REASONABLE EFFORTS
Before a child is taken out of their home, there is a requirement that reasonable efforts to prevent removal occur.
PROBLEM: There is no definition of “reasonable efforts” required prior to removal of children in the General Laws of Massachusetts
RESULT: In Massachusetts, the policy seems to be that it is worse to leave a child with indigent, ethnic, working poor or disabled parents than it is to terminate parental rights thereby destroying such families erroneously.
PROBLEM: There is no neutral oversight as to whether DSS (The Department of Social Services) follows its own rules and regulations, or over the secretive determinations within DSS that lead to the change of a family’s goal by DSS. Under Commissioner Spence, poverty, homelessness and the challenges of disability are all too often treated as unfitness, and no assistance provided to the family.
RESULT: So-called “Service Plans” are designed for families totally by DSS, with no input by the involved parents, their care providers, or attorneys. These “one size fits all” service plans do more harm than good. Further, as soon as a goal becomes adoption, DSS reduces visitation between the parent and child or children to one hour a month in every county in Massachusetts. THOUSANDS of legal orphans are created, and the aggressive termination efforts of DSS have caused foster care costs, the legal costs paid by the Commonwealth for appointed counsel and judicial proceedings, and the case loads at Juvenile Courts to skyrocket.
BACKGROUND
A. What are “reasonable efforts” and why they matter
A state’s efforts to avoid taking a child into custody by making services available to assist the involved family are called “reasonable efforts.” Crossley, Will “Defining Reasonable Efforts: Demystifying the State’s Burden Under Federal Child Protection Legislation”, 12 B.U. Pub. Int. L.J. 259, 260 Spring/Summer (2003). The reasonable efforts requirement was put in place by the federal government to address the concern that agencies such as the Massachusetts Department of Social Services (DSS) were placing children in foster care unnecessarily. Id. 261.
In Massachusetts no legislative body has defined reasonable efforts. There is neither guidance nor “quality control” over DSS by either statute, or judicial oversigh, so as to provide clear guidance as to what the provision of reasonable efforts entails. See Crossley at 262, G.L. c. 119 ‘1. Reasonable efforts as a protection against improper placement of children into foster care are effective only with proper services.@ Id. 280.
While G.L. c. 119 Sec.1 states a policy in favor of strengthening families, there is no definition in our statutes in this state of what strengthening families or reasonable efforts requires. First, the failure to enunciate any standard for reasonable efforts prior to termination contradicts G.L. c. 119 ‘1. The requirement to strengthen families is a meaningless phrase without a clear definition of what strengthening families requires.
In fact, G.L. c. 119 Sec. 23B provides for services to the mothers of children borne out of wedlock, but not to the fathers.
B. Comparison with States where Reasonable Efforts receive Protection
CONNECTICUT:
In In Re Eden F., 710 A. 2d 771, 782 (Conn App. Ct. 1998), rev’d on other grounds, 250 Conn. 674, 741 A. 2d 873 (1999), the Appeals Court of the State of Connecticut held that “reasonable” is synonymous with”…equitable, fair just”. That court, and a subsequent statutory change in Connecticut, held that the state has the burden of establishing by clear and convincing evidence that it has made reasonable efforts before termination of parental rights may be ordered. The court’s policy behind this determination and statutory change
“…reflects the view that it is worse to erroneously terminate parental rights than it is to erroneously leave the family intact.”
See, Crossley at 302.
MINNESOTA:
Unlike Mass. G.L. c. 210 Sec.3, which only mentions reasonable efforts one time and does not define what reasonable efforts should constitute, Minnesota statutes also view reasonable efforts as critical. Minnesota’s statutes provides extensive guidance as to the reasonable efforts required of their child protection agencies. Minnesota requires that its Courts ensure that child protection agencies provide reasonable efforts, and that such efforts include culturally appropriate services. In addition, the courts of Minnesota are granted express authority over the determination as to whether reasonable efforts have been supplied by it’s child welfare agency. Minnesota’s courts are also required to ensure that its DSS equivalent “…exercise due diligence…” and “…use appropriate available services…” as well as that the DSS equivalent agency carries the burden of establishing that it has made reasonable efforts.
Courts in Minnesota are required to determine whether the services provided by the DSS equivalent agency are: 1) relevant to the safety and protection of the child; 2) adequate to meet the needs of the family and the child; 3) culturally appropriate; 4) actually available, and accessible to the family; 5) consistent and timely as in provided without undue barrier and delay; 6) realistic given the circumstances. See Crossley at 303, See also Minn. Stat. Ann. ‘260.012(b).
MASSACHSETTS
In contrast, the General Laws of the Commonwealth of Massachusetts make only two mentions of reasonable efforts, without either defining what reasonable efforts should be, or ensuring court oversight as to whether reasonable efforts have occurred. See G.L. c. 210 Sec.3, in which the sole statement regarding “reasonable efforts” is embedded in the several pages of G.L. c. 210 Sec.3(b), as follows:
…such services as the department deems necessary for the safe return of the child to the child’s home if reasonable efforts as set forth in Section 29C of said chapter 119 are required to be made, with respect to the child.
G.L. c. 119 Sec.29C is no more helpful. Embedded in the preamble to Sec.29C is the following:
“…the court shall certify that the continuation of the child in his home is contrary to his best interests and shall determine whether the department or it’s agent, as appropriate, has made reasonable efforts prior to the placement of a child with the department to prevent or eliminate the need for removal from the home…”
The failure to define or delineate “reasonable efforts” as well as the lack of authority of the courts in this state over what constitutes reasonable efforts is problematic.
First, without a specific definition as to what constitutes reasonable efforts, DSS has total discretion, without any accountability or oversight due to the use of the words “…as the department deems necessary…” in G.L. c.210 ‘3.
2. Massachusett=s Courts have been stripped of the ability to protect children by case law.
A. Current case law strips juvenile and probate court judges of both equity jurisdiction and the ability to act in the best interests of children (The Isaac and Jeremy decisions)
Care and Protection of Isaac This case held that the courts themselves, whether juvenile, district, or probate may not order DSS to provide services based on the best interest of the child to either the child or the parent. See Care and Protection of Isaac, 419 Mass. 602, 604 (1995). In Isaac, the following question was certified to the Supreme Judicial Court by a single justice:
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 staffin
g 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, ’26?
@
The Supreme Judicial Court responded:
We answer the question “No.”
. The Supreme Judicial Court goes further, and states:
The relevant provisions of G.L. c. 119, however, contain no general grant of authority to a judge to enter an order intended to be in a child=s best interests.
Isaac, Id. At 609.
In Isaac, the Supreme Judicial Court determined that the only standard of review available to any child or parent or guardian over the actions taken, or not taken, by DSS is that of error of law or abuse of discretion, which is measured by the “arbitrary or capricious test”. Id. 610. From the further reasoning of the Isaac court, this result appears mandated by the “finite annual appropriation”. provided to DSS. Id. at 611.
The results of Isaac have been a social disaster, denying judges any real oversight as to the placement and service provision decisions of DSS.
Care and Protection of Jeremy Care and Protection of Jeremy, 419 Mass. 616, 622 (1995) further eviscerated the ability of judges to protect children or ensure reasonable efforts once initial custody is granted to DSS. In Jeremy, the juvenile court judiciary are stripped of all equitable powers. Id. 622.
3. The Department of Social Services is an out of control agency
The SJC was troubled by the results of Isaac and Jeremy. Jeremy ends with a plea to the legislature to protect children and families by amending G.L. c. 119 and G.L. c.210 Sec3:
?The SJC states:
…we 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.
@ Id. 623.
Children do not vote, and poor and working class parents are unable to hire lobbyists, or conduct grass roots legislative campaigns. In the eleven years since the holdings in Isaac and Jeremy, no legislative action has been taken to rein in the unbridled discretion of DSS. Children have suffered. Parents have suffered.
The result in Massachusetts is that poor families, families of color, and disabled parents are deprived of their children wrongly at a disproportionate rate. The costs of social services, court appointed attorneys, and legal orphans are collectively enormous and avoidable.
This tragic waste of human capitol and social costs are both avoidable. For example, Connecticut has amended its statutes to avoid such tragic, unfair results. In Connecticut, its statutes require that reasonable efforts must be shown by clear and convincing evidence before termination of parental rights may occur. See Connecticut Statutes, Sec. 17a-112 (j). Further, in Connecticut a service plan to be valid must spell out
…specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent.
@ See Connecticut Statute Sec. 46b- 129 (j).
Connecticut’s statutes protect children and families but that the statutory scheme of the Commonwealth, as interpreted by Isaac and Jeremy protects neither children, nor parents such as Appellant Father. The citizens of Massachusetts deserve better treatment then what the current statutes and culture of the Department of Social Services delivers.
4. Proposed Remedy
A. Immediate
There must be a new Commissioner of the Department of Social Services who will stop the war on the poor, and end this needless destruction of poor, working class, and immigrant families. Families must come first, not racking up the highest possible rate of terminations of parental rights and adoptions. The provision of social services should not be about speeding up adoptions but rather about strengthening families. Children are not sacks of groceries to be picked up from one family and put back down into another. li
Poverty does not equal unfitness, and the time it takes to locate housing should not be a basis for termination of parental rights, as it is under the current Commissioner. Further, under the current Commissioner the DSS aggressively seeks to terminate the parental rights of disabled parents rather than provide assistance with housing or daycare and the like.
B. Middle and Long range
The statutes of the Commonwealth of Massachusetts must be amended to define and protect the policy that reasonable efforts to support and preserve families are a prerequisite before any removal or move to terminate parental rights can be taken.
Respectfully submitted,
________________________
Deborah Sirotkin Butler, Esq.
Family Law Attorney (solo practitioner)
19 Overlook Road
Arlington, MA 02474
Office Phone: 781 641 9939
Office Fax: 781 641 3769
E-mail: AmberPaw@aol.com
[I publish my full contact information as I do not believe in anonymous posts, and stand publicly behind every post I make]
