Opinion
14-P-6
09-08-2015
COMMONWEALTH v. MICHAEL WILLIAMS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael Williams, appeals from a District Court order revoking his probation. He asserts that he was not given adequate notice of a court order giving the Department of Children and Families (DCF) custody of his children which, in turn, led to a criminal charge against him for kidnapping a minor by a relative, in violation of G. L. c. 265, § 26A. This criminal charge formed the basis of the revocation of his probation. The question posed by the defendant's appeal is whether his decision to take his children to Florida after DCF had filed a petition to obtain custody of the children was "without lawful authority" as required by G. L. c. 265, § 26A, inserted by St. 1979, c. 465, § 2.
Background. The essential facts are not in dispute. The defendant was placed on probation from April 11, 2013, to April 10, 2014, as a result of criminal convictions in two cases in the Greenfield Division of the District Court Department. On June 18, 2013, DCF decided to seek custody of the defendant's two minor children, ages two and three years. On the same day, in order to effectuate DCF's determination, Monique Walker (a social worker assigned to the family) and another DCF employee went to the family's residence, accompanied by a police officer. After knocking on the door and identifying herself, Walker heard the defendant state that DCF was "not taking [his] kids." Walker also heard the children's mother, Tina Gary, say similar words. Walker also heard furniture being moved as if the occupants were barricading the door. Before leaving (without the children), Walker instructed the parents (through the closed door) "to report to court the next day and to have the children with them."
DCF's long history of involvement with the family is detailed in an affidavit signed by a DCF social worker, Monique Walker.
Although no custody order existed at the time of DCF's arrival at the house, "[DCF] may take a child into immediate temporary custody in the absence of a care and protection proceeding provided that the department 'has reasonable cause to believe that the removal is necessary to protect the child from abuse or neglect.' . . . In such cases, the department 'shall make a written report stating the reasons for such removal and shall file a care and protection petition under section 24 on the next court day.'" Care & Protection of Zita, 455 Mass. 272, 274 n.3 (2009), quoting from G. L. c. 119, § 51B(c).
The Greenfield police officer testified that the defendant said "he was not going to allow DCF to take their children with the police present or not."
On the following day, while at the Juvenile Court to file the petition for an emergency ex parte care and protection order for the two minor children, Walker saw the defendant and Gary, said "hello" to them, and heard the defendant speaking to a probation officer and requesting an attorney. Walker also heard Gary tell a different probation officer, "My kids are out of state." The defendant left the court house prior to the issuance of the order giving DCF custody of his two minor children. An attorney, William Tobey, received notice on June 21, 2013, that he was appointed to represent the defendant. On June 24, 2013, the date of the next scheduled hearing in the Juvenile Court, neither the defendant, Gary, nor the children appeared. Walker, DCF's attorney, defendant's counsel, and Gary's counsel were present in court. Neither defendant's counsel nor Gary's counsel had been able to locate their clients.
There was additional evidence at the probation violation hearing in the form of a transcript of a grand jury proceeding dated August 9, 2013, in which witnesses testified about the conduct of the defendant and Gary in delivering their two minor children to an aunt in Florida in mid-June, 2013. The aunt's best estimate of the date the children arrived was "the middle of June." The evidence was that the defendant had traveled with Gary and their two minor children from Massachusetts to the defendant's mother's home in Georgia and then to the home of an aunt in New Port Richey, Florida. At no time did the defendant or Gary inform the aunt of any involvement by DCF in their family or about any court proceedings or orders. The children remained in Florida for about one month.
There was also evidence of a police search in August, 2013, of the motor vehicle belonging to Gary in which the defendant, Gary, and the children had traveled to Florida. The Greenfield police department obtained a warrant to search the vehicle, which was in the custody of a towing company. Items recovered from the vehicle indicated that between June 19 and July 15, 2013, the defendant and Gary were in Georgia and Florida. In particular, the police found a handwritten note, dated June 19, 2013, addressed to "D.C.F. and the Courts," and "Signed under Pains and Penalties" by Gary. In the note, Gary requests an attorney "for the case in reguards [sic] to D.C.F.," and requests "the allegations for why D.C.F. is threatening to take my kids." The note also states that she "will not allow D.C.F. to take my children without 'Just Cause,'" and that she is willing to cooperate with her appointed attorney. The vehicle also contained a receipt from a Walmart in Georgia indicating that Gary had cashed a "MONEYGRAM" there on June 21, 2013.
Additional evidence clarified that the defendant did not receive service of the court order of June 19, 2013, granting custody of the children to DCF, nor service of the summons ordering him to appear at the hearing conducted on June 24, 2013. At some point in July, DCF learned that the children were in Florida in the care of the aunt who, when contacted, cooperated with DCF to arrange for their safe return to the Commonwealth. When the defendant was located in the Commonwealth, he was charged with two counts of kidnapping a minor by a relative.
The revocation judge found that the defendant and Gary transported their two minor children out of State -- first to Georgia and then to Florida beginning on June 19, 2013. The judge also inferred that along the way to Florida, the defendant and Gary discussed the appearance of DCF at their home on June 18, 2013, and the court proceeding begun by DCF the following day. Relying predominantly upon Commonwealth v. Beals, 405 Mass. 550 (1989), the judge ruled as follows:
"I do find that there clearly was a court proceeding and I do find, based on the evidence, that the defendant was aware of it. . . . It's clear that the defendant was not aware that an order was obtained [by DCF on June 19] but that does not, in this court's opinion, go to, nor is it dispositive of, whether or not he was aware there was a proceeding. In fairness to the defendant, he was not served with the order but the same argument obtains. . . . [The defendant] was aware that there was a court proceeding and that, as a result, that he did violate the statute or did violate his probation by the allegation that he violated the statute."
Discussion. Although probationers "need not be provided with the full panoply of constitutional protections applicable at a criminal trial," Commonwealth v. Durling, 407 Mass. 108, 112 (1990), they are protected by the "principles of due process," Commonwealth v. Ruiz, 453 Mass. 474, 478 (2009). Due process "requires that a person be given a 'reasonable opportunity to know what the order prohibited, so that he might act accordingly.'" Commonwealth v. Delaney, 425 Mass. 587, 592 (1997), quoting from Commonwealth v. Butler, 40 Mass. App. Ct. 906, 907 (1996). A probationer cannot be found in violation of the terms and conditions of his probation unless it is shown that he received "fair warning of conduct that may result in the revocation of probation." Ruiz, supra at 479.
In Beals, supra at 551, the Supreme Judicial Court held that the parental kidnapping statute, "does not criminalize the act of a parent's taking his or her children out of the Commonwealth permanently or for a prolonged period in cases in which no court proceeding or custody order exists." In Beals, the court answered a reported question by explaining that a mother could not be prosecuted under G. L. c. 265, § 26A, for taking her two sons from Massachusetts to Puerto Rico with the intent to remain there for a protracted period even though it was without the consent of the other parent who, ten days later, obtained an ex parte order of temporary custody under G. L. c. 209A. The critical question was whether the mother acted "without lawful authority" as required by G. L. c. 265, § 26A. Mindful of the traditional rule that precludes the State from prosecuting a parent for kidnapping based on that parent taking exclusive possession of a minor child, Beals, supra at 553, and our law's presumption that in judicial proceedings the rights of parents to the custody of their minor children are equal, id. at 554, the court reasoned that the plain meaning of the phrase "without lawful authority" did not encompass the taking of a child by a parent before there was any court proceeding, id. at 556.
The circumstances in the present case are markedly different from those in Beals. The judge was warranted in concluding that the defendant had sufficient information on June 19, 2013, to permit him to infer that court proceedings relating to the custody of his two minor children had begun and that DCF was seeking a judicial order to take custody of his two minor children.
Apart from Beals, the result reached by the judge below is supported by cases such as Commonwealth v. Olivo, 369 Mass. 62 (1975). In Olivo, supra at 63-64, the court considered whether it would be consistent with the fair notice requirements of the due process clause to permit the criminal prosecution of a person who could not read English and spoke very little English, and who failed to abide by written orders of the Housing Court, in English only, informing him that he and his family must vacate the apartment they occupied because it was unsafe and unfit for human habitation. Although Olivo had been served in hand with a court order, there was no evidence that he understood its contents. Id. at 64. In rejecting the argument that the defendant did not have fair warning that he would be subject to criminal prosecution if he and his family did not vacate the premises, the court relied on the principle of inquiry notice: "[n]otice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop." Id. at 69.
In Olivo, the court distinguished Lambert v. California, 355 U.S. 225 (1957). "This is not a situation like [Lambert, supra at 228], where a 'person, wholly passive and unaware of any wrongdoing,' was convicted for failing to register as a convicted felon. In Lambert, the defendant had no actual knowledge of the registration requirement, nor was any showing made that such knowledge was probable. Under the circumstances, the court found 'the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it' violated due process. Id. at 229." Olivo, 369 Mass. at 71. The court added that a party may not "shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had actually been received." Id. at 69, quoting from NLRB v. Local 3, RWDSU, 216 F.2d 285, 288 (2d Cir. 1954). See Delaney, 425 Mass. at 592.
In the present case, evidence that a DCF representative, accompanied by the police, went to the defendant's home to take custody of his minor children, but elected not to use physical force to break through a barricaded door and, instead, instructed the defendant to appear in court the following day with the children, would cause a person of reasonable prudence to inquire further. This is precisely what appears to have happened when the defendant went to court the following day. The fact that the defendant was not served with process at that time nor expressly informed that there was an actual proceeding underway or that an order had issued did not relieve him of a duty to inquire. The request made by the defendant and Gary for counsel on June 19, 2013, belies his argument that he was without knowledge that he did not have lawful authority to remove his minor children from Massachusetts.
This is not a case in which the defendant was given information on June 18 or June 19, 2013, that would lead a reasonable person to believe he was free to leave the jurisdiction with his children.
Order revoking probation affirmed.
By the Court (Cypher, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 8, 2015.