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SJC-134994. In the matter of a juvenile.
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[Chief Justice Budd] Okay. Attorney Messer.
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Good morning. May it please the court.
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Dawn Messer on behalf of the appellant child
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who is in the custody of his fit father.
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Could you speak a little louder?
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Yes, sorry.
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In care and protection cases,
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when the custodial parent is unfit,
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the juvenile court has the power
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under chapter 119 section 26 to adjudicate the child
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in need of care and protection
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and transfer custody of the child
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to the fit previously non-custodial parent.
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That's what the court did in this case with this father.
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When that happens,
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the juvenile court's role
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as a court of protection is complete,
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and the care and protection case should close.
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I understand your well-reasoned arguments for finality
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in the constitutional rights.
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And I think the juvenile court
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would appreciate getting these cases off their docket.
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Yes.
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But can you tell me in the parade of horribles,
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what could happen thereafter in the probate court
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under the statute that would upset this?
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That would upset the-
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Custody findings and the like.
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What's the potential harm that could happen
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that would guard against in the probate court?
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So if the juvenile court was allowed
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to close the care and protection case
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with the custody order to the fit parent remaining in place,
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then the next step would be
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if there was a substantial change in circumstances,
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then either parent can file a complaint for modification
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in the probate and family court.
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And the judge in that case
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could review the change of circumstances
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and then determine
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what is in the best interest of the child.
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At that point, it wouldn't be a protective case.
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And I can understand if this court would be concerned
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about the safety of the child
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when the case closes in the juvenile court,
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but that's not a risk anymore
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once the child is with the fit parent.
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Can I...
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Sorry, are you...
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So, you know, again, I'm relying on recollection.
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There's a difference...
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Permanency is not really permanency.
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It's dispensing with consent to adoption
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is sort of the irrevocable act in this world, right?
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Yes.
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Does the juvenile court have the ability
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to dispense with consent to adoption?
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Do they have the same powers
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that the probate court does in that regard?
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Yes.
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They didn't originally, but they do now.
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So in 1992,
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chapter 119 was amended to allow the juvenile courts
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to dispense with consent to adoption.
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So they really have the power to do-
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So they have the same powers.
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It's not like the probate court has any power
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that the juvenile court doesn't have or in this regard-
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No, but they're a different focus, right?
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The juvenile court is a court of protection
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and the probate and family court.
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Here's everything else.
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Right. But when we've been talking about permanency,
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that's a little misleading in this world
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because it's still a revocable act.
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Dispensing with consent to adoption ends everything.
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Correct.
Where we enter a new world,
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the parents are completely out of it.
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But here, you want us to sort of take an additional step
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on this based on a permanency finding, right?
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And again, if I'm taking you farfield, you stop me,
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but that's what caught me as being odd here.
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No, and I understand how the court would be hesitant
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to take a step that doesn't appear,
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or that the court is worried
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isn't called for in the statute but it actually is.
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In section 26, that was amended in 2008,
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to allow the juvenile courts
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to transfer permanent custody to a parent,
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including a previously non-custodial parent.
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So that is called for in the statute.
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What is not addressed in section 26
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is how the case ends after that transfer of custody.
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And that's...
But my question
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was a little different,
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which is that a transfer of permanent custody,
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although it sounds permanent to us,
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isn't really the terminology in this world.
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Dispensing with consent to adoption
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is the parents are then permanently cut off.
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Somebody has...
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That's not what we're dealing with here, right?
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Right.
So the case is still alive,
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but you want us to engage in an irrevocable act, right?
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You wanna, basically, cut the mother off.
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No, so that's not what we're asking to do.
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Okay.
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We're just asking that the juvenile court case,
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which is the protective case, that that ends.
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The mother still has every right
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to go back to the probate court
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if there's been a substantial change in circumstances
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and change that order.
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So it's not...
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Is that under 209C section 3?
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The section 3E argument,
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how does that interplay with the finality?
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Could you address that please?
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So, sure.
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So the first to answer your question,
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the chapter 209C section 20
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is the complaint for modification portion.
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I'm not talking about modification,
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I'm talking about section 3,
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the child out of wedlock statute.
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Right. So 209C section 3
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is the one that talks about the...
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Among other things,
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the juvenile court's concurrent authority
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to issue paternity judgements and child support orders.
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That doesn't speak to custody transfers
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to previously non-custodial parents
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through the juvenile court.
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It's a completely different question.
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The DCF argument that I read was that custody could revert
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to the mother based upon application of 209C section 3E
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in the probate court.
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Is that a fair assessment?
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So, no, that's not a fair assessment
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because 209C section 3 deals with paternity
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and custody jurisdiction of the juvenile court.
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I'm sorry, paternity and child support.
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It doesn't deal with custody,
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which falls under chapter 119 section 26.
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That's where the juvenile court's authority
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to issue permanent custody orders
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to a previously non-custodial fit parent comes from.
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Can you go back and finish explaining
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what happens when there's a change of circumstances
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and the mother can then do something?
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What she can...
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So the mother could file a complaint for modification
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in the probate and family court,
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just like all other parents
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who want to change or modify an order.
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She can file a complaint for modification
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in the probate and family court.
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It's under 209C, but it's section 20.
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And then she would have to show
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that there's been a substantial change in circumstances,
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and now she wants either the custody order
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or the parenting time agreement, whatever it might be,
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she wants that modified.
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And that's based on the best interest of the child.
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So she doesn't lose her parental rights to the child.
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She's still in the same position
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as all of the parents in the probate and family court
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to litigate those issues.
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So what is it that the child and the father get
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by closing it in the juvenile court?
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What do they get out of it?
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They get an end to intrusive state intervention
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and judicial oversight.
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It's a substantive due process issue.
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If this is a fit father
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and a child in the custody of his fit father,
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his father is presumed to make decisions
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that are in his best interest.
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And as this court noted in Blixt,
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those aren't reviewable by a court
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unless they're harmful to the child.
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So the care and protection cases is a protective case.
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It's not supposed to be long and enduring.
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Once the need for the child's protection ends,
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that case should close.
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So can I ask you now what happens?
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So it takes a while, I take it in the probate court.
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So as these determinations have made of fitness,
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the cases are reviewed every six months or so
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in the juvenile court?
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So they can be,
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there's a right to review and redetermination
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while the case stays open.
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That doesn't say that the case has to stay open.
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So practically speaking, what happens in these cases?
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If the case remains open?
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Yeah.
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And there's a permanent custody order to a parent,
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a fit parent.
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Right. And then there's a woman or could be a kids.
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The judge, a very conscientious judge here,
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said "I can't close it because of the interplay
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between the probate statute."
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Yes.
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So what happens to those cases?
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While they're waiting for probate and family court action?
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Yes.
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The parents, all the litigants
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are still under the scope of the juvenile court,
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the protective court.
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The parties may be brought in at any time
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based on either the court wanting them to come in
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or any party advancing the case for a status hearing.
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At the same time,
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the Department of Children and Families,
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their policies don't allow them to close their care,
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their protective case
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until the juvenile court case is closed or dismissed.
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So there are social workers that have to come into the home
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and meet regularly with the family,
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check on collaterals of the family,
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ask intrusive questions of the parent and the child.
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And there're court appointed attorneys
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that are assigned to these cases.
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All the parties have a right to an attorney,
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so the attorneys also have to go into the home
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and question the parents and question the child.
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All of these are intrusive actions.
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Practical purposes.
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If the child's with a fit parent,
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they're not gonna be brought in, practically speaking,
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they're not gonna be be brought in for questioning,
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but a social worker will come.
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I mean, that's something they have to do
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if it's open with DCF.
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Is that it?
Yes.
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And as this court recognized in Millis,
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just having an open case is harmful to the child
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and the parent-child relationship.
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So this child is 12 years old.
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He knows that his father has this looming case
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or had this looming case over him.
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He knows that he was brought into court multiple times
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after he had custody of this child.
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And he knows that that's stressful
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and that causes him stress and anxiety.
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So these, just because he's not brought into court
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doesn't mean it's not harmful to him.
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The substantive due process issue
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is the fit father who's being put through this.
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Correct?
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Well, the fit father and the child along with him
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has a substantive due process right to family integrity.
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And when there's a dismissal in the juvenile court,
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does that mean that the determination
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that the mother is not fit is no longer in place?
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No. So this would be...
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We use these terms interchangeably sometimes,
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dismissal and closure.
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We're not talking about a dismissal,
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pretrial for failure to state a pleading
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or failure to state a claim
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or for a jurisdictional issue.
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We're talking about closure of a case after a judgment.
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So what the child argues
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is that once that final judgment enters,
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the case can close and the order will stay in place
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until another judge looks at it and changes it
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for substantial change in circumstances.
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00:12:21.870 --> 00:12:26.430
The order is what's important. That order should persist.
272
00:12:26.430 --> 00:12:27.263
But I can't...
Yeah.
273
00:12:27.263 --> 00:12:28.320
I'm not sure I...
274
00:12:28.320 --> 00:12:29.640
Sorry.
Go ahead. Go ahead.
275
00:12:29.640 --> 00:12:31.140
The order in this case
276
00:12:31.140 --> 00:12:35.010
is that the father is awarded permanent custody
277
00:12:35.010 --> 00:12:38.730
with some agreement as to parenting time?
278
00:12:38.730 --> 00:12:39.930
That's the final order?
279
00:12:39.930 --> 00:12:41.089
Yes.
280
00:12:41.089 --> 00:12:42.720
And so that agreement as to the parenting time
281
00:12:42.720 --> 00:12:45.600
would still be enforceable
282
00:12:45.600 --> 00:12:47.820
or the father would need to abide by that...
283
00:12:47.820 --> 00:12:48.653
Correct.
284
00:12:48.653 --> 00:12:50.220
If the case was closed?
285
00:12:50.220 --> 00:12:53.130
That's correct. And that's what happened.
286
00:12:53.130 --> 00:12:55.950
Eventually, it took two years
287
00:12:55.950 --> 00:12:58.560
from the time that the juvenile court
288
00:12:58.560 --> 00:13:01.696
asked the probate court to take action.
289
00:13:01.696 --> 00:13:05.100
But finally, in October of last year,
290
00:13:05.100 --> 00:13:07.110
the probate court did take action.
291
00:13:07.110 --> 00:13:10.650
The juvenile court case was dismissed in October.
292
00:13:10.650 --> 00:13:13.470
I'm sorry, the probate court took action in August,
293
00:13:13.470 --> 00:13:15.270
the case was dismissed in October
294
00:13:15.270 --> 00:13:17.970
with those orders in place.
295
00:13:17.970 --> 00:13:20.210
But it was a...
296
00:13:21.690 --> 00:13:23.490
The probate and family court
297
00:13:23.490 --> 00:13:27.300
issued the order and adopted the agreement of the parties.
298
00:13:27.300 --> 00:13:29.520
So that was the end of this case.
299
00:13:29.520 --> 00:13:31.380
But what we're saying is that,
300
00:13:31.380 --> 00:13:35.220
that step didn't even need to have happen.
301
00:13:35.220 --> 00:13:38.640
The juvenile court could have closed their case
302
00:13:38.640 --> 00:13:42.030
without the probate and family court even acting.
303
00:13:42.030 --> 00:13:43.530
The juvenile court could...
Now that the probate
304
00:13:43.530 --> 00:13:45.423
and family court has acted,
305
00:13:46.350 --> 00:13:48.630
you're suggesting we nonetheless decide this case
306
00:13:48.630 --> 00:13:50.250
even though it is moot?
307
00:13:50.250 --> 00:13:54.810
Yes, because this happens often in the juvenile courts
308
00:13:54.810 --> 00:13:57.060
and it clogs up juvenile court dockets.
309
00:13:57.060 --> 00:14:01.350
You can see the frustration of the trial judge in this case,
310
00:14:01.350 --> 00:14:03.120
talking about how these cases
311
00:14:03.120 --> 00:14:07.710
take up valuable judicial resources and social worker time
312
00:14:07.710 --> 00:14:11.610
and attorneys that are court appointed
313
00:14:11.610 --> 00:14:14.430
that really need to be focusing on families
314
00:14:14.430 --> 00:14:18.570
who do need the intervention and the judicial oversight.
315
00:14:18.570 --> 00:14:21.610
So this is not just a, you know,
316
00:14:21.610 --> 00:14:25.160
it's more than the substantive due process right
317
00:14:25.160 --> 00:14:26.640
of the family,
318
00:14:26.640 --> 00:14:29.490
which is the primary concern,
319
00:14:29.490 --> 00:14:32.299
it's also a judicial economy issue.
320
00:14:32.299 --> 00:14:37.299
And these juvenile courts are buried under the caseload.
321
00:14:38.250 --> 00:14:41.460
And counsel, isn't it just an economy issue as well?
322
00:14:41.460 --> 00:14:42.570
I mean to...
Yes.
323
00:14:42.570 --> 00:14:44.880
That you have to go to probate and family court
324
00:14:44.880 --> 00:14:49.880
and a lot of times the parent isn't of means
325
00:14:49.980 --> 00:14:52.590
to be able to go out and prosecute this.
326
00:14:52.590 --> 00:14:53.430
That's correct.
327
00:14:53.430 --> 00:14:56.550
It's very difficult for parents to navigate that system.
328
00:14:56.550 --> 00:14:58.770
Sometimes it's difficult for us attorneys
329
00:14:58.770 --> 00:15:00.030
to navigate the system.
330
00:15:00.030 --> 00:15:02.310
As a trial attorney, I know,
331
00:15:02.310 --> 00:15:04.620
sometimes you don't fill out the right paperwork
332
00:15:04.620 --> 00:15:08.850
or you forget to include a certain form.
333
00:15:08.850 --> 00:15:11.010
These are unrepresented litigants
334
00:15:11.010 --> 00:15:13.380
who have to navigate the system
335
00:15:13.380 --> 00:15:17.340
in addition to the volume of cases
336
00:15:17.340 --> 00:15:19.433
in the probate and family court they have to go through.
337
00:15:19.433 --> 00:15:22.470
But DCF says that it's not possible
338
00:15:22.470 --> 00:15:24.765
because of the statute, right?
339
00:15:24.765 --> 00:15:26.910
That is the argument.
340
00:15:26.910 --> 00:15:30.090
And so what is it that...
341
00:15:30.090 --> 00:15:32.760
Is there something we would have to read into the statute
342
00:15:32.760 --> 00:15:36.120
in order to do what you want us to do?
343
00:15:36.120 --> 00:15:40.800
So when a statute like section 26 is unclear
344
00:15:40.800 --> 00:15:43.110
and it implicates due process rights,
345
00:15:43.110 --> 00:15:47.040
this court can clarify and interpret its terms
346
00:15:47.040 --> 00:15:50.580
in order to satisfy due process.
347
00:15:50.580 --> 00:15:53.040
So what we're asking this court to do is-
348
00:15:53.040 --> 00:15:55.230
Put some substantive due process magic.
349
00:15:55.230 --> 00:15:56.415
Sorry?
350
00:15:56.415 --> 00:15:57.780
Put some substantive due process magic in statute.
351
00:15:57.780 --> 00:15:58.950
Yes, exactly.
352
00:15:58.950 --> 00:16:00.960
And it's really not complicated
353
00:16:00.960 --> 00:16:02.910
what we're asking the court to do.
354
00:16:02.910 --> 00:16:04.830
It's simply to clarify
355
00:16:04.830 --> 00:16:09.420
that once a juvenile court judge grants permanent custody
356
00:16:09.420 --> 00:16:13.290
to a fit previously non-custodial parent,
357
00:16:13.290 --> 00:16:16.920
that case the care and protection case can close,
358
00:16:16.920 --> 00:16:21.540
and that order that the juvenile court judge made
359
00:16:21.540 --> 00:16:22.860
will stay in place.
360
00:16:22.860 --> 00:16:25.350
Substantive due process though is designed
361
00:16:25.350 --> 00:16:29.220
to deal with really bad stuff, right?
362
00:16:29.220 --> 00:16:32.400
And one thing I have a little trouble following
363
00:16:32.400 --> 00:16:34.710
is what...
364
00:16:34.710 --> 00:16:36.810
'Cause this isn't a dispensing with consent
365
00:16:36.810 --> 00:16:37.860
to adoption case,
366
00:16:37.860 --> 00:16:41.670
so there's still an ongoing concern.
367
00:16:41.670 --> 00:16:44.820
You know, the mother still is in the picture here.
368
00:16:44.820 --> 00:16:45.653
Yes.
369
00:16:45.653 --> 00:16:46.486
And this fa...
370
00:16:46.486 --> 00:16:50.716
I'm just trying to, the practical effect of not doing this,
371
00:16:50.716 --> 00:16:52.620
it seems difficult to say
372
00:16:52.620 --> 00:16:55.440
that this is a substantive due process violation.
373
00:16:55.440 --> 00:16:57.390
Because again, the mother isn't out of the picture.
374
00:16:57.390 --> 00:17:01.530
This father and this child don't have assurances
375
00:17:01.530 --> 00:17:05.820
that the mother is her, she's still a player here.
376
00:17:05.820 --> 00:17:06.653
Right.
377
00:17:06.653 --> 00:17:09.300
Regardless of whether we do what you want.
378
00:17:09.300 --> 00:17:13.800
I just can't understand exactly the difference.
379
00:17:13.800 --> 00:17:16.050
And we've got a fit father
380
00:17:16.050 --> 00:17:20.193
and an active C&P case versus a closed C&P case.
381
00:17:21.450 --> 00:17:22.350
I have trouble understanding
382
00:17:22.350 --> 00:17:25.230
that's a substantive due process problem.
383
00:17:25.230 --> 00:17:29.880
And I understand your concern
384
00:17:29.880 --> 00:17:33.393
that the mother is still involved.
385
00:17:36.060 --> 00:17:38.070
As long as the mother has her parental rights,
386
00:17:38.070 --> 00:17:39.819
she should be still involved.
387
00:17:39.819 --> 00:17:41.694
The difference is-
No, no. I'm not questioning
388
00:17:41.694 --> 00:17:42.527
the continue involving the mother,
389
00:17:42.527 --> 00:17:44.329
what I'm trying to figure out
390
00:17:44.329 --> 00:17:47.610
is why the father and the child have a sub...
391
00:17:47.610 --> 00:17:50.160
Why there's a substantive due process problem
392
00:17:50.160 --> 00:17:54.600
for the father and the child without this,
393
00:17:54.600 --> 00:17:59.600
in Justice Gazianos word, "Substantive due process magic."
394
00:18:00.240 --> 00:18:03.060
Because the difference in their worlds,
395
00:18:03.060 --> 00:18:07.740
whether this happens or not is not that big
396
00:18:07.740 --> 00:18:08.880
as far as I can tell.
397
00:18:08.880 --> 00:18:10.770
But go ahead, tell me why I'm wrong.
398
00:18:10.770 --> 00:18:13.080
Yeah, it's actually huge.
399
00:18:13.080 --> 00:18:16.170
The difference is the state is involved in their life
400
00:18:16.170 --> 00:18:19.050
and overseeing their every action
401
00:18:19.050 --> 00:18:20.910
and that is the difference-
Really true.
402
00:18:20.910 --> 00:18:23.940
When you've got a fit father
403
00:18:23.940 --> 00:18:26.982
who's been given a custody order under the C&P
404
00:18:26.982 --> 00:18:29.460
'cause she's gonna get up and tell me
405
00:18:29.460 --> 00:18:33.330
that the sky is not gonna fall.
406
00:18:33.330 --> 00:18:34.560
I just wanna give you a chance
407
00:18:34.560 --> 00:18:38.340
to tell me why the sky is gonna fall again.
408
00:18:38.340 --> 00:18:43.188
So this court has recognized in Millis and Blixt-
409
00:18:43.188 --> 00:18:44.874
Millis is a CHINS case, right?
410
00:18:44.874 --> 00:18:47.037
Millis is a CRA case and it...
411
00:18:47.037 --> 00:18:47.870
It's different.
412
00:18:47.870 --> 00:18:48.900
Not necessarily
413
00:18:48.900 --> 00:18:52.560
because it talks about the stress and anxiety
414
00:18:52.560 --> 00:18:54.960
caused to the child
415
00:18:54.960 --> 00:18:58.560
and to the damage to the parent-child relationship
416
00:18:58.560 --> 00:19:03.480
simply by having ongoing unnecessary judicial involvement.
417
00:19:03.480 --> 00:19:06.570
And that's really what this is about is that...
418
00:19:06.570 --> 00:19:10.920
In Blixt, the same thing and in Rashida,
419
00:19:10.920 --> 00:19:13.350
the court talked about the trauma
420
00:19:13.350 --> 00:19:15.420
that these families are suffering
421
00:19:15.420 --> 00:19:18.870
while under the specter of the juvenile court
422
00:19:18.870 --> 00:19:20.430
and these protective cases.
423
00:19:20.430 --> 00:19:23.120
And how the trauma is...
424
00:19:24.270 --> 00:19:29.270
It is exacerbated at the longer the case takes to resolve.
425
00:19:29.490 --> 00:19:30.360
So the difference
426
00:19:30.360 --> 00:19:33.330
between having it in the probate and family court
427
00:19:33.330 --> 00:19:35.520
between mom and dad
428
00:19:35.520 --> 00:19:40.383
is that the state is no longer there in the picture.
429
00:19:41.730 --> 00:19:45.420
The family is no longer under the microscope of the state
430
00:19:45.420 --> 00:19:49.643
and under the juvenile court purview, right?
431
00:19:51.120 --> 00:19:56.120
So the stress of the litigation is gone.
432
00:19:56.250 --> 00:20:00.030
And because this is a protective court
433
00:20:00.030 --> 00:20:02.640
and the father who is fit
434
00:20:02.640 --> 00:20:04.890
and the child in the father's custody
435
00:20:04.890 --> 00:20:07.740
had this substantive due process right
436
00:20:07.740 --> 00:20:11.610
to be free from unnecessary state intervention
437
00:20:11.610 --> 00:20:13.383
and judicial oversight.
438
00:20:16.311 --> 00:20:18.660
That harm is what exists
439
00:20:18.660 --> 00:20:20.730
when you keep a care and protection case open
440
00:20:20.730 --> 00:20:22.773
long after it should have been closed.
441
00:20:25.059 --> 00:20:27.039
[Chief Justice Budd] Any other questions? Okay, thank you.
442
00:20:27.039 --> 00:20:28.800
If there are no further questions, I'll rest on my brief.
443
00:20:28.800 --> 00:20:29.633
Thank you.
444
00:20:31.402 --> 00:20:32.693
[Chief Justice Budd] Okay. Attorney Kernan.
445
00:20:38.370 --> 00:20:39.630
May it please the court.
446
00:20:39.630 --> 00:20:41.820
Jennifer Kernan for the Department of Children and Families.
447
00:20:41.820 --> 00:20:44.980
Are you gonna explain to us what DCF's interest is
448
00:20:49.230 --> 00:20:51.393
in maintaining the status quo?
449
00:20:53.700 --> 00:20:55.020
Yes. If I could just clarify
450
00:20:55.020 --> 00:20:57.510
what Your Honor is referring to in terms of the status quo,
451
00:20:57.510 --> 00:20:59.670
generally the current process?
452
00:20:59.670 --> 00:21:00.970
Right.
Okay. Alright.
453
00:21:02.310 --> 00:21:05.520
So the department's position
454
00:21:05.520 --> 00:21:10.520
is not that what child's proposing should not happen.
455
00:21:11.190 --> 00:21:13.920
Just that under the current state of the law,
456
00:21:13.920 --> 00:21:15.330
it cannot happen.
457
00:21:15.330 --> 00:21:17.670
So you would be fine with it.
458
00:21:17.670 --> 00:21:22.080
Say if we decided did some substantive due process magic
459
00:21:22.080 --> 00:21:25.680
and decided that that's how it should work,
460
00:21:25.680 --> 00:21:28.140
DCF would have no problem with that?
461
00:21:28.140 --> 00:21:29.250
Essentially.
Okay.
462
00:21:29.250 --> 00:21:31.260
Our concern-
What in section 26
463
00:21:31.260 --> 00:21:34.890
precludes this outcome even without the magic.
464
00:21:34.890 --> 00:21:39.120
Even without the magic, section 119 26,
465
00:21:39.120 --> 00:21:40.950
sort of requires the judge
466
00:21:40.950 --> 00:21:43.800
to act in the best interest of the child.
467
00:21:43.800 --> 00:21:48.270
And here, when considering father's child's motion
468
00:21:48.270 --> 00:21:50.160
to dismiss in the trial court,
469
00:21:50.160 --> 00:21:51.240
the court determined
470
00:21:51.240 --> 00:21:53.400
that because she didn't have the authority
471
00:21:53.400 --> 00:21:54.233
or because she thought
472
00:21:54.233 --> 00:21:56.940
she didn't have the authority to do so,
473
00:21:56.940 --> 00:21:58.770
that it was in child's best interest
474
00:21:58.770 --> 00:22:00.210
not to dismiss that case.
475
00:22:00.210 --> 00:22:05.210
And part of that was her concern that upon dismissal,
476
00:22:05.310 --> 00:22:08.850
her order of custody to the fit father
477
00:22:08.850 --> 00:22:10.800
would no longer be viable.
478
00:22:10.800 --> 00:22:12.060
But if we...
479
00:22:12.060 --> 00:22:17.060
What in 26 says that her order of permanent custody
480
00:22:17.070 --> 00:22:20.910
to the fit father would no longer be enforceable.
481
00:22:20.910 --> 00:22:22.680
There's nothing.
482
00:22:22.680 --> 00:22:27.196
There's nothing in 119 26 that says it in either way.
483
00:22:27.196 --> 00:22:28.029
[Justice Wendlandt] Right.
484
00:22:28.029 --> 00:22:28.862
And that's part of why we're here,
485
00:22:28.862 --> 00:22:30.210
it's unclear at the moment.
486
00:22:30.210 --> 00:22:31.920
And I think both sides are hoping
487
00:22:31.920 --> 00:22:33.870
that we'll have some clarity from this.
488
00:22:33.870 --> 00:22:38.730
Is the concern that under the unwed parent statute
489
00:22:42.270 --> 00:22:44.430
under section 3E,
490
00:22:44.430 --> 00:22:46.410
the mother would have custody
491
00:22:46.410 --> 00:22:48.753
if the mother goes to probate court?
492
00:22:50.220 --> 00:22:52.000
Yes, but not exactly, so...
493
00:22:52.000 --> 00:22:55.471
Okay. Please tell me how 3E apply.
494
00:22:55.471 --> 00:22:56.304
Right.
495
00:22:56.304 --> 00:22:59.310
I think Your Honor might be referencing 209C 10.
496
00:22:59.310 --> 00:23:00.477
10 is the...
497
00:23:00.477 --> 00:23:02.520
And I could also be totally wrong.
498
00:23:02.520 --> 00:23:03.990
But 10 I believe is the statute
499
00:23:03.990 --> 00:23:08.990
that defines custody remaining or relying with the mother
500
00:23:10.470 --> 00:23:12.840
when a child is born out of wedlock.
501
00:23:12.840 --> 00:23:15.360
And that's sort of the crux of the concern here
502
00:23:15.360 --> 00:23:16.590
because if...
But counsel,
503
00:23:16.590 --> 00:23:18.392
I don't mean to interrupt you, but...
504
00:23:18.392 --> 00:23:19.650
I'm sorry I could get the...
505
00:23:19.650 --> 00:23:20.880
I'm confused on this.
506
00:23:20.880 --> 00:23:22.680
Well, I just wanna make certain,
507
00:23:22.680 --> 00:23:24.840
the provision we're talking about.
508
00:23:24.840 --> 00:23:28.923
So doesn't that mention if there's no paternity designation?
509
00:23:29.850 --> 00:23:31.530
I think I can answer both.
510
00:23:31.530 --> 00:23:32.910
Yeah. Please.
511
00:23:32.910 --> 00:23:35.970
At least I'm gonna try to.
(all laughing)
512
00:23:35.970 --> 00:23:39.603
Alright, so talking about 209C 10,
513
00:23:41.100 --> 00:23:43.270
Your Honor is correct...
514
00:23:43.270 --> 00:23:44.670
Well, it is not correct, I'm sorry.
515
00:23:44.670 --> 00:23:49.670
It does say that in even after a paternity adjudication
516
00:23:49.740 --> 00:23:53.550
in absence of an order, otherwise,
517
00:23:53.550 --> 00:23:58.140
and here the C&P, the care and protection order
518
00:23:58.140 --> 00:23:59.970
is that order, otherwise.
519
00:23:59.970 --> 00:24:04.230
And if that order, otherwise, were to go away,
520
00:24:04.230 --> 00:24:06.120
such and the department is arguing
521
00:24:06.120 --> 00:24:09.720
that if the case were dismissed, it would go away.
522
00:24:09.720 --> 00:24:12.690
Then we're left with 209C 10,
523
00:24:12.690 --> 00:24:16.530
which says even after an adjudication of paternity
524
00:24:16.530 --> 00:24:19.140
without another order from probate court,
525
00:24:19.140 --> 00:24:22.770
custody lies with the mother when parents were unwed
526
00:24:22.770 --> 00:24:24.364
and the child was born out-
527
00:24:24.364 --> 00:24:25.680
But that couldn't happen constitutionally
528
00:24:25.680 --> 00:24:28.050
because the father can't have less rights
529
00:24:28.050 --> 00:24:30.843
because the child was born not during a marriage.
530
00:24:32.250 --> 00:24:33.960
So it can't happen.
531
00:24:33.960 --> 00:24:36.090
It's...
532
00:24:36.090 --> 00:24:38.092
And I'm actually struck.
533
00:24:38.092 --> 00:24:38.970
Yeah, I know it's hard
534
00:24:38.970 --> 00:24:40.770
for the juvenile court judge to do this.
535
00:24:40.770 --> 00:24:42.839
She saw the issue,
Right.
536
00:24:42.839 --> 00:24:46.230
She's a very conscientious judge,
537
00:24:46.230 --> 00:24:49.110
but you just can't have a dad
538
00:24:49.110 --> 00:24:53.340
because his child was born not during a marriage,
539
00:24:53.340 --> 00:24:56.040
have different rights than other fathers.
540
00:24:56.040 --> 00:24:57.420
Yeah. And that's exactly,
541
00:24:57.420 --> 00:24:58.320
that was one of the concerns
542
00:24:58.320 --> 00:25:00.900
that the juvenile court judge did raise.
543
00:25:00.900 --> 00:25:03.830
And it's...
But...
544
00:25:04.830 --> 00:25:05.663
Sorry, go ahead.
545
00:25:05.663 --> 00:25:09.030
I was just going to say, it's a tricky one to answer here.
546
00:25:09.030 --> 00:25:14.030
I think that if we look narrowly at this issue
547
00:25:15.862 --> 00:25:20.550
as opposed to broadening the scope
548
00:25:20.550 --> 00:25:23.793
and bringing in equal protection and gender,
549
00:25:24.810 --> 00:25:29.810
we can still resolve the more narrow issue here.
550
00:25:31.560 --> 00:25:34.740
And one important point here is the distinction
551
00:25:34.740 --> 00:25:37.770
between dismissing the care and protection case
552
00:25:37.770 --> 00:25:39.750
and closing the case.
553
00:25:39.750 --> 00:25:41.180
The department agree...
554
00:25:42.240 --> 00:25:45.330
And I'm going to use the term close to mean,
555
00:25:45.330 --> 00:25:48.150
render the case inactive,
556
00:25:48.150 --> 00:25:50.680
similar to what the probate court does
557
00:25:50.680 --> 00:25:54.390
after a judgment in a divorce.
558
00:25:54.390 --> 00:25:56.850
So for example, and I'm no probate practitioner,
559
00:25:56.850 --> 00:25:58.590
but my understanding is that
560
00:25:58.590 --> 00:26:00.540
after there's been a judgment for divorce
561
00:26:00.540 --> 00:26:03.000
and there's any attenuated custody orders
562
00:26:03.000 --> 00:26:05.760
or visitation orders like that,
563
00:26:05.760 --> 00:26:09.300
the case sits inactive on the docket.
564
00:26:09.300 --> 00:26:11.370
There are no further dates
565
00:26:11.370 --> 00:26:14.160
unless a party files a complaint
566
00:26:14.160 --> 00:26:16.050
for modification of custody.
567
00:26:16.050 --> 00:26:18.510
And I think here in the juvenile court,
568
00:26:18.510 --> 00:26:21.510
and this is sort the informal practice
569
00:26:21.510 --> 00:26:23.310
in some of the courts,
570
00:26:23.310 --> 00:26:27.510
that once there's been an order to fit parent,
571
00:26:27.510 --> 00:26:30.663
like in the situation we have here, we've got fit dad,
572
00:26:31.890 --> 00:26:36.180
the juvenile court judge will instruct or suggest
573
00:26:36.180 --> 00:26:39.150
that the previously non-custodial fit parent
574
00:26:39.150 --> 00:26:42.363
should go to probate to get that other order.
575
00:26:43.650 --> 00:26:45.570
And while that's happening,
576
00:26:45.570 --> 00:26:47.940
the C&P will sit inactive on the docket.
577
00:26:47.940 --> 00:26:49.470
There'll be no further dates
578
00:26:49.470 --> 00:26:53.460
unless a party chooses to exercise their right
579
00:26:53.460 --> 00:26:54.720
to review and redetermination,
580
00:26:54.720 --> 00:26:56.920
which can only happen once every six months.
581
00:26:58.230 --> 00:27:01.950
And generally when there is custody to a fit parent,
582
00:27:01.950 --> 00:27:04.620
it's highly unlikely that the department would seek
583
00:27:04.620 --> 00:27:06.210
to utilize their right to review.
584
00:27:06.210 --> 00:27:09.570
Is there any danger upon the dismissal or closure
585
00:27:09.570 --> 00:27:11.310
of the C&P case
586
00:27:11.310 --> 00:27:15.960
that custody could revert to the mother in this case?
587
00:27:15.960 --> 00:27:17.850
So yes and no,
588
00:27:17.850 --> 00:27:19.830
because dismissal and closure are different.
589
00:27:19.830 --> 00:27:20.820
Right.
590
00:27:20.820 --> 00:27:22.800
On dismissal. Yes.
591
00:27:22.800 --> 00:27:24.250
And the department's position
592
00:27:25.141 --> 00:27:26.370
is that because of the interplay of the statute,
593
00:27:26.370 --> 00:27:29.070
specifically 209C 10,
594
00:27:29.070 --> 00:27:33.270
without the C&P's order of custody to father,
595
00:27:33.270 --> 00:27:37.710
there's no other custody order which would prevent
596
00:27:37.710 --> 00:27:42.388
or keep custody with father per 209C 10.
597
00:27:42.388 --> 00:27:43.503
[Justice Wendlandt] Why would this-
598
00:27:43.503 --> 00:27:44.670
But closure would be different.
599
00:27:44.670 --> 00:27:46.120
Closure would be different.
600
00:27:47.259 --> 00:27:48.120
[Chief Justice Budd] But she wanted to close it.
601
00:27:48.120 --> 00:27:49.380
Why would dismissal
602
00:27:49.380 --> 00:27:52.470
result in vacating the prior order to the father?
603
00:27:52.470 --> 00:27:54.370
That's where I don't understand the...
604
00:27:55.455 --> 00:27:56.355
So, essentially,
605
00:27:58.050 --> 00:28:02.100
there's nothing that expressly states
606
00:28:02.100 --> 00:28:05.850
that a custody order or any order
607
00:28:05.850 --> 00:28:07.140
stemming from a care and protection
608
00:28:07.140 --> 00:28:09.450
would survive after dismissal.
609
00:28:09.450 --> 00:28:14.450
There is 119 28, which is the same language as 209C 3E
610
00:28:18.990 --> 00:28:22.620
that talks about the custody or the support judgment
611
00:28:22.620 --> 00:28:25.320
surviving for six months
612
00:28:25.320 --> 00:28:27.750
after the dismissal of the care and protection.
613
00:28:27.750 --> 00:28:30.120
So in that instance in 119 28,
614
00:28:30.120 --> 00:28:32.430
we have that express statement
615
00:28:32.430 --> 00:28:35.280
of these types of orders survive.
616
00:28:35.280 --> 00:28:38.670
There's nothing like that with regards to a custody order.
617
00:28:38.670 --> 00:28:42.600
Additionally, the appeals court
618
00:28:42.600 --> 00:28:45.420
has dealt with a couple cases that are kind of similar
619
00:28:45.420 --> 00:28:47.730
and that's Joselito and Yarrick,
620
00:28:47.730 --> 00:28:51.810
and the sort of extrapolating from those cases,
621
00:28:51.810 --> 00:28:55.290
it would seem that any order,
622
00:28:55.290 --> 00:28:57.150
the finding of fitness, finding of fitness,
623
00:28:57.150 --> 00:29:00.810
order of custody would not survive dismissal.
624
00:29:00.810 --> 00:29:02.670
So those are sort of the two reasons...
625
00:29:02.670 --> 00:29:05.340
Substantive due process magic dust
626
00:29:05.340 --> 00:29:06.360
doesn't have to be applied.
627
00:29:06.360 --> 00:29:09.423
You think we can do this by interpretation of statutes?
628
00:29:10.750 --> 00:29:12.150
Again, yes and no.
629
00:29:12.150 --> 00:29:13.620
With dismissal? No.
630
00:29:13.620 --> 00:29:15.060
How come Every time I ask a question,
631
00:29:15.060 --> 00:29:17.430
it's a yes or no? (laughs)
I know, I'm sorry.
632
00:29:17.430 --> 00:29:19.520
I'll try to...
It's me, not you.
633
00:29:20.820 --> 00:29:23.010
With closure, I think it's possible with closure.
634
00:29:23.010 --> 00:29:25.500
And again, closure meaning inactive.
635
00:29:25.500 --> 00:29:28.770
Yeah, but here's what I think the child is saying.
636
00:29:28.770 --> 00:29:32.070
I think they're saying that with dismissal
637
00:29:32.070 --> 00:29:34.950
as a matter of constitutional law,
638
00:29:34.950 --> 00:29:39.030
that the father's custody ought has to remain in effect.
639
00:29:39.030 --> 00:29:40.233
It just has to be. Why?
640
00:29:41.380 --> 00:29:42.420
We got the best interest of the child
641
00:29:42.420 --> 00:29:44.850
which is I realized statutory,
642
00:29:44.850 --> 00:29:48.360
but you've got an order
643
00:29:48.360 --> 00:29:53.160
and you can't have the case be maintained
644
00:29:53.160 --> 00:29:56.640
and have to have the state in your house,
645
00:29:56.640 --> 00:30:00.220
figuratively or literally when the social worker comes by
646
00:30:01.290 --> 00:30:03.090
as a matter of substantive due process.
647
00:30:03.090 --> 00:30:07.110
And so the only way for the statute to be constitutional
648
00:30:07.110 --> 00:30:10.930
would be that the juvenile court's order
649
00:30:11.820 --> 00:30:14.405
of custody of the father remain.
650
00:30:14.405 --> 00:30:16.344
I think that's what their position would be.
651
00:30:16.344 --> 00:30:17.177
What's wrong with that?
652
00:30:17.177 --> 00:30:18.510
There's nothing wrong with that,
653
00:30:18.510 --> 00:30:19.350
except for the fact
654
00:30:19.350 --> 00:30:22.080
that we don't have that on the table yet.
655
00:30:22.080 --> 00:30:25.650
I think action from this court
656
00:30:25.650 --> 00:30:27.960
to that effect would be fine.
657
00:30:27.960 --> 00:30:31.143
That what just means by substantive due process are.
658
00:30:31.143 --> 00:30:32.210
Yes. Yes.
659
00:30:32.210 --> 00:30:34.140
Do you agree it's that intrusive?
660
00:30:34.140 --> 00:30:35.670
I thought you said the opposite.
661
00:30:35.670 --> 00:30:36.503
No. No.
662
00:30:36.503 --> 00:30:38.250
It's basically this is...
663
00:30:38.250 --> 00:30:43.230
I mean, these people have a lot to do both.
664
00:30:43.230 --> 00:30:45.120
And when this thing is really inactive,
665
00:30:45.120 --> 00:30:47.100
nothing really happens.
666
00:30:47.100 --> 00:30:50.430
I mean, she's saying the opposite, I just don't know the...
667
00:30:50.430 --> 00:30:51.990
You know this better than I do.
668
00:30:51.990 --> 00:30:54.180
What is the answer? Is there really...
669
00:30:54.180 --> 00:30:56.310
I mean, substantive due process is, like,
670
00:30:56.310 --> 00:30:59.250
we're beating you with a stick kind of stuff.
671
00:30:59.250 --> 00:31:00.840
This is like,
672
00:31:00.840 --> 00:31:03.720
I can see trying to make magic out of the statute,
673
00:31:03.720 --> 00:31:05.940
trying to amuse this to argue
674
00:31:05.940 --> 00:31:10.050
that there's a substantive due process violation here
675
00:31:10.050 --> 00:31:12.030
unless you lose custody.
676
00:31:12.030 --> 00:31:14.220
I get that might be different,
677
00:31:14.220 --> 00:31:19.220
but if all it is you've got the state possibility of a...
678
00:31:20.580 --> 00:31:23.250
And by the way, no way, you know,
679
00:31:23.250 --> 00:31:25.440
they got tons of real things to do.
680
00:31:25.440 --> 00:31:27.330
So that just doesn't seem
681
00:31:27.330 --> 00:31:29.790
like the substantive due process violation to me.
682
00:31:29.790 --> 00:31:32.100
I'd love if you can make the statute go away
683
00:31:32.100 --> 00:31:35.850
'cause it sounds like you want us to reach that result.
684
00:31:35.850 --> 00:31:37.620
But for us, substantive due process
685
00:31:37.620 --> 00:31:40.020
is a club we only bring out every once in a while
686
00:31:40.020 --> 00:31:42.360
to deal with serious problems.
687
00:31:42.360 --> 00:31:45.910
And the fact that you might have to go to the district court
688
00:31:46.950 --> 00:31:51.300
once every six months doesn't seem to me like a, you know,
689
00:31:51.300 --> 00:31:53.670
substantive due process violation.
690
00:31:53.670 --> 00:31:56.310
Yes. I think child and I disagree
691
00:31:56.310 --> 00:31:59.855
on the extent of the involvement or intervention.
692
00:31:59.855 --> 00:32:01.172
Right.
And so,
693
00:32:01.172 --> 00:32:02.910
I'd like to answer Your Honor's question in two parts.
694
00:32:02.910 --> 00:32:05.370
First with regards to what extent
695
00:32:05.370 --> 00:32:07.113
is DCF really gonna be involved?
696
00:32:08.520 --> 00:32:11.130
If the case is made inactive,
697
00:32:11.130 --> 00:32:13.710
DCF can close its clinical case,
698
00:32:13.710 --> 00:32:16.530
meaning that there'd be no social worker home visits,
699
00:32:16.530 --> 00:32:18.663
no action plan, no required meetings.
700
00:32:19.800 --> 00:32:22.230
And inactive case
701
00:32:22.230 --> 00:32:25.383
also necessarily means less involvement in court.
702
00:32:27.210 --> 00:32:30.480
The second part of my answer
703
00:32:30.480 --> 00:32:34.592
is going back to child's reference to Blixt.
704
00:32:34.592 --> 00:32:37.560
Child used that to sort of talk about the burden
705
00:32:37.560 --> 00:32:39.540
or the attendant burden of litigation
706
00:32:39.540 --> 00:32:41.520
in a domestic relations case.
707
00:32:41.520 --> 00:32:46.353
And in Blixt, this court solution to addressing that,
708
00:32:48.480 --> 00:32:51.300
and this was a grandparent visitation case,
709
00:32:51.300 --> 00:32:54.000
was to require the grandparents to make an initial showing
710
00:32:54.000 --> 00:32:56.130
that they would be able to meet their burden
711
00:32:56.130 --> 00:32:57.600
before requiring the parents
712
00:32:57.600 --> 00:32:59.670
to subject themselves to the court there.
713
00:32:59.670 --> 00:33:04.670
So the substantive due process rights to an extent,
714
00:33:07.080 --> 00:33:11.220
have been addressed by our require the requirement
715
00:33:11.220 --> 00:33:16.050
that the state prove its case by clear and convincing-
716
00:33:16.050 --> 00:33:16.883
Can I...
717
00:33:16.883 --> 00:33:18.960
I'm thoroughly confused by this at this point.
718
00:33:18.960 --> 00:33:23.703
So can I, if you, it sounds like you both agree on result.
719
00:33:27.660 --> 00:33:32.580
How should we interpret this from DCF's perspective
720
00:33:32.580 --> 00:33:33.930
to allow this to happen
721
00:33:33.930 --> 00:33:36.750
without it being a substantive due process?
722
00:33:36.750 --> 00:33:38.970
Tell us, what should we write
723
00:33:38.970 --> 00:33:41.643
to make this silly case go away?
724
00:33:42.480 --> 00:33:44.220
I feel a lot of pressure here
725
00:33:44.220 --> 00:33:47.046
because I think a lot of the courts are gonna be interested
726
00:33:47.046 --> 00:33:48.690
in what comes from this case because this is-
727
00:33:48.690 --> 00:33:49.590
Wait, but we...
728
00:33:49.590 --> 00:33:52.050
You are our expert. We need your help.
729
00:33:52.050 --> 00:33:54.360
None of us are probate lawyers either.
730
00:33:54.360 --> 00:33:58.800
So give us how to make this go away with a statute
731
00:33:58.800 --> 00:33:59.700
rather than finding
732
00:33:59.700 --> 00:34:03.030
some kind of imaginary constitutional violation here.
733
00:34:03.030 --> 00:34:06.640
So I think the easiest solution here
734
00:34:07.500 --> 00:34:12.500
is to provide guidance that allows the courts
735
00:34:12.540 --> 00:34:15.720
to render these cases inactive.
736
00:34:15.720 --> 00:34:19.080
So once we've got a disposition like this,
737
00:34:19.080 --> 00:34:21.213
custody to a fit father,
738
00:34:23.280 --> 00:34:26.973
and there's no underlying probate court order,
739
00:34:28.920 --> 00:34:30.780
making the case inactive.
740
00:34:30.780 --> 00:34:33.780
Letting it stay on the docket with no events,
741
00:34:33.780 --> 00:34:35.100
nothing scheduled.
742
00:34:35.100 --> 00:34:36.900
In what statutory provision
743
00:34:36.900 --> 00:34:39.270
will allow us to make it inactive?
744
00:34:39.270 --> 00:34:41.580
Tell us, we need your help here.
745
00:34:41.580 --> 00:34:43.399
'Cause otherwise,
Yes.
746
00:34:43.399 --> 00:34:46.899
We're gonna go back and we've got other things to do.
747
00:34:46.899 --> 00:34:48.900
So tell us how to fix this.
748
00:34:48.900 --> 00:34:53.044
So I think 119 26
749
00:34:53.044 --> 00:34:58.044
is gonna be the basis for whatever action comes from this.
750
00:35:00.390 --> 00:35:03.180
Generally, 119 requires the court
751
00:35:03.180 --> 00:35:05.460
to act in the best interest of the child.
752
00:35:05.460 --> 00:35:10.460
And here, 119 26 allows the court
753
00:35:11.010 --> 00:35:13.140
in furtherance of the child's best interest
754
00:35:13.140 --> 00:35:17.187
to make whatever orders it can
755
00:35:17.187 --> 00:35:20.164
as long as they serve the child's best interest.
756
00:35:20.164 --> 00:35:21.810
And here, that's what happened with the court
757
00:35:21.810 --> 00:35:24.870
determining that child's best interest would be served
758
00:35:24.870 --> 00:35:26.073
with custody to father.
759
00:35:27.720 --> 00:35:31.650
I think that continuing on the line
760
00:35:31.650 --> 00:35:34.380
of assessing child's best interests here,
761
00:35:34.380 --> 00:35:36.240
the court could use that as a basis
762
00:35:36.240 --> 00:35:39.570
to say that the practice,
763
00:35:39.570 --> 00:35:42.330
and if I may continue to finish this answer,
764
00:35:42.330 --> 00:35:47.330
the practice of rendering the case off-listed,
765
00:35:47.580 --> 00:35:52.580
making it inactive would preserve child's best interest
766
00:35:54.900 --> 00:35:59.900
in that it would prevent the custody order to the fit parent
767
00:36:00.240 --> 00:36:02.220
to father here,
768
00:36:02.220 --> 00:36:05.520
from being vacated,
769
00:36:05.520 --> 00:36:06.840
which is what would happen
770
00:36:06.840 --> 00:36:09.060
under the current state of the law
771
00:36:09.060 --> 00:36:10.350
if the case were dismissed.
772
00:36:10.350 --> 00:36:11.580
Well, we don't know that yet,
773
00:36:11.580 --> 00:36:15.540
but it seems like we're going through a lot of machinations
774
00:36:15.540 --> 00:36:18.660
for something that seems a little bit more straightforward.
775
00:36:18.660 --> 00:36:21.090
This is a protection case, right?
776
00:36:21.090 --> 00:36:23.250
So if it's a protection case
777
00:36:23.250 --> 00:36:26.640
and there's no longer a need for protection
778
00:36:26.640 --> 00:36:29.220
and there's an order of the court
779
00:36:29.220 --> 00:36:33.480
giving the fit parent custody,
780
00:36:33.480 --> 00:36:35.550
why can't we just say
781
00:36:35.550 --> 00:36:40.550
that the statute wouldn't make any more sense
782
00:36:40.680 --> 00:36:43.530
because there's no longer a need for protection.
783
00:36:43.530 --> 00:36:46.200
And whether it's explicitly articulated
784
00:36:46.200 --> 00:36:47.820
in the terms of the statute,
785
00:36:47.820 --> 00:36:51.313
the judge can just say my order survives
786
00:36:51.313 --> 00:36:54.543
the dismissal of the care and protection case.
787
00:36:58.080 --> 00:37:02.160
What says the inherent authority of the juvenile court judge
788
00:37:02.160 --> 00:37:04.170
to say "It's over,
789
00:37:04.170 --> 00:37:08.607
but my order survives in the best interest of this child."
790
00:37:10.200 --> 00:37:11.970
That is a very interesting question.
791
00:37:11.970 --> 00:37:14.430
And the scenario that you've posed
792
00:37:14.430 --> 00:37:15.720
reminds me of the scenario
793
00:37:15.720 --> 00:37:18.578
in care and protection of Yarrick.
794
00:37:18.578 --> 00:37:20.280
And if I may be permitted to continue to go over this.
795
00:37:20.280 --> 00:37:21.143
[Chief Justice Budd] Yes, please.
796
00:37:22.080 --> 00:37:26.700
In care and protection of Yarrick there...
797
00:37:26.700 --> 00:37:30.780
A father appealed dismissal of the care and protection
798
00:37:30.780 --> 00:37:32.790
under which mother had been found fit
799
00:37:32.790 --> 00:37:35.220
and custody was given to mother.
800
00:37:35.220 --> 00:37:38.790
In that, in the judge's findings and orders,
801
00:37:38.790 --> 00:37:40.380
the judge specifically wrote
802
00:37:40.380 --> 00:37:45.380
my finding of unfitness survives the dismissal
803
00:37:46.380 --> 00:37:48.180
and has continuing vitality.
804
00:37:48.180 --> 00:37:53.180
And the appeals court said kindly "Nice try, but not quite."
805
00:37:53.520 --> 00:37:58.520
And that's a situation I'm thinking of is similar.
806
00:37:58.950 --> 00:38:02.760
Without an actual basis
807
00:38:02.760 --> 00:38:07.410
for the survival of the custody order
808
00:38:07.410 --> 00:38:10.110
following dismissal of a case,
809
00:38:10.110 --> 00:38:13.620
I don't think that the judge could simply by writing in
810
00:38:13.620 --> 00:38:14.943
it will survive.
811
00:38:15.990 --> 00:38:17.760
I thought the best interest of the child
812
00:38:17.760 --> 00:38:19.453
was the basis.
813
00:38:19.453 --> 00:38:23.130
Yes, so the best interest is the basis.
814
00:38:23.130 --> 00:38:28.130
And here because there's nothing expressed to indicate
815
00:38:30.150 --> 00:38:32.160
that the order would survive,
816
00:38:32.160 --> 00:38:34.620
that I think the court has to say
817
00:38:34.620 --> 00:38:38.610
that the case needs to stay open as opposed to dismissal.
818
00:38:38.610 --> 00:38:43.413
And I do see where Your Honor is going. I do see that.
819
00:38:44.970 --> 00:38:48.093
I think that without something,
820
00:38:49.350 --> 00:38:50.580
maybe this is the best intro,
821
00:38:50.580 --> 00:38:52.320
I think there would need to be something more
822
00:38:52.320 --> 00:38:54.690
in that instance than the best interest,
823
00:38:54.690 --> 00:38:57.030
something like guidance from this court
824
00:38:57.030 --> 00:39:01.530
saying that in this situation it would survive.
825
00:39:01.530 --> 00:39:04.500
But we don't have that yet. Hopefully.
826
00:39:04.500 --> 00:39:05.400
Can I just ask,
827
00:39:05.400 --> 00:39:10.270
because I think the counsel for the child is saying
828
00:39:13.530 --> 00:39:15.840
closure and dismissal are the same,
829
00:39:15.840 --> 00:39:18.300
but you're saying that they're different
830
00:39:18.300 --> 00:39:23.300
and so I'm not sure where that's coming from.
831
00:39:24.760 --> 00:39:26.670
And you also talk about inactive.
832
00:39:26.670 --> 00:39:28.110
So inactive
Yes.
833
00:39:28.110 --> 00:39:29.940
You equate with closure.
Yes.
834
00:39:29.940 --> 00:39:31.650
And those are different from dismissal.
835
00:39:31.650 --> 00:39:35.520
Yes. And when my sister was talking about dismissal,
836
00:39:35.520 --> 00:39:38.560
I thought I heard her mention a pretrial dismissal
837
00:39:39.660 --> 00:39:40.680
and there...
No, no.
838
00:39:40.680 --> 00:39:42.690
Yeah, she was she was differentiating
839
00:39:42.690 --> 00:39:45.480
between something like that and something like this.
840
00:39:45.480 --> 00:39:46.323
Yes.
Yes.
841
00:39:47.640 --> 00:39:49.110
But I think that even...
842
00:39:49.110 --> 00:39:51.870
So post adjudication where we are now is...
843
00:39:51.870 --> 00:39:53.280
Dismissal post adjudication
844
00:39:53.280 --> 00:39:55.440
is distinct from closing the case.
845
00:39:55.440 --> 00:40:00.440
Dismissal, the case goes away, there's nothing left.
846
00:40:03.420 --> 00:40:06.363
In addition to not being active,
847
00:40:07.380 --> 00:40:08.790
there's no way to bring it back,
848
00:40:08.790 --> 00:40:10.080
there's no way to revive it.
849
00:40:10.080 --> 00:40:12.660
It is gone. It is done.
850
00:40:12.660 --> 00:40:17.257
But if it's just closed which I'm using to mean inactive,
851
00:40:17.257 --> 00:40:18.780
[Chief Justice Budd] Inactive.
852
00:40:18.780 --> 00:40:22.230
It's still lives, right?
853
00:40:22.230 --> 00:40:27.120
The orders that are attached to it have vitality because-
854
00:40:27.120 --> 00:40:29.550
Does that mean that social workers
855
00:40:29.550 --> 00:40:32.880
do or don't have to come and see how things are going?
856
00:40:32.880 --> 00:40:33.870
So if the case is closed,
857
00:40:33.870 --> 00:40:35.460
the social workers do not have to
858
00:40:35.460 --> 00:40:40.460
because our regs allow the department to close a case
859
00:40:41.940 --> 00:40:46.940
if a C&P has been dismissed or closed.
860
00:40:46.980 --> 00:40:51.573
So either way the department can end its involvement.
861
00:40:53.094 --> 00:40:54.450
So even if it-
So your regulations...
862
00:40:54.450 --> 00:40:59.190
You said DCF regulations talk about cases being closed,
863
00:40:59.190 --> 00:41:01.770
but that's DCF cases, right?
864
00:41:01.770 --> 00:41:03.870
So I'm sorry, I'm using that to...
865
00:41:03.870 --> 00:41:06.750
So within our case closing policies,
866
00:41:06.750 --> 00:41:08.040
we've got our clinical cases
867
00:41:08.040 --> 00:41:09.600
which are like our internal cases,
868
00:41:09.600 --> 00:41:10.950
but we also have guidance
869
00:41:10.950 --> 00:41:13.350
about when there's a court involved case.
870
00:41:13.350 --> 00:41:16.361
And here, this particular policy
871
00:41:16.361 --> 00:41:19.560
is addressing court involved cases.
872
00:41:19.560 --> 00:41:21.630
So when a court involved case,
873
00:41:21.630 --> 00:41:26.630
like a care and protection case is closed, made inactive,
874
00:41:27.030 --> 00:41:31.740
department policy allows us to close our clinical case.
875
00:41:31.740 --> 00:41:35.250
And are there other examples of times
876
00:41:35.250 --> 00:41:40.250
when a juvenile court judge will close a case?
877
00:41:40.410 --> 00:41:41.670
There are.
878
00:41:41.670 --> 00:41:45.450
That would happen in, for example, the guardianship.
879
00:41:45.450 --> 00:41:48.150
And care and protection of Thomasina is a good example
880
00:41:48.150 --> 00:41:51.930
or a good illustration of something like that happening.
881
00:41:51.930 --> 00:41:56.760
So after an adjudication, and in order for a guardianship,
882
00:41:56.760 --> 00:41:58.620
it would be likely an adjudication
883
00:41:58.620 --> 00:41:59.847
child's in need of care and protection
884
00:41:59.847 --> 00:42:02.463
and order of custody to the department.
885
00:42:03.480 --> 00:42:07.890
And then on the guardianship petition,
886
00:42:07.890 --> 00:42:11.370
the court would award guardianship to whoever is.
887
00:42:11.370 --> 00:42:13.470
I'm confused now though.
888
00:42:13.470 --> 00:42:16.650
If you close the case
889
00:42:16.650 --> 00:42:21.120
and there'll still have to be that six month review
890
00:42:21.120 --> 00:42:23.254
of a C&P with...
891
00:42:23.254 --> 00:42:26.010
I'm trying to address opposing counsel's concern
892
00:42:26.010 --> 00:42:28.080
that the state is still active.
893
00:42:28.080 --> 00:42:30.090
And you're saying, when we close our case,
894
00:42:30.090 --> 00:42:32.610
the social workers don't show up,
895
00:42:32.610 --> 00:42:34.920
but I take it there still has to be
896
00:42:34.920 --> 00:42:36.800
a six month review of the C&P
897
00:42:36.800 --> 00:42:38.460
or is that not true too?
898
00:42:38.460 --> 00:42:41.010
So not necessarily.
899
00:42:41.010 --> 00:42:42.838
And the six month review,
900
00:42:42.838 --> 00:42:44.910
the right to review and redetermination
901
00:42:44.910 --> 00:42:47.550
is not an automatic happening.
902
00:42:47.550 --> 00:42:48.383
Okay, it's not automatic. Okay.
903
00:42:48.383 --> 00:42:49.860
It has to be requested
904
00:42:49.860 --> 00:42:51.600
and it can only be requested
905
00:42:51.600 --> 00:42:53.750
when there's been a change in circumstance.
906
00:42:54.930 --> 00:42:58.110
And in this situation, like,
907
00:42:58.110 --> 00:43:00.180
where we're a custodied is to a fit parent
908
00:43:00.180 --> 00:43:01.950
and the child is there,
909
00:43:01.950 --> 00:43:03.120
it's unlikely the department
910
00:43:03.120 --> 00:43:06.690
would be seeking a review and redetermination.
911
00:43:06.690 --> 00:43:08.760
So it's not a matter of course
912
00:43:08.760 --> 00:43:11.130
every six months the case is brought in,
913
00:43:11.130 --> 00:43:13.800
it's when someone petitions the court
914
00:43:13.800 --> 00:43:16.830
to review and redetermine the needs.
915
00:43:16.830 --> 00:43:19.470
So basically at the department's discretion,
916
00:43:19.470 --> 00:43:22.950
this fit father may or may not be hauled back into court
917
00:43:22.950 --> 00:43:25.290
for review and redetermination.
918
00:43:25.290 --> 00:43:26.640
At the mother's discretion,
919
00:43:26.640 --> 00:43:28.920
the fit father may be hauled back into the court
920
00:43:28.920 --> 00:43:31.530
for review and redetermination.
921
00:43:31.530 --> 00:43:33.540
And at DCF's discretion,
922
00:43:33.540 --> 00:43:36.030
it may or may not continue to have social workers
923
00:43:36.030 --> 00:43:37.530
come to the fit father's home.
924
00:43:40.080 --> 00:43:43.473
Yes, but I would phrase it a little differently.
925
00:43:45.180 --> 00:43:46.350
Where father is fit
926
00:43:46.350 --> 00:43:48.480
and where there are no protective concerns,
927
00:43:48.480 --> 00:43:51.960
it is unlikely that the department would be seeking
928
00:43:51.960 --> 00:43:55.272
to challenge the order of custody too.
929
00:43:55.272 --> 00:43:56.640
But under either scenario, the mother,
930
00:43:56.640 --> 00:43:59.850
because she we haven't dispensed with consent to adoption,
931
00:43:59.850 --> 00:44:04.650
this mother can come back regardless under...
932
00:44:04.650 --> 00:44:06.270
Whatever both of you propose,
933
00:44:06.270 --> 00:44:08.160
the mother is not out of the picture.
934
00:44:08.160 --> 00:44:09.960
Correct.
935
00:44:09.960 --> 00:44:12.690
If she finds a change in circumstance
936
00:44:12.690 --> 00:44:14.371
she can come in or...
937
00:44:14.371 --> 00:44:17.940
She can come back whenever...
938
00:44:17.940 --> 00:44:19.410
Under whatever will do.
Can I just clarified,
939
00:44:19.410 --> 00:44:21.390
we're not talking about adoption at all are we?
940
00:44:21.390 --> 00:44:23.760
Because we've got a mother and a father,
941
00:44:23.760 --> 00:44:26.040
a biological mother and father,
942
00:44:26.040 --> 00:44:28.170
and so we're just talking about,
943
00:44:28.170 --> 00:44:30.480
I mean those are the child's parents.
944
00:44:30.480 --> 00:44:32.340
Right. But the issue is...
945
00:44:32.340 --> 00:44:33.390
We're trying to figure out
946
00:44:33.390 --> 00:44:35.580
is how disruptive this relationship
947
00:44:35.580 --> 00:44:38.240
between the father and the child is by the...
948
00:44:39.270 --> 00:44:40.800
At least through the mother.
949
00:44:40.800 --> 00:44:42.990
Yeah. I think that just-
And under either scenario
950
00:44:42.990 --> 00:44:44.760
the mother can get involved.
Yeah.
951
00:44:44.760 --> 00:44:48.123
So I might be able to shed a little more light on that.
952
00:44:49.440 --> 00:44:53.310
I think it would be similarly disruptive
953
00:44:53.310 --> 00:44:56.400
if the parents were in probate court.
954
00:44:56.400 --> 00:44:58.560
What Your Honor has proposed is a situation
955
00:44:58.560 --> 00:45:03.560
where mother wants to change the custody order to father.
956
00:45:04.560 --> 00:45:08.040
So whether it's in juvenile court or probate court,
957
00:45:08.040 --> 00:45:10.860
that would be mother going to the court
958
00:45:10.860 --> 00:45:12.820
alleging some change in circumstance
959
00:45:14.280 --> 00:45:17.130
and the parties would be litigating it through there
960
00:45:17.130 --> 00:45:18.720
and which is actually...
961
00:45:18.720 --> 00:45:20.850
DCF's not involved in probate cases,
962
00:45:20.850 --> 00:45:24.750
so if families want us out,
963
00:45:24.750 --> 00:45:29.580
probate is where you will likely not have to deal with us.
964
00:45:29.580 --> 00:45:34.350
So that would address the concerns the child has raised
965
00:45:34.350 --> 00:45:36.060
about the sort of the state intervention,
966
00:45:36.060 --> 00:45:37.533
at least on DCF's part.