In re Care & Prot. of Rashida

• Decision Date: 07 February 2022
• Docket Number: SJC-13072
• Citation: In re Care & Prot. of Rashida, 180 N.E.3d 428 (Mass. 2022)
• Parties: CARE AND PROTECTION OF RASHIDA.
• Court: Supreme Judicial Court of Massachusetts

180 N.E.3d 428

CARE AND PROTECTION OF RASHIDA.¹

SJC-13072

Supreme Judicial Court of Massachusetts, Norfolk.

Argued December 8, 2021.

Decided February 7, 2022.

Ann Balmelli O'Connor, Committee for Public Counsel Services, for the mother.

William A. Comeau, for the child.

Jeremy Bayless, for Department of Children and Families.

Jonathan M. Albano, Michael C. Polovich, & Emma Coffey, Boston, for Lawyers for Civil Rights, amicus curiae, submitted a brief.

Jessica Berry & Thomas J. Carey, Jr., for Jessica Berry & others, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

KAFKER, J.

We are presented here with a sequel to our decision in Care & Protection of Rashida, 488 Mass. 217, 172 N.E.3d 390 (2021) ( Rashida I ). There, we addressed several issues concerning the requirement under G. L. c. 119, § 29C, that, when a child has previously been removed from his or her home and committed to the custody of the Department of Children and Families (department), a Juvenile Court judge must determine "not less than annually" whether the department has made ongoing "reasonable efforts to make it possible for the child to return safely to his [or her] parent or guardian."

We interpreted this provision to give the Juvenile Court discretion to make reasonable efforts determinations more than once a year. Rashida I, 488 Mass. at 226, 230, 172 N.E.3d 390. Accordingly, we recognized that a party may file a motion seeking a reasonable efforts determination outside of the required annual review, which the motion judge has discretion to grant if the moving party has met its burden of production. Id. at 230-232, 172 N.E.3d 390. If the motion is granted, the burden then shifts to the department to prove that it has made reasonable efforts to reunify the child with his or her family. Id. at 234, 172 N.E.3d 390. We did not, however, specify the standard by which the department would have to prove that it has made reasonable efforts.

The parties in Rashida I -- the department, the child, and the child's mother -- thereafter jointly petitioned for clarification of this standard. Originally, all parties proposed a fair preponderance of the evidence standard. The court thereafter requested additional briefing on the issue, as the original briefing on the question was minimal. In its subsequent filing, the department continues to argue that the standard of proof should be fair preponderance of the evidence. The child and the mother now argue for the more demanding clear and convincing evidence standard. After consideration of the additional briefing, we conclude that the appropriate standard is proof by a fair preponderance of the evidence.

Discussion. 1. The statutory scheme. Although the parties have asked this court to clarify the standard of proof that applies at a reasonable efforts hearing conducted on a parent's or child's motion, the statute requires reasonable efforts determinations at numerous stages in a care and protection case. "[I]n the absence of a plain contrary indication, a word used in one part of a statute in a definite sense should be given the same meaning in another part of the same statute" (citation omitted). Care & Protection of Robert, 408 Mass. 52, 64, 556 N.E.2d 993 (1990) ( Robert ). Accordingly, we hold that absent a clear statutory indication to the contrary, the same standard of proof applies at every stage in a care and protection case where a reasonable efforts determination is required or permitted by statute. We therefore begin by briefly reviewing the statutory scheme governing care and protection proceedings and the place of reasonable efforts determinations within that scheme.

As we explained in Rashida I, 488 Mass. at 219-220, 172 N.E.3d 390, quoting G. L. c. 119, § 29C, "[a] judge is required by statute to determine whether the department has made reasonable efforts at the emergency hearing, the seventy-two hour hearing, and ‘not less than annually’ thereafter." At both the emergency hearing and the seventy-two hour hearing, the judge is required to determine that the department "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." Rashida I, supra at 220, 172 N.E.3d 390, quoting G. L. c. 119, § 29C. See Care & Protection of Walt, 478 Mass. 212, 213, 84 N.E.3d 803 (2017) ( Walt ). "The department's obligation to make reasonable efforts does not end once the department takes temporary custody of a child," although the "purpose of those efforts shifts" toward "making it ‘possible for the child to return safely to his parent or guardian.’ "

Walt, supra at 221, 84 N.E.3d 803, quoting G. L. c. 119, § 29C. See Rashida I, supra. Accordingly, "[s]o long as the child remains in the care of the department," the Juvenile Court "must hold an annual permanency hearing," where the judge will, inter alia, determine whether the department has made reasonable efforts toward reuniting the child with his or her family. Rashida I, supra, citing Rule 8 of the Uniform Rules for Permanency Hearings, Trial Court Rule VI. The minimum annual reasonable efforts determination required by G. L. c. 119, § 29C, usually coincides with the annual permanency hearing. Rashida I, supra.

In addition to holding a permanency hearing every year that a child is in the department's care, "within twelve to fifteen months" of the filing of the care and protection petition, the Juvenile Court will adjudicate that petition on the merits, determining whether the child is in need of care and protection. Id. At this merits hearing, the court must again make a reasonable efforts determination. Id. In Rashida I, we also clarified that a party may move for a reasonable efforts determination at other times than at the permanency and merits hearings. See id. at 230, 172 N.E.3d 390.

Despite the numerous occurrences of reasonable efforts determinations within the life of a care and protection case, there is no statutory specification of the applicable standard of proof at any of these different stages. This court has likewise not expressly articulated the standard by which the department must demonstrate that it has made reasonable efforts.

2. The original briefing on the issue of the standard of proof. In its brief in Rashida I, the department argued that in reasonable efforts determinations, it should be required to prove its reasonable efforts by a preponderance of the evidence, because reasonable efforts determinations are properly characterized as subsidiary findings of fact. The department's argument drew on the distinction set out in our case law between the ultimate determination in a care and protection proceeding to terminate parental rights, which must be established by clear and convincing evidence, and subsidiary facts, which must be proved by a preponderance of evidence. The mother's original brief adopted the same approach.

We have indeed held that in any proceeding to commit a child permanently to the custody of the department, "the department bears the burden of proving, by clear and convincing evidence, that a parent is currently unfit to further the best interests of a child and, therefore, the child is in need of care and protection." Care & Protection of Erin, 443 Mass. 567, 570, 823 N.E.2d 356 (2005), citing Care & Protection of Stephen, 401 Mass. 144, 150–151, 514 N.E.2d 1087 (1987). In contrast, where a judge makes findings regarding "subsidiary facts," which inform the judge's decision on "the ultimate question of parental unfitness," those subsidiary factual findings "need only be supported by a preponderance of the evidence." Care & Protection of Laura, 414 Mass. 788, 794, 610 N.E.2d 934 (1993), citing Custody of Two Minors, 396 Mass. 610, 619, 487 N.E.2d 1358 (1986). See Adoption of Quentin, 424 Mass. 882, 886, 678 N.E.2d 1325 (1997) (in proceedings to dispense with parental consent to adoption, "subsidiary findings must be proved by a fair preponderance of the evidence").

We requested supplemental briefing because, in our view, reasonable efforts determinations do not fall neatly into either of the two well-defined categories with established burdens of proof. Although a reasonable efforts determination is a subsidiary aspect of the over-all adjudication of a care and protection or termination proceeding, it is not just a specific factual determination. A judge who makes a reasonable efforts determination is not tasked only with establishing the historical facts regarding the services that the department has offered to the parents of a child in its care. The judge must also interpret the "reasonable efforts" standard set out in G. L. c. 119, § 29C, and determine whether the services offered by the department satisfy that statutory standard. Whether the department has made reasonable efforts is therefore a mixed question of law and fact. See Pullman–Standard v. Swint, 456 U.S. 273, 289 n.19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (characterizing as mixed questions of law and fact issues concerning whether facts found satisfy given statutory standard). Because reasonable efforts determinations neither are properly categorized as subsidiary factual findings, nor do they control the ultimate inquiry into parental unfitness, further analysis is required to determine the appropriate standard of proof.

3. Discerning burden of proof requirements in the absence of express statutory direction. For guidance on how to discern the burden of proof in care and protection proceedings in the absence of express statutory direction, we turn to our decision in Robert, 408 Mass. 52, 556 N.E.2d 993, which addressed the standard of proof required to maintain the department's temporary custody over a child at the seventy-two hour hearing. The parent in that case, as in this one, contended that clear and convincing evidence was required. The court concluded otherwise, employing an approach that we adopt here as...