Care and Protection of Walt

On October 20, 2018, the SJC delivered a tremendous win for vulnerable families in Massachusetts through its decision in Care and Protection of Walt. In a unanimous opinion authored by Chief Justice Gants, the Court affirmed that the Department of Children and Families must comply with its legal obligation to make “reasonable efforts” to avoid separating children from their families and to reunify families it has separated. Consistent with the intent of Congress in codifying federal reasonable efforts requirements decades ago, the Court stated repeatedly that removing children from their parents and placing them in foster care must be DCF’s “last resort.”

The context: When DCF seeks to remove a child from her home, it typically does so by having a caseworker first ask for emergency custody at a closed hearing at which no other party (and no other party’s attorney) is present. If the court finds reasonable cause to believe that the child is at immediate risk of serious abuse and neglect and that keeping the child at home is contrary to her best interest, the court issues an order transferring custody of the child to DCF for up to 72 hours. The court must also determine whether DCF made reasonable efforts to keep the family together. The parents and child then are entitled to a full evidentiary “72-hour hearing” to oppose DCF’s request to maintain custody of the child, to challenge the best interest determination, and – unless one of four narrow exceptions applies – to contest whether DCF made reasonable efforts to avoid removing the child.

The decision:  The Court rejected DCF’s argument that the Juvenile Court can excuse DCF’s failure to make reasonable efforts for a reason other than one of the four exceptions. The SJC further held that when a court determines that DCF failed to make reasonable efforts to keep a family together, it can enter orders to hasten the family’s reunification.  Such orders could require DCF to provide more parenting time to families (when children are placed in foster care, DCF typically allows them to see their parents only one hour per week); enable parents to continue to participate in their children’s education and medical care; and mandate the provision of specific services that a family needs in order to be reunified, such as housing assistance.

The SJC also made clear that:

• DCF should consider short-term informal custody arrangements as an alternative to removal;
• DCF has a continuing obligation to make reasonable efforts after removing a child;
• If a parent’s circumstances change (at least in a no-reasonable-efforts case), the court should revisit the initial custody order and determine whether it should still stand; and
• DCF has an array of services available, and it should provide those services to parents and children who need them.

This is a major victory for CPCS’s clients and for other vulnerable families. By requiring DCF to fulfill its legal obligations to keep families together, the Court is also protecting children from a type of harm, often traumatic, that is frequently ignored or discounted in our cases – specifically, the harm caused by the inappropriate use of foster care. Walt also has the potential for helping children for whom removal is appropriate. At a time when the foster care system is operating well beyond its true capacity, ensuring that DCF keeps children at home when they can stay there safely means that scarce foster care resources will be available for children who really need them.

Who’s responsible for this win:  This case resulted from the hard work of many CAFL staff members, especially Ann Balmelli O’Connor, Attorney-in-Charge of CAFL Appeals Unit, who shepherded the case through the single justice process and wrote the brief and argued the case before the SJC, and Beth Ranz Sherwood and Gretchen Gillung-Fontanez, who advocated for Walt’s father from the outset of the case in the Worcester Juvenile Court.  Congratulations to them, to CAFL attorneys – panel members and staff – who litigate these important issues every day, and to everyone who supports them!

Michael Dsida
Deputy Chief Counsel
Children and Family Law Division – Committee for Public Counsel Services
44 Bromfield St.
Boston, MA  02108
617/910-5713
mdsida@publiccounsel.net