In the Matter of Children
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12386 IN THE MATTER OF CHILDREN. April 2, 2018. Supreme Judicial Court, Superintendence of inferior courts. Frank LaMonde appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. As best we can tell from the record before us, LaMonde’s two minor children are in the temporary custody of the Department of Children and Families and have been since February, 2016. Since that time, LaMonde has filed several emergency motions for custody. In the most recent motion, filed in April, 2017, LaMonde not only seeks custody but also alleges that the children’s mother, from whom LaMonde is divorced, is a danger to the children and has “kidnapped” them two or three times.[1],[2] The motion was denied. LaMonde then filed a petition with a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par., seeking custody of the children. He also alleged, in the petition, that the children’s mother kidnapped the children and took them out of Massachusetts; that he reported the alleged kidnapping to both the Probate and Family Court Department and the local police; and that no one has pursued the matter. The single justice denied the petition. LaMonde’s subsequent notice of appeal was struck (by a different justice) on the basis that there is no right to appeal from the denial of a petition filed pursuant to G. L. c. 231, § 118, first par. LaMonde then filed his G. L. c. 211, § 3, petition, which appears to be the same document that he filed in the Appeals Court (i.e., the petition pursuant to G. L. c. 211, § 3, is the exact same as the petition pursuant to G. L. c. 231, § 118, first par.). A single justice of this court denied the petition without a hearing. The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” S.J.C. Rule 2:21 (2). LaMonde has not made, and cannot make, such a showing. He has already sought interlocutory review of the trial judge’s rulings under G. L. c. 231, § 118, first par., and has been denied relief by […]
Jones, et al. v. Massachusetts Department of Children & Families (Lawyers Weekly No. 09-001-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT 1784CV00586 THERESE JONES and MAXWELL JONES BY HIS MOTHER AND NEXT FRIEND, THERESE JONES v. MASSACHUSETTS DEPARTMENT OF CHILDREN & FAMILIES MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS This case arises out of the decision of defendant Massachusetts Department of Children and Families (“DCF”) to take emergency custody of minor plaintiff Maxwell Jones (“Maxwell”). This decision followed a statutorily mandated investigation in which DCF learned that plaintiff Therese Jones (“Ms. Jones”) had left her three-year old son sleeping alone in a Marriott hotel room while she drank with friends at the hotel bar. Plaintiffs’ Complaint concedes that Ms. Jones left the infant Maxwell alone in her hotel room when she “ran into a few work friends and had a few drinks,” but insists that she “checked in on her son every ten to fifteen minutes.” Plaintiffs have brought negligence claims against DCF, asserted under the Massachusetts Tort Claims Act, G.L. c. 258 (the “MTCA”). Plaintiffs contend that Ms. Jones “ha[d] never been arrested, had no criminal record, and had no previous contact or investigation with DCF,” facts that DCF purportedly “failed to investigate.” In these circumstances, plaintiffs charge, the decision to take Maxwell into emergency custody and remove him from the care of his mother was “wrongful.” DCF has now moved to dismiss the Complaint, both for failure to state a claim pursuant to Mass. R. Civ. P. 12(b)(6) and for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1). DCF maintains that the Complaint sets forth no facts plausibly suggesting negligence on the part of DCF. DCF alternatively argues that even otherwise viable negligence claims of the type asserted by the plaintiffs in this case must be dismissed, because they fall within the MTCA’s “discretionary function” exemption, G.L. c. 258, _ 10(b). DISCUSSION At the outset, the Court expresses doubt that the plaintiffs have stated viable claims for negligence, as the facts pleaded in the Complaint do no more than attach conclusory labels – viz., a “failure to investigate” and a “wrongful” decision to assume custody of the minor child – to the conduct of the defendant. Beyond such labels, the Complaint sets forth no facts permitting a plausible inference that DCF’s investigative actions and decisions were improper in any respect. Plaintiffs stress that Ms. Jones “checked in on her son every ten to fifteen minutes,” but do not dispute that Ms. Jones left the child unattended in a strange hotel room for substantial periods of time while she consumed alcohol in a bar. DCF […]
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Magazu, et al. v. Department of Children and Families (Lawyers Weekly No. 10-001-16)
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 SJC-11864 GREGORY T. MAGAZU & another[1] vs. DEPARTMENT OF CHILDREN AND FAMILIES. Worcester. September 10, 2015. – January 4, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Department of Children & Families. Adoption, Foster parents. Constitutional Law, Freedom of religion. Religion. Administrative Law, Substantial evidence. Civil action commenced in the Superior Court Department on July 25, 2013. The case was heard by Brian A. Davis, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. David P. Bodanza (Amanda M. Mastalerz with him) for the plaintiffs. Annapurna Balakrishna, Assistant Attorney General, for the defendant. SPINA, J. Gregory T. Magazu and his wife, Melanie, appeal from a judgment of the Superior Court that dismissed their appeal from a final decision of the Department of Children and Families (department) denying their application to become foster and preadoptive parents because of their use of corporal punishment as a form of discipline in their home. The Magazus argue that the department’s decision is inconsistent with its regulations, is arbitrary and capricious, and is not supported by substantial evidence where they were willing to agree not to use corporal punishment on a foster child. They also contend that, because physical discipline is an integral aspect of their Christian faith, the department’s decision impermissibly infringes on their constitutional right to the free exercise of religion. We transferred the case to this court on our own motion. For the reasons that follow, we conclude that the department’s decision to deny the Magazus’ application is based on a reasonable interpretation of its enabling legislation and related regulations, is not arbitrary or capricious, and is supported by substantial evidence. We also conclude that although the department’s decision imposes a substantial burden on the Magazus’ sincerely held religious beliefs, this burden is outweighed by the department’s compelling interest in protecting the physical and emotional well-being of foster children. Accordingly, we affirm the judgment of the Superior Court. 1. Statutory and regulatory framework. We begin with an overview of the relevant statutory and regulatory provisions that govern the foster care proceedings in this case. The Legislature has vested the department with the authority to provide substitute care for […]
Every Day is Earth Day: Plant the Seeds, Inspire Children
Earth Day was on April 22, and was celebrated across the entire world. What can we do to show our love of the earth on that day, and every day? Love begins in the home and so does the love for our earth. If you teach your children to respect the earth on every level, they will continue to realize the global impact of environmentalism when they become adults. This is important for the sustainability of life as we know it. Perhaps we can set off that spark in a child, making them want to learn more about the process and do more to help. If we’ve done our part, they might strive to become an environmentalist—professionally or at heart. Inspire children, plant the seeds early on, and they will flourish. We all strive to do “acts of kindness” for our neighbors, to cement better relations locally or worldwide—but perhaps we also need to do “acts of environmental kindness” too, to save our planet. On Earth Day, we celebrate what the earth gives us—the air we breathe, the food we eat, the water we drink, the trees we use for timber, paper, furniture, and to build our homes. We think about the plants and animals with whom we share the earth. Where do we begin in this teaching process (which we know is a learning process for adults, too) of how to preserve all that we love? Begin with little things. Easy things. Obvious things. Things we take for granted each day, and use and/or abuse because of our lack of knowledge. Let’s start there. Remember that children learn from what we do. There are some wonderful family activities you can do together while learning about the environment. Make a “to do” list and make it fun! Do as many hands-on projects as you can each day to help save the earth in little ways. Have the children keep a chart or journal about everything they do. Here are some suggestions: Indoors: Read books, magazines, websites and newspapers and learn more about the earth. Conserve energy and save water by letting children find (and a parent fix) dripping faucets; only running the dishwasher when full; taking short showers; turning the water off while brushing your teeth; turning off electrical items when not in use; doing full loads of laundry only. Recycle cans, bottles and newspapers. Outdoors: Plant a tree. Plant a garden. Clean up roadside litter. Create a habitat by putting up a birdhouse. Build a compost for food scraps, leaves and lawn clippings. Save rainwater and reuse for outdoor gardens. At School: Urge teachers and […]