-: SJC-134994. In the matter of a juvenile.
-: [Chief Justice Budd] Okay. Attorney Messer.
-: Good morning. May it please the court.
Dawn Messer on behalf of the appellant child
who is in the custody of his fit father.
-: Could you speak a little louder?
-: Yes, sorry.
In care and protection cases,
when the custodial parent is unfit,
the juvenile court has the power
under chapter 119 section 26 to adjudicate the child
in need of care and protection
and transfer custody of the child
to the fit previously non-custodial parent.
That's what the court did in this case with this father.
When that happens,
the juvenile court's role
as a court of protection is complete,
and the care and protection case should close.
-: I understand your well-reasoned arguments for finality
in the constitutional rights.
And I think the juvenile court
would appreciate getting these cases off their docket.
Attorney Messer: Yes.
-: But can you tell me in the parade of horribles,
what could happen thereafter in the probate court
under the statute that would upset this?
-: That would upset the-
-: Custody findings and the like.
What's the potential harm that could happen
that would guard against in the probate court?
-: So if the juvenile court was allowed
to close the care and protection case
with the custody order to the fit parent remaining in place,
then the next step would be
if there was a substantial change in circumstances,
then either parent can file a complaint for modification
in the probate and family court.
And the judge in that case
could review the change of circumstances
and then determine
what is in the best interest of the child.
At that point, it wouldn't be a protective case.
And I can understand if this court would be concerned
about the safety of the child
when the case closes in the juvenile court,
but that's not a risk anymore
once the child is with the fit parent.
Justice Gaziano: Can I...
-: Sorry, are you...
So, you know, again, I'm relying on recollection.
There's a difference...
Permanency is not really permanency.
It's dispensing with consent to adoption
is sort of the irrevocable act in this world, right?
Attorney Messer: Yes.
-: Does the juvenile court have the ability
to dispense with consent to adoption?
Do they have the same powers
that the probate court does in that regard?
-: Yes.
They didn't originally, but they do now.
So in 1992,
chapter 119 was amended to allow the juvenile courts
to dispense with consent to adoption.
So they really have the power to do-
-: So they have the same powers.
It's not like the probate court has any power
that the juvenile court doesn't have or in this regard-
-: No, but they're a different focus, right?
The juvenile court is a court of protection
and the probate and family court.
Here's everything else.
-: Right. But when we've been talking about permanency,
that's a little misleading in this world
because it's still a revocable act.
Dispensing with consent to adoption ends everything.
-: Correct. -: Where we enter a new world,
the parents are completely out of it.
But here, you want us to sort of take an additional step
on this based on a permanency finding, right?
And again, if I'm taking you farfield, you stop me,
but that's what caught me as being odd here.
-: No, and I understand how the court would be hesitant
to take a step that doesn't appear,
or that the court is worried
isn't called for in the statute but it actually is.
In section 26, that was amended in 2008,
to allow the juvenile courts
to transfer permanent custody to a parent,
including a previously non-custodial parent.
So that is called for in the statute.
What is not addressed in section 26
is how the case ends after that transfer of custody.
And that's... -: But my question
was a little different,
which is that a transfer of permanent custody,
although it sounds permanent to us,
isn't really the terminology in this world.
Dispensing with consent to adoption
is the parents are then permanently cut off.
Somebody has...
That's not what we're dealing with here, right?
-: Right. -: So the case is still alive,
but you want us to engage in an irrevocable act, right?
You wanna, basically, cut the mother off.
-: No, so that's not what we're asking to do.
Justice Kafker: Okay.
-: We're just asking that the juvenile court case,
which is the protective case, that that ends.
The mother still has every right
to go back to the probate court
if there's been a substantial change in circumstances
and change that order.
So it's not...
-: Is that under 209C section 3?
The section 3E argument,
how does that interplay with the finality?
Could you address that please?
-: So, sure.
So the first to answer your question,
the chapter 209C section 20
is the complaint for modification portion.
-: I'm not talking about modification,
I'm talking about section 3,
the child out of wedlock statute.
-: Right. So 209C section 3
is the one that talks about the...
Among other things,
the juvenile court's concurrent authority
to issue paternity judgements and child support orders.
That doesn't speak to custody transfers
to previously non-custodial parents
through the juvenile court.
It's a completely different question.
-: The DCF argument that I read was that custody could revert
to the mother based upon application of 209C section 3E
in the probate court.
Is that a fair assessment?
-: So, no, that's not a fair assessment
because 209C section 3 deals with paternity
and custody jurisdiction of the juvenile court.
I'm sorry, paternity and child support.
It doesn't deal with custody,
which falls under chapter 119 section 26.
That's where the juvenile court's authority
to issue permanent custody orders
to a previously non-custodial fit parent comes from.
-: Can you go back and finish explaining
what happens when there's a change of circumstances
and the mother can then do something?
What she can...
-: So the mother could file a complaint for modification
in the probate and family court,
just like all other parents
who want to change or modify an order.
She can file a complaint for modification
in the probate and family court.
It's under 209C, but it's section 20.
And then she would have to show
that there's been a substantial change in circumstances,
and now she wants either the custody order
or the parenting time agreement, whatever it might be,
she wants that modified.
And that's based on the best interest of the child.
So she doesn't lose her parental rights to the child.
She's still in the same position
as all of the parents in the probate and family court
to litigate those issues.
-: So what is it that the child and the father get
by closing it in the juvenile court?
What do they get out of it?
-: They get an end to intrusive state intervention
and judicial oversight.
It's a substantive due process issue.
If this is a fit father
and a child in the custody of his fit father,
his father is presumed to make decisions
that are in his best interest.
And as this court noted in Blixt,
those aren't reviewable by a court
unless they're harmful to the child.
So the care and protection cases is a protective case.
It's not supposed to be long and enduring.
Once the need for the child's protection ends,
that case should close.
-: So can I ask you now what happens?
So it takes a while, I take it in the probate court.
So as these determinations have made of fitness,
the cases are reviewed every six months or so
in the juvenile court?
-: So they can be,
there's a right to review and redetermination
while the case stays open.
That doesn't say that the case has to stay open.
-: So practically speaking, what happens in these cases?
-: If the case remains open?
Justice Gaziano: Yeah.
-: And there's a permanent custody order to a parent,
a fit parent.
-: Right. And then there's a woman or could be a kids.
The judge, a very conscientious judge here,
said "I can't close it because of the interplay
between the probate statute."
Attorney Messer: Yes.
-: So what happens to those cases?
-: While they're waiting for probate and family court action?
Justice Gaziano: Yes.
-: The parents, all the litigants
are still under the scope of the juvenile court,
the protective court.
The parties may be brought in at any time
based on either the court wanting them to come in
or any party advancing the case for a status hearing.
At the same time,
the Department of Children and Families,
their policies don't allow them to close their care,
their protective case
until the juvenile court case is closed or dismissed.
So there are social workers that have to come into the home
and meet regularly with the family,
check on collaterals of the family,
ask intrusive questions of the parent and the child.
And there're court appointed attorneys
that are assigned to these cases.
All the parties have a right to an attorney,
so the attorneys also have to go into the home
and question the parents and question the child.
All of these are intrusive actions.
-: Practical purposes.
If the child's with a fit parent,
they're not gonna be brought in, practically speaking,
they're not gonna be be brought in for questioning,
but a social worker will come.
I mean, that's something they have to do
if it's open with DCF.
Is that it? -: Yes.
And as this court recognized in Millis,
just having an open case is harmful to the child
and the parent-child relationship.
So this child is 12 years old.
He knows that his father has this looming case
or had this looming case over him.
He knows that he was brought into court multiple times
after he had custody of this child.
And he knows that that's stressful
and that causes him stress and anxiety.
So these, just because he's not brought into court
doesn't mean it's not harmful to him.
-: The substantive due process issue
is the fit father who's being put through this.
-: Correct?
Well, the fit father and the child along with him
has a substantive due process right to family integrity.
-: And when there's a dismissal in the juvenile court,
does that mean that the determination
that the mother is not fit is no longer in place?
-: No. So this would be...
We use these terms interchangeably sometimes,
dismissal and closure.
We're not talking about a dismissal,
pretrial for failure to state a pleading
or failure to state a claim
or for a jurisdictional issue.
We're talking about closure of a case after a judgment.
So what the child argues
is that once that final judgment enters,
the case can close and the order will stay in place
until another judge looks at it and changes it
for substantial change in circumstances.
The order is what's important. That order should persist.
-: But I can't... -: Yeah.
-: I'm not sure I...
-: Sorry. -: Go ahead. Go ahead.
-: The order in this case
is that the father is awarded permanent custody
with some agreement as to parenting time?
That's the final order?
-: Yes.
-: And so that agreement as to the parenting time
would still be enforceable
or the father would need to abide by that...
Attorney Messer: Correct.
-: If the case was closed?
-: That's correct. And that's what happened.
Eventually, it took two years
from the time that the juvenile court
asked the probate court to take action.
But finally, in October of last year,
the probate court did take action.
The juvenile court case was dismissed in October.
I'm sorry, the probate court took action in August,
the case was dismissed in October
with those orders in place.
But it was a...
The probate and family court
issued the order and adopted the agreement of the parties.
So that was the end of this case.
But what we're saying is that,
that step didn't even need to have happen.
The juvenile court could have closed their case
without the probate and family court even acting.
The juvenile court could... -: Now that the probate
and family court has acted,
you're suggesting we nonetheless decide this case
even though it is moot?
-: Yes, because this happens often in the juvenile courts
and it clogs up juvenile court dockets.
You can see the frustration of the trial judge in this case,
talking about how these cases
take up valuable judicial resources and social worker time
and attorneys that are court appointed
that really need to be focusing on families
who do need the intervention and the judicial oversight.
So this is not just a, you know,
it's more than the substantive due process right
of the family,
which is the primary concern,
it's also a judicial economy issue.
And these juvenile courts are buried under the caseload.
-: And counsel, isn't it just an economy issue as well?
I mean to... -: Yes.
-: That you have to go to probate and family court
and a lot of times the parent isn't of means
to be able to go out and prosecute this.
-: That's correct.
It's very difficult for parents to navigate that system.
Sometimes it's difficult for us attorneys
to navigate the system.
As a trial attorney, I know,
sometimes you don't fill out the right paperwork
or you forget to include a certain form.
These are unrepresented litigants
who have to navigate the system
in addition to the volume of cases
in the probate and family court they have to go through.
-: But DCF says that it's not possible
because of the statute, right?
-: That is the argument.
-: And so what is it that...
Is there something we would have to read into the statute
in order to do what you want us to do?
-: So when a statute like section 26 is unclear
and it implicates due process rights,
this court can clarify and interpret its terms
in order to satisfy due process.
So what we're asking this court to do is-
Justice Gaziano: Put some substantive due process magic.
Attorney Messer: Sorry?
-: Put some substantive due process magic in statute.
-: Yes, exactly.
And it's really not complicated
what we're asking the court to do.
It's simply to clarify
that once a juvenile court judge grants permanent custody
to a fit previously non-custodial parent,
that case the care and protection case can close,
and that order that the juvenile court judge made
will stay in place.
-: Substantive due process though is designed
to deal with really bad stuff, right?
And one thing I have a little trouble following
is what...
'Cause this isn't a dispensing with consent
to adoption case,
so there's still an ongoing concern.
You know, the mother still is in the picture here.
Attorney Messer: Yes.
-: And this fa...
I'm just trying to, the practical effect of not doing this,
it seems difficult to say
that this is a substantive due process violation.
Because again, the mother isn't out of the picture.
This father and this child don't have assurances
that the mother is her, she's still a player here.
Attorney Messer: Right.
-: Regardless of whether we do what you want.
I just can't understand exactly the difference.
And we've got a fit father
and an active C&P case versus a closed C&P case.
I have trouble understanding
that's a substantive due process problem.
-: And I understand your concern
that the mother is still involved.
As long as the mother has her parental rights,
she should be still involved.
The difference is- -: No, no. I'm not questioning
the continue involving the mother,
what I'm trying to figure out
is why the father and the child have a sub...
Why there's a substantive due process problem
for the father and the child without this,
in Justice Gazianos word, "Substantive due process magic."
Because the difference in their worlds,
whether this happens or not is not that big
as far as I can tell.
But go ahead, tell me why I'm wrong.
-: Yeah, it's actually huge.
The difference is the state is involved in their life
and overseeing their every action
and that is the difference- -: Really true.
When you've got a fit father
who's been given a custody order under the C&P
'cause she's gonna get up and tell me
that the sky is not gonna fall.
I just wanna give you a chance
to tell me why the sky is gonna fall again.
-: So this court has recognized in Millis and Blixt-
-: Millis is a CHINS case, right?
-: Millis is a CRA case and it...
Justice Gaziano: It's different.
-: Not necessarily
because it talks about the stress and anxiety
caused to the child
and to the damage to the parent-child relationship
simply by having ongoing unnecessary judicial involvement.
And that's really what this is about is that...
In Blixt, the same thing and in Rashida,
the court talked about the trauma
that these families are suffering
while under the specter of the juvenile court
and these protective cases.
And how the trauma is...
It is exacerbated at the longer the case takes to resolve.
So the difference
between having it in the probate and family court
between mom and dad
is that the state is no longer there in the picture.
The family is no longer under the microscope of the state
and under the juvenile court purview, right?
So the stress of the litigation is gone.
And because this is a protective court
and the father who is fit
and the child in the father's custody
had this substantive due process right
to be free from unnecessary state intervention
and judicial oversight.
That harm is what exists
when you keep a care and protection case open
long after it should have been closed.
-: [Chief Justice Budd] Any other questions? Okay, thank you.
-: If there are no further questions, I'll rest on my brief.
Thank you.
-: [Chief Justice Budd] Okay. Attorney Kernan.
-: May it please the court.
Jennifer Kernan for the Department of Children and Families.
-: Are you gonna explain to us what DCF's interest is
in maintaining the status quo?
-: Yes. If I could just clarify
what Your Honor is referring to in terms of the status quo,
generally the current process?
-: Right. -: Okay. Alright.
So the department's position
is not that what child's proposing should not happen.
Just that under the current state of the law,
it cannot happen.
-: So you would be fine with it.
Say if we decided did some substantive due process magic
and decided that that's how it should work,
DCF would have no problem with that?
-: Essentially. -: Okay.
-: Our concern- -: What in section 26
precludes this outcome even without the magic.
-: Even without the magic, section 119 26,
sort of requires the judge
to act in the best interest of the child.
And here, when considering father's child's motion
to dismiss in the trial court,
the court determined
that because she didn't have the authority
or because she thought
she didn't have the authority to do so,
that it was in child's best interest
not to dismiss that case.
And part of that was her concern that upon dismissal,
her order of custody to the fit father
would no longer be viable.
-: But if we...
What in 26 says that her order of permanent custody
to the fit father would no longer be enforceable.
-: There's nothing.
There's nothing in 119 26 that says it in either way.
-: [Justice Wendlandt] Right.
-: And that's part of why we're here,
it's unclear at the moment.
And I think both sides are hoping
that we'll have some clarity from this.
-: Is the concern that under the unwed parent statute
under section 3E,
the mother would have custody
if the mother goes to probate court?
-: Yes, but not exactly, so...
-: Okay. Please tell me how 3E apply.
-: Right.
I think Your Honor might be referencing 209C 10.
10 is the...
And I could also be totally wrong.
But 10 I believe is the statute
that defines custody remaining or relying with the mother
when a child is born out of wedlock.
And that's sort of the crux of the concern here
because if... -: But counsel,
I don't mean to interrupt you, but...
-: I'm sorry I could get the...
I'm confused on this.
-: Well, I just wanna make certain,
the provision we're talking about.
So doesn't that mention if there's no paternity designation?
-: I think I can answer both.
Justice Georges: Yeah. Please.
-: At least I'm gonna try to. (all laughing)
Alright, so talking about 209C 10,
Your Honor is correct...
Well, it is not correct, I'm sorry.
It does say that in even after a paternity adjudication
in absence of an order, otherwise,
and here the C&P, the care and protection order
is that order, otherwise.
And if that order, otherwise, were to go away,
such and the department is arguing
that if the case were dismissed, it would go away.
Then we're left with 209C 10,
which says even after an adjudication of paternity
without another order from probate court,
custody lies with the mother when parents were unwed
and the child was born out-
-: But that couldn't happen constitutionally
because the father can't have less rights
because the child was born not during a marriage.
So it can't happen.
-: It's...
And I'm actually struck.
-: Yeah, I know it's hard
for the juvenile court judge to do this.
She saw the issue, -: Right.
-: She's a very conscientious judge,
but you just can't have a dad
because his child was born not during a marriage,
have different rights than other fathers.
-: Yeah. And that's exactly,
that was one of the concerns
that the juvenile court judge did raise.
And it's... -: But...
Sorry, go ahead.
-: I was just going to say, it's a tricky one to answer here.
I think that if we look narrowly at this issue
as opposed to broadening the scope
and bringing in equal protection and gender,
we can still resolve the more narrow issue here.
And one important point here is the distinction
between dismissing the care and protection case
and closing the case.
The department agree...
And I'm going to use the term close to mean,
render the case inactive,
similar to what the probate court does
after a judgment in a divorce.
So for example, and I'm no probate practitioner,
but my understanding is that
after there's been a judgment for divorce
and there's any attenuated custody orders
or visitation orders like that,
the case sits inactive on the docket.
There are no further dates
unless a party files a complaint
for modification of custody.
And I think here in the juvenile court,
and this is sort the informal practice
in some of the courts,
that once there's been an order to fit parent,
like in the situation we have here, we've got fit dad,
the juvenile court judge will instruct or suggest
that the previously non-custodial fit parent
should go to probate to get that other order.
And while that's happening,
the C&P will sit inactive on the docket.
There'll be no further dates
unless a party chooses to exercise their right
to review and redetermination,
which can only happen once every six months.
And generally when there is custody to a fit parent,
it's highly unlikely that the department would seek
to utilize their right to review.
-: Is there any danger upon the dismissal or closure
of the C&P case
that custody could revert to the mother in this case?
-: So yes and no,
because dismissal and closure are different.
Justice Gaziano: Right.
-: On dismissal. Yes.
And the department's position
is that because of the interplay of the statute,
specifically 209C 10,
without the C&P's order of custody to father,
there's no other custody order which would prevent
or keep custody with father per 209C 10.
-: [Justice Wendlandt] Why would this-
-: But closure would be different.
-: Closure would be different.
-: [Chief Justice Budd] But she wanted to close it.
-: Why would dismissal
result in vacating the prior order to the father?
That's where I don't understand the...
-: So, essentially,
there's nothing that expressly states
that a custody order or any order
stemming from a care and protection
would survive after dismissal.
There is 119 28, which is the same language as 209C 3E
that talks about the custody or the support judgment
surviving for six months
after the dismissal of the care and protection.
So in that instance in 119 28,
we have that express statement
of these types of orders survive.
There's nothing like that with regards to a custody order.
Additionally, the appeals court
has dealt with a couple cases that are kind of similar
and that's Joselito and Yarrick,
and the sort of extrapolating from those cases,
it would seem that any order,
the finding of fitness, finding of fitness,
order of custody would not survive dismissal.
So those are sort of the two reasons...
-: Substantive due process magic dust
doesn't have to be applied.
You think we can do this by interpretation of statutes?
-: Again, yes and no.
With dismissal? No.
-: How come Every time I ask a question,
it's a yes or no? (laughs) -: I know, I'm sorry.
-: I'll try to... -: It's me, not you.
-: With closure, I think it's possible with closure.
And again, closure meaning inactive.
-: Yeah, but here's what I think the child is saying.
I think they're saying that with dismissal
as a matter of constitutional law,
that the father's custody ought has to remain in effect.
It just has to be. Why?
We got the best interest of the child
which is I realized statutory,
but you've got an order
and you can't have the case be maintained
and have to have the state in your house,
figuratively or literally when the social worker comes by
as a matter of substantive due process.
And so the only way for the statute to be constitutional
would be that the juvenile court's order
of custody of the father remain.
I think that's what their position would be.
What's wrong with that?
-: There's nothing wrong with that,
except for the fact
that we don't have that on the table yet.
I think action from this court
to that effect would be fine.
-: That what just means by substantive due process are.
Attorney Kernan: Yes. Yes.
Justice Kafker: Do you agree it's that intrusive?
I thought you said the opposite.
-: No. No.
-: It's basically this is...
I mean, these people have a lot to do both.
And when this thing is really inactive,
nothing really happens.
I mean, she's saying the opposite, I just don't know the...
You know this better than I do.
What is the answer? Is there really...
I mean, substantive due process is, like,
we're beating you with a stick kind of stuff.
This is like,
I can see trying to make magic out of the statute,
trying to amuse this to argue
that there's a substantive due process violation here
unless you lose custody.
I get that might be different,
but if all it is you've got the state possibility of a...
And by the way, no way, you know,
they got tons of real things to do.
So that just doesn't seem
like the substantive due process violation to me.
I'd love if you can make the statute go away
'cause it sounds like you want us to reach that result.
But for us, substantive due process
is a club we only bring out every once in a while
to deal with serious problems.
And the fact that you might have to go to the district court
once every six months doesn't seem to me like a, you know,
substantive due process violation.
-: Yes. I think child and I disagree
on the extent of the involvement or intervention.
-: Right. -: And so,
I'd like to answer Your Honor's question in two parts.
First with regards to what extent
is DCF really gonna be involved?
If the case is made inactive,
DCF can close its clinical case,
meaning that there'd be no social worker home visits,
no action plan, no required meetings.
And inactive case
also necessarily means less involvement in court.
The second part of my answer
is going back to child's reference to Blixt.
Child used that to sort of talk about the burden
or the attendant burden of litigation
in a domestic relations case.
And in Blixt, this court solution to addressing that,
and this was a grandparent visitation case,
was to require the grandparents to make an initial showing
that they would be able to meet their burden
before requiring the parents
to subject themselves to the court there.
So the substantive due process rights to an extent,
have been addressed by our require the requirement
that the state prove its case by clear and convincing-
-: Can I...
I'm thoroughly confused by this at this point.
So can I, if you, it sounds like you both agree on result.
How should we interpret this from DCF's perspective
to allow this to happen
without it being a substantive due process?
Tell us, what should we write
to make this silly case go away?
-: I feel a lot of pressure here
because I think a lot of the courts are gonna be interested
in what comes from this case because this is-
-: Wait, but we...
You are our expert. We need your help.
None of us are probate lawyers either.
So give us how to make this go away with a statute
rather than finding
some kind of imaginary constitutional violation here.
-: So I think the easiest solution here
is to provide guidance that allows the courts
to render these cases inactive.
So once we've got a disposition like this,
custody to a fit father,
and there's no underlying probate court order,
making the case inactive.
Letting it stay on the docket with no events,
nothing scheduled.
-: In what statutory provision
will allow us to make it inactive?
Tell us, we need your help here.
'Cause otherwise, -: Yes.
-: We're gonna go back and we've got other things to do.
So tell us how to fix this.
-: So I think 119 26
is gonna be the basis for whatever action comes from this.
Generally, 119 requires the court
to act in the best interest of the child.
And here, 119 26 allows the court
in furtherance of the child's best interest
to make whatever orders it can
as long as they serve the child's best interest.
And here, that's what happened with the court
determining that child's best interest would be served
with custody to father.
I think that continuing on the line
of assessing child's best interests here,
the court could use that as a basis
to say that the practice,
and if I may continue to finish this answer,
the practice of rendering the case off-listed,
making it inactive would preserve child's best interest
in that it would prevent the custody order to the fit parent
to father here,
from being vacated,
which is what would happen
under the current state of the law
if the case were dismissed.
-: Well, we don't know that yet,
but it seems like we're going through a lot of machinations
for something that seems a little bit more straightforward.
This is a protection case, right?
So if it's a protection case
and there's no longer a need for protection
and there's an order of the court
giving the fit parent custody,
why can't we just say
that the statute wouldn't make any more sense
because there's no longer a need for protection.
And whether it's explicitly articulated
in the terms of the statute,
the judge can just say my order survives
the dismissal of the care and protection case.
What says the inherent authority of the juvenile court judge
to say "It's over,
but my order survives in the best interest of this child."
-: That is a very interesting question.
And the scenario that you've posed
reminds me of the scenario
in care and protection of Yarrick.
And if I may be permitted to continue to go over this.
-: [Chief Justice Budd] Yes, please.
-: In care and protection of Yarrick there...
A father appealed dismissal of the care and protection
under which mother had been found fit
and custody was given to mother.
In that, in the judge's findings and orders,
the judge specifically wrote
my finding of unfitness survives the dismissal
and has continuing vitality.
And the appeals court said kindly "Nice try, but not quite."
And that's a situation I'm thinking of is similar.
Without an actual basis
for the survival of the custody order
following dismissal of a case,
I don't think that the judge could simply by writing in
it will survive.
Justice Georges: I thought the best interest of the child
was the basis.
-: Yes, so the best interest is the basis.
And here because there's nothing expressed to indicate
that the order would survive,
that I think the court has to say
that the case needs to stay open as opposed to dismissal.
And I do see where Your Honor is going. I do see that.
I think that without something,
maybe this is the best intro,
I think there would need to be something more
in that instance than the best interest,
something like guidance from this court
saying that in this situation it would survive.
But we don't have that yet. Hopefully.
-: Can I just ask,
because I think the counsel for the child is saying
closure and dismissal are the same,
but you're saying that they're different
and so I'm not sure where that's coming from.
And you also talk about inactive.
So inactive -: Yes.
-: You equate with closure. -: Yes.
-: And those are different from dismissal.
-: Yes. And when my sister was talking about dismissal,
I thought I heard her mention a pretrial dismissal
and there... -: No, no.
Yeah, she was she was differentiating
between something like that and something like this.
-: Yes. -: Yes.
But I think that even...
So post adjudication where we are now is...
Dismissal post adjudication
is distinct from closing the case.
Dismissal, the case goes away, there's nothing left.
In addition to not being active,
there's no way to bring it back,
there's no way to revive it.
It is gone. It is done.
But if it's just closed which I'm using to mean inactive,
-: [Chief Justice Budd] Inactive.
-: It's still lives, right?
The orders that are attached to it have vitality because-
-: Does that mean that social workers
do or don't have to come and see how things are going?
-: So if the case is closed,
the social workers do not have to
because our regs allow the department to close a case
if a C&P has been dismissed or closed.
So either way the department can end its involvement.
So even if it- -: So your regulations...
You said DCF regulations talk about cases being closed,
but that's DCF cases, right?
-: So I'm sorry, I'm using that to...
So within our case closing policies,
we've got our clinical cases
which are like our internal cases,
but we also have guidance
about when there's a court involved case.
And here, this particular policy
is addressing court involved cases.
So when a court involved case,
like a care and protection case is closed, made inactive,
department policy allows us to close our clinical case.
-: And are there other examples of times
when a juvenile court judge will close a case?
-: There are.
That would happen in, for example, the guardianship.
And care and protection of Thomasina is a good example
or a good illustration of something like that happening.
So after an adjudication, and in order for a guardianship,
it would be likely an adjudication
child's in need of care and protection
and order of custody to the department.
And then on the guardianship petition,
the court would award guardianship to whoever is.
-: I'm confused now though.
If you close the case
and there'll still have to be that six month review
of a C&P with...
I'm trying to address opposing counsel's concern
that the state is still active.
And you're saying, when we close our case,
the social workers don't show up,
but I take it there still has to be
a six month review of the C&P
or is that not true too?
-: So not necessarily.
And the six month review,
the right to review and redetermination
is not an automatic happening.
-: Okay, it's not automatic. Okay.
-: It has to be requested
and it can only be requested
when there's been a change in circumstance.
And in this situation, like,
where we're a custodied is to a fit parent
and the child is there,
it's unlikely the department
would be seeking a review and redetermination.
So it's not a matter of course
every six months the case is brought in,
it's when someone petitions the court
to review and redetermine the needs.
-: So basically at the department's discretion,
this fit father may or may not be hauled back into court
for review and redetermination.
At the mother's discretion,
the fit father may be hauled back into the court
for review and redetermination.
And at DCF's discretion,
it may or may not continue to have social workers
come to the fit father's home.
-: Yes, but I would phrase it a little differently.
Where father is fit
and where there are no protective concerns,
it is unlikely that the department would be seeking
to challenge the order of custody too.
-: But under either scenario, the mother,
because she we haven't dispensed with consent to adoption,
this mother can come back regardless under...
Whatever both of you propose,
the mother is not out of the picture.
Attorney Kernan: Correct.
-: If she finds a change in circumstance
she can come in or...
She can come back whenever...
Under whatever will do. -: Can I just clarified,
we're not talking about adoption at all are we?
Because we've got a mother and a father,
a biological mother and father,
and so we're just talking about,
I mean those are the child's parents.
-: Right. But the issue is...
We're trying to figure out
is how disruptive this relationship
between the father and the child is by the...
At least through the mother.
-: Yeah. I think that just- -: And under either scenario
the mother can get involved. -: Yeah.
-: So I might be able to shed a little more light on that.
I think it would be similarly disruptive
if the parents were in probate court.
What Your Honor has proposed is a situation
where mother wants to change the custody order to father.
So whether it's in juvenile court or probate court,
that would be mother going to the court
alleging some change in circumstance
and the parties would be litigating it through there
and which is actually...
DCF's not involved in probate cases,
so if families want us out,
probate is where you will likely not have to deal with us.
So that would address the concerns the child has raised
about the sort of the state intervention,
at least on DCF's part.