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M.M. v. Doucette (Lawyers Weekly No. 11-101-17)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1474 Appeals Court M.M. vs. CHARLES DOUCETTE. No. 16-P-1474. Essex. May 8, 2017. – August 4, 2017. Present: Meade, Hanlon, & Sacks, JJ. Abuse Prevention. Protective Order. Due Process of Law, Abuse prevention, Notice. Notice. Complaint for protection from abuse filed in the Peabody Division of the District Court Department on February 15, 2011. The case was heard by Matthew J. Nestor, J. Charles Doucette, pro se. HANLON, J. The defendant, an inmate at the Massachusetts Correctional Institution at Concord, appeals, pro se, from an order of the District Court, issuing a permanent abuse prevention order against him, pursuant to G. L. c. 209A (restraining order). He argues that he was denied an opportunity to be heard on the issue of whether the permanent order was wrongfully issued. We agree and remand the matter for a new hearing. Background. The relevant facts are fairly straightforward. On February 15, 2011, a judge of the Peabody District Court issued a restraining order after an ex parte hearing “at which plaintiff was present and defendant was not present, to expire on [February 28, 2011].”[1] A hearing after notice was scheduled for February 28, 2011. The District Court docket sheet indicates that, on February 16, 2011, the day after the ex parte hearing, a court officer of the Salem District Court served the defendant in hand with the ex parte restraining order, which included the scheduled date for the hearing after notice.[2] On February 28, 2011, as scheduled, a hearing after notice was held and the judge extended the restraining order for one year until February 27, 2012. The docket indicates that the plaintiff was present and the defendant was not present. On March 2, 2011, the docket indicates that a copy of the extended order was left at the defendant’s “last and usual abode.” The docket does not indicate where that abode was located, or whether it was the address that the defendant had been ordered to stay away from. At the next scheduled hearing, a year later, on February 27, 2012, the restraining order was made permanent without modification. According to the docket sheet, “the plaintiff was present and the defendant was not present.” The defendant’s absence from that hearing was explained by a further note: “defendant incarcerated.”[3] The defendant […]

M.M. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-012-14)

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‑1592 Appeals Court M.M.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES & another[2] No. 12‑P‑1592. Middlesex. June 11, 2013. ‑ February 18, 2014. Present: Berry, Katzmann, & Rubin, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Findings, Substantial evidence. Guardian. Notice. Civil action commenced in the Superior Court Department on July 27, 2011. The case was heard by Bruce R. Henry, J., on a motion for judgment on the pleadings. Stephen M. Sheehy for the plaintiff. Iraida J. Álvarez, Assistant Attorney General, for the defendants. KATZMANN, J. Through his guardians, M.M., a profoundly intellectually disabled individual who resides at the Fernald Developmental Center (FDC), challenges a Superior Court judge’s affirmance of the decision of the Division of Administrative Law Appeals (DALA) approving his transfer to the Wrentham Developmental Center (WDC).[3] See G. L. c. 123B, § 3. Our analysis here involves whether, during the DALA hearing, the Department of Developmental Services (DDS) presented the administrative magistrate with substantial evidence to support his decision that the interfacility transfer would result in improved services and quality of life for M.M. and be in M.M.’s best interest. After reviewing the administrative record and the parties’ submissions, we affirm the judgment of the Superior Court approving DALA’s decision. See G. L. c. 30A, § 14(7). 1. Background. M.M. is forty-nine years old and has resided at FDC since the age of five. He is profoundly intellectually disabled and cannot care for himself. He has nonspecified psychosis and suffers from episodes of anger and self-injurious behavior. DDS has proposed to transfer M.M. from his residence at FDC to Heffron Hall B apartment 3, at WDC. On June 10, 2010, DDS, as required by 115 Code Mass. Regs. § 6.63 (2009), issued a forty-five day notice and request for proposed facility transfer to M.M.’s guardians.[4] The guardians objected to the transfer, and DDS then referred the case to DALA. A DALA magistrate conducted an evidentiary hearing and concluded that DDS’s proposed transfer of M.M. to WDC was in his best interest. On July 19, 2012, a Superior Court judge affirmed the DALA magistrate’s decision. M.M., through his guardians, then filed a timely notice of appeal to this court. 2. Standard of review. This is an appeal under G. L. c. 30A, § 14. By statute, therefore, we must review the conclusion […]