SJC rebukes state agency and judge for emergency removal of newborn

November 4, 2009 12:07 PM
By John R. Ellement, Globe Staff

In a sharply worded rebuke, the state’s high court today said that a judge and the Department of Children and Families moved too fast to remove a newborn from a Western Massachusetts mother – who had already lost custody of two older children because they were not being properly cared for.

In a unanimous ruling written by Chief Justice Margaret H. Marshall, the Supreme Judicial Court said that judges handling emergency custody cases must wipe from their minds any information gleaned from other cases involving the same mother or family. The girl was identified only as Zita.

“It may be impossible to erase a judge's memory of the prior case,’’ Marshall wrote. “But each party is entitled to an impartial magistrate and a decision based on the evidence presented in her case… Zita's removal by the Commonwealth from her custodial parent implicates constitutional rights of the highest order.’’

Marshall added, “the availability of emergency hearings is not an invitation to the department or a judge to ignore the rules of evidence or overlook the burdens of proof to meet the statutory grounds for temporary removal of a child from her parent.’’

The SJC said it took on this particular case because it wanted to clearly spell out the rules that judges must follow in the courtroom.

The mother’s name and that of her children are not publicly available because the case files were impounded. But the SJC gave an outline of the woman’s history that led the DCF to decide three months before the child was born that they needed to take emergency action to protect the newborn.

The court said the woman had two children – a 9-year-old boy and a 7-year-old girl – who were removed from her care on May 23, 2008

Two days after the child was born on Dec. 18, 2008, the DCF took emergency custody of the child and prepared to justify its actions at a hearing which is required by law to happen no more than 72 hours later.

At that hearing, the SJC said the most powerful evidence the DCF provided was an unsworn letter from a DCF social worker that discussed the woman’s prior failures as a mother. The hearing was held before Hampshire-Franklin Juvenile Court Judge Lillian Miranda, who had ordered the older children taken from the home, according to court records.

Miranda granted temporary custody of Zita to the DCF, a decision the SJC has now reversed.

“The judge erred, and therefore violated Zita's substantive rights, in both respects: her reliance on the petition that was not in evidence, and her reliance on her recollection of the facts of the earlier proceedings involving the other children,’’ Marshall wrote. “It was an unsworn petition filed by a social worker that commenced Zita's care and protection proceedings. The judge should not have relied on its contents.’’

In a footnote, the SJC said that despite problems with the older children, during the pregnancy of her third child the mother kept her medical appointments and that no traces of illegal substances were found in the infant or the mother following birth.

“Much time has passed since Zita was taken from her mother, time that is formative in the life of an infant,’’ Marshall wrote as the court ruled that a new custody hearing that could lead to the mother regaining custody of her third child must be held “forthwith.’’