H4333 is stronger than H4191, and if passed, means in my view that Isaac and Jeremy [two cases reported out and published by the Supreme Judicial Court in 1995) arguably no longer control as precedents, as they were based on the old statute – that is if the Senate also passes H4333 and Governor Patrick signs it. I hope they do.
Here is the link to the bill: http://www.mass.gov/…
This is important as Isaac and Jeremy reduced judicial oversight of DSS, and thus rendered it more difficult for child’s counsel to protect their child clients.
The rewrite of G.L.c. 119 Sec. 1 strengthens and augments “reasonable efforts” requirements so as to no longer leave them at the discretion of DSS, in the changes made in H4333 over the provisos in either H 4191 or current law. There are also new provisions for protection of DNR case kids, not sure if as strong as needed.
An express statement is made that all GALs and Investigators are subject to cross examination no matter who calls them as witnesses. See Sec. 75 of H4333. That was a problem for example, in the case which became Adoption of Iris.
Note too that Sec. 75 states that if any parent objects to decisions about visitation or placement, even though their child is in DSS custody, that parent may take such issues to court; there is no requirement that abuse of discretion be alleged. This is under the definition of “custody”. Again, Sec. 75.
“Do not resuscitate” order request hearings are to be opened, all others remain closed under the new G.L. c,.119, See H4333 Sec.85. The burden of proof, however, is not specified.
There are several other significant changes; this is a long, complex, major bill. On the whole, I consider this legislation an improvement over the status quo.
After all, life is about progress, not instant perfection.
Will the Senate pass it too?
Deb Sirotkin Butler, Esq.
