For many years the judges of the Hampden Division of the Probate and Family Court Department (Hamp-den) have employed certain “protocols” or “procedures” (the terms are used by that court) in child-related litigation that are intended to assist them in making decisions concerning a child’s best interests, often in emergency circumstances. Pursuant to these protocols, judges, with the assistance of probation officers assigned to the court, orally obtain confidential information about litigants from the Department of Children and Families (department) that judges are permitted to consider as substantive evidence, even in cases where the parties did not authorize the release of that material. We were informed at oral argument that Hampden is the only division of the Probate and Family Court to employ these “protocols,” which are at the core of the petitioner’s appeal from portions of the judgment of a single justice in the county court.
Two petitioners filed an amended complaint in the county court seeking relief under G. L. c. 211, § 3, as well as declaratory and injunctive relief, to halt the respondents’ use of the protocols on the ground that they infringed the petitioners’ rights of due process under the Federal and Massachusetts Constitutions. They further asserted that the implementation of the protocols violated the statutory duties of the department under G. L. c. 119, §§ 5 IE and 5 IF, and the Fair Information Practices Act, G. L. c. 66A. The petitioners also sought class certification. See note 15, injra. After the case was filed, Hamp-den substantively revised its protocols several times.
The single justice concluded that the protocols employed in the petitioners’ cases deprived them of an adequate opportunity
The single justice also concluded that the petitioners lacked standing to challenge the protocols in effect after the date they filed their complaint in the county court; declined to certify a class; and ordered entry of a judgment declaring that the department did not violate any of its statutory duties or regulations in acting pursuant to the protocols. The petitioner appeals from the judgment on the issues of standing, class certification, and the statutory claims. She seeks declaratory and injunctive relief on the merits of the revised protocols.
We agree with the single justice that the petitioner has not demonstrated that she has been or will be harmed by the current protocols and affirm his ruling on standing. We also affirm the judgment of the single justice denying class certification and declaring the evidence insufficient to show that the department violated any of its statutory obligations or its regulations. Turning to the protocols currently in effect, we recognize the often daunting task of Probate and Family Court judges as they attempt to discern a child’s best interests when parents are engaged in adversary litigation. We recognize that confidential department information concerning a parent or a family may be highly reí-evant in a legal dispute over a child’s care or custody. Balancing the best interests of children with the rights of their parents or between adversary parents is always a delicate undertaking, not amenable to the drawing of bright lines. When these interests are balanced in the present case, certain aspects of Hampden’s unique protocols do not withstand scrutiny. Specifically, we are concerned that the current protocols systemically may deny litigants in Hampden a meaningful opportunity to be heard on
1. Background. We draw our summary from the single justice’s orders and memoranda of decision, supplemented as appropriate by the parties’ statement of agreed facts and other uncontro-verted evidence of record.
a. Hampden protocols. For a number of years, Hampden has employed a policy in actions seeking guardianship of a minor, temporary custody, temporary visitation, and protective orders pursuant to G. L. c. 209A that involve children. Under the policy, which is designed to assist Hampden judges in assessing a child’s best interests, parties are required to notify the court on form “affidavits” developed specifically for this purpose whenever the party or a named child is presently or has been involved with the department.
The protocols have been revised on several occasions, a fact of significance to this litigation. We shall follow the organization used by the single justice and separate the protocols into “former protocols,” i.e., those in effect until May, 2006, the
b. Former protocols. Although the respondents have not contested the single justice’s determination that the former protocols violated the petitioners’ constitutional rights, the former protocols provide useful context for this appeal.
The former protocols were not set out in writing until they were changed slightly, as we describe below, in April, 2005. Under the former protocols, whenever a party or a named child in the above types of litigation was involved or had been involved with the department, a member of the staff of the Hampden probation office would contact the department by telephone. The responding department employee would relay orally to the probation staff member information about the nature and status of department’s involvement with the adult or child, about which the department employee may have had no firsthand knowledge. The probation staff member, who may have had no involvement in the case, would then memorialize the information conveyed orally by the department on a written “telephone report form” (telephone report), and give the telephone report to the probation officer assigned to the case. The probation officer would either give the telephone report directly to the judge hearing the case, or if the parties participated in “dispute intervention,”
The telephone reports were not kept in the Probate and Family Court case files; rather, they were kept in probation department files, to which neither the parties nor their attorneys had access. Neither the parties nor their counsel were given a copy of the telephone reports. In some, but not all cases, judges would read or summarize the content of the telephone reports to the parties at the hearing, but such disclosure was not a require
In April, 2005, Hampden revised the former protocols and formalized them in writing. Under the revised protocols, litigants were required on their form affidavits to answer “yes” or “no” to the statement, “I give permission to the [department] to release any and all information concerning myself and my children.”
c. Use of the former protocols in the petitioners’ cases. In April, 2006, Billie Dee Smith and Ong Chonmany filed this action in the county court seeking relief pursuant to G. L. c. 211, § 3, and declaratory and injunctive relief against the respondents, as described earlier. Chonmany subsequently voluntarily withdrew from the case, and in November, 2006, Smith moved successfully to add Brantley as a named petitioner and further to amend her complaint. In the amended complaint, which was not verified, both Smith and Brantley alleged that, in 2005 and 2004, the probation office obtained information about them from the department without their authorization and without permitting them to have a copy of the telephone reports, and that the information contained in the telephone reports was used adversely to them by Hampden judges.
In their statement of agreed facts, the parties stated that with respect to the petitioner, the protocols were used in connection with divorce, custody, and protective order actions in litigation against her husband (although the protective order matter was never heard), beginning in September, 2004, and ending in May, 2005. The parties agree that, during these proceedings, the petitioner did not give written authorization for the department to provide, or for the court or probation department to obtain, “information about her or her children from any files in the custody or control” of the department.
d. Current protocols. On May 16, 2006, approximately one month after the petitioners filed their complaint, the first judge in Hampden issued a memorandum to the probation office and the judges of that court instructing that they permit litigants to read the telephone reports.
In December, 2006, the respondents moved to dismiss all claims of the amended complaint on the ground that the petitioners should have sought relief through the normal appellate process. While the motions to dismiss were pending, on February 20, 2007, Hampden further revised its protocols, again after consultation with the administrative office. The first judge distributed to judges in his court house and to other court officials a memorandum describing the revisions and orally shared the content of the memorandum with lawyers attending a bench-bar conference on March 1, 2007. However, copies of the memorandum were again not provided to lawyers or litigants. On April 30, 2007, the protocols were approved by the administrative office, and the first judge issued and distributed them to staff, judges, the probation office, and the register of probate, and posted the protocols in the registry of probate.
Both the February and April, 2007, protocols are substantively identical and they significantly revise the earlier protocols.
The department may also provide by telephone “other or additional information,” which the probation office then records on a report form.
After the hearing, the judge may request further information from the department where consent to disclosure has been given. Where consent is withheld, the judge may make further orders requiring release of additional information. Finally, the 2007 protocols provide that “[njothing in this procedure shall be construed to preclude a judge from issuing such other or additional
The parties have agreed that the current protocols have been “implemented and applied” in Hampden “as written,” and that Hampden “has no present intention” either to revert to prior protocols or to change the current protocols.
e. Prior proceedings. In the county court, on April 30, 2007, the respondents filed a supplemental memorandum to their motions to dismiss, arguing that the case had become moot in light of the adoption of the 2007 protocols. In February, 2008, the single justice denied the motions to dismiss as to the petitioners’ claims regarding the former protocols. Among other things, he noted that the petitioners raised allegations of violations of their due process rights that, if true, infringed on their fundamental interests in their relationships with their children. Even if the former protocols were no longer in place, the single justice continued, the important issues affect nonparties and were capable of repetition, yet evading review. See, e.g., Dia-fario v. Commissioner of Correction,
On August 27, 2008, the single justice issued his memorandum
2. Standing. We first consider whether the petitioner has standing to assert claims concerning the current protocols. It is a general rule that, in order to have standing in any capacity, “a litigant must show that the challenged action has caused the litigant injury.” Slama v. Attorney Gen.,
3.G.L.c. 211, § 3. The petitioner’s failure to establish standing to challenge the current protocols does not end our inquiry. The petitioner has brought to our attention a sui generis divisional rule of procedure that implicates an important constitutional principle: the fundamental right of presumptively fit parents to the care and custody of their children, as protected by due process of law. See Care & Protection of Sophie,
First, the alleged violator of constitutional rights here is a court itself. The Legislature, in enacting G. L. c. 211, § 3, has expressly authorized this court to take cognizance of and, where appropriate, to remedy actions by courts of inferior jurisdiction that may adversely affect the administration of justice. Under our superintendency role, considerations of direct harm, required in most cases, need not always serve as a barrier against judicial review where the alleged violator of the Constitution is a court itself and not the coordinate branches. Cf. Doe v. The Governor,
Second, the petitioner here alleges a “systemic” violation of constitutional rights by a court. Allegations of systemic abuses affecting the proper administration of justice are particularly appropriate for review pursuant to G. L. c. 211, § 3. See, e.g., Care & Protection of Zita,
Finally, considerations of basic fairness and of judicial economy favor our review of the current protocols in the context of this litigation. It makes little sense to dismiss the case today, leaving the constitutionality of the current protocols in question, knowing that they continue directly to affect many litigants in Hampden each day. See, e.g., Care & Protection of Sophie, supra at 105 (intervention pursuant to G. L. c. 211, § 3, warranted where our ruling on matter of court procedure will affect “the course of many future temporary custody hearings”). Moreover, the protocols have been revised frequently and may be revised in the future. Thus, aggrieved litigants may have little opportunity to pursue judicial review through the normal appellate process. Further, where the continuing systemic practice of a court is at
In sum, we reserve consideration of issues pursuant to G. L. c. 211, § 3, for “extraordinary” and “exceptional” matters. Commonwealth v. Clerk of the Boston Div. of the Juvenile Court Dep’t,
4. Constitutionality of current protocols. The respondents argue that the current protocols provide litigants in Hampden with adequate due process. We disagree. As we stated, we recognize the difficult task of Probate and Family Court judges in attempting to further the best interests of each child in the context of often highly contentious adversary proceedings. But such concerns must be addressed within the bounds of constitutional protections guaranteed to litigants, which help ensure fairness to all parties. We now turn to a review of some aspects of the current protocols sufficient to demonstrate that they are unconstitutional and must be stayed.
The current protocols permit Hampden judges in certain child-related proceedings to consider as substantive evidence a written report summarizing an oral report that summarizes a written report containing hearsay information.
This is not to suggest that the use of confidential department reports containing hearsay is never permitted, a point the petitioner readily acknowledges. Before such confidential department information is used in a proceeding that may result in the separation of parent and child, we require that such hearsay bear the “indicia of reliability.” Covell v. Department of Social Servs.,
In contrast, the type of hearsay admissible under the current protocols does not bear the same indicia of reliability as the reports of department staff made in the course of their investigations that we have held admissible. The multi-level hearsay that may be embedded in the array of department documents and telephone reports that the judge is free to consider under the current protocols is comprised of abbreviated oral summaries of
Moreover, our review of the record demonstrates that telephone reports often contain unfiltered judgments and opinion. Even where circumstances justify the introduction in evidence of confidential department files, “expressions of opinion, evaluation, or judgment of the children or the resisting parent” generally should be redacted. Adoption of George,
Under the current protocols, parties are not entitled to obtain copies of the telephone reports or department documents that may be considered substantively by the court. It is difficult to imagine how an attorney can properly prepare a client, or the client properly prepare himself or herself, to rebut the adverse information contained in a telephone report in an ongoing case without a copy of the report. A parent, for example, may not have considered certain information material in a telephone report and may not have made notes of it, only to find that the judge or opposing counsel relies heavily on that information. The respondents argue that it is proper to withhold copies because they often contain sensitive information that might be misused. Judges, however, are adept at ordering the redaction of sensitive information and fashioning appropriate protective orders for sensitive information.
Judges in the Probate and Family Court often have little time
We turn now to the last issue raised by the petitioner, the question of the department’s compliance with its statutory and regulatory obligations.
5. Statutory and regulatory claims. These claims pertain only to the department. The petitioner claims that Hampden protocols violate the requirements of G. L. c. 119, §§ 5 IE and 5 IF,
The petitioner’s argument with respect to the Fair Information Practices Act, G. L. c. 66A, is also without merit. General Laws c. 66A, § 1, prohibits an “agency” maintaining a “personal data system” from allowing any other individual or agency other than the holder of the information to have access to personal data unless the “data subject,” see id., consents or such disclosure is permitted by statute or regulation. G. L. c. 66A, § 2. The petitioner has not demonstrated that, as she asserts, consent under the protocols can never be informed or voluntary. More importantly, the petitioner has not offered any authority for her presumption that the recipient of the personal data, Hampden (of which the probation office is a part) is another “agency.” G. L. c. 66A, § 1 (defining “[ajgency” to mean, in relevant part, “any agency of the executive branch ... or any authority created by the general court to serve a public purpose, having either statewide or local jurisdiction”).
6. Conclusion. We affirm the judgment of the single justice concluding that the plaintiff lacks standing to assert claims concerning the current protocols, denying class certification, and declaring the evidence insufficient to show that the department violated any of its statutory obligations or its regulations. In the singular circumstances of this case, and in the interests of justice, we exercise our broad discretion pursuant to G. L. c. 211, § 3, to review the current protocols, and conclude that their use violates the due process rights of affected litigants.
For the reasons stated above, we direct Hampden to stay application of its current or any revised protocols. We invite the Chief Justice of the Probate and Family Court, if she chooses,
So ordered.
Notes
The petitioners’ cases had concluded by the time the single justice issued his order. They did not seek rehearings.
Brantley is the only petitioner seeking review of the single justice’s judgment.
The forms developed are titled “Affidavit of Petitioner for Custody of Minor Children” and “Affidavit of Petitioner for Guardianship of Minor Children.”
The term “[d]ispute intervention” is defined in Rule 2 of the Uniform Rules on Dispute Resolution, SJ.C. Rule 1:18,
A new procedure was also established in April, 2005, to facilitate communications between the probation office and each department office serving the court, requiring each to assign specific employees to handle requests for communication. Other features of the protocols as revised in April, 2005, are disputed by the parties but are not pertinent to this decision.
The parties do not agree whether the petitioner or her counsel was permit
The memorandum, in relevant part, stated: “Before litigants for whom a ‘[department] call’ had been made are referred to the courtroom the Probation Officer assigned will permit the party or parties before the Court to read the [department] summary which has been communicated to the Probation Office. In a particular case if in the discretion of the Probation Officer a decision has been made not to permit access to the summary, due [to] protective or other concerns, that decision must be clearly noted on the file when it is transmitted to the courtroom, so that the Judge is made aware that a party or parties are unaware of the contents of that summary.”
Although the May 16, 2006, protocol is among the “current protocols,” it
Under the 2007 protocols, the probation office contacts the department in proceedings involving guardianship of a minor, an initial complaint for protection from abuse where the alleged victim is the child or where the complainant seeks custody or visitation, ex parte motions for custody or visitation, or motions for temporary custody or visitation.
The methods for obtaining the information orally by a staff member of the Hampden probation office from a department employee who may have no firsthand knowledge of the matter apparently are the same as under the former protocols.
In between the filing of the respondents’ motions to dismiss and their denial by the single justice, the single justice issued an interim order. In essence, he directed that a procedure for having access to and using confidential department information in Probate and Family Court matters be promulgated as a general standing order pursuant to the Procedure Regulating the Issuance of Standing Orders, Mass. Ann. Laws, Rules of the Trial Court 1677 (Lexis-Nexis 2008-2009), with the additional requirements that the proposed standing order be submitted to the Supreme Judicial Court rules committee (rules committee) within ninety days, and a thirty-day period of public comment. The Chief Justice of the Probate and Family Court timely submitted the proposed standing order to the rules committee, published it for comment, and forwarded
The petitioner argues that we must reach the issue of class certification before resolving the issue of standing. We discuss class certification at note 15, infra.
General Laws c. 211, § 3, in pertinent part, states as follows:
“The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided; and it may issue all writs and processes to such courts and to corporations and individuals which may be necessary to the furtherance of justice and to the regular execution of the laws.
“In addition to the foregoing, the justices of the supreme judicial court shall also have general superintendence of the administration of all courts of inferior jurisdiction, including, without limitation, the prompt hearing and disposition of matters pending therein . . . and it may issue such writs, summonses and other processes and such orders, directions and rules as may be necessary or desirable for the furtherance of justice, the regular execution of the laws, the improvement of the administration of such courts, and the securing of their proper and efficient administration . . . .”
We agree with the single justice that class certification is properly denied where the relief afforded pursuant to G. L. c. 211, § 3, see infra, will apply to all the individuals who share predominant issues of fact and law with the petitioner, and where, as here, certification of a class will lead to relief no greater or in addition to that afforded pursuant to G. L. c. 211, § 3. See Mass. R. Civ. R 23 (b),
Portions of telephone reports submitted by the parties in their statement of agreed facts contain uncorroborated statements concerning marital fidelity, neglect of a child, and allegations of dangerous materials in the home.
We are unpersuaded by the respondents’ argument that, because the telephone reports are shown to the litigant or her counsel prior to a hearing, they cannot constitute “extra-record” evidence. “Even if the reports at issue were not, as a technical matter, ‘ex parte,’ they constituted extra-record information that deprived the plaintiff of her ability to test adverse evidence by cross-examination or offer evidence in rebuttal.” Duro v. Duro,
The respondents assert that the due process issue is minimized in this case because the current protocols will be used “mainly” in proceedings on temporary orders and not proceedings “on the merits.” We are concerned here, however, not with the nature of the hearing but with the unreliable nature of the hearsay introduced adversely to a litigant that may result in the removal of child from a parent, even if temporarily.
Cases cited by the respondents supporting the proposition that some hearsay evidence may be considered reliable is inapposite. In none of those cases is the hearsay as convoluted and layered as the hearsay at issue here. See Commonwealth v. Durling,
It is also reasonable to assume that the department employee orally sum
The respondents are correct that parties in a civil matter have no right of confrontation and cross-examination under art. 12 of the Massachusetts Declaration of Rights. See, e.g., Frizado v. Frizado,
General Laws c. 119, § 5 IE, requires, inter alia, that the department maintain “a file of written reports” pursuant to G. L. c. 119, §§ 51A-51D; provides for the release of “written reports” only in certain circumstances (including by order of the court or on “written and informed consent of the child’s parent or guardian”); and requires the redaction of identifying information concerning allegations of abuse or neglect in certain circumstances. Pursuant to § 51E, violations of these strictures by department personnel are punishable by fine or by imprisonment of up to two and one-half years. General Laws c. 119, § 51F, inter alia, requires the department to maintain a central registry of information identifying children who were the subjects of reports of abuse or neglect pursuant to G. L. c. 119, § 51A or § 51B, with the same provisions for redaction and for violations of its provisions as in § 51F.
In our view, and barring unusual circumstances, uniform rules and uniform forms within Trial Court departments will be more conducive to ensuring the fair, uniform administration of justice than division-by-division differences in practices and procedures.
In a single sentence at the end of her brief, the petitioner asks for attorney’s fees for the action in the county court and for this appeal. She provides no statutory or other reason why she is entitled to any such fees. The request is denied.