#13, Drano Series
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Rule 2:21 Appeal to
Massachusetts
Supreme Judicial Court:
When No Other Interlocutory Appellate Review is Possible*
2/14/01 -- The SJC's idea of a Valentine's Day gift: Throw the baby out with the rose water!
Drano #27 for large monitors
Drano #27 for small monitors
The underlying issue is whether an unwed father whose paternity has been acknowledged, and is not disputed, can remove his child from the de facto custody of the mother in order to take the child out of harm's way from mother's medical deprivation and neglectful caregiving. Because there has been no FINAL judgment, making this an INTERLOCUTORY appeal, under Rule 2:21, the SJC wants to be sure that the appellant cannot get the relief he or she wants from the normal avenue of appeal or "by other means."
I tried to get relief from Meuse also through the Chief Administrative Justice's office. That was a fruitless attempt.
I assume that that type of action is what the rule means by "by other means."The first sentence in the brief is directly from SJC Rule 2:21.
NOTE: Underlined combinations of letters and numbers refer to the exhibits in the Record-Appendix filed simultaneously with the brief. Eight copies of everythng to court. The blue cover is used by Appellants. A red cover is used by Appellees. A grey cover stock is used for Reply and Surreply briefs and green for amicus curiae briefs. White cover stock is used on record-appendices.
COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT_________________________________________
ESSEX, SS.
CASE NO. SJC-08466
______________________________________________-
Brian MeusePlaintiff/Appellant v.
Susan Pane
Essex County Division of the of the Trial Court
Probate & Family DepartmentDefendants/Appellees __________________________________________
__________________________________________________
On Appeal from Judgments and Orders of
Essex Probate & Family Court
Appeals Court Single-Justice Session
Supreme Judicial Court Single-Justice Session
__________________________________________________BRIEF OF BRIAN MEUSE
PLAINTIFF/APPELLANT
__________________________________________________
Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833Attorney for Brian Meuse
Plaintiff/Appellant
Plaintiff/Appellant Brian Meuse herein sets forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means. The primary reason is that the critical nature of the physical condition of Brian Meuse's infant -- significantly delayed motor skills 1 [A-39] -- demanded an immediate response from the Essex Probate & Family Court to protect the child. The infant could not wait another two years until her father could get a
court to listen and act. The infants' muscles could atrophy in that space of time.1 At 10 months, the child had the motor skills of a 5-month old. [A-70, showing the age equivalency, A-34, showing a score of "<50"] She could not sit up on her own, could not crawl, could not hold a bottle [A-29, A-30, A-37] or a spoon. Florida's Early Intervention Program prescribed four half-hour sessions a week for the child, two for physical therapy (so that she could learn to sit up and crawl and eventually walk) and two for occupational therapy (so she could learn to hold a bottle and other objects such as a spoon). [A-36.] The mother had canceled all but two weeks of the prescribed therapy between June and mid-late-September 2000.Secondarily, the infant was suffering also psychologically from the lack of stimuli due to the mother's negligent care.Thus, Brian Meuse, an unwed father, concerned about the serious medical condition of his infant and seeking proper diagnosis of and treatment for the child by local-area medical professionals, took his infant out of harms' way in Florida (where the mother had fled with the child without the consent of the father or the court) and returned to Massachusetts (which the court, after a full evidentiary home-state hearing, declared would exercise jurisdiction).2
2 Prior to his taking the child from Florida, (a) there had been a voluntary acknowledgement of paternity, (b) paternity was and still is undisputed,
(c) Meuse had been awarded custody pursuant to G.L. c. 209A prior to the
mother fleeing the Commonwealth, (d) mother had not been awarded custody by a Massachusetts court, (e) mother had canceled the prescribed necessary physical and occupational therapy to keep the child's muscles from atrophying [A-74 through A-79, particularly comment at 8/3 [A-77], (f) Judge Manzi and Judge Rockett had refused to hear his ex parte Petition for a Writ of Habeas Corpus [A-60], (g) Chief Justice Dunphy had refused to assign another judge to the case, and then (h) he had learned the mother had secretly left Florida
(breaching a stipulation entered into on 7 August 2000) and had left Florida.
Even with less compelling circumstances, Massachusetts has been willing to exercise emergency jurisdiction "to protect the child from abuse or neglect." M.G.L. c. 209B, s. 2(a)(3)(ii). Umina v. Malbica, 27 Mass.App.Ct. 351, 257 (1989) (Colorado-Massachusetts), MacDougall v. Acres, 427 Mass. 363, 367 (1998) (Louisiana-Massachusetts). Judge Manzi had no excuse not to act.The Essex Probate & Family Court had, in fact, three opportunities to hear Brian Meuse's case for custody and refused to act when it could have acted to protect the child's health, safety, and well-being.
The first opportunity for Judge Manzi to allow Meuse's motion for custody -- even temporary custody -- of the child was when Meuse acquired and presented to the court proof of the mother's considerable prescription-drug abuse (including a period while she was breast-feeding), thereby taking his accusations out of the he-said-she-said garden variety of domestic relations
cases. [A-41 through A-52.] Judge Manzi denied the motion on the grounds that there was no emergency. [A-3.]The second opportunity for Judge Manzi to become aware of the seriousness of the child's physical condition was on 6 September 2000, when Meuse brought, after having procured the infant's medical records from Florida, 3 an ex parte Petition for Writ of Habeas Corpus.4 [A-19ff.] The judge refused to
come out onto the bench. Assistant Register Ralph Finck told both Meuse and his counsel that the judge again said there was no emergency. Later that day, the Haverhill Police Department was convinced that there was an emergency and facilitated contact between Judge Kagan, sitting as the emergency justice, and Meuse and his counsel. Judge Kagan said he had no authority to act.3 The medical records were provided by the Early Intervention Program of Florida [A-25 through A-39], to where the mother had absconded with the then-
two-month-old child without the consent of either Meuse or the court. EIP
included with their own records those from the child's Florida pediatrician.
On 4 October 1999, Haverhill District Court Judge Kevin Herlihy had, pursuant to c. 209A, granted Meuse a restraining order and awarded him custody
of the child. [A-2A, A-2B.] Ten days later, on 14 October 1999, Susan Pane
surfaced in Florida, where she filed a motion for custody.4 The petition was brought ex parte for fear that Susan Pane, who, despite
a stipulation on 7 August 2000 [A-6] that she would keep Meuse informed as to where she was with the child, had already secretly left Florida with the child
for parts unknown, would leave for still another state and he would never find
his child if the mother moved again.
Also on 6 September 2000, Meuse's counsel sought, but to no avail, a judicial assignment from Chief Justice Sean Dunphy's office. His assistant, William Ryan, passed on to Meuse's counsel, the Chief Justice's message: No assignment would occur until every judge in Salem refused to hear the case.Then, on 8 September 2000, Judge Rockett would not let the petition be heard in Salem because it was "a Lawrence case." [A-60.] Through William Ryan, Judge Dunphy was notified, but another judge was never assigned to the case.
Soon thereafter, sometime in mid-September, Meuse received the infant's therapy records from First Step Therapeutics in Florida. [A-74 through A-79.] But for two weeks in mid-to-late July 2000, the four sessions a week which had been prescribed by EIP [A-70] had not taken place. [A-74-A-79]. Mother had canceled all of them. On 3 August 2000, she had phoned First Step and canceled the future ones as well. [A-79.]
On 1 October 2000, Meuse began his visitation, which had been scheduled by Judge Sahagian with the intention of accommodating whatever medical care was recommended on 22 June 2000 by the Early Intervention Program. [A-7ff.] Seeing no improvement when he picked up the child for visitation -- the child at 14 months still could not sit herself up, could not crawl, could not hold a bottle or a spoon, and certainly could not walk -- Meuse took the child, flew back to Boston, and began taking her to doctors for diagnosis and treatment. [SJC-21 through SJC-25.]5
5 These Massachusetts medical records were provided to the lower courts byBy the end of the first week of October, Meuse disappeared, apparently convinced that he was not going to get justice in Essex County.6 Given his experience over the preceeding months, his conclusion appears to be rational and reasonable. He also reasonably and rationally concluded that his daughter would be better off in his custody than in the custody of her mother.
Susan Pane's counsel. After Meuse took the child, mother's counsel phoned and intimidated the medical caregivers and asserted that she had custody and that Meuse was not entitled to the records. She managed to get those records and filed them in Judge Manzi's, Judge Jacobs', and in Judge Ireland's courts.6 Since then Meuse's counsel has been told via totem-pole hearsay thatThe third opportunity for Judge Manzi to become aware of the increasing seriousness of the child's physical condition came on 11 October 2000. Both parties had emergency motions for custody to be heard that day.7 [A-67ff.] Meuse's attorney wanted evidentiary hearings. They were necessary. Pane's attorney did not want evidentiary hearings. "[A] proceeding where no one is
three warrants -- bench, state, and federal -- have issued: for contempt, for
parental kidnapping, and for some other charge as yet unknown to his counsel.
allowed to argue or present evidence cannot constitute a `hearing.'" Umina, 27 Mass.App.Ct. at 361.7 Pane's attorney had given Meuse's counsel 10 minutes notice, literally, of the hearing on Pane's motion. With other matters scheduled for that morning, Meuse's counsel could not go to Lawrence. The judge's order was FAXed to Meuse's counsel later in the day. This is described in some detail in the brief presented to the single justice.Meuse's presence was not necessary for either hearing. Nevertheless, he had a right to cross-examine Pane, to present his documentary evidence, and to examine the local medical caregivers who had seen the infant during the previous week and could testify to their observations of and conclusions made for diagnosing and treating the child's medical condition. 8The next short order issued without a hearing. Pane's counsel FAXed the motion to the court. The court allowed the FAXed motion and within an hour
FAXed the order to Meuse's counsel.8 One of them, Dr. Normand Tanguay, had said the child resembled theJudge Manzi, however, would not allow that hearing to take place. That was reversible error. "[A] proceeding where no one is allowed to argue or present evidence cannot constitute a `hearing.'" Umina v. Malbica, 27 Mass.App.Ct. 351, 361 (1989), (cite omitted) (children who were at risk of abuse were not
adopted Russian children, who had been put into playpens and just left there.
Such children suffer considerable psycho-motor delays. So did Marissa Meuse. Brian Meuse believes Susan's presecription-drug abuse prevented her from properly caring for the child. Susan claimed in her Answer 23 to Interrogatories Propounded by Meuse that all the prescriptions noted on her health insurer's claim history were the prescriptions of another Susan Pane who also lived in Haverhill. [A-95.]
returned to Colorado). G.L. c. 209B, sec. 11(b), second par.Like Umina's, Meuse's evidence was sufficient to establish a risk of abuse to the child, whose mother had absconded with her to Florida a year earlier. With a proper hearing and argument, Meuse could easily have shown that he had no choice but to take his daughter out of harm's way.
Judge Manzi, however, deprived Meuse of fundamental due process. She not only refused either to allow evidence to be given or taken, she literally said that she refused to read or to hear Meuse's motion because Meuse himself was not present in court. 9
9 The tape has been ordered, but has not yet been received. See the mo-His presence was, of course, not mandatory by law. 10
tion accompanying this appeal for the production forthwith of the tape of the
unlawful closed session in which the proceeding was held on 11 October 2000.10 Judge Manzi's order that the proceeding take place in a closed courtroomFor example, in Adoption of William, 38 Mass.App.Ct. 661, 666 (1995), the exclusion of the father from the closed courtroom during the examination of a social worker on the issue of the mother's fitness did not have due process significance.
was also contrary to law.By the end of the day, 11 October 2000, eleven days after Meuse had taken the infant from Florida, Judge Manzi did, with a record totally devoid of any evidence in favor of the mother, abused her discretion by allowing Susan's motion for custody solely on her counsel's argument and by making no findings. Custody of Zia, 50 Mass.App.Ct. 237, ___ , 2000 WL 1514852 *4
(2000). Meuse was thereby denied, under both state and federal constitutions, due process, to wit, the opportunity to cross-examine Susan Pane, to rebut, and to present evidence.Prior to October 11th, Susan Pane had not been given custody of the child. She had taken de facto custody by absconding with the child while Meuse had custody from an Abuse Prevention Order from Judge Herlihy's court in Haverhill [A-2A, A-2B.] 11
11 Paternity was voluntarily acknowledged, and is undisputed, making consent necessary. Dept. of Revenue, 432 Mass. 69, 77 (2000). Art. 1 Decl. Rts.Ultimately, because it was important to the child's health, safety, and well-being that she remain in her father's care and custody, and because there was also no final judgment, Meuse's counsel sought interlocutory review in the single justice session of the Appeals Court. Meuse's argument fell on deaf ears.
Reversal of Judge Manzi's order was DENIED.Meuse's petition pursuant to M.G.L. c. 211, sec. 3, suffered the same fate: DENIED without hearing. 12
12 Meuse consented to the single justice deciding on brief because opposingAlone, the word DENIED gives not a clue as to where the errors of law might lie or as to about what the court's discretion might have been abused. The word defeats fairness. Standing out with clarity are only the absence of specificity (to avoid constitutional accountability) and the absence of wisdom to let Meuse know why the courts were not interested in the health, safety, and well-being of his little girl.
counsel would not agree to a hearing date, a date would not be available for
another two weeks, and time was of the essence: Meuse had set up therapy sessions and an examination of the child by a leading pediatric neurologist from Boston Floating Hospital, which has an International section that deals with psycho-motor-delayed children from foreign countries. [SJC-24.]Given that all counsel today are acutely aware of the public's contemptuous sentiments regarding the legal profession, Meuse's counsel cannot contemplate what the courts hoped to accomplish by putting such an insensitive face on justice . . . a face that refused to provide a reason for the denial of an exigent plea for help from a man who is in such pain about the health of his child that he was willing to face being charged with parental kidnapping in order to save her potential ability to walk upright on her own legs. A man who rightly and repeatedly turned to the courts expecting help, not harm, and instead was essentially ignored and condescendingly told only,"DENIED."
Such a single-word response might be commonplace in the law, but Meuse deserved more. Under Article 5 of the Declaration of Rights of the Constitution of this Commonwealth, the judiciary is accountable to the people. A decision containing only the word DENIED does not meet that constitutional requirement.
With counsel's frustration vented . . . was there a more "ordinary" type of legal error or abuse of discretion? Given the facts of Meuse's case, the answer is, Without doubt, there had to be. Did Judge Manzi consider the health, safety, and well-being of the infant? No. Did Justice Jacobs, in the Appeals Court
single justice session, consider the health, safety, and well-being of the infant? No. Did Justice Ireland, in the Supreme Judicial Court single justice session, consider the health, safety, and well-being of the infant? No.NOTE
It's probably not a good practice to "tell the court off,"
but I couldn't resist. The single-word DENIED is traditionally used and
traditionally insulting and frustrating. I believe quite strongly that the court
avoids giving reasons for denying an appellant relief is to avoid accountability.
The TRICK being played by the court is:
By not putting reasons, you do not know the BASIS of the decision
and whether an error of law was made or whether the court abused its discretion.In this case, I used Judge Manzi's failure to write findings an abuse of discretion,
and was able to find a recent case supporting my contention.Certainly in considering the best interests of the child, the child's health, safety, and well-being are in the mix. Custody of Zia, supra. The courts' failure to consider the best interests of the child, and then to order her return to a mother whose prescription-drug abuse and negligent caregiving caused the child's problem in the first place constitutes reversible error. Id.
It is under these circumstances that Meuse contends that he had the right, when he got access to his daughter, to take the infant out of harms' way. "The general notion that conduct which would otherwise be criminal may be justified as necessary to avoid a greater harm . . . may be traced to cases in the early English common law." People & C. v. Craig et al, 78 N.Y.2d 616, 585 N.E.2d 783, 578 N.Y.S.2d 471 (1991), citing as examples, Reninger v Fogossa, l Plowden l, 18, 75 Eng. Rep. l, 29 [1551]; Mouse's Case, 12 Co. Rep. 63, 77 Eng. Rep. 1341 [1608].
Meuse's conduct was necessary as an emergency measure to avoid his child's muscles from atrophying, which was likely to have happened had the child remained in her mother's custody. The medical deprivation by the mother was of such "gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh[ed] the return of the child to the mother." See People v. Craig, supra.
When Susan Pane failed to adhere to that prescribed therapy, she both violated the purpose and rationale of Judge Sahagian's order, she jeopardized the baby's safety, health, and well-being. Had Meuse not rescued the child, he would have been abrogating his responsibility as at child's father.
It is not as if Meuse has been flouting a court order because he disrespects the court. To the contrary, he assiduously gathered proof for the court of mother's prescription-drug addiction from pharmacies and from her health insurer's claim payment history to prove his case: he gathered almost 80 prescriptions, including a multitude of narcotics, over a two-year period, during nine months
of which Pane was pregnant and two months she was nursing the newborn. And then the court refused to consider the evidence.NOTE
Manzi had said she was not proceeding because Brian was
absent. It was important to address the issue of his absence
from his point of view.
Always mention what is against you and DEAL with it.
Do not let it be brought up against you as an item of impeachment.Such behavior by Pane is what caused cracks in the couple's relationship in the first place, and those cracks grew into a schism when Pane continued taking narcotics while breast-feeding, which not only altered her own thought and behavior but also injured the child. The result: the infant resembled the adopted Russian children who developed psycho-motor skill delays after
having been put into a playpen and left there without stimuli.In sum, Meuse repeatedly tried to get the lower courts to consider the medical interests of his infant. The lower courts' refusal to even read the evidence before ordering the child back into the mother's custody clearly was an order which put the child back into harm's way. Too, because Judge Manzi has refused to conduct any further proceeding in this case until Meuse delivers
over the child to Pane augurs that there will be no final judgment on this case in the family court from which to appeal.Meuse's refusal to give mother the child was not an intentional violation of a court order, it was a refusal to sentence his child needlessly to life as a handicapped individual. Meuse was thus justified in the action he took, to wit, to remove the child out of harm's way and give her proper child care, something she was not receiving from her mother in Florida.
NOTE
Reemphasizing that Brian was not disobeying a court order,
but trying to save his child.
"The cup is half full not half empty" approach.WHEREFORE, Plaintiff requests that this Court vacate Judge Manzi's order, reverse the decisions of the two single justice sessions, and award custody of the infant child to him, Brian Meuse.
Respectfully submitted,
PLAINTIFF BRIAN MEUSE,
By his attorney,
18 December 2000 Barbara C. Johnson
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
CERTIFICATE OF SERVICE
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Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833