Care and Protection of a Minor ( 2023 )

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SJC-13385
CARE AND PROTECTION OF A MINOR.
April 14, 2023.
Supreme Judicial Court, Superintendence of inferior courts.
The petitioner, the father of a child who was the subject
of a care and protection petition in the Juvenile Court, appeals
from a judgment of a single justice of this court dismissing as
moot his petition pursuant to G. L. c. 211, § 3. We affirm.
The Department of Children and Families filed a care and
protection petition pursuant to G. L. c. 119, § 24, in September
2022, after the child tested positive at birth for several
drugs. Temporary custody was granted to the father shortly
thereafter. The father and mother, who are not married,
currently reside together, and the order of temporary custody
included several conditions, including that the mother not
reside with the father and child, and that the father ensure
that the mother is not under the influence of any substance
while visiting with the child. The father subsequently filed a
motion to dismiss the petition for temporary custody,
essentially on the basis that there had been, and was, no need
for judicial intervention. In his view, the department’s filing
a care and protection petition was "inappropriate" because there
were no protective concerns about the father. More
specifically, he argued that the petition did not meet the
requirements of G. L. c. 119, § 24, because the child has a
lawful parent –- the father -– who is fit, ready and willing to
care for the child. After a hearing, a judge in the Juvenile
Court maintained the temporary custody order and denied the
motion to dismiss without prejudice.
2
The father then filed a petition pursuant to G. L. c. 231,
§ 118, first par., with a single justice of the Appeals Court.
The single justice denied the petition, declining to exercise
her discretion to report the judge's order denying the motion to
dismiss to a panel of the Appeals Court. The father's G. L.
c. 211, § 3, petition in the county court followed. While the
petition was pending there, the care and protection case was
dismissed in the Juvenile Court, in December 2022. On that
basis, the single justice dismissed the G. L. c. 211, § 3,
petition as moot.
The father now appeals from that dismissal. He recognizes
that the case is moot, but he argues that it raises an important
issue regarding the construction of G. L. c. 119, § 24, that is
capable of repetition yet evading review. It is certainly true
that "this court (and its single justices) can, as a matter of
discretion, decide issues that are moot when they are capable of
repetition yet evading review." Vazquez v. Superintendent,
Mass. Correctional Inst., Norfolk, 484 Mass. 1058, 1058 (2020),
citing Lockhart v. Attorney Gen., 390 Mass. 780, 782-783 (1984).
In this case, the single justice exercised her discretion not to
do so. Where the issue became moot while the father's G. L.
c. 211, § 3, petition was pending before the single justice,
"the only issue that is before us [in the father's appeal] . . .
is whether the single justice abused her discretion in
dismissing the petition on the basis that it was moot and in
choosing not to decide the issues." Vazquez, supra. This is
not, in other words, a case where the single justice decided the
issue, the case became moot while an appeal from that decision
was pending in the full court, and the father is asking that the
full court exercise its discretion to consider the appeal
notwithstanding the fact that it is moot. See id. at 1058-1059.
We find no abuse of discretion.1
Judgment affirmed.
1 We note as well that the father had, and pursued, an
adequate alternative remedy -- filing a petition pursuant to
G. L. c. 231, § 118, first par., with a single justice of the
Appeals Court. That he did not receive the relief he sought
does not render that avenue for relief inadequate; nor does it
entitle the father to pursue additional relief pursuant to G. L.
c. 211, § 3. See Greco v. Plymouth Sav. Bank, 423 Mass. 1019,
1019-1020 (1996) ("Review under G. L. c. 211, § 3, does not lie
where review under c. 231, § 118, would suffice").
3
The case was submitted on the papers filed, accompanied by
a memorandum of law.
Cara M. Cheyette for the petitioner.
James Petersen for the Department of Children and Families.