ESSEX, SS.                                                                             C.A. NO. ________

---------------------------------
Brian Meuse 
        Plaintiff/Appellant 

v. 

Susan Pane 
       Defendant/Appellee 
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PRELIMINARY STATEMENT

This is an action to invoke the general superintendence of this Court to correct errors of law and abuses of discretion in the proceedings of the case entitled Brian Meuse v. Susan Pane, Docket No. 99W-1466-PA-1 in the Essex County Division of the Probate & Family Court at Lawrence, Justice Manzi, presiding. 

Specifically the interlocutory order, which issued on 11 October 2000 and from which Meuse appeals, orders the child to be put back into harms' way: it commanded him to redeliver to the mother his infant daughter, who was so neglected by the mother that the child at 10 months' or even at 14 months' old could not pull herself into a sitting position, could not crawl, could not walk, and could not hold a bottle or a spoon [Add. 33-34, 36, 67ff]. 

Fearing that his daughter's muscles might atrophy, Meuse returned with the child from Florida on 1 October 2000 so that she would be kept out of harms' way and could be properly diagnosed and treated by Boston's best medical professionals.1

1 Discussed at some length with citations to authorities in his interlocutory brief.

Given that Meuse's daughter requires immediate and continuous physical and occupational therapy2 -- therapy which her mother denied her but theory which is necessary to keep her muscles from atrophying -- it is impossible to obtain adequate relief by direct appeal, and thus reversal of Justice Manzi's or-
der of 11 October 2000 is mandatory. 

2  An Early Intervention program wrote that the child needed two sessions 
weekly for physical therapy (to be able to sit up and to crawl) and two ses-
sions weekly for occupational therapy (to be able to hold a bottle and a 
spoon) [Add. 36]. By the time the child was 14 month's old, mom had taken the child for therapy only two weeks and had cancelled all other sessions by 
3 August 2000 Add. 74-79; at 77: "Mother stated to office manager that Marissa would not be attending tx [therapy] at First Step any more in a telephone call"]. 

When Judge Manzi refused to read the facts, refused to look at the abundant medical evidence, refused to listen to either argument or the facts, she seriously abused her discretion. 

Plaintiff also seeks reversal of the denial of relief on 25 October 2000 in Plaintiff's case, Docket No. 2000-J-0635, in the Appeals Court, by Justice Jacobs, sitting in the single-justice session, on the grounds of abuse of discretion. Given the facts of this case and Judge Manzi's failure to consider any of them, Justice Jacobs monophonic denial is reversible error.

JURISDICTION

1. Jurisdiction is conferred upon this Court by M.G.L. c. 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). 

PARTIES

2. Your plaintiff is the plaintiff in the case entitled Brian Meuse v. Susan Pane, Docket No. 99W-1466-PA-1, in the Essex County Division of the Probate & Family Court at Lawrence. He is the biological father of Marissa Lyne Meuse, born 4 August 1999.

3. Defendant Susan Pane is the defendant in Brian Meuse v. Susan Pane, Docket No. 99W-1466-PA-1, in the Essex County Division of the Probate & Family Court at Lawrence, and the mother of the afore-mentioned child.

4. Defendant Essex County Division of the Probate & Family Department of the Trial Court is a division of a department of the trial court of the Commmonwealth of Massachusetts and includes Justice Mary McCauley Manzi, who was at all relevant times accountable to Meuse.3

3 Com. 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].'" 

FACTS

5. The case below was filed by Meuse on 13 September 1999. 

6. Subsequently, in September 1999, Susan Pane discussed receiving a "restraining order" with one of her doctors. [Add. 81, medical record.] 

7. On 4 October 2000, Haverhill District Court (Herlihy, J.) issued a restraining order against Susan Pane. 

8. Sometime in October, Pane absconded with the 2-month-old child to Florida from Massachusetts without the consent of either Meuse or any court. 

9. On 5 March 2000, the Probate & Family court (Manzi, J.) deemed Massachusetts the home state and decided to exercise jurisdiction.

10. Neither Meuse's first counsel nor the court acted to retrieve the child from Florida. 

11. On 5 June 2000, believing the child was going to undergo an examination over several months in Florida, the court (Sahagian, J.) allowed Brian Meuse visitation in Florida, allowed him to be present at the examination, and wrote that he had a right to the medical records [Add. 7-8]. (The examination took 
only one day, and a therapy schedule--described in the previous section -- was put into place, but mother, Susan Pane, never followed it.)4

4 Meuse has alleged and can prove that mom is a prescription-drug abuser: 
mom's health insurer has produced evidence that mom purchased approximately 70 prescriptions' worth of drugs, including narcotics, before, during, and after her pregnancy [Add. 41-52]. While the days' old infant was breast-feeding, Mother Pane was picking up a few more oxycodone/APAP prescriptions [Add. 44, 8/12/99]. To get those drugs she went to many doctors and many pharmacies -- a syndrome known as polymedica, polypharmica -- a scheme drug abusers use to escape detection. 

Susan Pane's defense to the accusation is that another person in the same 
town with her name got the drugs. See, in the Supplementary Addendum [Add. 
98], her answers to interrogatories propounded by Brian Meuse. 

When the child was 8 days' old, one nurse noted in the medical record that mom came to the office in crisis and almost dropped the baby [Add. 80]. 
That was one of the days when mom picked up and consumed some oxycodone with acetaminophen [Add. 44]. 

12. Having seen the physical condition of the child when visiting in Florida in June and the first week of August, Meuse brought an Emergency Motion for Custody on 7 August 2000.5   Despite the evidence attached to Meuse's motion, the court (Manzi, J.) (a) declared that there was no emergency, (b) denied Meuse's motion, and (c) allowed Pane's motion for temporary child 
support. 

5 Meuse changed counsel at the end of June. New counsel conducted con-
siderable discovery as to the mother's prescription-drug use and received proof 
that mother had had roughly 70 prescriptions, many of which were Schedule II, 
III, and VI drugs; many of the Schedule VI drugs were addictive, e.g., Ultram. 
Mother's health insurer, Merck-Medco, provided a list of the drugs, including, 
but not limited to, prescription numbers, dates, quantities, doctor's names.

Given that mother's work was filling prescriptions at Merck-Medco, it is 
believed that she also was on the 1-for-you, 1-for-me system, for she offered 
drugs to a friend. [Testimony, 3/2/00 hearing.] Those drugs would, of course, 
not have been put on any list.

6 Pane did not cash the first three checks until after September 11th, when 
she returned from New York [Add. 60a, signed green Return Receipts for weekly child support checks].

7 Details are set forth in the Petition for Interlocutory Relief.

8 Details are set forth in the Petition for Interlocutory Relief and in three motions in the Addendum at 9-18, 57-59, and 61-63 by which Meuse's counsel unsuccessfully attempted to compel Pane's appearance at deposition. (Judge Manzi would hear none of them.)

17. Then (a) relying on the therapy provider's information that Pane had stopped all therapy, (b) being seriously concerned about the present and future physical and emotional well-being of the child,9

9 Meuse was worried that the child's muscles would atrophy and that her al-
ready seriously delayed psycho-motor skills would remain impaired, making it 
impossible for the child to ever walk.

10 The Probate & Family Court had never explicitly given either parent cus-
tody . . . although a local district court did give dad temporary custody and a 
restraining order against mom around the time mom first left for Florida. [Add. 
2a-2b, Haverhill District Court (Herlihy, J.) ]. 

19. In contrast to Meuse's unsuccessful efforts to get a judge to care about an infant's safety and well-being, Susan Pane got a short order of notice for hearing on an emergency motion to suspend visitation. Meuse's counsel had received notice by FAX literally 10 minutes before the session in which Pane's motion for short order was to be heard, and was FAXed the order of court
(Manzi, J.) granting Pane and ordering hearing on October 11th. 

20. On October 10th, Meuse's motion for a short order of 
notice on his motions was allowed. (Meuse himself, personally, 
had not had notice of the proceeding which Judge Manzi had or-
dered for the next day.)11 

11 His counsel had last spoken to and seen him and the child on Thursday af-
ternoon, the afternoon of October 5th, after the child's appointment with a 
pediatrician, Dr. Normand Tanguay. Upon examining the child, Tanguay told 
Meuse that although a neurology problem could cause the child's problems, her condition resembled that of the Russian adopted children who had been thrown 
into a playpen and left there deprived of attention and stimuli, and, like 
Marissa, suffered motor-skill delays. 

12 Argued with citations in Meuse's interlocutory appellate brief at pages 4 
and 10.

22. The court was putting procedure over substance, and putting the child back in harm's way. 

ARGUMENT

At the risk of being redundant, I repeat below some of the argument in Meuse's interlocutory appellate brief, but in condensed form.

In sum, Meuse was denied by Judge Manzi in error the opportunity to either set out the facts or argue the law supporting his position for custody of his child, who was severely medically neglected by the child's mother. 

By so doing, Judge Manzi seriously abused her discretion and violated Meuse's substantive rights bestowed upon him by Article 5 of Part the First of the Declaration of Rights of the Commonwealth of Massachusetts. Commonwealth v. Ellis, No. 97-192, 1998 WL 470551 (Sup.Ct. July 31, 1998) (Bohn, J.).

Meuse had a right to protect his child. 

Meuse had a reasonable fear for the health, safety, and welfare of his daughter, and was justified in taking the child and keeping her out of harm's way.

Given that Susan Pane absconded with the child to Florida during the first or second week of October, and that he had had been awarded physical custody by Judge Herlihy, he had reasonably concluded that he had implied custody and was justified in taking the child and keeping her out of harm's way. 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); People & C. v. Craig et al, 78 N.Y.2d 616, 585 N.E.2d 783, 578 N.Y.S.2d 471 (1991); and in Mas-
sachusetts, Goodwin v. E.B. Nelson Grocery Co., 239 Mass. 232, 
234 (1921), in which the Court wrote: 

If there was any justification for her fear, the plain course for the plaintiff to pursue was to get her dog and keep him out of harm's way.

By repeatedly exalting procedure over substance -- wanting Meuse to give Pane 10 days' notice when a hearing 10 days later would have been too late: Meuse would not have had access to the child 10 days later, and the likelihood of Pane fleeing to another state was great and imminent. In fact, Pane had already made her way with the child to New York. This fact was confirmed 
by the secretary of mother's counsel and Meuse put this fact into a pleading [App. 57-59]. Mother's counsel never controverted Meuse's assertion. 

Under the circumstances, the court had a considerable obligation to take cognizance of the continuing danger the child would have suffered if Meuse had not taken her from her mother. Pridgen v. Boston Housing Authority, 364 Mass. 696, 710, 710 n. 5 (1974) (misfeasance "create[s] a new risk of harm to the plaintiff") .

Putting the child back into the mother's care would also further harm the child: this is an unemployed mother whose first obligation was to bring the child to therapy but who, instead, made her own desire for a vacation her top priority. Taking that vacation and not taking the child to therapy was equivalent to an 
abandonment of the child, requiring relinquishment of the de facto physical custody. In Re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977); In the Matter of Tyler Harrison Ramey, a Minor Child, 1999 WL 1281505 (Ohio App. 4 Dist.). 

Under Massachusetts statutory law, Susan Pane does not have a right to custody, for her repeated canceling of the child's therapy is sufficient to invoke G.L. c. 208, sec. 31A, and G.L. c. 209C. sec. 10(e), under which either sole or shared custody is precluded. "It is the duty of the judge to consider the welfare 
of the child[ren] in reference not merely to the present, but also to the probable future." Rolde v. Rolde, 12 Mass.App.Ct. 398, 403 (1981), Jenkins v. Jenkins, 304 Mass. 248, 250 (1939). 

But Judge Manzi did not consider the welfare of Marissa. Instead, she said she would not read Meuse's pleadings until Meuse was present, and chastized Meuse's counsel each time she attempted to inform the court of the egregious care to which the child was subjected. 

This also took place in a closed courtroom, Courtroom 9, which was intimidating to Meuse's counsel. Meuse's co-counsel, in fact, asked counsel whom he should contact should counsel have been jailed. There had been neither an express agreement or counsel's consent or even the required request by the court for an agreement or consent. Com. v. Howard, 46 Mass.App.Ct. 366, 367(1999). Constitutional considerations are invoked in circumstances such as these. Foley v. Com., 429 Mass. 496, 498 (1999) 
(cites omitted; see interlocutory brief).

So, for the court not even to read Meuse's pleadings and consider the great preponderance of undisputable documentary evidence Meuse produced to the court, evidence demonstrating not only the mother's unfitness but also the child's serious physical condition, was reversible error.

Further, where successive courts would not hear him and DSS could not have assisted, Meuse had no relief available except self-help.

Where the mother put her own desires for a vacation over the providing the child with the necessary therapy, where the quality of mother's caregiving was deficient, the court should not have given mother custody without a determination of that care. Custody of Zia, Docket 00-P-355 (Appeals Court, October 13, 2000): "a parent's role as a primary caregiver `should not be afforded substantial weight without a determination as to the quality of 
that care'," quoting R.H. v. B.F., 39 Mass.App.Ct. 29, 42 (1995). 

In these circumstances, where Brian Meuse produced overwhelming evidence to support his position that he was the more suitable custodian for the child . . . that the court did not reach that conclusion was a case of exalting form or procedure over substance, contrary to the general rule. Andrews v. Arkwright Mut. Ins. Co., 1994 WL 879734 at 4 (Mass.Super. 1994). This was not the time to make an exception to that rule. 

Where the order to turn over the child and suspend visitation without allowing Meuse's counsel to examine Susan Pane and introduce evidence was a violation of due process, which was tantamount to depriving him of his parental rights [Dept. of Public Welfare v. J.K.B., 379 Mass. 1, 3 (1979), citing amongst others, Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Stanley v. Illinois, [405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)]; Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)], that order is unconstitutional and constitutes reversible error. [Discussion of this issue is in some detail in Meuse's interlocutory brief.]

Only consideration of the significant medical and therapeutical evidence would have met the constitutional requirements of procedural due process. Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). Recognition of important parental rights does not change the crucial fact that the focus of the proceeding should be on the best interests of the child. Dept. of Public Welfare v. J.K.B., 379 Mass. at 5, cite omitted. "`The rights and needs of the child must be considered as well.'" Id, cites omitted. Purinton v. Jamrock, 195 Mass. 187, 199-201 (1907). They were not so considered in the courtroom of Judge Manzi. "When a child's life is at issue, `it is not the rights of the parents that are chiefly to be considered. [Her] first and paramount duty [was] to consult the welfare of the child.'" Custody of a Minor, 375 Mass. 733, 749, quoting Purinton 195 Mass. at 199.

Where the attorney appointed by Judge Manzi to be the child's attorney did not use the skill of the ordinary attorney in the community in representing the child, the appointment must also be vacated.

PRAYERS

WHEREFORE, your Plaintiff requests this Honorable Court to grant the following relief:

1. reverse the decision of the single-justice session of 
the Appeals Court;

2. vacate in entirety the order issued by Judge Manzi on 
11 October 2000;

3.grant Brian Meuse temporary custody, at the very least, 
until the lower court takes evidence and hears argument 
on his motion for custody and not make the hearing con-
tingent upon the prior delivery the child to the 
mother;

4.grant Brian Meuse immunity from any warrant which may 
have issued for his arrest, so that Meuse may testify 
if necessary at that custody hearing; 

5. grant him sole legal and physical custody of the child;

6. reverse the suspension of father's visitation; 

7. vacate the appointment of Attorney Michael Mimno as at-
torney for the child;

8. declare that Judge Mary McCauley Manzi be forever 
recused form Meuse's case; and 

9. declare such other relief as this Court deems just and fair.

Respectfully submitted,
PLAINTIFF BRIAN MEUSE, 
By his attorney, 

blow your horns continuously as you pass the location of each and every courthouse, particularly in Massachusetts,

 

write to each and every representative and senator, particularly in Massachusetts,

 

write Letters to the Editors, particularly in Massachusetts,

 

call each radio and television station, particularly in Massachusetts,

 

call each judge's lobby, particularly in Massachusetts, and ask, "Have you earned your paycheck, benefits, and future pension today?"