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OPINION

In search of answers in the Harmony Montgomery case

Not all bad outcomes are the result of bad judicial decisions. While the decision in Harmony’s case merits scrutiny, so do the actions of agencies in both New Hampshire and Massachusetts.

Police members are seen on Jan. 9 in the backyard of 77 Gilford Street in Manchester, which has been part of the investigation into the disappearance of 7-year-old Harmony Montgomery. The home is the last known residence of the child.Jessica Rinaldi/The Boston Globe

In her 2016 New Yorker article “Baby Doe: A History of Political Tragedy,” Jill Lepore shared stories that captured the public outrage and responses that follow the loss of children. She wrote, “The loss of a child is an unbearable grief — the murder of a child is an unthinkable tragedy.” As Lepore observed, historically, crusades in response to the untimely deaths of children have had terrible results. This has included dramatic increases in removals of children as risk assessment takes precedence over supporting children in their homes, disproportionally affecting poor families. While we all pray that Harmony Montgomery, the 7-year-old who was last seen in 2019, is found, we should also pray that past patterns of reactive and retributive responses will not be repeated.

There must be a thoughtful investigation and analysis of every step of the process. Some have questioned the decision of the Juvenile Court judge to transfer custody of Harmony to her father, Adam Montgomery, but we don’t yet know what happened in the courtroom and exactly what evidence was presented.

What the judge knew at the time of their decision is critical. But as is the case for all judges, the decision was informed and limited by the information that was presented in the courtroom and the positions taken by the parties during the hearing to determine parental fitness. We do not function in an inquisitorial system. In Massachusetts Juvenile Court child protection proceedings, the Department of Children and Families has the burden of proving its case. Parents have a constitutionally protected right to care for their child or children unless DCF can prove by clear and convincing evidence that they are currently unfit.

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Supreme Judicial Court Chief Justice Kimberly Budd has announced that this case will be investigated by the court system. The Massachusetts Child Advocate previously committed to doing the same. A careful review will offer some clarity.

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Key questions may be answered, including what evidence was presented, what exhibits were offered, what were the permanency planning recommendations of DCF regarding Harmony, and were any appeals taken from the judge’s decision? Much has been written about the criminal record of Harmony’s father, but much more may be known now than was presented at the time of trial. The law requires that there be a connection between a criminal record and the ability to adequately parent. Focusing only on a criminal record would exacerbate systemic racial and ethnic disparities in the treatment of people of color, who are arrested at disproportionately higher rates than are white people.

Questions are being asked about the Interstate Compact on the Placement of Children, which provides protection of children placed across state lines, including what occurred after the court initiated that process. What did Massachusetts DCF and the New Hampshire Division for Children, Youth and Families do? There are differing narratives about what happened and important legal questions to address. At the time of the 2019 judicial decision, New Hampshire did not require an ICPC for fit parents. During the week that Harmony was reported to be missing, a justice of the Massachusetts Appeals Court concluded in an unrelated case that an ICPC was not required for fit parents. If, as reported in the media, an ICPC was initiated but was never completed by the New Hampshire child protective agency, what was the judge supposed to do? If the judge refused to transfer custody, they may well have been reversed on appeal, given case law suggesting that the ICPC process does not trump a judicial determination of current fitness.

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Not all bad outcomes are the result of bad judicial decisions. While the decision in Harmony’s case merits scrutiny, so do all the actions of the agencies in both New Hampshire and Massachusetts. A thorough review at all levels and in all contexts is imperative in order to determine if there were systemic problems that may have failed to provide the safety net that Harmony and all children in these cases deserve.

Jay D. Blitzman is retired first justice of the Middlesex County Juvenile Court. Stephen M. Limon is retired justice of the Suffolk County Juvenile Court. Tony DeMarco is former managing attorney at Children’s Law Center of Massachusetts. Leslie Harris is retired justice of the Suffolk County Juvenile Court. Sydney Hanlon is retired associate justice of the Massachusetts Court of Appeals. Deborah Ramirez is a professor at Northeastern University School of Law. John Greaney is retired associate justice of the Massachusetts Supreme Judicial Court. Leslie Donahue is retired justice of the Middlesex Juvenile Court.