Motion To Dismiss – CPS – Massachusetts

How to write a Motion To Dismiss for CPS Juvenile Court In Massachusetts

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In order to write a Motion To Dismiss, you must first understand the rules of the court, the laws of the land. Go over the parts below that pertain to your situation and write those law numbers down. You will be needing them later in our course.

 

DCF policies

Massachusetts Laws

States website

Child Witnesses to Domestic Violence

To better understand this issue and to view it across States, download the PDF (426 KB) of this publication.

Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

To better understand this issue and to view it across States, download the PDF (587 KB) of this publication.

Current Through February 2016

Physical Abuse

‘Abuse’ means the nonaccidental commission of any act by a caregiver upon a child under age 18 that causes or creates a substantial risk of physical or emotional injury, or constitutes a sexual offense under the laws of the Commonwealth, or any sexual contact between a caregiver and a child under the care of that individual.

‘Physical injury’ means:

  • Death
  • Fracture of a bone, a subdural hematoma, burns, impairment of any organ, and any other such nontrivial injury
  • Soft tissue swelling or skin bruising depending upon such factors as the child’s age, circumstances under which the injury occurred, and the number and location of bruises
  • Addiction to a drug at birth
  • Failure to thrive
Neglect

‘Neglect’ means failure by a caregiver, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability, and growth, or other essential care.

Sexual Abuse/Exploitation

A ‘child requiring assistance’ is a child between the ages of 6 and 18 who is a sexually exploited child. A ‘sexually exploited child’ is any person younger than age 18 who has been subjected to sexual exploitation because such person:

  • Is the victim of the crime of sexual servitude, pursuant to chapter 265, § 50, or is the victim of the crime of sex trafficking, as defined in 22 U.S.C. § 7105
  • Engages, agrees to engage, or offers to engage in sexual conduct with another person in return for a fee or in exchange for food, shelter, clothing, education, or care
  • Is a victim of the crime, whether or not prosecuted, of inducing a minor into prostitution
  • Engages in common night walking or common streetwalking

In regulation: The term ‘abuse’ includes a sexual offense under the laws of the Commonwealth or any sexual contact between a caregiver and a child under the care of that individual.

Emotional Abuse

‘Emotional injury’ means an impairment to or disorder of the intellectual or psychological capacity of a child as evidenced by observable and substantial reduction in the child’s ability to function within a normal range of performance and behavior.

Abandonment

Citation: Ann. Laws Ch. 119, § 39
‘Abandonment’ of an infant under age 10 occurs when:

  • A person leaves the child within or without any building.
  • A parent or other person who has a legal duty to care for the child, having made a contract for the child’s board or maintenance, absconds or fails to perform such contract, and for 4 weeks after such absconding or breach of contract, if of sufficient physical and mental ability, neglects to visit or remove the child or notify the department of his or her inability to support the child.
Standards for Reporting

Citation: Ann. Laws Ch. 119, § 51A
A report is required when a mandatory reporter, who in his or her professional capacity, has reasonable cause to believe that a child is suffering physical or emotional injury resulting from:

  • Abuse inflicted upon the child that causes harm or substantial risk of harm to the child’s health or welfare, including sexual abuse
  • Neglect, including malnutrition
  • Physical dependence upon an addictive drug at birth
  • Being a sexually exploited child
  • Being a human trafficking victim
Persons Responsible for the Child

Responsible persons include the parent and any other person responsible for the child’s care.

In regulation: The term ‘caretaker’ [caregiver] means:

  • A child’s parent, stepparent, or guardian
  • Any household member entrusted with the responsibility for a child’s health or welfare
  • Any other person entrusted with the responsibility for a child’s health or welfare, whether in the child’s home, a relative’s home, a school setting, a daycare setting (including babysitting), a foster home, a group care facility, or any other comparable setting

The term ‘caretaker’ includes, but is not limited to, schoolteachers, babysitters, schoolbus drivers, camp counselors, etc.

Exceptions

It is not considered neglect when the inability to care for the child is due solely to inadequate economic resources or solely to the existence of a handicapping condition.

Definitions of Domestic Violence

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Current Through August 2013

Defined in Domestic Violence Civil Laws

This issue is not addressed in the statutes reviewed.

Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

‘Abuse’ means the occurrence of one or more of the following acts between family or household members:

  • Attempting to cause or causing physical harm
  • Placing another in fear of imminent serious physical harm
  • Causing another to engage involuntarily in sexual relations by force, threat, or duress
Persons Included in the Definition

‘Family or household members’ includes persons who:

  • Are or were married to one another
  • Are or were residing together in the same household
  • Are or were related by blood or marriage
  • Have a child in common regardless of whether they have ever married or lived together
  • Are or have been in a substantive dating or engagement relationship

A substantive dating relationship shall be adjudged by district, probate, or Boston municipal courts in consideration of the following factors:

  • The length of time of the relationship
  • The type of relationship
  • The frequency of interaction between the parties
  • If the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship

Immunity for Reporters of Child Abuse and Neglect

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Current Through March 2015

No mandated reporter shall be liable in any civil or criminal action for filing a report under this section or for contacting local law enforcement authorities or the child advocate, if the report or contact was made in good faith, was not frivolous, and the reporter did not cause the abuse or neglect. No other person filing a report under this section shall be liable in any civil or criminal action by reason of the report if it was made in good faith and if that person did not perpetrate or inflict the reported abuse or cause the reported neglect. Any person filing a report under this section may be liable in a civil or criminal action if the department or a district attorney determines that the person filing the report may have perpetrated or inflicted the abuse or caused the neglect.

Making and Screening Reports of Child Abuse and Neglect

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Current Through February 2013

Individual Responsibility to Report

A mandated reporter shall make an oral report immediately when, in his or her professional capacity, he or she has reasonable cause to believe that a child is suffering physical or emotional injury resulting from:

  • Abuse inflicted upon him or her that causes harm or substantial risk of harm to the child’s health or welfare, including sexual abuse
  • Neglect, including malnutrition
  • Being a sexually exploited child
  • Being a human trafficking victim, as defined by chapter 233, § 20M

Within 48 hours of making the oral report, the mandated reporter shall file a written report detailing the suspected abuse or neglect.

Content of Reports

A report filed under this section shall contain:

  • The names and addresses of the child and the child’s parents or other person responsible for the child’s care, if known
  • The child’s age and sex
  • The nature and extent of the child’s injuries, abuse, maltreatment, or neglect, including any evidence of prior injuries, abuse, maltreatment, or neglect
  • The circumstances under which the person required to report first became aware of the child’s injuries, abuse, maltreatment, or neglect
  • Whatever action, if any, was taken to treat, shelter, or otherwise assist the child
  • The name of the person or persons making the report
  • Any other information that the person reporting believes might be helpful in establishing the cause of the injuries
  • The identity of the person or persons responsible for the neglect or injuries
  • Other information required by the department
Reporting Suspicious Deaths

A mandated reporter who has reasonable cause to believe that a child has died as a result of any of the conditions listed above shall report the death to the district attorney for the county in which the death occurred and the Office of the Chief Medical Examiner.

Reporting Substance-Exposed Infants

A mandated reporter who, in his or her professional capacity, has reasonable cause to believe that a child is suffering physical or emotional injury resulting from physical dependence upon an addictive drug at birth shall immediately communicate with the department orally and, within 48 hours, shall file a written report with the department detailing the suspected abuse or neglect.

Agency Receiving the Reports

Both the oral and written reports shall be submitted to the Department of Children and Families. A mandated reporter may, in addition to filing a report under this section, contact local law enforcement authorities or the child advocate about the suspected abuse or neglect.

Initial Screening Decisions

Upon receipt of a report, the department immediately shall screen the report. The purpose of screening is to identify children at risk of abuse or neglect from a caregiver and to distinguish the need for an emergency or nonemergency response.

If the screener determines that the report constitutes an event or subject matter within the department’s mandate and that the reported condition poses a threat of immediate danger to the life, health, or physical safety of the child, then the screener shall designate the report an ’emergency report’ and cause the matter to be assigned for an immediate investigation.

If the screener determines that the reported condition does not pose a threat of immediate danger to the life, health, or physical safety of the child, then the screener shall designate the report a ‘nonemergency report’ and cause the matter to be assigned for an investigation as provided in 110 CMR 4.27.

Agency Conducting the Assessment/Investigation

Upon receipt of a report, the department shall investigate the suspected child abuse or neglect, provide a written evaluation of the household of the child, including the parents and home environment, and make a written determination relative to the safety of and risk posed to the child. The department shall coordinate with other agencies to make all reasonable efforts to minimize the number of interviews of any potential victim of child abuse or neglect.

The department shall immediately report to the district attorney and local law enforcement authorities a sexually exploited child or a child who is otherwise a human trafficking victim, regardless of whether the child is living with a parent, guardian, or other caregiver.

Assessment/Investigation Procedures

The investigation shall include:

  • A home visit at which the child is observed, if appropriate
  • A determination of the nature, extent, and cause or causes of the injuries
  • The identity of the person or persons responsible for the injuries
  • The name, age, and condition of other children in the same household
  • An evaluation of the parents and the home environment
  • All other pertinent facts or matters

Upon completion of the investigation and evaluation, the department shall make a written determination relative to:

  • The safety of the child and risk of physical or emotional injury to that child
  • The safety of and risk to any other children in the household
  • Whether the suspected child abuse or neglect is substantiated
Timeframes for Completing Investigations

The investigation of all emergency reports shall commence within 2 hours of initial contact and shall be completed within 5 working days after the receipt of the report.

The investigation of all nonemergency reports shall commence within 2 working days of initial contact and shall be completed within 15 working days following the receipt of the report.

Classification of Reports

Upon receipt of a report, the department shall investigate the suspected child abuse or neglect and make a written determination as to whether the suspected child abuse or neglect is substantiated.

If the department determines during the initial screening period of an investigation that a report is frivolous, or other absolute determination that abuse or neglect has not taken place, such report shall be declared as ‘allegation invalid.’

In regulation: After completion of its investigation, the department shall make a determination as to whether the allegations in the report are ‘supported’ or ‘unsupported.’

To support a report means that the department has reasonable cause to believe that an incident of abuse or neglect by a caregiver did occur. To support a report does not mean that the department has made any finding with regard to the perpetrator(s) of the reported incident of abuse or neglect. It simply means that there is reasonable cause to believe that some caregiver did inflict abuse or neglect upon the child in question.

‘Reasonable cause to believe’ means a collection of facts, knowledge, or observations that tend to support or are consistent with the allegations, and when viewed in light of the surrounding circumstances and credibility of persons providing information, would lead one to conclude that a child has been abused or neglected.

Parental Drug Use as Child Abuse

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Current Through April 2015

A mandated reporter who, in his or her professional capacity, has reasonable cause to believe that a child is suffering physical or emotional injury resulting from: (i) abuse inflicted upon him or her that causes harm or substantial risk of harm to the child’s health or welfare, including sexual abuse; (ii) neglect, including malnutrition; or (iii) physical dependence upon an addictive drug at birth, shall immediately communicate with the Department of Children and Families orally and, within 48 hours, shall file a written report with the department detailing the suspected abuse or neglect.

Representation of Children in Child Abuse and Neglect Proceedings

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Current Through August 2014

Making The Appointment

When an application for assistance stating that a child and family are in need of assistance is initiated, the child shall be informed that he or she has a right to counsel at all hearings. If the child is not able to retain counsel, the court shall appoint counsel for the child.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

Attorneys who wish to accept assignments for child protection cases must (1) apply for admission to the Children and Family Law (CAFL) trial panel, (2) successfully complete all required trainings, (3) work with a mentor assigned by CAFL, and (4) attend 8 hours of CAFL-approved continuing legal education each fiscal year.

Attorneys seeking certification must submit an application for the CAFL trial panel certification program. Preference is given to attorneys with an established practice, experience working with families, and litigation skills.

Attorneys accepted into the training program must attend a 5-day seminar, ‘Children and Family Law Trial Panel Certification Training Program.’ Newly-certified CAFL trial panel attorneys must attend a 4-hour seminar, ‘Medical Treatment Decisions for Children in DCF Custody,’ within 2 years of the completion of the certification training. Trial panel attorneys must complete 8 hours of CAFL-approved continuing legal education each fiscal year. To maintain certification, attorneys must regularly accept appointments to represent parents and children.

Attorneys who are not currently certified to accept CAFL assignments and wish to accept assignments to represent children in Child in Need of Services (CHINS) matters must (1) apply for admission to the CHINS Child Only (CHINS-CO) panel, (2) successfully complete all required trainings, (3) work with a mentor assigned by CAFL, and (4) attend 4 hours of CAFL-approved continuing legal education each fiscal year.

Specific Duties

Attorneys who accept CAFL and CHINS cases must represent their clients at all trial proceedings. Trial counsel is responsible for appellate proceedings until such time as appellate counsel is assigned by the Committee for Public Counsel Services (CPCS) and enters an appearance. By accepting assignments on these cases attorneys agree to abide by CPCS Performance Standards Governing Representation of Children and Parents in State Intervention and Parental Rights Termination Cases.

How the Representative Is Compensated

The court shall determine whether the parent or guardian of a child alleged to be in need of services is indigent. If the court determines that the parent or guardian is not indigent, the court shall assess a $300 fee against the parent or guardian to pay for the cost of appointed counsel. If the parent is determined to be indigent but is still able to contribute toward the payment of some of said costs, the court shall order the parent to pay a reasonable amount toward the cost of appointed counsel.

Case Planning for Families Involved With Child Welfare Agencies

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Current Through April 2014

When Case Plans Are Required

Every family receiving services from the Department of Children and Families shall have a service plan.

A service plan shall be completed within the following time periods:

  • For all cases within 10 working days after a comprehensive assessment is completed, but in no event later than 55 working days after the opening of the case
  • For a placement made on an emergency basis to ensure the immediate safety of a child, where there is no service plan, a service plan shall be completed within 30 working days after the placement

Except in an emergency, every family shall have a service plan prior to placing a child in substitute care.

For purposes of developing a service plan the opening of the case occurs upon one of the following:

  • The decision to support a [chapter 119, section] 51A report [of abuse or neglect] after an investigation
  • The decision to open a case for services after an initial assessment
  • The receipt of an application for voluntary services
  • A court order giving custody to the department
Who May Participate in the Case Planning Process

The service plan should include both parents, including the nonresident parent when possible. If either parent is not included in the service plan, an explanation should be included in the case record.

A service plan shall be, to the maximum extent possible, jointly developed by the department and the family receiving services from the department. If the parties are in agreement about the service plan, it shall be signed by all parties, and a copy shall be provided to the family.

If the parties are not in agreement about the service plan, the department shall prepare the service plan, and a copy shall be provided to the family. The department also shall inform the family that they may seek a review of the service plan by using the department’s grievance procedure.

If the parties are in agreement about some but not all of the service plan, the family member has the option of noting and initialing the sections he/she does agree with, or adding services he/she would like the department to offer, and signing the service plan with reservations.

Contents of a Case Plan

A service plan is a written document that describes in detail the tasks to be undertaken and the services to be provided to:

  • Strengthen a family unit
  • Reunify a family unit for a child who has been removed from his or her home
  • Provide an alternative permanent home for a child who has been removed from his or her home

The service plan shall provide a basis for assessing the progress of family members in meeting the goal of the service plan.

Each service plan shall contain the following elements:

  • A statement indicating whether the goal of the service plan is to:
    • Strengthen the family unit
    • Reunify the family unit
    • Provide an alternative permanent home for a child who has been removed from his or her home
  • A statement of the strengths of the family, the areas needing improvement, and behavioral changes family members need to make to achieve the goal of the service plan and close the case
  • A statement of each task the family member must complete to achieve the goal of the service plan and the time by which or the frequency at which the task is to be completed
  • A statement of the tasks the department and other parties must complete and the time by which or the frequency at which the task is to be completed
  • A listing of the services to be provided to family members and the time by which or the frequency at which the service is to be provided

A service plan for a family with a child in substitute care shall contain the elements listed above and each of the following additional elements about the child:

  • The type of placement (foster care, intensive foster care, congregate care, etc.)
  • The history of any previous placements
  • The reason for the child’s current placement
  • Efforts made by the department and the family to prevent the need for placement
  • The visiting schedule between the family and the child, or, if no visits are to be scheduled, an explanation why
  • The visiting schedule between siblings who are not placed together, or if no visits are to be scheduled, the reason why visits are not in the child’s best interests
  • The identification of the permanent plan for the child, which can be any of the following:
    • Permanency through stabilization
    • Permanency through reunification
    • Permanency through adoption
    • Permanency through guardianship
    • Permanency through living with kin
    • Alternative permanency planned living arrangement
  • The projected date by which the child may return home or be placed in another permanent living situation
  • A description of the child’s specific health, dental, and educational needs while in placement

Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

The court shall conduct a permanency hearing:

  • Within 12 months of the original commitment and every 12 months thereafter while the child remains in care
  • Within 30 days of a determination that reasonable efforts are not required

In regulation: The Department of Children and Families shall conduct a foster care review (FCR) within 6 months after a child is placed out of the home and every 6 months thereafter for a child who remains out of the home.

Persons Entitled to Attend Hearings

The department shall provide notice of hearings to:

  • The parent or guardian
  • A foster parent
  • A preadoptive parent
  • Any relative providing care for the child

The notice shall inform the foster parent, preadoptive parent, or relative of his or her right to attend the hearing and to be heard. Nothing in this provision shall be construed to provide that such foster parent, preadoptive parent, or relative shall be made a party to the proceeding.

In regulation: The FCR shall at a minimum invite the following people, who shall be notified in writing to attend the case review prior to its scheduled date:

  • The parents of the child in placement, unless parental rights have been terminated or surrendered or the parent has a documented history of violent or assaultive behavior that is not mitigated by treatment and changes in behavior by the parent
  • A putative or unwed father, unless his parental rights have been surrendered or terminated, if:
    • He is named on any legal papers (i.e. petitions, birth certificate, or other judicial decree).
    • He has formally acknowledged paternity.
    • He has been named as the father by the mother.
  • The child if he or she is age 14 or older
  • The social worker assigned to the case
  • The social worker’s supervisor
  • The foster parents or substitute care provider
  • The child’s attorney or guardian ad litem, if any
  • Staff of other public or private agencies and other individuals important to the child or family
Determinations Made at Hearings

At the permanency hearing, the court shall:

  • Determine and periodically review thereafter the permanency plan for the child
  • Consider in-State and out-of-State placement options for a child who is not to be returned to his or her parents
  • If the child is placed in foster care outside the State, determine whether the out-of-State placement continues to be appropriate and in the best interests of the child
  • In the case of a child who has reached age 16, determine the services needed to assist the child in making the transition from foster care to independent living
  • Determine whether the Department of Children and Families has made reasonable efforts to place the child in a timely manner in accordance with the permanency plan

In regulation: The FCR shall include consideration of the following:

  • The necessity and appropriateness of the services to the family
  • A review of the past 6 months’ activities, including fulfillment of tasks identified in the case plan by the department, the parents, the service providers, and the child
  • A review of the safety of the child and the necessity and appropriateness of the child’s continued placement
  • A review of the extent of progress made toward alleviating or mitigating the causes necessitating the child’s placement
  • A review of the goal and the projected date by which the child will achieve permanency
  • A review of the proposed direction of service planning for the next 6 months, including:
    • The steps necessary to achieve permanency for the child
    • The visitation schedule for the parents and the means by which the schedule will be implemented
  • A review of the child’s medical and dental checkups, consistent with the well-child schedule
Permanency Options

The permanency plan shall address whether and, if applicable, when the child will be:

  • Returned to the parent
  • Placed for adoption
  • Referred for legal guardianship
  • Placed in permanent care with relatives
  • Placed in another planned permanent living arrangement

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Determining the Best Interests of the Child

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Current Through March 2016

The health and safety of the child shall be of paramount concern and shall include the long-term well-being of the child.

In all matters and decisions by the department, the policy of the department, as applied to children in its care and protection or children who receive its services, shall be to define best interests of the child as that which shall include, but not be limited to:

  • Considerations of precipitating factors and previous conditions leading to any decisions made in proceedings related to the past, current, and future status of the child
  • The current state of the factors and conditions together with an assessment of the likelihood of their amelioration or elimination
  • The child’s fitness, readiness, abilities, and developmental levels
  • The particulars of the service plan designed to meet the needs of the child within his or her current placement whether with the child’s family or in a substitute care placement, and whether such service plan is used by the department or presented to the courts with written documentation
  • The effectiveness, suitability, and adequacy of the services provided and of placement decisions, including the progress of the child or children therein

The department’s considerations of appropriate services and placement decisions shall be made in a timely manner in order to facilitate permanency planning for the child.

In all department proceedings that affect the child’s past, current, and future placements and status, when determining the best interests of the child, there shall be a presumption of competency that a child who has attained age 12 is able to offer statements on his or her own behalf and shall be provided with timely opportunities and access to offer such statements, which shall be considered by the department if the child is capable and willing. In all matters relative to the care and protection of a child, the ability, fitness, and capacity of the child shall be considered in all department proceedings.

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The Department of Children and Families shall file a petition to terminate parental rights under the following circumstances:

  • The child has been abandoned.
  • The parent has been convicted of the murder or voluntary manslaughter of another child of the parent, of aiding, abetting, attempting, conspiring or soliciting to commit such murder or voluntary manslaughter, or of a felony assault that resulted in serious bodily injury to the child or to another child of the parent.
  • The child has been in foster care for 15 of the immediately preceding 22 months.

In determining whether such action is in the best interests of the child, the court shall consider the ability, capacity, fitness, and readiness of the child’s parent. In considering the fitness of the child’s parent, the court shall consider, without limitation, the following factors:

  • The child has been abused or neglected as a result of the acts or omissions of one or both parents; the parents were offered services and have been unable to make a substantial change in the circumstances that led to the abuse or neglect.
  • The child has been in the custody of the department for at least 6 months, and the parents have not maintained significant and meaningful contact with the child.
  • The child is age 4 or older and has been in an out-of-home placement for at least 12 of the immediately preceding 15 months, and the child cannot be returned home.
  • The child is younger than age 4 and has been in an out-of-home placement for at least 6 of the immediately preceding 12 months and cannot be returned home.
  • The parent, without excuse, fails to provide proper care for the child, and there is a reasonable expectation that the parent will not be able to provide proper care within a reasonable time.
  • Because of the lengthy absence of the parent or the parent’s inability to meet the needs of the child, the child has formed a strong, positive bond with a substitute caregiver, the removal of the child from the caregiver would likely cause serious psychological harm to the child, and the parent lacks the capacity to meet the special needs of the child upon removal.
  • There has been a lack of effort by the parent to remedy conditions that create a risk of harm due to abuse or neglect of the child.
  • There has been severe or repetitive conduct of a physically, emotionally, or sexually abusive or neglectful nature toward the child or toward another child in the home.
  • The parent has willfully failed to visit the child when the child has not been in his or her custody.
  • The parent has willfully failed to support the child when the child has not been in his or her custody. Failure to support shall mean that the parent or other person has failed to make a material contribution to the child’s care when the contribution has been requested by the department or ordered by the court.
  • The parent suffers from a condition that is reasonably likely to continue for a prolonged, indeterminate period, such as alcohol or drug addiction, mental deficiency or mental illness, and the condition makes the parent unlikely to provide minimally acceptable care for the child.
  • The parent has been convicted of a felony that the court finds is of such a nature that the child will be deprived of a stable home for a period of years. Incarceration in and of itself shall not be grounds for termination of parental rights.
  • There has been a prior pattern of parental neglect or misconduct or a felony assault that resulted in serious bodily injury to the child, and a likelihood of future harm to the child exists based on such prior pattern or assault.
Circumstances That Are Exceptions to Termination of Parental Rights

The department need not file a petition to terminate parental rights if:

  • The child is being cared for by a relative.
  • The department has documented in the case plan a compelling reason for determining that terminating the parents’ rights would not be in the best interests of the child.
  • The family of the child has not been provided, consistent with the time period in the case plan, such services as the department deems necessary for the safe return of the child to the child’s home if reasonable efforts as set forth in § 29C are required to be made with respect to the child.
Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

Any newborn infant 7 days old or younger may be relinquished.

Who May Relinquish the Infant

The infant may be relinquished by his or her parent.

Who May Receive the Infant

The infant may be delivered to any ‘designated facility,’ including a hospital, police department, or manned fire station.

Responsibilities of the Safe Haven Provider

The designated facility receiving a newborn infant shall immediately notify the Department of Social Services. Upon receipt of such notice, the department shall take immediate custody of the newborn infant and shall initiate all actions authorized by law to achieve the safety and permanent placement of the newborn infant in a manner that is consistent with the best interests of the child.

The person accepting a newborn infant shall make every effort to solicit the following information from the parent placing the newborn infant:

  • The name of the infant
  • The name and address of the parent placing the newborn infant
  • The location of the infant’s birthplace
  • Information relative to the infant’s medical history and his or her biological family’s medical history, if available
  • Any other information that might reasonably assist the department or the court in current or future determinations of the best interests of the child, including whether the parent or guardian plans on returning to seek future custody of the child

The person receiving the newborn infant shall encourage the parent to provide the information, but the parent shall not be required to provide such information.

Immunity for the Provider

This issue is not addressed in the statutes reviewed.

Protection for Relinquishing Parent

Voluntary abandonment of an infant to an appropriate person shall not by itself constitute either a finding of abuse or neglect or a violation of any criminal statute for child abuse or neglect or for abandonment. If child abuse or neglect that is not based solely on the newborn infant having been left with an appropriate person is suspected, hospital, police, or fire department personnel who are mandated reporters shall report the abuse or neglect.

The parent is not required to supply any of the information requested above.

Effect on Parental Rights

The Department of Social Services shall place the infant into foster care. Such a voluntary placement shall not constitute, in and of itself, an automatic termination of parental rights or an abrogation of the parental rights or responsibilities but shall, for purposes of authorizing the department to initiate a petition to terminate parental rights under chapter 210, be presumed to be an abandonment of the newborn infant that has been so placed.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardian’ means the individual, organization, or agency that has been appointed guardian of the person by a court of the Commonwealth, in accordance with chapter 190B of the statutes, or a court of competent jurisdiction in another State.

Purpose of Guardianship

The Department of Children and Families is committed to establishing permanent placements for all children in its care and custody. Pursuant to this commitment, the department may sponsor a guardianship for selected children. The children selected will be those who are not likely to return to their parents and who, for whatever reason, are not candidates for adoption.

The department shall consider sponsoring a guardianship for a child in its care or custody if the child meets all the following criteria:

  • The child will not be able to return to his or her biological parents. This determination is made by the department based upon the history of the case and the clinical judgment of department social work staff.
  • In the judgment of the department, there is no reasonable likelihood that the child will be adopted. This determination may be made by the department when, for example, the child is unwilling to be adopted, or when, in the clinical judgment of the department social work staff, adoption would not be in the child’s best interests.
  • The child has resided with the potential guardians for at least 1 year. This requirement may be waived if it is determined by the department to be in the best interests of the child.
  • The child is at least age 12. This requirement may be waived if it is determined by the department to be in the best interests of the child (for example, to keep sibling groups together).
A Guardian’s Rights and Responsibilities

A guardian has the powers and responsibilities of a parent regarding the child’s support, care, education, health, and welfare. A guardian shall act at all times in the child’s best interests and exercise reasonable care, diligence, and prudence.

A guardian of a child may:

  • Apply for and receive money for the support of the child that would be otherwise payable to the parent, guardian, or custodian
  • Consent to medical or other professional care, treatment, or advice for the child
  • Consent or refuse to consent to the marriage or adoption of the child
  • Utilize the services of agencies and individuals to provide necessary and desirable social and protective services of different types appropriate to the child, including, but not limited to, counseling services, advocacy services, legal services, and other aid as the guardian deems to be in the interests of the child
Qualifying the Guardian

Before guardianship can be considered, the child must have resided with the potential guardians for at least 1 year. The placement of the child with the potential guardian must have been approved by the department as meeting department requirements, as set forth in regulation.

For a kinship or child-specific placement, the department shall require that a relative, extended family member, or individual chosen by the parent(s) meet the department’s requirements. The approval process for the potential guardian, all household members, and the guardian’s home shall include the following:

  • Criminal background and child abuse and neglect history checks on all household members age 14 and older, and on those younger about whom concerns exist
  • A home visit
  • A determination that the home meets the physical standards set forth in regulation
  • Interviews of all household members
Procedures for Establishing Guardianship

The department shall proceed to implement the guardianships it sponsors as follows:

  • The department determines that the child meets the criteria set forth above.
  • The child’s assigned social worker meets with the child and potential guardian. The guardianship plan is presented to them at this time for their consideration and approval.
  • If guardianship is acceptable to the child and potential guardian, the social worker will make reasonable and diligent efforts to contact the child’s parents. If the parents are contacted, they will be informed of the proposed guardianship proceeding, of their right to contest the guardianship proceeding, and of their right, if indigent, to court-appointed counsel. The parents’ consent will then be sought.
  • An employee of the legal staff of the department will prepare the appropriate court papers. If the parents of the child have consented, their consent shall be noted upon the court papers by obtaining their signature. If the parents of the child have not consented to the guardianship in writing, they will be given notice as required by law.
  • An employee of the legal staff of the department will initiate and prosecute all court proceedings necessary to finalize the guardianship. The guardianship plan will be presented to the court for review as part of the proceeding, and said plan shall address the appropriateness of the proposed placement and the suitability of the proposed guardians.
Contents of a Guardianship Order

This issue is not addressed in the statutes and regulations reviewed.

Modification/Revocation of Guardianship

A guardian’s authority and responsibility terminates upon the death, resignation, or removal of the guardian or upon the child’s death, adoption, marriage, or attainment of majority. Termination shall not affect the guardian’s liability for prior acts or the obligation to account for funds and assets of the ward. Resignation of a guardian shall not terminate the guardianship until it has been approved by the court.

Eligibility for Guardianship Subsidy

If a child is placed under guardianship through the department, and the child does not receive support payments from any other State or Federal agency, then the child shall be eligible for continued support payments and/or medical assistance from the department, to the same extent as if the child had remained in foster care.

If a child is placed under guardianship through the department, and the child is receiving support payments from any other State or Federal agency, then the child will be eligible for support payments and/or medical assistance from the department, only to the extent that it would raise the total support from all sources to the amount the child would be receiving if he/she had remained in foster care.

Links to Agency Policies

Massachusetts Department of Children and Families, A Resource Guide for Massachusetts’ Grandparents Raising their Grandchildren (PDF – 411 KB)

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

The child may be placed with a relative or long-term friend of the child’s family.

In regulation: The Department of Children and Families shall consider, consistent with the best interests of the child, the following placement resources in the following order:

  • Placement with a kinship family
  • Placement with a child-specific family
  • Placement in a family foster care home where the child was previously placed
  • Placement in family foster care
  • Placement in a shelter/short-term program or group home
  • Placement in community residential care

Whenever the department places a child in foster care, the department shall seek from the child’s parents the names of relatives or other kin who may be available to become a foster placement for the child. The department also shall begin a search for other relatives of the child or for other adult persons who have played a significant positive role in the child’s life in order to determine whether the child may appropriately be placed with a relative or person if, in the judgment of the department, that placement would be in the best interests of the child.

Within 30 days after the child is removed from the custody of the parent(s), the department shall provide notice to the kin and other suitable adults, unless the kin or other adult could not be approved as a foster parent due to known family or domestic violence. The notice shall include the following information:

  • That the child has been removed from the custody of the parents
  • The process for applying to become the child’s foster parent and the standards for becoming a foster parent
  • The availability of foster care payments and medical insurance for the child
  • The department’s process for considering kin placements when more than one kin applies at the same time
Requirements for Placement with Relatives

Prior approval of the home by the Department of Early Education and Care is not required for emergency foster placement of the child with a relative or long-term friend of the child’s family. Within 10 days of placement, a criminal offender record check must be performed on all persons age 18 or older who reside in the home.

In regulation: When considering a kinship or child-specific placement, the department shall require that the relative, extended family member, or individual chosen by parent(s) meet the department’s requirements, as set forth in title 110, §§ 7.104 and 7.105.

Requirements for Placement of Siblings

The department shall seek to identify any minor sibling or half-sibling of the child and attempt to place these children in the same foster family if, in the judgment of the department, that placement would be in the best interests of the children.

The court or the department shall, whenever reasonable and practical and based upon a determination of the best interests of the child, ensure that children placed in foster care shall have access to and visits with siblings in other foster or preadoptive homes or in the homes of parents or extended family members throughout the period of placement, or after such placements, if the children or their siblings are separated through adoption or long-term or short-term placements in foster care.

Any child over age 12 may request to visit with siblings who have been separated and placed in care or have been adopted in a foster or adoptive home other than where the child resides.

In regulation: The department shall place a child with the child’s full- or half-sibling, unless doing so would be contrary to the safety or well-being of the child or sibling, or otherwise not in the child’s best interests. If siblings are not placed together, reasonable efforts will be made to provide for visits with siblings, unless such visits would be harmful to the child or sibling.

Relatives Who May Adopt

A child may not be placed with a person who is not related to that child by blood or marriage for purposes of adoption, unless the placement is made by a licensed or approved placement agency.

A person may adopt another person who is younger than himself or herself, unless that person is his or her spouse, sibling, uncle, or aunt.

Requirements for Adoption by Relatives

A review of the criminal offender record information shall be made to assist in evaluating the suitability of the adoptive parent.

In regulation: In the case of an individual seeking to serve as a preadoptive kinship placement for a child in the care or custody of the department, the department shall not be precluded from placing the child in a kinship home if the Commissioner, Deputy Commissioner for Field Operations, and General Counsel have conducted a review of the criminal records database pursuant to 110 CMR 18.11(9) and determined the placement is in the best interests of the child.

Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children

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Current Through March 2016

What Are Reasonable Efforts

The court shall determine the reasonable efforts to be made, consistent with the best interests of the child.

When Reasonable Efforts Are Required

Reasonable efforts shall be made:

  • Prior to placement to prevent or eliminate the need for removal from the home
  • To make it possible for a child to return safely to his or her parent or guardian
  • To place the child, in a timely manner, in accordance with the permanency plan if reasonable efforts to reunify the child with his or her parent or guardian are inconsistent with the permanency plan
When Reasonable Efforts Are NOT Required

Reasonable efforts shall not be required if the court finds:

  • The child has been abandoned.
  • The parent’s rights to another child have been involuntarily terminated.
  • The parent has been convicted of murder or voluntary manslaughter of another child of the parent or aiding or abetting in the commission of such crime.
  • The parent has been convicted of a felony assault resulting in serious bodily injury of the child or another child of the parent.
  • The parent has subjected the child to aggravated circumstances that may include murder of another parent of the child in the presence of the child, subjecting the child or other children in the home to sexual abuse or exploitation, or severe or repetitive conduct of a physically or emotionally abusive nature.

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

A parent may appoint a guardian for any minor child the parent has or may have in the future. A guardian may appoint a guardian for any minor child for whom the guardian serves.

How to Establish a Standby Guardian

A parent or guardian, by will or other writing signed by the parent or guardian and attested by at least two witnesses, may appoint a guardian for his or her minor child, may revoke or amend the appointment, and may specify any desired limitations on the powers to be granted to the guardian.

Upon petition of an appointing parent or guardian, upon finding that the appointing parent or guardian will likely become unable to care for the minor within 2 years or less, and after notice as provided in § 5-206(b), the court, before the appointment becomes effective, may confirm the parent’s or guardian’s selection of a guardian and terminate the rights of others under § 5-203.

The minor child age 14 or older who is the subject of a parental appointment may prevent the appointment or cause it to terminate by filing in the court in which the appointing instrument is filed a written objection to the appointment before it is accepted or within 30 days after receiving notice of its acceptance.

How Standby Authority is Activated

The appointment of a guardian becomes effective on the first of the following to occur:

  • The appointing parent’s or guardian’s death
  • An adjudication that the parent or guardian is an incapacitated person
  • A written determination by a physician who has examined the parent or guardian that the parent or guardian is no longer able to care for the minor unless the minor is in the care or custody of a person other than a parent

Within 30 days after the appointment becomes effective, a guardian shall:

  • File a notice of acceptance of appointment and a copy of the will or other nominating instrument with the court of the county in which the will was or could be probated or, in the case of another nominating instrument, with the court of the county in which the minor resides
  • Unless the appointment was previously confirmed by the court, petition the court for confirmation of the appointment
Involvement of the Noncustodial Parent

Citation: Ann. Laws Ch. 190B, § 5-203
The child’s other parent, if that parent’s parental rights have not been terminated, may prevent the appointment or cause it to terminate by filing a written objection to the appointment in the court in which the appointing instrument is filed before it is accepted or within 30 days after receiving notice of its acceptance.

Authority Relationship of the Parent and the Standby

The parental appointment of a guardian shall not supersede the parental rights of either parent. If both parents are dead or have been adjudged incapacitated persons, an appointment by the last parent who dies or was adjudged incapacitated has priority.

Withdrawing Guardianship

The authority of a guardian appointed under this section terminates upon the first to occur of the appointment of a guardian by the court, the revocation of the appointment by the appointing parent or guardian, or the filing of an objection pursuant to § 5-203.

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In order to write a Motion To Dismiss, you must first understand the rules of the court, the laws of the land. Go over the parts above that pertain to your situation and write those law numbers down. You will be needing them later in our course.