In re Zipporah, 21-P-885

CourtAppeals Court of Massachusetts
PartiesADOPTION OF ZIPPORAH. [1]
Docket Number21-P-885
Decision Date17 June 2022

ADOPTION OF ZIPPORAH. [1]

No. 21-P-885

Appeals Court of Massachusetts

June 17, 2022


Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Department of Children and Families (department) filed this care and protection petition in June of 2016 and was granted temporary custody of the mother's daughter, Zipporah. After a 2019 trial, a Juvenile Court judge found the mother unfit and terminated her parental rights, primarily based on the mother's longstanding problems with domestic violence and substance misuse.[2] On appeal, the mother does not challenge any of the judge's findings of fact or conclusions of law. Rather, she argues that the department failed to make reasonable efforts to address those two problems and that the judge failed to make the requisite reasonable efforts determination before terminating the mother's rights. The mother therefore seeks a remand. Concluding that a remand is not warranted, we affirm.

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Discussion. 1. Department's reasonable efforts.

"When . . . terminating parental rights, a judge must determine whether the department has complied with its duty to make 'reasonable efforts ... to prevent or eliminate the need for removal from the home.'" Adoption of Ilona, 459 Mass. 53, 61 (2011), quoting G. L. c. 119, § 29C. See Care & Protection of Rashida, 489 Mass. 128, 130 (2022) (Rashida II); Care & Protection of Rashida, 488 Mass. 217, 221 (2021) (Rashida I). The burden is on the department to prove by a preponderance of the evidence that it has made reasonable efforts. See Rashida II, supra at 129. "However, even where the department has failed to meet this obligation, a trial judge must still rule in the child's best interest. 'A determination by the court that reasonable efforts were not made shall not preclude the court from making any appropriate order conducive to the child's best interest.'" Adoption of Ilona, supra, quoting G. L. c. 119, § 29C. See Rashida II, supra at 133; Rashida I, supra at 221.

a. Domestic violence. The mother first claims that the department's failure to refer her to a domestic violence shelter at the outset of this case constituted a failure to make reasonable efforts to assist her in extracting herself from and staying out of physically abusive relationships. The judge found, however, that the department had made other extensive efforts to help her address the domestic violence issue, but the

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mother had not benefited from them to the extent necessary to protect Zipporah from the risk of future harm.

The mother points to nothing in the trial record suggesting that it was unreasonable for the department not to refer her to a domestic violence shelter. The department had no reason to think that obtaining physical separation from her abuser was the key to the mother's progress. To the contrary, while her most recent abuser was in jail for six months and she told the department the relationship was over, the mother rekindled her relationship with him. The problem was not that she had nowhere to go to escape him, but, as the judge found, "her continued lack of insight into how her relationship with violent men put her and [Zipporah] at risk." Once he was released from jail, the mother allowed him to be present during her overnight visit with Zipporah, and she urged Zipporah not to tell anyone that he had been present. Nowhere at trial, including in her closing argument, did the mother indicate that a domestic violence shelter placement earlier in the case would have been desirable or helpful in escaping his influence.

Moreover, at permanency hearings in May of 2017 and June of 2018, the judge had found that the department was making reasonable efforts toward its then-goal of reunification. The mother does not explain why, if she needed domestic violence shelter services at that time, she did not raise the issue with

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the judge, who could then have examined whether it was unreasonable for the department not to offer such services. The mother also could have filed an abuse of discretion motion. See Rashida I, 488 Mass. at 221. If dissatisfied with the judge's reasonable efforts or abuse of discretion determinations at any point during the case, the mother could have sought interlocutory review by a single justice pursuant to G. L. c. 231, § 118. See Care & Protection of Walt, 478 Mass. 212, 218 (2017). She did not avail herself of those opportunities.

We see nothing in the case law suggesting that the department's obligation to prove reasonable efforts extends to (1) offering evidence about every conceivable service that could have been offered to address a particular parental deficiency, and then (2) proving that such a service was not reasonably required. At trial, the department's evidence amounted, at the least, to a prima facie showing of reasonable efforts to assist the mother with her domestic violence problem. If the mother disagreed, it was incumbent on her to offer evidence and argument in support of her position.

"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" while the child is in the care of the department. Rashida I, 488 Mass. at 219-220. Other than at those times, a

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party may file a motion for determination of reasonable efforts but must meet a burden of production before the department is required to prove reasonable efforts. At the hearing on the merits of a care and protection petition, i.e., at the trial at issue here, no such motion is required to trigger the department's burden of proof. See Rashida II, 489 Mass. at 129-130. However, it would serve no apparent purpose to require the department to disprove the reasonable necessity for services that a parent never sought and that there is no evidence the department knows the parent needs.

The mother's argument on appeal is akin to "[a] claim of inadequate services[, which] must be raised in a timely manner to provide the judge and the department the opportunity to make accommodations while the case is pending."[3]Adoption...

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