In Care and Protection of Rashida

The Massachusetts SJC announced its decision in Care and Protection of Rashida on August 20, 2021, a case dealing with the requirements placed upon state courts when a parent of a child in state custody makes a request for a reasonable efforts determination after a hearing on the fitness of that parent has just concluded. This case dealt with the delicate issues of what the rights of parents are once their children have been removed to state custody, given that a reasonable efforts determination is one of the methods by which parents may allege that DCF is not fulfilling their mission to reunite displaced children with their families, and thus seek to regain custody of their children from the state.

On January 29, 2020, the mother (“Petitioner”) gave birth to a child, “Rashida.” Not long after this, the child came to the attention of the Department of Children and Families (“DCF”) following a 51A report that the mother was unable to care for Rashida due to her “severe cognitive impairments.” 

On February 3, 2020, an emergency custody hearing was arranged, and DCF was awarded temporary custody of Rashida on. After this, the mother was allowed to have supervised weekly visits with Rashida, which continued until the start of the Covid-19 pandemic. After that, supervised weekly remote sessions were done as a substitute until July 15, 2020 when in-person supervised visits resumed.

On July 15, 2020, DCF and the mother reviewed an action plan detailing what she had to do in order to have Rashida returned to her. The plan required that she go through a neuropsychological and parenting evaluation, as well as participate in parenting classes with the Department of Developmental Services (“DDS”). Moreover, there was a requirement that the mother continue receiving services to assist new mothers. As it turns out, she did not enroll in those classes, and consequently did not receive a neuropsychological evaluation. On August 25, 2020, DCF sent the mother a release for parent aide services, but those services were not realized because no aid providers were available who spoke Somali Mai-Mai, the mother’s native and primary language.

On September 15, 2020, the mother filed a motion to determine whether DCF had breached its obligation to make “reasonable efforts” to reunite children taken into state custody with their original families. The motion was appealed and the following questions were addressed:

1. Is a trial judge obligated to make a determination as to whether DCF has made “reasonable efforts” to reunite parents with their removed children on motion by the parents any time the parents make a motion alleging DCF failure to do so; 

2. If not, does a trial judge have discretion to take up that question; and if so what is the burden a child or parent has to raise the issue; 

3. Does DCF bear the burden of proving it has made “reasonable efforts” when challenged; and

4. May a parent or child raise the issue of DCF to fail to facilitate reunification in a motion of abuse of discretion?

To the first and second questions, the court determined that a Juvenile Court judge did not have an obligation to determine any motion on reasonable efforts raised by a parent or child, and did have discretion to determine whether DCF has made “reasonable efforts” at reuniting a parent and child prior to an annual hearing as required by law. The SJC relied on a plain reading of the statute and interpreted this language to set a maximum period that must pass before a hearing on DCF efforts becomes mandatory. As a result it is entirely permissible for the parties to request a hearing on DCF’s “reasonable efforts” more frequently than required by the statute.

The SJC determined that the moving party has to produce enough evidence to reasonably support a claim that a state agency has not fulfilled its mission to make reasonable efforts to reunite children and families.” The court provided some additional guidance, considering the possible difficulty that a motion on “reasonable efforts” may more closely resemble a motion challenging specific services. However, the court highlighted that judges have a wide range of responses for dealing with motions that fail to meet the broad criteria listed above, and courts may firmly claim that “the department’s reasonable efforts as a whole have not been adequately challenged.”

When the motion is made, the movant has the initial burden of production, which, if met, then shifts the burden of proof to DCF. This determination was made because DCF retains the burden of proof in a multitude of circumstances where “reasonable efforts” determinations have been raised. So long as the request for a determination of “reasonable efforts” has been properly made, the movant, the parent or child, can put the burden of proof on the DCF.

In conclusion, the SJC answered the certified question by determining that, while a Juvenile Court judge is not obligated to take up a motion for determination of “reasonable efforts” prior to the one year threshold imposed by law, the judges do have discretion to take up the issue so long as the matter is properly pled, and following certain guidelines set down by the SJC.

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