386 Mass. 460 | Mass. | 1982
In this case the parents of a minor child appeal from the order of a single justice of this court dismissing a petition seeking extraordinary relief under G. L. c. 211, § 3. The petition sought an order in the nature of a writ of prohibition to prevent the juvenile appeals session of the Barnstable Division of the District Court Department from hearing an appeal under G. L. c. 119, § 27. Having
In November, 1980, the Department of Social Services (Department) obtained from the Barnstable District Court an emergency order transferring to the Department the custody of the parents’ minor child. See G. L. c. 119, § 24. Upon the application of the parents, a hearing on the merits was held. After ten full days of trial, the District Court judge, on December 31, 1981, found that the child was not in need of the care and protection of the Department, and ordered that the child be returned to the custody of the parents. The Department, however, obtained a stay of that order pending its appeal. Pursuant to G. L. c. 119, § 27, the Department filed a claim of appeal to the juvenile appeals session of the District Court. The record is incomplete and does not disclose the date the Department’s claim of appeal was filed; however, all parties agree that it was filed prior to January 23, 1982. The parents then filed in this court a petition for relief pursuant to G. L. c. 211, § 3. A single justice of this court declined to act on the petition pending the parents’ application to the juvenile appeals session for an order dismissing the Department’s appeal. The parents moved before the juvenile appeals session to dismiss the Department’s appeal, and that motion was denied. The parents then returned to this court in renewal of their petition under G. L. c. 211, § 3. They argued, as they argue now, that (1) G. L. c. 119, § 27, provides no right of appeal from a finding that a child is not in need of care and protection; (2) under G. L. c. 119, § 27, as appearing in St. 1981, c. 715, § 1, any appeal from the findings and order of the trial judge in a care and protection case should be to the Appeals Court; and (3) this court should exercise its power under G. L. c. 211, § 3, to vacate the stay and to dismiss the Department’s appeal. The single justice denied the relief sought, and the parents appealed.
1. We first examine the issue whether this case is appropriate for interlocutory examination under G. L. c. 211,
In the present case there is no adequate remedy by way of appeal. Review under G. L. c. 211, § 3, constitutes the only means by which the parents can obtain the relief they seek, the avoidance of a trial de novo. Cf. A Juvenile v. Commonwealth (No. 1), 380 Mass. 552, 555-556 (1980). The juvenile appeals session of the District Court is not authorized to report care and protection cases. See Mass. R. Civ. P. 1, as appearing in 379 Mass. 929 (1980), and 64, 365 Mass. 831 (1974).
2. The parents’ claim that G. L. c. 119, § 27, does not permit an appeal from a finding that a child is not in need of care and protection is without merit. Section 27 expressly provides that “[a] child, parent, guardian or person appearing in behalf of such child, or the department, may appeal from the adjudication of the court ...” (emphasis added). General Laws c. 119, § 26, does not, as the parents contend, establish a definition of “adjudication” as only an adjudication that a child is in need of care and protection.
Rule 64 (d) of the Massachusetts District and Municipal Courts Rules of Civil Procedure (1975), which permits a District Court judge to report an interlocutory ruling to the appellate division, has no possible application here because the appellate division of the District Court does not have jurisdiction of appeals in care and protection proceedings. See G. L. c. 231, § 97.
An appeal from the results of the trial de novo in the juvenile appeals session would be to the Appeals Court. See G. L. c. 211 A, § 10; G. L. c. 119, §§ 391 and 56. See also Custody of a Minor (No. 1), 13 Mass. App. Ct. 66, 68 n.5 (1982). If the Appeals Court were then to determine that the Department’s original appeal should have been to the Appeals Court pursuant to G. L. c. 119, § 27, as appearing in St. 1981, c. 715, § 1, the original appeal would have to be relitigated in the Appeals Court.
The language of G. L. c. 119, § 26, as amended through St. 1978, c. 552, § 29, upon which the parents rely, states that “[i]f the court finds the allegations in the petition proved within the meaning of this chapter, it may adjudge that said child is in need of care and protection and may commit the child to the custody of the department . . . .” We observe, however, that § 26 also authorizes the court to “permit the child to remain with his parents.”
To be contrasted is G. L. c. 119, § 56, which allows a child who has been adjudged a delinquent to appeal the adjudication, but does not authorize the Commonwealth to appeal an adjudication that the child is not delinquent. The difference, of course, stems from the fact that delinquency proceedings are in many respects criminal in nature, whereas care and protection proceedings are purely civil in their nature.
Rule 1A of the Interim Supplemental Rules of Appellate Procedure in Care and Protection Cases provides in part: [A]ny appellate proceeding in which a timely claim of appeal has been filed in the appropriate court
The parents’ claim that the stay of the District Court judge’s order should be vacated is apparently based solely on their argument that the Department has no authority to appeal a determination that a child is not in need of care and protection. Since that argument has been decided adversely to the parents, there was no error in refusing to vacate the stay.