From the March 19, 2007 Massachusetts Lawyers Weekly.
Foster change in DSS system
Before a child is taken out of a family home, there is a federal requirement that “reasonable efforts” to prevent removal of a child from the home must occur.
Unfortunately, under Massachusetts law there is no definition of what “reasonable efforts” are required prior to taking children from their homes.
As a result, here in the commonwealth the policy seems to be: Err on the side of removing children from families. And that raises the question: Is our state placing children in foster care unnecessarily?
Notably, no Massachusetts legislative body has defined “reasonable efforts,” and there is minimal quality control over the Department of Social Services to provide clear guidance as to what the provision of “reasonable efforts” entails.
While G.L. c. 119, Sect. 1 states a policy in favor of strengthening families, it is silent on what exactly is intended.
Many lawyers who practice in the Juvenile Court are concerned that so-called Service Plans are designed for families by DSS through back-room planning, with no input by the involved parents, their care providers or attorneys. Indeed, many practitioners believe that these one-size-fits-all plans may do more harm than good.
The result has been that thousands of legal orphans have been foisted on an already overburdened system, and the aggressive termination efforts of DSS have caused foster-care costs, legal expenses paid by the commonwealth, and the caseload in Juvenile Court to skyrocket.
Further, Massachusetts courts have essentially been stripped of the ability to protect children by caselaw. Judges in the Juvenile and Probate & Family courts have limited equity jurisdiction and limited ability to act in the best interests of children.
The Supreme Judicial Court asked in 1995’s Care and Protection of Isaac: “Does a judge sitting in a juvenile session have authority to order the Department of Social Services, over its objection, to provide a specific placement and a specific staffing level for a child who has been adjudicated to be in need of care and protection and committed to the Department’s (other than temporary) custody pursuant to G.L. c. 119, Sect. 26? We answer the question: ‘No.'”
And yet, the SJC was certainly concerned about the limits on courts in these matters, concluding later the same year, in its Care and Protection of Jeremy decision, with a plea to the Legislature: “[W]e recognize that the statutory scheme is, in some respects, unclear and leaves room for the parties in this case, and in Care and Protection of Isaac, supra, to make conflicting arguments about the proper role of a court in reviewing the department’s placement decisions.
“The Legislature may wish to examine the statute to state more definitely the scope of a court’s authority when passing on these decisions.”
The U.S. Supreme Court has also ruled that there is no private right to enforce the “reasonable efforts” requirement. To this day, not only is there no legislative guidance on this issue that has been left to the states to decide, but there is no route for judicial review at all.
Children do not vote, and poor and working-class parents are unable to hire lobbyists or wage grassroot legislative campaigns.
In the 12 years since Isaac and Jeremy, no legislative action has been taken to rein in the expansive discretion of DSS, and children and parents have suffered.
Our laws need to be changed to better define “reasonable efforts” and allow for more meaningful judicial oversight of DSS.
Lawyers and judges need to join forces to bring about the needed changes. Something is wrong with a system in which 35,000 children are in foster care.
© 2007 Lawyers Weekly Inc., All Rights Reserved.
{Reprinted with permission from Massachusetts Lawyers Weekly]
