sewage leak in the home.  Ultimately, over 2,500 gallons of raw sewage were removed from the basement. The mother left Vieri, then thirteen, and Alan “on [their] own most of the summer” of 2015.  During this time, Vieri was arrested twice; he was charged with possession of alcohol and shoplifting in July.  Later in September, 2015, Vieri was charged with larceny for stealing $ 800 from the mother.  Vieri testified, and the judge credited, that he took the money because the mother left him and Alan without food.  The department subsequently created an interim service plan for the mother, which included cooperating with the department and meeting with the assigned social worker, providing food in the home, keeping the home clean, and not leaving Vieri home alone without adult supervision. In October, 2015, an agent of the […]

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Posted by Massachusetts Legal Resources - October 18, 2017 at 3:48 pm

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Liberty Mutual Insurance Co. v. Peoples Best Care Chiropractic and Rehabilitation, Inc., et al. (Lawyers Weekly No. 12-047-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV01239-BLS2 ____________________ LIBERTY MUTUAL INS. CO. v. PEOPLES BEST CARE CHIROPRACTIC AND REHABILITATION, INC.; PLEASANT VALLEY CHIROPRACTIC LLC; and RAGHUBINDER BAJWA, M.D., P.C. ____________________ MEMORANDUM AND ORDER ALLOWING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This lawsuit concerns the rates that Liberty Mutual Insurance Company pays to chiropractic clinics under Personal Injury Protection (“PIP”) benefit provisions in personal automobile insurance policies. Liberty seeks a declaration that an Illinois court’s final judgment that approved the settlement of a nationwide class action regarding these rates is entitled to full faith and credit in Massachusetts and binds the three Defendants, who did not opt out of the Illinois proceeding and therefore are members of the plaintiff class in that case. Defendant Raghubinder Bajwa, M.D., P.C., was defaulted for failing to answer the complaint. Defendants Peoples Best Chiropractic and Rehabilitation, Inc. (“PBC”) and Pleasant Valley Chiropractic LLC (“PVC”) (collectively, the remaining “Defendants”) oppose Liberty’s request and assert counterclaims seeking to bar Liberty from implementing the settlement. The Court concludes that Liberty is entitled to summary judgment in its favor on all claims. With respect to Liberty’s affirmative claim, the Court concludes that there is an actual controversy between the parties and that the Illinois final order and judgment is entitled to full faith and credit in Massachusetts courts. In addition, Liberty is entitled to judgment as a matter of law on Defendants’ counterclaims. Defendants sought leave to conduct certain discovery before the Court decided Liberty’s summary judgment motion. The Court denies this request because none of the discovery sought by Defendants concerns any factual issue relevant to whether Liberty is entitled to summary judgment. 1. Factual Background. Liberty was the defendant in a multi-state class action filed in Illinois state court to challenge the way Liberty determines what rates it will pay to chiropractors and other medical care providers under the no-fault PIP – 2 – provisions of personal automobile insurance policies. The Illinois case was captioned Leonon Chiropractic Clinic, P.C. v. Liberty Mutual Insurance Company and docketed as Illinois Circuit Court for St. Clair County, no. 14-L-52. Liberty compares billed charges for medical treatment to a database of charges that Liberty believes are for similar services provided in the same geographic area. Since 2011 Liberty has done so using data maintained by a non-profit company called FAIR Health, Inc. Liberty generally refuses to pay rates any higher than the 80th percentile of similar charges according to the FAIR Health data. The plaintiffs in the Illinois case claimed that this practice was unlawful. The parties to the Illinois lawsuit entered into a Stipulation of Settlement in October 2014 that would resolve all claims on behalf of a proposed class. […]

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Posted by Massachusetts Legal Resources - April 27, 2017 at 8:06 pm

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Whittier IPA, Inc. v. Steward Health Care Network, Inc. (Lawyers Weekly No. 12-005-17)

ΔCOMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1484CV03029-BLS2 ____________________ WHITTIER IPA, INC. v. STEWARD HEALTH CARE NETWORK, INC. ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION FOR LEAVE TO ASSERT COUNTERCLAIMS AGAINST WHITTIER IPA, INC., AND THIRD-PARTY CLAIMS AGAINST ANNA JACQUES HOSPITAL Steward Health Care Network, Inc., (“SHCN”) is a physician network. It negotiates and implements contracts with insurers and other entities that pay for SHCN’s participating doctors to provide medical care to the payors’ insureds or members. Whittier IPA, Inc., is an association of independent physicians. It joined the SHCN network in January 2012, but began exploring other options in 2013. After SHCN learned that Whittier had agreed to join a competing physician network run by the Beth Israel Deaconess Care Organization (“BIDCO”), SHCN terminated its agreements with Whittier effective August 31, 2014. Whittier claims that is still owed substantial sums by SHCN under the parties’ contracts. The court (Kaplan, J.) granted partial summary judgment in Whittier’s favor in June 2015, declaring that if SHCN received incentive payments from health insurers and other payors for periods during which Whittier was an SHCN member, then “SHCN breached its contract with Whittier by failing to pay Whittier its pro rata share of those payments.” The amount that SHCN must pay Whittier is still in dispute. The current case schedule, which was jointly requested by both parties, requires the litigants to complete all fact discovery by February 10, 2017, and to complete the exchange of any expert reports by March 24, 2017. SHCN seeks leave to assert counterclaims against Whittier and third-party claims against Anna Jacques Hospital. The Court will DENY this motion. It would be futile to allow SHCN to assert its proposed counterclaims against Whittier for breach of contract because they could not survive a motion to dismiss. The proposed claims against Anna Jacques for intentional interference and allegedly violating G.L. c. 93A would also be futile. In any case, it would be unfairly prejudicial to – 2 – Whittier and to Anna Jacques to allow permissive joinder of a new defendant-in-counterclaim under Mass. R. Civ. P. 20 just weeks before the completion of discovery in this case. SHCN has no right to join Anna Jacques as a defendant-in-counterclaim under Rule 19 and does not seek to assert third-party claims for indemnification or contribution as allowed under Rule 14. 1. Proposed Counterclaims Against Whittier. SHCN seeks leave to assert counterclaims against Whittier for allegedly breaching parts of its written contracts with SHCN. The Court will deny leave to assert these counterclaims because doing so would be futile, in that these counterclaims could not survive a motion under Mass. R. Civ. P. 12(b)(6) to dismiss for failure to state a claim upon […]

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Posted by Massachusetts Legal Resources - February 8, 2017 at 8:56 pm

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Whittier IPA, Inc. v. Steward Health Care Network, Inc. (Lawyers Weekly No. 12-005-17)

ΔCOMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1484CV03029-BLS2 ____________________ WHITTIER IPA, INC. v. STEWARD HEALTH CARE NETWORK, INC. ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION FOR LEAVE TO ASSERT COUNTERCLAIMS AGAINST WHITTIER IPA, INC., AND THIRD-PARTY CLAIMS AGAINST ANNA JACQUES HOSPITAL Steward Health Care Network, Inc., (“SHCN”) is a physician network. It negotiates and implements contracts with insurers and other entities that pay for SHCN’s participating doctors to provide medical care to the payors’ insureds or members. Whittier IPA, Inc., is an association of independent physicians. It joined the SHCN network in January 2012, but began exploring other options in 2013. After SHCN learned that Whittier had agreed to join a competing physician network run by the Beth Israel Deaconess Care Organization (“BIDCO”), SHCN terminated its agreements with Whittier effective August 31, 2014. Whittier claims that is still owed substantial sums by SHCN under the parties’ contracts. The court (Kaplan, J.) granted partial summary judgment in Whittier’s favor in June 2015, declaring that if SHCN received incentive payments from health insurers and other payors for periods during which Whittier was an SHCN member, then “SHCN breached its contract with Whittier by failing to pay Whittier its pro rata share of those payments.” The amount that SHCN must pay Whittier is still in dispute. The current case schedule, which was jointly requested by both parties, requires the litigants to complete all fact discovery by February 10, 2017, and to complete the exchange of any expert reports by March 24, 2017. SHCN seeks leave to assert counterclaims against Whittier and third-party claims against Anna Jacques Hospital. The Court will DENY this motion. It would be futile to allow SHCN to assert its proposed counterclaims against Whittier for breach of contract because they could not survive a motion to dismiss. The proposed claims against Anna Jacques for intentional interference and allegedly violating G.L. c. 93A would also be futile. In any case, it would be unfairly prejudicial to – 2 – Whittier and to Anna Jacques to allow permissive joinder of a new defendant-in-counterclaim under Mass. R. Civ. P. 20 just weeks before the completion of discovery in this case. SHCN has no right to join Anna Jacques as a defendant-in-counterclaim under Rule 19 and does not seek to assert third-party claims for indemnification or contribution as allowed under Rule 14. 1. Proposed Counterclaims Against Whittier. SHCN seeks leave to assert counterclaims against Whittier for allegedly breaching parts of its written contracts with SHCN. The Court will deny leave to assert these counterclaims because doing so would be futile, in that these counterclaims could not survive a motion under Mass. R. Civ. P. 12(b)(6) to dismiss for failure to state a claim upon […]

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Posted by Massachusetts Legal Resources - February 2, 2017 at 7:32 am

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Care and Protection of Vick (Lawyers Weekly No. 11-084-16)

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   15-P-1451                                       Appeals Court   CARE AND PROTECTION OF VICK.[1]     No. 15-P-1451.   Plymouth.     May 10, 2016. – July 13, 2016.   Present:  Cypher, Blake, & Henry, JJ.     Parent and Child, Care and protection of minor, Custody of minor, Interference with parental rights.  Minor, Care and protection, Custody.       Petition filed in the Plymouth County Division of the Juvenile Court Department on November 25, 2013.   The case was heard by John P. Corbett, J.     Karen O. Young for the mother. Rizwanul Huda for the child. Sookyoung Shin, Assistant Attorney General, for Department of Children and Families. Dennis M. Toomey for the father.     BLAKE, J.  A judge of the Juvenile Court found that the child was in need of care and protection, that the mother was unfit to assume parental responsibility, and that the unfitness was likely to continue into the indefinite future.  On appeal, the mother challenges the sufficiency of the evidence supporting the judge’s conclusion that she was unfit, contending that the evidence failed to establish a nexus between her parenting and a showing of harm to the child.  She also claims that the judge did not conduct an evenhanded assessment of the evidence, and ignored the child’s preference to live with his mother.  The child joins in these arguments.  We affirm on the basis that the mother was unfit to assume parental responsibility due to neglect of the child. Background.  We summarize the relevant facts and procedural history as set forth in the judge’s decision and as supported by the record, reserving other facts for later discussion.  The parents met in high school and, shortly thereafter, the mother became pregnant.  The child was born in February, 2002.  Immediately after his birth, and for the next four and one-half years, the father was the child’s primary caretaker; during that time period, the father and child lived with the father’s mother.  When the father lost his job, he placed the child in the mother’s care.  In 2008, the father  moved to Georgia, where he has extended family, because he was unable to find employment in Massachusetts.  Despite the distance, the father maintained contact with the child’s schools and medical providers.  From 2008 to 2013, the child spent most of his summers with the father in Georgia. In 2013, the mother resided […]

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Posted by Massachusetts Legal Resources - July 18, 2016 at 7:13 am

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Walden Behavioral Care v. K.I. (Lawyers Weekly No. 10-055-15)

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   SJC-11704   WALDEN BEHAVIORAL CARE  vs.  K.I.       Middlesex.     December 2, 2014. – April 9, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Mental Health.  Practice, Civil, Commitment of mentally ill person, Waiver.  Psychotherapist.  Witness, Psychiatric examination, Privilege.  Evidence, Privileged communication.  Privileged Communication.  Waiver.       Petition for civil commitment filed in the Waltham Division of the District Court Department on August 13, 2012.   The case was heard by Gregory C. Flynn, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Stan Goldman for the respondent. Diane M. Geraghty Hall for the petitioner. Jennifer Honig, Phillip Kassel, Robert Fleischner, & Stan Eichner, for Mental Health Legal Advisors Committee & others, amici curiae, submitted a brief.     DUFFLY, J.  Walden Behavioral Care, a facility for the treatment of mentally ill patients, brought a petition in the District Court pursuant to G. L. c. 123, §§ 7, 8, seeking to commit K.I. involuntarily and retain him in its facility.  K.I. filed a motion in limine to exclude from the commitment hearing testimony concerning statements he had made to his treating psychiatrist at Walden Behavioral Care.  K.I. claimed that his statements were protected by the psychotherapist-patient privilege as defined in G. L. c. 233, § 20B, and that the psychiatrist was precluded from testifying to those statements or to his opinion of K.I.’s mental or emotional condition based on those statements. A District Court judge denied K.I.’s motion, concluding that the psychotherapist-patient privilege was overcome by an exception to the privilege set forth in G. L. c. 233, § 20B (a).   At the commitment hearing, the psychiatrist was permitted to testify to statements made to him by K.I., and to his opinion that K.I. was suicidal.  Based on this testimony, K.I. was committed to Walden Behavioral Care for six months.  K.I. appealed the commitment order to the Appellate Division of the District Court; in a divided opinion, the court affirmed the commitment.  K.I. appealed, and we transferred the case from the Appeals Court on our own motion. We conclude that the exception to the psychotherapist-patient privilege established in G. L. c. 233, § 20B (a), applies in the circumstances presented.  Notwithstanding the absence of a knowing and intelligent waiver of the privilege, there was no error in permitting the psychiatrist to testify at […]

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Posted by Massachusetts Legal Resources - April 9, 2015 at 9:21 pm

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Care and Protection of Laurent (Lawyers Weekly No. 11-005-15)

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   14-P-189                                        Appeals Court   CARE AND PROTECTION OF LAURENT.[1] No. 14-P-189. Middlesex.     September 5, 2014. – January 9, 2015.   Present:  Green, Graham, & Katzmann, JJ.   Minor, Care and protection.  Parent and Child, Care and protection of minor.  Practice, Civil, Care and protection proceeding, Findings by judge.       Petition filed in the Middlesex County Division of the Juvenile Court Department on October 17, 2011.   The case was heard by Kenneth J. King, J.     David J. Cohen, Committee for Public Counsel Services, for the mother. Richard A. Salcedo for Department of Children and Families. Julia A.B. Pearson for the child.     GRAHAM, J.  On October, 17, 2011, the Department of Children and Families (department) filed a care and protection petition in the Middlesex County Division of the Juvenile Court Department pursuant to G. L. c. 119 § 24, alleging Laurent was a child in need of care and protection.  On that day, the trial court judge granted temporary emergency custody of Laurent to the department.  The department later placed him in foster care, where he remained through the conclusion of the trial. Trial on the department’s petition occurred over seven non-consecutive days, beginning on November 1, 2012, and concluding on January 3, 2013.  On February 21, 2013, the judge found the mother unfit, essentially, on the basis that she was too cognitively limited to parent the child.  Accordingly, the child was committed to the custody of the department, with reunification as the plan. On appeal, the mother contends that the judge’s findings regarding her parenting deficiencies, taken as a whole, do not support a conclusion that the child was at risk of serious harm, and thus in need of care and protection.[2]  We agree with mother and, accordingly, reverse the judgment. 1.  Background.  We summarize the material facts from the judge’s extensive findings, which are supported by the evidence, and essentially undisputed. Laurent is one of five children born to the mother, who was forty years old at time of trial.  The mother experienced significant trauma and neglect as a child.  As a child, the mother contracted lead poisoning, which resulted in severe developmental disabilities.  In addition, the mother sustained a skull fracture when she was eight years old.  When she was fourteen, she was placed in department custody due to abuse and neglect.  She was […]

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Posted by Massachusetts Legal Resources - January 9, 2015 at 4:49 pm

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