seventy-two hour hearing in Massachusetts

2022Her reference to a "low" standard merely reflects our law that, because "the stakes and purposes of the seventy-two hour hearing and the trial on the merits differ," Care & Protection of Orazio, 68 Mass. App. Ct. 213, 219 (2007), "[a] less demanding standard of proof is required" at a seventy-two hour hearing, Care & Protection of Robert, 408 Mass. at 68 , and a "higher standard of proof . . . governs the latter," Care & Protection of Orazio, supra. 3.

2005Care & Protection of Robert, supra at 68. “[A] primary function of the seventy-two hour hearing is to discover and correct any errors that may have occurred during the initial hearing, which, in the interest of expediency, most likely cannot be exhaustive” (emphasis added).

2022In the context of a seventy-two hour hearing, "the principal interest at stake is the child's immediate welfare." Care & Protection of Perry, 438 Mass. 1014, 1014 (2003).

2007At the seventy-two hour hearing, the presiding judge’s function is to “determine whether a child will be in immediate danger of seripus abuse or neglect if returned to his parents or custodian.” Care & Protection of Perry, 438 Mass. 1014, 1014 (2003).

2009A “primary function” of the seventy-two hour hearing is “to discover and correct any errors that may have occurred during the initial hearing, which, in the interest of expediency, most likely cannot be exhaustive.” Custody of Lori, 444 Mass. 316, 321 (2005).

2007Custody of Lori, 444 Mass. 316, 321 (2005) (“a primary function of the seventy-two hour hearing is to discover and correct any errors that may have occurred during the initial hearing, which, in the interest of expediency, most likely cannot be exhaustive” [emphasis added]).

2022Rashida I, supra. After the seventy-two-hour hearing, a judge may award temporary custody of a child to DCF if the judge finds that DCF has proved by a "'fair preponderance of the evidence' that a child is 'suffering from serious abuse or neglect or is in immediate danger Page 589 of serious abuse or neglect and that immediate removal of the child is necessary to protect the child from serious abuse or neglect.'" Care & Protection of Sophie, 449 Mass. 100, 111 (2007), quoting G.

2009In Care & Protection of Sophie, supra at 103-104, we recognized that a parent or child aggrieved by an order of the Juvenile Court granting temporary custody to the department following a seventy-two hour hearing, pursuant to G.

2022Her reference to a "low" standard merely reflects our law that, because "the stakes and purposes of the seventy-two hour hearing and the trial on the merits differ," Care & Protection of Orazio, 68 Mass. App. Ct. 213, 219 (2007), "[a] less demanding standard of proof is required" at a seventy-two hour hearing, Care & Protection of Robert, 408 Mass. at 68 , and a "higher standard of proof . . . governs the latter," Care & Protection of Orazio, supra. 3.

2022Her reference to a "low" standard merely reflects our law that, because "the stakes and purposes of the seventy-two hour hearing and the trial on the merits differ," Care & Protection of Orazio, 68 Mass. App. Ct. 213, 219 (2007), "[a] less demanding standard of proof is required" at a seventy-two hour hearing, Care & Protection of Robert, 408 Mass. at 68 , and a "higher standard of proof . . . governs the latter," Care & Protection of Orazio, supra. 3.

2007See Care & Protection of Manuel, 428 Mass. 527, 533, 535-536 (1998) (parties’ waiver of first seventy-two hour hearing did not foreclose need to conduct, or parties’ right to, a second hearing following DSS’s emergency resumption of custody).

2007That the seventy-two hour hearing has a distinct and important place in the statutory scheme is reflected by the principle that it cannot be omitted unless waived and that the waiver must entail a “knowing or intelligent relinquishment of [the] . . . right.” Id. at 532 .

2007If I find that there have been no violations, then I’ll return custody to the mother and we’ll continue with the stipulation that was marked as No. 24.” In response to counsel’s query, the judge stated that the standard that would be used as to “the return of custody today would be clear and convincing [evidence, Care & Protection of Laura, 414 Mass. 788, 793 (1993), and not a preponderance of the evidence],” as would have applied in a seventy-two hour hearing.

2007That the stakes and purposes of the seventy-two hour hearing and the trial on the merits differ is reflected in the higher standard of proof — “clear and convincing evidence” — which governs the latter, Care & Protection of Laura, 414 Mass. at 793 , in contrast to the “fair preponderance of the evidence” standard which governs the seventy-two hour hearing.

2000See White v. White, 40 Mass. App. Ct. 132, 133 (1996).

1998Nor did he waive that right when, one year prior to the December 10, 1997, scheduled hearing, through counsel he waived his right to be heard at the hearing scheduled for December 10, 1996, in circumstances that were radically different from those in December, 1997. 5 Manuel’s stipulation waiving his right to a seventy-two hour hearing in 1996 was hardly a knowing or intelligent relinquishment of his separate right to a seventy-two hour hearing in 1997, when the circumstances had changed so dramatically and where the department had never been awarded temporary custody following a full evidenti

1990L. c. 119, § 24, must meet the intermediate standard of a “fair preponderance of the evidence.” See In re Juvenile Appeal, 189 Conn. 276, 300 (1983).

1990It is our view that this standard of proof provides sufficient consideration for the interests of all those involved in a seventy-two hour hearing, and protects those interests from erroneous deprivation to a degree consistent with the abbreviated nature of such a hearing. 7 See id.

1990Welfare to Dispense with Consent to Adoption, supra at 590.

1990Compare id. at 759 .

1990See Care & Protection of Stephen, 401 Mass. 144, 150 (1987).