Rules for the Care and Protection of Children
Juvenile Court Rules Rules for the Care and Protection of Children: Rule 9. Temporary custody hearing and waiver
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The temporary custody hearing pursuant to G. L. c. 119, § 24 or § 25 may be waived by a parent, guardian, custodian or child. The waiver of the parent, guardian or custodian shall be in writing signed by the parent, guardian or custodian and, unless such person is self-represented, accompanied by a certification by his/her attorney. The certification shall include a statement that the attorney has discussed the waiver with his/her client and advised the client that he/she is giving up the right to object and present evidence at the hearing in opposition to the court's orders, including orders regarding his/her child's custody, and the right to appeal the court's orders. The waiver and the certification shall be on a form approved by the Chief Justice of the Juvenile Court. The court shall conduct a colloquy with the parent, guardian or custodian and determine whether the waiver was intelligently and voluntarily made. The attorney for the child may waive the temporary custody hearing by signing a waiver and certification form on behalf of his/her client.
This temporary custody hearing may be held pursuant to one of two mutually exclusive statutory provisions, G. L. c. 119, § 24 (so-called "72 hour" hearing) or § 25 (non-emergency temporary custody hearing). At the temporary custody hearing, the judge must determine whether custody should be removed from the child's parent, guardian or custodian, or whether the initial temporary custody order should be continued, depending on the circumstances. The judge must consider any nomination by the child or the parents of a relative or other individual to become the temporary legal custodian pending the hearing on the merits. See Care and Protection of Manuel, 428 Mass. 527 (1998). The judge must also make the written certification and determinations required by G. L. c. 119, § 29C (contrary to the welfare certification and reasonable efforts determination). See Care and Protection of Walt, 478 Mass. 212 (2017).
This rule addresses waiver of a parent, guardian, custodian or child of either a § 24 or § 25 temporary custody hearing. By waiving the temporary custody hearing, the parent, guardian, custodian or child is relinquishing his/her right to be heard, to object to the court's orders and to appeal the orders. A parent, guardian, custodian or child may waive the hearing by formal action as provided in this rule or may forfeit the hearing by failure to appear or participate after having received notice of such hearing. Waiver or forfeiture of the hearing is distinguished from the circumstance in which a parent, guardian, custodian or child agrees to a temporary transfer of custody but seeks to nominate a relative or other individual to be appointed the child's temporary custodian pending the hearing on the merits or be heard on the issue of reasonable efforts. Although that party may have acknowledged or stipulated that there is sufficient evidence to support a temporary transfer of custody, he/she has not waived the opportunity to be heard on the issue of a third party temporary custody order or the issue of reasonable efforts. There may be situations in which a parent, guardian, custodian or child requests a reasonable amount of time beyond the scheduled 72 hour hearing to nominate another individual or family member, or more time is necessary to complete a home study of the proposed nominee. In those cases, after the hearing has commenced, the judge may continue the temporary custody hearing to another date for this purpose.
A temporary custody hearing held pursuant to either G. L. c. 119, § 24 or § 25 is not a so called "placement hearing". Placement decisions are within the discretionary powers of the legal custodian as one of the usual incidents of custody. See G. L. c. 119, § 21. Decisions related to the normal incidents of custody generally are committed to the Department or third party legal custodian and are reviewable only under § 21 for abuse of discretion or error of law. The court does not have authority to subject the Department to conditions regarding placement. See Care and Protection of Isaac, 419 Mass. 602 (1995), Care and Protection of Jeremy, 419 Mass. 616 (1995) but see Care and Protection of Walt, 478 Mass. 212. In contrast, if the court grants custody to a third party, it may subject the grant of custody to conditions, including conditions that restrict the third party custodian from changing the child's placement.