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Care And Protection of Walt

Supreme Judicial Court of Massachusetts, Worcester

October 20, 2017


          Heard: May 1, 2017.

         Petition filed in the Worcester County Division of the Juvenile Court Department on June 2, 2016. A hearing on continuation of an ex parte emergency order granting temporary custody was had before Anthony J. Marotta, J.

         A petition for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J.; motions for reconsideration and for a stay were also heard by him, and his order was reported by him to a panel of the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Ann Balmelli O'Connor, Committee for Public Counsel Services, for the father.

          Bryan K. Clauson (Marianne W.B. MacDougall also present) for the child.

         Richard A. Salcedo for Department of Children and Families.

          Evan D. Panich, Katrina C. Rogachevsky, Jessica Berry, Susan R. Elsen, & Jamie Ann Sabino, for Children's Law Center of Massachusetts & others, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[2]

          GANTS, C.J.

         Under G. L. c. 119, § 29C, if a Juvenile Court judge grants temporary custody of a child to the Department of Children and Families (department), the judge "shall certify that the continuation of the child in his home is contrary to his best interests and shall determine whether the department . . . has made reasonable efforts prior to the placement of a child with the department to prevent or eliminate the need for removal from the home." In this opinion, we resolve three legal issues regarding the reasonable efforts determination.

         First, we hold that a judge must make a reasonable efforts determination when issuing an order transferring custody of the child to the department for up to seventy-two hours at the emergency hearing, and must revisit that determination at the temporary custody hearing that must follow, commonly known as the "seventy-two hour hearing, " if the judge continues the department's temporary custody of the child.

         Second, § 29C provides that reasonable efforts by the department prior to removal of a child from the home are not required if the judge finds that one of four exceptions applies. We hold that, where none of the four exceptions in § 29C apply, exigent circumstances do not excuse the department from making reasonable efforts, but we recognize that a judge must determine what is reasonable in light of the particular circumstances in each case, that the health and safety of the child must be the paramount concern, and that no child should remain in the custody of his or her parents if immediate removal is necessary to protect the child from serious abuse or neglect.

         Finally, we hold that, where a judge or single justice finds that the department failed to make reasonable efforts before removing a child from his or her home, the judge or single justice has the equitable authority to order the department to take reasonable remedial steps to diminish the adverse consequences of the department's failure to do so.[3]


         According to the evidence admitted at the seventy-two hour hearing, in June, 2016, the department received a report alleging that Walt, then three years old, was being neglected by his mother and father at the home of Walt's paternal grandmother in Worcester, where they were then living. On June 1, at approximately 4:30 P.M., a department investigator made an unannounced visit to the home, and subsequently prepared a written report as required by G. L. c. 119, § 51B (§ 51B report). As she went upstairs, where Walt and his parents were residing, she smelled the strong odor of marijuana and saw that the upstairs hallway was littered with trash. She went to the parents' bedroom and saw a curtain hanging as a door. After she knocked on the door jamb, the mother opened the curtain and the investigator reported the allegations to her; the father was lying in bed.[4] The investigator asked where Walt was, and the mother said he was in his room, which was next to the parents' bedroom. When the investigator visited Walt's bedroom, she observed that the floor was so covered with boxes, clothing, trash, and debris that there was no room to walk. She saw items piled taller than the dresser and various safety hazards. The investigator returned to the parents' bedroom and asked the parents about smoking marijuana in their bedroom with Walt in the next bedroom. The mother insisted she did not smoke in front of Walt. The investigator observed trash and debris littering the floor of the parents' bedroom, including dirty plates, cups, cigarette butts, and a chicken bone.

         The investigator informed the parents that she was going to call her supervisor, and that she was taking custody of Walt "as I was not leaving him in this mess." The investigator telephoned her supervisor, who agreed that emergency removal of the child was necessary at that time. The investigator then telephoned the Worcester police department and asked for assistance in removing the child from the home.

         After the investigator informed both parents that the department was taking custody of their son, the mother asked if she could call her aunt to take Walt rather than have him go to a foster home. The investigator told her that that could not happen, because the department office was closed and she therefore could not complete the process required to determine whether a family member qualified as a caregiver. The investigator offered to take down the name of the aunt and other household members to see if they would qualify.

         The father was upset that the department was taking custody of his son and grabbed Walt and walked downstairs. The investigator told him that he could not leave with Walt because the department now had custody and, if he did, he could be arrested for parental kidnapping. He remained with Walt downstairs.

         The maternal aunt then arrived and attempted to take Walt with her. The investigator told her she could not take him because the department had custody. The investigator wrote down her identifying information and explained that, if there were no issues, a home study would have to be done. The investigator said that Walt was going to a foster home that day and that the department would begin the process of evaluating the maternal aunt as a "resource" the next day.

         The investigator then spoke with the mother and father. The mother said that she worked at a supermarket and that the father worked at an automobile body shop down the street. She did not have a set work schedule; the father watched Walt when she was working. As to the condition of the upstairs portion of the house, she said it was in that condition when they moved to the paternal grandmother's home in October, 2015. When the investigator asked why they had not cleaned the rooms, the mother said that the paternal grandmother would not allow it. The mother said that they had attempted to obtain public housing, but had been denied. The mother admitted to smoking marijuana a few times per week, but said she usually did not smoke upstairs; she explained that she did that day because she was "stressed out." The father said he smoked marijuana a "couple of times a day, " but generally only at his workplace. The father denied having any adult criminal record, and both denied using any other controlled substance. The mother provided the name of Walt's pediatrician, and the parents reported that Walt had no health issues, except that he had a cold with fever, for which they were giving him Tylenol.

         On June 2, a care and protection petition was filed in Worcester Juvenile Court for emergency custody of Walt pursuant to G. L. c. 119, § 24, as well as a sworn affidavit in support of the application. The affidavit signed by the investigator and her supervisor briefly summarized the investigator's observations regarding the condition of the two rooms and hallway on the second floor of the parental grandmother's home and noted that the mother appeared to be "high" on marijuana. The affiants declared that the department "believes that the child is at risk for neglect by his parents and requests custody of" Walt pending a hearing on the merits, adding that it would be contrary to Walt's welfare "at this time" to return home. The affiants also stated, "In light of the emergency circumstances and risk to the child's health and safety, reasonable efforts by the [d]epartment were attempted. However, the parents have either not participated or have only minimally participated."

         That same day, a judge, as authorized under § 24, issued an ex parte emergency order transferring custody of Walt to the department for up to seventy-two hours pending a hearing as to whether temporary custody should continue, and ordered that counsel be appointed for the mother, father, and child. Based on the affidavit, the judge signed a Trial Court form entitled, "Reasonable efforts -- initial custody, " certifying that "the continuation of the child in his[] home is contrary to the child's best interests." The judge also checked two of the three boxes, reflecting her determination both that the department "has made reasonable efforts prior to the placement of the child with the [department] to prevent or eliminate the need for removal from the child's home, " and that "the existing circumstances indicate that there is an immediate risk of harm or neglect which precludes the provision of preventive services as an alternative to removal; consequently, the [department's] efforts were reasonable under the circumstances."[5]

         During the early evening of June 2, Walt was placed in the home of the maternal aunt, but the department retained custody of the child.

         The seventy-two hour hearing was held on June 3 before another judge to determine whether the department's temporary custody of Walt would continue beyond seventy-two hours. The mother stipulated to continued custody of Walt by the department, and waived her right to a hearing. The father exercised his right to a hearing, which was rescheduled to June 7 and concluded on June 9. At the hearing, the judge heard the testimony of the investigator, the father, the mother, the maternal grandmother, and the maternal aunt, and considered the exhibits offered in evidence, which included the investigator's redacted § 51B report and photographs of the home taken by the investigator on June 2.

         The investigator admitted at the hearing that she did not know whether the department was able to provide families with homemaking or babysitting services, whether the family support services the department provides included "chore services, " or whether counselling and management services were available to prevent the removal of children from their parents by the department.[6] She also testified that, as an investigator, it was not her job to make reasonable efforts to prevent or eliminate the need for removal before removing a child to the custody of the department. As to Walt, she admitted that she decided to remove Walt within ten minutes of being in the home, before she spoke with the father. She also admitted that, before she placed Walt in the custody of the department, she did not explore with the family possible alternatives to avoid the need for foster care. She explained that her "job is to make sure children are safe, " and ...

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