In re Rashida

• Decision Date: 20 August 2021
• Docket Number: SJC-13072
• Citation: In re Rashida, 488 Mass. 217, 172 N.E.3d 390 (Mass. 2021)
• Court: Supreme Judicial Court of Massachusetts
• Parties: CARE AND PROTECTION OF RASHIDA.

488 Mass. 217

172 N.E.3d 390

CARE AND PROTECTION OF RASHIDA.¹

SJC-13072

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 5, 2021.

Decided August 20, 2021.

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, Boston, & Emma Coffey, for Lawyers for Civil Rights, amicus curiae, submitted a brief.

Jessica Berry, Claire Donohue, & 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.

When a child is removed from his or her home and placed into the custody of the Department of Children and Families (department), the department is required by statute to make ongoing "reasonable efforts to make it possible for the child to return safely to his [or her] parent or guardian." G. L. c. 119, § 29C. See Care & Protection of Walt, 478 Mass. 212, 221, 84 N.E.3d 803 (2017). The primary issue presented by the reported questions is whether the statute's provision that "the court shall determine [reasonable efforts] not less than annually" permits or requires a Juvenile Court judge to make a reasonable efforts determination at other times. The department contends that such a determination shall be made not more frequently than the permanency hearings, typically held annually, and that Juvenile Court judges have no discretion to consider such motions or make such determinations at other times.

We conclude that a party may file a motion for a determination of reasonable efforts at other times. We also conclude that a Juvenile Court judge has several options when presented with such a motion. If the party filing such motion fails to meet its burden of production, the judge may simply deny the motion without making a determination of reasonable efforts. Further, where a motion challenging the department's reasonable efforts regarding reunification is appropriately considered a challenge to a specific service or services, rather than the reasonableness of the department's efforts more generally, the judge has the option to treat such a motion as a motion for abuse of the department's discretion in providing such services. Finally, we conclude that when the judge determines that the burden of production has been satisfied to raise doubts about the reasonableness of the department's efforts towards reunification, the department bears the burden of proving that it has made reasonable efforts.²

Legal framework. 1. Reasonable efforts in care and protection cases. "Reasonable efforts" is generally understood to include "accessible, available, and culturally appropriate services that are designed to improve the capacity of families to provide safe and stable homes for their children" and "to ensure that parents and other family members ... are making progress on case plan goals." United States Department of Health & Human Services, Administration for Children & Families, Children's Bureau, Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children 2 (September 2019). See Care & Protection of Walt, 478 Mass. at 227, 84 N.E.3d 803 ("What constitutes reasonable efforts ... must be evaluated in the context of each individual case ..."). To evaluate whether the department has fulfilled its responsibility to make reasonable efforts, a brief overview of the law governing care and protection cases is in order.³

When the department "has reasonable cause to believe a child's health or safety is in immediate danger" and "removal is necessary to protect the child from abuse or neglect," it shall immediately take the child into temporary custody. G. L. c. 119, § 51B (c ), (e ). When a child is removed from his or her home in this emergency manner, the department must file a care and protection petition within twenty-four hours. Id. See G. L. c. 119, § 24. "On the day a petition is filed, a judge will conduct an emergency hearing ... [usually] with the department's petitioner present but not the parents." Care & Protection of Walt, 478 Mass. at 220, 84 N.E.3d 803. A second hearing must be held within seventy-two hours to determine whether temporary custody of the child will continue past that seventy-two hours. Id. at 220, 84 N.E.3d 803. G. L. c. 119, § 24. This hearing is commonly known as the "seventy-two hour hearing" and is an adversarial evidentiary hearing. Care & Protection of Walt, supra at 213, 220, 84 N.E.3d 803.

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.⁴ G. L. c. 119, § 29C. 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." Id.⁵ See Care & Protection of Walt, 478 Mass. at 213, 84 N.E.3d 803. Thereafter, "the purpose of those efforts shifts from preventing or eliminating the need for removal from the home to making it ‘possible for the child to return safely to his parent or guardian.’ "⁶ Id. at 221, 84 N.E.3d 803, quoting G. L. c. 119, § 29C.

So long as the child remains in the care of the department, the court must hold an annual permanency hearing, the purpose of which is threefold: (1) to "determine the permanency plan for the child or young adult and when the plan will be implemented";⁷ (2) to "aid in the timely implementation of such plan"; and (3) to determine reasonable efforts. Rule 8 of the Uniform Rules for Permanency Hearings, Trial Court Rule VI (URPH). See G. L. c. 119, §§ 29B, 29C ; Rules 3(a) & 9(b) of the URPH. The annual review of the department's reasonable efforts usually coincides with the annual permanency review.

In addition to the annual permanency hearing, within twelve to fifteen months of the filing of the petition, the court adjudicates whether the child is in need of care and protection. See G. L. c. 119, § 26 (b ) ; Juvenile Court Standing Order 2-18, § III; Rule 15(c) of the Juvenile Court Rules for the Care and Protection of Children (Care and Protection Rules).⁸ At this hearing on the merits, the court must both make a reasonable efforts determination and determine whether a parent is currently unfit. G. L. c. 119, §§ 26 (b ), 29C. Care & Protection of Erin, 443 Mass. 567, 570, 823 N.E.2d 356 (2005) ("In a proceeding to commit a child to the custody of the department under G. L. c. 119, § 26, 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"). The court may determine that the department has failed to meet its reasonable efforts obligation, but nonetheless determine a parent is currently unfit and commit a child to the department's custody, if the court concludes that doing so is in the child's best interests. G. L. c. 119, § 29C. Adoption of Ilona, 459 Mass. 53, 61-62, 944 N.E.2d 115 (2011).

2. Abuse of discretion motions. Parents have "many avenues available to raise a claim of inadequate services," particularly a motion for a finding that the department abused its discretion by failing to adequately provide a particular service or services. Adoption of West, 97 Mass. App. Ct. 238, 242, 144 N.E.3d 938 (2020). The Appeals Court has stated, and we agree, that a "claim of inadequate services can be raised by a so-called ‘abuse of discretion’ motion." Id. at 243, 144 N.E.3d 938, citing Adoption of Daisy, 77 Mass. App. Ct. 768, 781, 934 N.E.2d 252 (2010), S.C., 460 Mass. 72, 948 N.E.2d 1239 (2011) (mother filed motion claiming that department abused its discretion by failing to secure specific services). Because this court has never directly addressed whether an abuse of discretion motion is a proper vehicle for contesting specific inadequate services by the department, or how it differs from a reasonable efforts determination, we briefly summarize the history and framework of such motions.

Addressing a Probate and Family Court judge's order mandating specific placement and treatment for an individual under guardianship, this court stated in Matter of McKnight, 406 Mass. 787, 798, 550 N.E.2d 856 (1990), "[t]he placement of individuals and the coordination of the provision of services financed by [a social services agency] are executive functions" that should not be "imping[ed] on" by the judiciary. Drawing on this reasoning, in Care & Protection of Isaac, 419 Mass. 602, 611, 646 N.E.2d 1034 (1995), the court determined that the department's decisions regarding custodial placements are reviewable "for legal error or abuse of discretion." Specifically, the court concluded that a judicial order mandating a certain residential placement for a child was inappropriate because "decisions related to normal incidents of custody, by the terms of [G. L. c. 119,] §§ 21, 26 and 32, are committed to the discretion of the department." Id. at 609, 646 N.E.2d 1034. We extended this decision to children in temporary custody in Care & Protection of Jeremy, 419 Mass. 616, 622, 646 N.E.2d 1029 (1995). However, these decisions were rooted in statutory language addressing custodial placements and did not address the provision of services. The court referenced this language, but did not expand on it, in Care & Protection of Walt, 478 Mass. at 230, 84 N.E.3d 803.

Like the "individual placement decision" addressed in Care & Protection of Isaac, 419 Mass. at 611, 646 N.E.2d 1034, an individual service decision is committed to the discretion of the department. See id. (Legislature charged department "with administering a highly complex social services program within the constraints of a finite annual appropriation"). The...