IMPOUNDED COMMONWEALTH OF MASSACHUSETTS WESSEX Ss MASSACHUSETTS APPEALS COURT

impounded commonwealth of massachusetts wessex, ss massachusetts appeals court docket no. 2017-j-____ ) in re: ) care and p

IMPOUNDED
COMMONWEALTH OF MASSACHUSETTS
WESSEX, ss MASSACHUSETTS APPEALS COURT
DOCKET NO. 2017-J-____
)
IN RE: )
CARE AND PROTECTION OF LILY A. )
)
WESSEX COUNTY JUVENILE COURT )
DOCKET NO. 17CP-014WX )
) )
ROGER A. (FATHER), )
PETITIONER ) )
V. )
)
DEPARTMENT OF CHILDREN )
AND FAMILIES, )
RESPONDENT )
MEMORANDUM OF LAW IN SUPPORT OF PETITION
FOR INTERLOCUTORY RELIEF PURSUANT TO
G.L. c. 231, § 118
Preliminary Statement
Roger A.1, the Father (“Father”) of Lily A., the child (“Child”) in
the underlying care and protection proceeding, submits this Memorandum
of Law in support of his “Petition for Interlocutory Relief Pursuant
to G.L. c. 231, § 118 (first para.).” The Juvenile Court found that
DCF satisfied its obligation to make “reasonable efforts” to prevent
the need for removal of the Child under G.L. c. 119, § 29C. The major
issue facing Father was his lack of suitable housing for the Child.
The only “effort” that the Department of Children and Families (“DCF”)
made to prevent removal was to give Father a list of housing resources
to call; it did nothing else to help him. As a result, the court’s
determination that DCF made reasonable efforts was clearly erroneous,
and the court should have entered remedial orders for visitation and
services to assist in reunification.
When DCF removes a child after failing to make reasonable efforts to
prevent removal, a single justice of this Court has the authority
under Care and Protection of Walt, 478 Mass. 212 (2017), to order DCF
to provide remedial visits and services in order to facilitate
reunification. Accordingly, this Court should vacate the erroneous
finding that DCF made reasonable efforts and either order DCF to
provide remedial visits and services or remand to the Juvenile Court
for such an order.
Background
[In this section, lay out the facts and procedural history relevant to
your petition. Because you are requesting remedial orders – visits,
services, etc. – you must lay out the factual basis for these orders.
That is, why should the judge order X supervised visits per week? Why
should the judge order DCF to provide housing or other services? Be
lean and mean with your explanation, because you don’t have a lot of
space. Include citations to the record appendix.]
On October 31, 2017, the Department of Children and Families (“DCF”)
filed a care and protection petition regarding the Child, and the
Wessex County Juvenile Court (Beck, J.) heard from DCF on an ex parte
basis. A3.2 After this ex parte hearing, the court placed the Child in
DCF’s temporary custody pending a 72-hour hearing, which was scheduled
for November 3, 2017. A3.3
On November 3, 2017, the court held a 72-hour hearing and took
testimony from the DCF investigator, Father, and a shelter staff
worker. A10.4 No exhibits were offered or admitted in evidence. A10.
At the 72-hour hearing, the DCF investigator testified that she first
met the family on October 30, 2017 after a 51A report5 was filed
alleging neglect of the Child by Father; a shelter worker had alleged
that Father and Child were homeless and living in Father’s van. A11.
Father had been the sole caretaker of the Child for the past three
years; prior to that, he had visited with the Child every weekend when
she lived with her mother. A11. The family had been living in a
shelter through the Department of Transitional Assistance for three
weeks after being evicted from their apartment. A12. Two days before
the DCF investigator’s meeting with Father, Father had left the
shelter because he was concerned about the Child’s safety after she
was threatened by another resident. A11. Father acknowledged that this
left him and the Child homeless, and that he needed to live out of his
van while he tried to secure housing. A11-12.
The DCF investigator testified that her only meeting with Father was
on October 30, 2017 at 12 p.m. A.12. At the end of the meeting, she
gave Father a list of agencies that he could contact for housing
assistance. A12. She told Father to call those agencies immediately to
request help because “if he didn’t secure a safe place to stay before
the end of the school day, [the Child] would have to be placed in
foster care.” A12.
On cross-examination, the DCF investigator testified that she did not
contact any housing assistance programs or shelters to assist Father;
she did not make any referrals for emergency shelter services; and she
did not accompany Father to the Department of Transitional Assistance
for housing help. A12. [List here all of DCF’s failures, including the
failure of DCF personnel other than the 51B investigator to provide
services/referrals/other things.]
At the conclusion of the 72-hour hearing, Father asked the court to
return custody of the Child to him. A13. Father also asked that the
court find that DCF failed to satisfy its obligation under G.L. c.
119, §§ 24 and 29C to make reasonable efforts to prevent the need for
removal prior to taking custody of the Child. A13. Father, citing Care
and Protection of Walt, 478 Mass. 212 (2017), asked the court to
exercise its equitable authority to order DCF to allow Father to visit
with the Child [four days per week for 2 hours each visit] in order to
preserve their well-established bond. A13. At that time, DCF was only
allowing Father [only one hour of visits each week, supervised in the
DCF area office.] A13. Father also asked the court to order DCF to
provide housing assistance in order to help with reunification.6 A13.
The court granted DCF temporary custody of the Child pending a hearing
on the merits; it also found that DCF satisfied its obligation to make
reasonable efforts prior to the removal of the Child. A13. The judge
stated that he found that “DCF made adequate reasonable efforts
because the DCF investigator gave Father a list of organizations he
could contact for housing assistance prior to removing the Child.”
A13.
Argument
I. The Juvenile Court clearly erred in finding that DCF made
reasonable efforts to avoid removing the Child from her Father because
DCF did nothing to help the family secure appropriate housing other
than hand Father a list of phone numbers.
The Juvenile Court clearly erred when it found that DCF made
reasonable efforts to prevent the need for removal. The only
impediment to Father’s ability to care for the Child was housing. A10.
DCF personnel did not make any housing-related calls for Father; they
did not make any referrals for him; and they did not accompany him to
any state or local housing agency to help him. A12. The only thing DCF
did was give Father a list of organizations for him to call. A12.
Because this was DCF’s only “effort” prior to removing the Child, DCF
failed to “reasonably explore the possibility of reasonable
alternatives to the removal of the [C]hild.” Care and Protection of
Walt, 478 Mass. 212, 227 (2017).
At a temporary custody hearing, the court must determine whether DCF
“made reasonable efforts prior to the placement of a child with [DCF]
to prevent or eliminate the need” to remove the child from her home.
G.L. c. 119, §§ 24, 29C7; Walt, 478 Mass. at 224. Removal of a child
from her family and placement in substitute care should be used only
as a last resort. See G.L. c. 119, § 1; Walt, 478 Mass. at 219. DCF is
mandated to strengthen family life “and to provide substitute care of
children only when preventive services have failed and the family
itself, or the resources needed and provided to the family, cannot
insure the integrity of the family and the [child’s] necessary care
and protection . . . .” G. L. c. 18B, § 3(b)(1) (emphasis added). To
meet this mandate, DCF must offer specific services to allow families
to remain intact, including emergency shelter services. See 110 CMR §§
7.090-7.095. Whether or not DCF has provided these services is part of
the “reasonable efforts” inquiry.
A judge’s finding that DCF made reasonable efforts is reviewed for
clear error. See Adoption of Ilona, 459 Mass. 53, 62 (2011). A finding
is clearly erroneous when there is no evidence to support it, or when,
“although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Custody of Eleanor, 414 Mass. 795, 799
(1993). Here, where DCF’s only “effort” was to provide Father with a
list of phone numbers, the Juvenile Court clearly erred in finding
that DCF made reasonable efforts prior to removal. See Care and
Protection of Elaine, 54 Mass. App. Ct. 266, 272-73 (2002) (Appeals
Court “unimpressed” by DCF’s efforts where it only provided Father
with a list of places to call to secure housing).
Where a parent can meet all of a child’s “other needs,” a parent’s
homelessness is not enough to justify the state taking custody of the
child. Elaine, 54 Mass. App. Ct. at 273-74. DCF’s regulations are
clear that “children should never be removed from their parents and
placed into substitute care on the sole basis of homelessness of a
family.” 110 CMR § 1.11. In addition to providing homeless families
with information and referral services, DCF’s “efforts. . . shall
include efforts to provide access to facilities which allow a family
to feed, bathe, and care for their children, and which provide meals
and a safe place to sleep for adults and children.” Id. (emphasis
added). Despite the various services and resources available to DCF to
assist homeless families, including those set forth in 110 CMR §§
7.090-7.095, DCF gave Father nothing but a list of phone numbers
before removing his Child two hours later when his calls were
unsuccessful. A12.
The failure of DCF to make any meaningful efforts to assist the family
before removing the Child is unreasonable under the circumstances. See
Walt, 478 Mass. at 227 (reasonable efforts must be evaluated on
case-by-case basis). DCF failed to help Father secure temporary
housing or even explore the possibility of reasonable alternatives to
removing the Child. A12. There were no exigent circumstances that
would have permitted DCF to provide minimal help; the Child was fed,
clothed, and safe with Father. The Juvenile Court’s finding the DCF
made reasonable efforts to prevent the need for removal of the Child
is, therefore, clearly erroneous.
II. Remedial orders are necessary to diminish the harm caused by DCF’s
failure to make pre-removal reasonable efforts.
If a trial court or Single Justice finds that DCF failed to satisfy
its obligation under G.L. c. 119, §§ 24 and 29C to make reasonable
efforts to prevent the need for removal before taking custody of a
child, the trial court or Single Justice has equitable authority to
order DCF to take specific remedial steps to diminish the harm caused
by its statutory breach. Walt, 478 Mass. at 231.
Here, as in Walt, DCF’s failure to make reasonable efforts prior to
removal adversely affected the Child and her family. Id. at 229. As a
result, equitable relief is needed to lessen the negative consequences
of this failure. Id. Although this Court cannot go back in time and
order DCF to make pre-removal reasonable efforts, it can act “to
ensure that the department fulfill[s] its duty to make it possible for
the child to return safely” to her father. Id.
Here, Father asked the Juvenile Court to make remedial orders
regarding visitation and housing assistance services. A13. Visitation
is critically important to the parent-child relationship and necessary
to foster reunification. Id. at 229 (“we have recognized the critical
importance of parenting time to the parent-child relationship”); L.B.
v. Chief Justice of the Probate & Family Court Dep’t, 474 Mass. 231,
242 (2016) (noting that visitation “is at the core of a parent’s
relationship with a child”). Here, as in Walt, DCF’s plan for
visitation with Father was so limited that it “imperil[ed] the
father-child bond that was essential if custody were to be restored.”
Id. at 230. At the time of the temporary custody hearing, DCF only
permitted Father one-hour weekly supervised visits with his Child.
A12. Consequently, a remedial order is not only authorized but is
necessary to preserve the relationship between Father and Child. Id.
Visits [four times each week for __ hours] are necessary to maintain
the parent-child bond. Such an order was blessed by the Court in Walt.
Id. at 228-30.
Father also asked the Juvenile Court to order DCF to provide housing
assistance services. A13. He requested this order to address another
adverse consequence of DCF’s failure to make reasonable efforts prior
to removal; while the Child is in DCF custody it will be more
difficult for the family to access public housing benefits. The lack
of access to appropriate and stable housing will continue to be a
barrier to the family’s reunification. Here, as in Walt, this Court
has authority to order DCF to provide housing assistance services,
which are specifically identified as the type of services DCF can
provide to families in order to facilitate reunification. Id. (holding
that the single justice did not exceed his authority by ordering DCF
“to explore alternative housing options to facilitate reunification
[of the family]”); see 110 CMR §§ 7.090-7.095.
CONCLUSION
Accordingly, Father asks this Court to:
a.
vacate the Juvenile Court’s finding that DCF made reasonable
efforts prior to removing the Child as clearly erroneous; and
b.
enter remedial orders requiring DCF to allow Father to visit with
the Child [four times per week, for two hours each visit,] and to
provide housing assistance services to the family]; or
c.
remand this matter to the Juvenile Court to enter such orders; and
d.
grant such other relief as this Court deems just and proper.
Respectfully submitted,
Roger A. (Father), by:
Susan Smith, Esq.
BBO #123456
1 Cross Road
West, MA 01234
Tel: 617-999-0000
[email protected]
Dated: November __, 2017
1 The parties’ last names are withheld in accordance with Mass. R.
App. P. 16(m).
2 All citations to the Record Appendix are denoted by “A” followed by
the page number.
3 Within 72 hours of an ex parte order granting custody of children to
DCF, the trial court must conduct an evidentiary hearing at which DCF
must meet a higher burden of proof. See G.L. c. 119, § 24.
4 Father’s counsel has ordered a transcript of the relevant trial
proceedings, which is not yet available. As a temporary “placeholder”
for the transcript, Father’s counsel has provided this Court with (a)
an Affidavit of Counsel, and (b) an audio compact disc containing a
digital recording of the relevant trial hearing.
5 A report filed in accordance with G.L. c. 119, § 51A.
6 DCF’s counseling and case management services are meant to address a
variety of needs, which specifically include “prevent[ing] families
and individuals from becoming homeless, and to assist the homeless and
those living in inadequate or substandard housing to locate and retain
appropriate housing...” 110 CMR § 7.081 (2008); see 110 CMR §§
7.090-7.095 (2008)(availability of emergency shelter services).
7 DCF’s obligation to make reasonable efforts is excused only if the
court finds that the child was abandoned; the parent’s right to parent
a sibling of the child was terminated; the parent was convicted of a
serious, violent felony against the child or another immediate family
member; or the parent murdered the child’s other parent in the child’s
presence or subjected the child to “sexual abuse or exploitation or
severe or repetitive conduct of a physically or emotionally abusive
nature.” G.L. c. 119, § 29C. None of these exceptions is present in
this case.
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