The Department of Children and Families (department) brought a care and protection action against the mother of Helena (child) and the child's father. The department was granted temporary custody of the child, first on an emergency basis and then following a so-called seventy-two-hour hearing. The mother then filed a petition, pursuant to G. L. c. 211, § 3, in the county court, requesting that the order of temporary custody be vacated. A single justice of this court denied the petition without a hearing, and this appeal followed. In an order previously issued pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), we allowed the appeal to proceed in the regular course.
We now dismiss the appeal as moot. While the appeal has been pending, the underlying care and protection case has been dismissed in the trial court, and custody of the child has been returned to the mother. See Care & Protection of Torrence, 454 Mass. 1010 , 1010 (2009). We have considered the parties' arguments as to why the court might decide the case irrespective of its mootness. We decline to reach the merits in this case, however. The mother's petition was summarily denied by the single justice, and the issues raised by the appeal, while capable of repetition, will not evade appellate review. [Note 1]
Sarah Lyons, Committee for Public Counsel Services, for the mother.
Tamar M. Gureghian for the child.
Muriel Finnegan for Department of Children & Families.
[Note 1] Given this disposition, we need not rule on the department's motion to strike the child's brief and certain affidavits of counsel (which, we note, were not before the single justice in any event).
Aurelio Pinero, Jr., appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. Pinero has been convicted of assault and battery and assault with intent to rape. See Commonwealth v. Pinero, 49 Mass. App. Ct. 397 (2000). He filed a motion for a new trial in December, 2009. The trial judge denied that motion as well as a subsequent motion for reconsideration. More than thirty days after the motion for a new trial was denied, Pinero filed a notice of appeal along with a motion for an enlargement of time to do so. The same judge denied the
latter motion. Several months thereafter, Pinero moved in the Appeals Court for an enlargement of time to file his notice of appeal. Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979). A single justice of the Appeals Court denied the motion and a subsequent motion for reconsideration. Pinero did not appeal to a panel of the Appeals Court, but filed his G. L. c. 211, § 3, petition in the county court. We affirm the judgment denying that petition.
Pinero has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires him to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." That rule does not apply here because Pinero, in asking a single justice of this court for an enlargement of time to file a notice of appeal, was not challenging an interlocutory order of the trial court. See Fernandez v. Commonwealth, 445 Mass. 1015 , 1015 (2005). Nonetheless, it is clear on this record that Pinero "had [at least one] adequate alternative remedy to relief pursuant to G. L. c. 211, § 3: he 'could have appealed to a panel of the Appeals Court from the Appeals Court's single justice's denial of his motion for leave to file a late notice of appeal.' " Kines v. Clerk of the Superior Court for Criminal Business, 442 Mass. 1025 , 1025 (2004), quoting Rasheed v. Commonwealth, 440 Mass. 1027 , 1027 (2003). Relief under G. L. c. 211, § 3, was therefore properly denied.
The case was submitted on the papers filed, accompanied by a memorandum of law.
Aurelio Pinero, Jr., pro se.
Jane Davidson Montori for the Commonwealth.