Complaint  in the Nature of a Petition for a Writ of Mandamus and to Invoke the General Superintendence of the Court* See related pleadings: Drano Series #41, Decision on Closed Hearing, Drano Series #47, Interloctory Appeal Pursuant to M.G.L. c. 231, sec. 118, Drano Series #48, Supplemental Brief to the Petition in #47, Drano Series #49, Second Supplemental Brief to the Petition in #47, Drano Series #59, the Complaint in the Nature of a Petition for a Writ of Certiorari, Pursuant to M.G.L. c. 211, sec. 3 (about the closed hearings) [NOTE: The decision in Drano Series #41 was on this petition], and  Drano Series #60, the Consolidated SJC Rule 2:21 Appeal of the Denials of Relief about the closed hearings and the removal of the children Drano Series #61, the Decision on the Consolidated Appeals

COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT SUFFOLK COUNTY, ss.                                                            CIVIL ACTION NO. ______ _____________________________________ JOHN SMITH                                            Petitioner v. POCAHONTAS SMITH and Suffolk County Probate & Family Court                                            Respondents _____________________________________   COMPLAINT IN THE NATURE OF A PETITION FOR A WRIT OF MANDAMUS  AND TO INVOKE THE GENERAL SUPERINTENDENCE OF THE COURT PRELIMINARY STATEMENT Petitioner JOHN SMITH seeks this court to remove his twin children from their maternal grandfather's home in XXXX -- where they live with their mother, POCAHONTAS SMITH, and where they were moved with neither the consent of SMITH nor a hearing as required under the Massachusetts Child Custody Jurisdiction Act -- and return them to him in Massachusetts forthwith.  One twin has disclosed that he has been sodomized by his maternal grandfather and has been seen, on Sunday, 27 May 2001, to have four horizontal scabs, as if made by fingernails, in the crease between his buttocks just above the child's anus.1 Given that the court below has not acted on motions filed as long as four months ago and has explicitly stated that she has no time to hear this case prior to 17 August 2001, this court must provide mandamus relief and act in the best interest of the children. 1While taking the child to the men's room during a supervised visitation, SMITH saw the scabs. He told the supervisor. To the supervisor, the "scabs" appeared to be "bruises." The supervisor Thomas Fortier, then told SMITH that he would call the attorneys on Tuesday, the day after Memorial Day. Fortier first called POCAHONTAS, and by the time he called SMITH's counsel at around 8 A.M., the "bruises" had metamorphosed into "pimples." SMITH's counsel suggests that if, indeed, Fortier had seen only pimples, it would not have required a call to the divorcing couple's attorneys. The requested photos were not taken by POCAHONTAS or by anyone else. The single justice (Dreben, J.) wrote, for all intents and purposes, the removal occurred almost a year ago and SMITH's request is late. Given that the disclosure occurred in March and the scabs were seen but two weeks ago,2 the best interests of the children far outweigh the fact that the unlawful removal occurred last August. 2 The single justice did not know about the May 27th incident, which occurred after the brief had been filed.  JURISDICTION 1. Jurisdiction is conferred upon this Court by M.G.L. c. 249, sec. 5, which provides a party the right to obtain relief formerly available by writ of mandamus, and 211, sec. 3, which provides a party the right to seek review under the court's superintendency powers of interlocutory matters where no posttrial relief would put the appealing party "in statu quo." Planned Parenthood League of Massachusetts, Inc. et al v. Operation Rescue et al, 406 Mass. 701 (1990), citing Elder v. Commonwealth, 385 Mass. 128, 132 (1982). Mandamus may be granted in the discretion of the court where no other relief is available. Security Co-op. Bank v. Inspector of Bldgs. of Brockton, 298 Mass. 5, 6 (1937). "This court retains authority to grant relief to correct and prevent errors and abuses in the lower courts `if no other remedy is expressly provided.'" Chavoor v. Lewis, 383 Mass. 801, 804 n. 2 (1981); G.L. 211, sec. 3. Single justice has authority to act where the order sought would have been directed to a lower court. G.L. c. 211, sec. 3.  PARTIES 2. Your petitioner, JOHN SMITH ["SMITH"], is the defendant POCAHONTAS SMITH v. JOHN SMITH, entered as Docket Number 99D-2583-DV1 in the Suffolk County Division of the Probate & Family Court. He is the biological father of TWIN2 and  TWIN1, born 0 oooooooo 1999.  3. Your respondent, POCAHONTAS SMITH ["POCAHONTAS"], is the plaintiff in POCAHONTAS SMITH v. JOHN SMITH. She is a natural person, a Harvard-Law-School-educated attorney, a member of the Massachusetts and XXXX Bars, resides at 00 PRETTY STREET, XXXXXX, State of XXXX and is the mother of the above-mentioned twin boys.  4. Respondent Suffolk County Probate & Family Court is a division of a department of the trial court of the Commmonwealth of Massachusetts and includes Justice Nancy M. Gould, who was at all relevant times accountable to the SMITHs and their children.3 3Com. v. Ellis, 429 Mass. 362, 371 (1999): "Article 5 [in Part the First, the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts], . . . provides that officers [including judges] of government `are at all times accountable to [the people].'"  BACKGROUND OF PROCEEDINGS AND HEARINGS4PRIOR TO 4/26/01 4 SMITH makes the distinction between proceedings and hearings. Hearings are proceedings at which "one is allowed to argue or present evidence," Umina v. Malbica, 27 Mass.App.Ct. 351, 361 (1989). On Saturday, 18 November 2000, one of the twins, TWIN1, had bloody stools. SMITH, who had been primary caregiver to the boys before they were removed to XXXX, had never seen the child with this condition. His prior counsel took no action regarding the event. SMITH terminated his services the next month. On or around 16 February 2001, SMITH's successor and present counsel filed a MOTION FOR MODIFICATION OF TEMPORARY CUSTODY ORDER. [Appendix at 11].5 The motion court has not yet either heard evidence on this motion or acted upon it. 5  Because SMITH did not receive timely the ordered tapes of the proceedings and hearings in his case (all in 2001: 1/17, 2/20, 3/1, 3/9, 3/19, 4/2, 4/3), the tapes are only now being transcribed. Also because of the tape problem, SMITH arranged for a private court reporter to be present on 24 and 26 April 2001. On or around 20 February 2001, SMITH's counsel filed a MOTION AND MEMORANDUM TO VACATE ORDERS ALLOWING REMOVAL TO XXXX. [Appendix at 15]. The motion court has not yet either heard evidence on this motion or acted upon it.  On 10 March 2001, SMITH taped the children. On the tape, (a) the SMITH twins said that they had witnessed their mother having sexual intercourse with a boyfriend and (b) one of the twins described how he was sodomized by his maternal grandfather.  On or around 16 March 2001, SMITH's counsel filed an EMERGENCY MOTION TO SUPPLEMENT FACTS FOR EXISTING MOTION FOR MODIFICATION OF TEMPORARY CUSTODY ORDER and MARKS THIS MOTION FOR HEARING ON 3/19/01. [Appendix at 19A]. The motion court has not yet either heard evidence on this motion or acted upon it. On 19 March 2001, the guardian ad litem filed a second report alleging that SMITH had coached the boys and told them to lie on the tape. An excerpt from the tape is in the margin.6 On that same date, the emergency motion brought by the mother, POCAHONTAS, which was based on the same set of hearsay facts as that the G.A.L. used, was brought before Judge Ordonez.7 The court swore in witnesses and allowed them to speak standing before the bench but denied SMITH the opportunity to cross-examine his accusers.8 6 SMITH:   Let me ask you this question. Has anybody ever hurt you? TWIN1:   Yes. SMITH:   Who hurt you? TWIN1:   Ahhh . . . Pop [maternal grandfather]. SMITH:   Is this X or Pop from Pop and Y? TWIN1:   Pop from Pop and Y. SMITH:   And now, what did Pop do to you to hurt you? TWIN1:   Um ... Jumped up and down on me and put his penis in               my poo-poo hole. SMITH:   Say that again. TWIN1:   He jumped up and down on me and putted his penis in my               poo-poo hole.  My mother said to keep it a secret. SMITH:   Are you sure he did that to you? TWIN1:   Yes. Entire transcript of tape is in Appendix at 19B-19D.   7  A woman who had been scorned and/or rejected by SMITH told POCAHONTAS's counsel, POCAHONTAS, and the G.A.L. that SMITH had coached the children and told them to lie. SMITH was not allowed to cross-examine that woman in Judge Ordonez' court. That woman had no personal knowledge of such acts by SMITH. Neither did POCAHONTAS, but POCAHONTAS, too, was allowed to swear to the same facts. The totem-pole hearsay was acceptable in Judge Ordonez' court. SMITH was again not allowed to cross-examine. It was one of the bases used by Judge Ordonez to suspend SMITH's visitation. 8 During that proceeding, POCAHONTAS stated that one of her sisters alleged she had been sexually abused as a youngster. POCAHONTAS added that it could have been by any one of 100 people. [Appendix at 42]. When defendant's father testified on 2 April 2001, he controverted POCAHONTAS's sworn statement to Judge Ordonez, when he admitted to a 10-year estranged relationship with his second daughter and claimed that the allegation was from "F.M.S.," i.e., the product of a false memory. [See Appendix at 47 and 47A (to come)].  SMITH also objected to the court considering the G.A.L. report when determining the motion without giving him an opportunity to cross-examine the G.A.L. and rebut any adverse materials. Judge Ordonez then ordered the G.A.L. to appear for hearing on 2 April, the next scheduled hearing date in front of Judge Gould. Next, notwithstanding SMITH's lack of opportunity to cross-examine the sworn witnesses, and on the grounds that he had coached and asked the twins to lie on the tape, Judge Ordonez suspended SMITH's visitation with his sons until a supervisor for visitation could be found, but allowed the boys to continue living under the same roof with the accused grandfather. At that point, the case became one of "Killing the Messenger." SMITH's interlocutory appeal on Judge Ordonez' order has been denied.  On 2 April 2001, the G.A.L. testified.9 Then both POCAHONTAS's second step-grandfather and her father, OLD SMOOTHIE, testified. The second step-grandfather testified how OLD SMOOTHIE loved children, and OLD SMOOTHIE testified that he did not sodomize one of the twins and that he did not have incest with his second daughter (one-year older than POCAHONTAS) . . . and that [that daughter]'s accusation was as a result of "F.M.S.," to wit, a product of a false memory. 9 Much time was wasted because (1) the G.A.L. had ignored SMITH's subpoena to deposition in January, (2) the court had not and still has not acted on SMITH's motion to compel her to deposition, and (3) the court did not enforce SMITH's second subpoena served on the G.A.L. to produce copies of her file at the April 2d hearing. In fact, since then, the discovery master appointed by the court recommended the court have the G.A.L. turn over copies of her file in the case to SMITH's counsel, but the court has also not acted on the now-aged recommendation. Upon cross-examination, OLD SMOOTHIE, the TOP IVY LEAGUE COLLEGE and TOP-Business-School graduate, admitted that he retired prematurely in 1986 from his family-owned business and has since taken up a vocation involving children, whom he has always loved. At that vocation, he said, he volunteers at the day-care centers of churches, frequents recreation centers and playgrounds, assists a public-school kindergarten teacher. He further testified that within the last year he went to therapy because he had an attention-deficit disorder. [Appendix at 47A (to come).] One wonders why a 67-year-old retired multi-multi-millionaire is concerned about having an attention-deficit disorder.  On 3 April 2001, the G.A.L. retook the stand and admitted on cross-examination that she never investigated the situation into which she was recommending the children be sent in XXXX.  POCAHONTAS then rested.  Before SMITH took the stand, the judge limited him to 35 minutes (over SMITH's objection). [Appendix at 50A (to come) and 51]. Given that there were two active motions pending on the hearing and four people had testified adversely to his interests, 35 minutes was insufficient. Within the 35 minutes, SMITH entered 22 exhibits into evidence, but barely any time was left for testimony.  Judge Gould then stated that she had not heard evidence to terminate visitation. [Appendix at 53].  Remarkably, the judge then allowed POCAHONTAS to reopen her case [Appendix at 53 and 61]. POCAHONTAS testified on 24 and 26 April 2001.10 Then, as on April 3d, before SMITH began cross-examining POCAHONTAS, SMITH was again improperly time-limited to 15 minutes in which to cross-examine her [Appendix at 62], and was never allowed to retake the stand either to put on his case or to defend against POCAHONTAS's.  10On 2 April 2001, the G.A.L. had testified that POCAHONTAS had family with which she could leave the children while she was at work: her sister, her biological mother, etc. When cross-examining POCAHONTAS, SMITH asked and POCAHONTAS admitted that her sister's child broke her arm while in the care of POCAHONTAS's mother and her leg while in the care of an unnamed person, and that the kitchen stove, while the children were in her care, began to fall on top of one twin, she caught the stove. [Appendix at 63]. Had SMITH been allowed to testify, he would have said that while he was ill, POCAHONTAS was at home caring for the children, she was focused so intensely on her work that she was unaware of a twin playing the the kitchen stove, the stove fell, and the child's tooth was killed. Making the injury even more egregious is the fact that POCAHONTAS had not complied with a notice of deposition in February and the court refused to act on SMITH's motion to compel her to deposition. Once the discovery master got into the act, POCAHONTAS made herself available for deposition on 23 April 2001, but a day before the motions hearing was resumed and the deposition transcript would be needed for impeachment, forcing SMITH to pay for an expedited but "rough draft" transcript.11 11 A "rough draft" transcript is one with the certified reporter's stenographic abbreviations still in it. Neither hearing -- on the 209A or the so-called emergency motion to terminate visitation -- has concluded. The next scheduled date for the hearings is 17 August 2001. Until then SMITH's visitation has been limited to two hours supervised every other weekend in XXXX. The "Torture of the Messenger" continues. TRANSGRESSIONS BY THE COURT Given that the motion court has repeatedly failed to act or even consider providing appropriate relief, and that grievous errors have become commonplace in the motion court, the extraordinary relief provided by mandamus is appropriate.  The grievous, reversible errors in Judge Gould's courtroom include, but are not limited to, the following: 1. the violation of the Massachusetts Child Custody Jurisdiction Act by the court's allowance of the removal, without SMITH's consent and without an evidentiary hearing, of the SMITH children to XXXX without any investigation as to the environment to which the children would be taken (while SMITH's prior counsel was attorney of record) [testimony of Guardian ad litem BOB,Appendix at 43];  2. the oral order constituting prior-restraint on SMITH's current counsel which prohibits her discussing the case with others or sharing it with the public [Appendix at 40]; 3. the failure to allot time for a complete hearing in a timely manner after the issuance of a temporary 209A order on 4 January 2001: the temporary hearing will not be heard again until 17 August 2001 -- causing SMITH to wait 8-1/2 months before he will be heard -- if ever -- in his own defense [Appendix at 66];12 12 The wife's counsel was allowed to bounce the ongoing 209A hearing requested by SMITH so as to have a hearing requested by POCAHONTAS on her emergency motion to terminate visitation; i.e., hearing #1 was suspended for hearing #2. Then after almost another two months' continuance of the hearing on the two motions, the judge allowed a further interruption by wife's counsel for several other motions. That SMITH be allowed to argue or present evidence was considered be the motion court to be almost a frivolous request.   4. the order to limit SMITH's testimony before he even took the stand in his defense on either the 209A or visitation hearing . . . to 35 minutes (over repeated objections), thereby denying him the ability to put on his complete defense to both the 209A and the wife's emergency motion;13   13 "[L]imits [] should not be such that a party is prevented from presenting its entire case to the fact finder." Clark v. Clark, 47 Mass.App.Ct. 737 (1999) citing Goldman v. Ashkins, 266 Mass. 374, 380 (1929) and Chandler v. FMC Corp., 35 Mass.App.Ct. 332, 338 (1993) (vacating judgment and remanding for new trial). Guardianship of Brandon, 424 Mass. 482 (1997). 5. after improperly limiting SMITH's testimony, and after telling POCAHONTAS's counsel that the court had not heard any evidence to suspend the visitation, the allowing of POCAHONTAS to take the stand again.14,15 14 POCAHONTAS was the first witness in the 209A hearing, which began on 17 January 2001, but had not -- until 3 April 2001 -- taken the stand for the visitation-termination hearing.  15 The basis of allowing POCAHONTAS to retake the stand was unclear, i.e., whether the judge was allowing POCAHONTAS to re-open or to be a rebuttal witness;   (a) to allow POCAHONTAS to be a rebuttal witness was improper (i) where there was no new and unanticipated testimony given by SMITH and (ii) where her testimony was only to bolster her position as movant;  (b) to allow POCAHONTAS to give hearsay evidence of the statements of 6-year-old children where there was no factual evidence to support the children's statements was clearly erroneous; and  (c) to allow POCAHONTAS to give opinion evidence on the ultimate question of her motion, to wit, that her husband coached the children to answer questions in order to accuse their mother and maternal grandfather of wrongdoing, was clearly erroneous;16 16  For legal arguments, see JOHN SMITH'S MOTION TO STRIKE POCAHONTAS SMITH'S OPINION AND HEARSAY REBUTTAL TESTIMONY. [Appendix at 26]. This motion has not yet been acted upon.  Neither has SMITH had an opportunity to put on his case and argue his OPPOSITION TO PLAINTIFF'S EMERGENCY MOTION TO TERMINATE VISITATION. [Appendix at 20].   6. the judge's failure even to err on the side of caution and immediately pull the children out from under OLD SMOOTHIE’s roof;  7. the court's conclusion that the maternal grandfather "routinely volunteers his time in children's activities within the community" and "appears to be a pillar of the community in the XXXXXX, XXXX area where the plaintiff and the minor children reside" is without basis in the evidence: that he graduated a fine school does not preclude the likelihood that the man is a predator. To conclude thusly, the court had to conclude the grandfather was truthful and the twin boy, lying; 8. gender-discrimination against the male party: had the wife's father been the husband's father, the court would have immediately pulled the children out from under the father if he had been living under his father's roof; 9. the judicial order that SMITH sign on April 26th a stipulation for supervised visits if he wanted visits to take place at all [Appendix at 67]; and 17,18 17  "`Intimidation' involves putting in fear for the purpose of compelling or deterring conduct." Sarvis v. Boston Safe Deposit & Trust Co. 47 Mass.App. Ct. 86 (1999) quoting Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, cert. denied 513 U.S. 868 (1994). 18 Not having seen his children for almost two months, and fearing that he would prematurely lose his bid for custody if he did not comply with the judge's command to participate in a pseudo-mediation with opposing counsel in the Family Service Office, SMITH participated in the meaningless exercise, which was not only to his detriment but also to the serious detriment of his children: with the judicial misfeasance, his children will not be protected from harm. 10. apparent retaliation on April 26 for having the public prepared to watch and listen, by allowing POCAHONTAS's motion to stop spousal support without allowing either SMITH's request for an evidentiary hearing or even argument on the motion.19 19 For legal arguments, see JOHN SMITH'S MOTION AND MEMORANDUM TO INCREASE SUPPORT and OPPOSITION TO PLAINTIFF'S MOTION FOR MODIFICATION OF SUPPORT ORDER. [Appendix at 33]. SMITH was not allowed to argue or give evidence on either motion prior to Judge Gould surprising him and his counsel a week later by a written order stating that his support would stop by the end of May. (Because of his five years as house-husband and primary caregiver to the twins, he needs to become current in his profession and to get ASE re-certification, making rehabilitative alimony appropriate if the children are not returned to his custody, making the cessation of alimony without due process and without equal protection unlawful.) The bogus reason was that he had been given the exclusive use and possession of the couple's property in Boston. That the property has been completely stripped by the wife of all furniture but a naked bed and two straw chairs (no table) and a plastic fork and knife and that he needed time to get up-to-date and recertified in his profession after having been the house husband for five years was not considered because the judge never took evidence as SMITH's counsel requested. See SMITH's OPPOSITION TO PLAINTIFF'S MOTION FOR MODIFICATION OF SUPPORT ORDER [Appendix at 24] and DEFENDANT'S MOTION AND MEMORANDUM TO INCREASE SUPPORT [Appendix at 33]. The rules of procedure and evidence and common law have been shunted aside throughout the proceedings. Given the total lack of due process, only an order by this court -- either to transfer custody of the children from mother to father, or to send the case to another judge, or to allow a trial de novo in this court -- can stop the charade of justice occurring in courtroom 5 on the 4th floor of Suffolk Probate & Family Court.  ARGUMENT The Probate judge appears to be unaware of the need not only for due process in her courtroom but also for caution regarding the children's welfare. The former implies a lack of respect for the law. The latter, an unwillingness to listen to both sides fairly, to wit, without bias against the male, as evidenced by her foreclosing SMITH from presenting his evidence, regarding the care of the children, the bloody stool, the taping, or his observations of the dysfunctionality of his wife's biological family. And most egregiously, the Probate judge failed to address the issue of potential future harm to the children.  Clearly, a hearing is required before the children of a marriage may be removed from the Commonwealth. Delmolino v. Nance, 14 Mass.App.Ct. 209, 214 (1982). G.L. c. 208, sec. 30. "At the hearing the judge must consider the factors outlined in Hale v. Hale [12 Mass.App.Ct. 812, 815-821 (1981)]." See also Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712 (1985). And at the hearing, the parent opposing the removal must be allowed to cross-examine the guardian. Gilmore v. Gilmore, 369 Mass. 598, 603-606 (1976) (where the judge refused to allow the guardian ad litem to testify at all).  Thus, SMITH was not only deprived of his constitutional right to refute the investigator-G.A.L. and her sources through cross-examination and other means [Adoption of Paula, 420 Mass. 716, 724 (1995)] but was also unlawfully deprived of his parental rights to his children as well as his constitutional rights to equal protection of all the laws and due process.  Absent the ability to cross-examine and rebut any adverse materials, the report should not have been admitted and the order should not have issued. Adoption of Tina, 45 Mass.App.Ct. 727, 732 (1998) ("Hearsay contained in an investigator's report is admissible for its truth when there is an opportunity to 'refute the investigator and the investigator's sources through cross-examination and other means.'") (cites omitted).  Thus, the judge flaunted the rules of evidence and civil procedure and fled from her judicial obligation to protect the children from harm. PRAYERS WHEREFORE, your Petitioner JOHN SMITH seeks this court to order the removal of his children from XXXX -- where they were moved with neither the consent of SMITH nor a hearing as required under the Massachusetts Child Custody Jurisdiction Act -- and the return them to him in Massachusetts forthwith.                                                       Respectfully submitted,                                                      PLAINTIFF,                                                       By his attorney,                                                      Barbara C. Johnson 11 June 2001                                  Barbara C. Johnson, Esq.                                                       6 Appletree Lane                                                      Andover, MA 01810-4102                                                      978-474-0833