Child Abuse Law Has Developed Through Interlocutory Appeals
Wikipedia defines an interlocutory appeal as an appeal of a court ruling that is made before the trial itself has concluded. This definition is not quite accurate so what is an interlocutory appeal? In a care and protection or termination of parental rights case, an interlocutory appeal may involve an appeal of a ruling before the actual care and protection or termination of parental rights case has concluded or it may include an appeal after a final order has entered. Massachusetts appellate courts try to avoid piecemeal appeals such as interlocutory appeals. However, in particular circumstances, a person may petition an appellate court to review an order before the conclusion of the main underlying matter or after a matter has been concluded. Whether or not to review is within the sole discretion of the appellate court.
Even though interlocutory appeals are not frequent, some important Massachusetts care and protection decisions came from an appellate review of interlocutory orders. Included among them are Care and Protection of Manuel, 428 Mass. 527 (1998); Care and Protection of Edith, 421 Mass. 703 (1996); Care and Protection of Jeremy, 419 Mass. 616 (1995); Care and Protection and of Isaac, 419 Mass. 602 (1995).
In Care and Protection of Manuel, the child filed an interlocutory appeal pursuant to Massachusetts G. L. c. 211, s. 3. Manuel sought relief from the denial of interlocutory relief by a single justice of the Supreme Judicial Court. Originally, Manuel asked the district court judge who was presiding in his G. L. c. 119 care and protection matter to hold a hearing pursuant to G.L. c. 119, s. 25, to consider the nomination by him of his paternal grandparents to be his legal custodians during the pendency of the c. 119 proceedings. The District Court judge denied Manuel’s request, concluding that section 25 did not provide authority for him to conduct such a hearing once temporary legal custody of the child had been awarded to the Department of Social Services pursuant to G. L. c. 119, s. 24, and opportunity had been given for a hearing. The child next brought a petition under G. L. c. 211, s. 3, seeking relief from the District Court judge’s denial of his request. The single justice agreed with the lower court judge and denied relief. The Massachusetts Supreme Judicial Court granted Manuel’s motion for review by the full bench because appropriate relief was not available to him through the normal appellate process. The Supreme Judicial Court ruled in Manuel’s favor and held that whenever a child’s legal custodian is to be changed pursuant to G. L. c. 119, s. 24, the parties, including the child, have the right to be heard and to have the judge consider their nominations of possible legal custodians for the child.
An appeal of a judge’s order regarding restraint of free speech led to Care & Protection of Edith. In Care and Protection of Edith, a district court judge entered an order in a care and protection proceeding directing the father of the children not discuss any aspect of the ongoing proceedings with any member of the media if it is reasonable to believe that the information communicated will lead to the identity of the children. The order was entered after the parents had been determined to be unfit, permanent custody had been awarded to the Department of Social Services, and the father had appealed from the adjudication of unfitness. After failing to obtain a stay of the order pending appeal, the father commenced an action in the single justice session of the Supreme Judicial Court pursuant to Massachusetts G. L. c. 211, Section 3, challenging the lawfulness of the order. The father argued that the order, which had been issued without a hearing or factual findings, was overbroad, vague, and an improper prior restraint on his constitutional rights of free speech under both the State and Federal Constitutions. The father has agreed not to use his children’s true names or photographs in dealing with the press, as the order in part provides, but objects to any restriction on his asserted right to criticize the way that the government handled his children’s care and protection proceeding in particular and the way it handles all such proceedings in general. A single justice of the Supreme Judicial Court held a hearing on the complaint and, without opinion, ordered that the complaint be “denied.” The father appealed. The full court held that the judgment of the single justice must be vacated holding that the order was a prior restraint on speech that cannot properly be upheld against the father’s constitutionally-based challenges.
The interlocutory question raised by the appeal in Care and Protection of Jeremy was from an order of a single justice of the Supreme Judicial Court. The issue appealed from was whether a judge in a care and protection proceeding had the authority to require the Department of Children & Families (then DSS) to place a child who is in the department’s temporary custody into a specific type of residential placement. The Supreme Judicial Court concluded that a judge does not have this authority. Where the means of carrying out a statutory duty is within the discretion of a public official, courts normally will not direct how the public official should exercise that statutory duty or discretion. This case has led to attorneys routinely filing “abuse of discretion” motions arguing that a judge should overrule an abusive discretionary decision of the Department of Children and Families.
There are generally two ways for parties involved in care and protection or termination of parental rights cases in Massachusetts to file an interlocutory appeal. People dissatisfied with orders of the Juvenile Court may file a petition with the single justice of the Supreme Judicial Court under Massachusetts General Law Chapter 211, section 3. Parties in the Massachusetts Probate and Family Court typically will seek relief from a single justice of the Appeals Court under Massachusetts General Law Chapter 231, section 118. Although interlocutory appeals are only successful in limited circumstances, when these appeals are successful, new law is made which hopefully benefits us all.