Successfully Fighting Removal of Children by DCF

Successfully Fighting Removal of Children by DCF

A DCF investigator made an unannounced visit to a home.  The DCF investigator received a report alleging neglect of a three-year-old boy. The DCF investigator reported that the house was in complete disarray with trash, debris, and clothing all over the home. The DCF investigator also reported smelling the pungent odor of marijuana wafted through the home. The DCF investigator reported the condition of the home to his DCF supervisor.

The DCF supervisor ordered an emergency removal of the three-year-old boy from his home. Emergency removal may occur in MA when “the child is suffering from serious abuse or neglect or is in immediate danger of serious abuse or neglect; and that immediate removal of the child is necessary to protect the child from serious abuse or neglect” (Mass. General Law c. 11, § 24).

When questioned by the DCF investigator, the mother admitted to smoking marijuana a few times per week. Mother, however, denied smoking when her son was under her supervision. The father admitted to smoking marijuana a few times per day. Father clarified this by saying that this occurred only at his workplace and not at home while caretaking for his son. Both parents asked DCF to have their son stay with a family relative. This family member was an aunt. DCF denied this request and instead placed the three-year-old boy in a foster home that night. DCF denied their request until the department had time to investigate the aunt as a resource.

The case went to the Juvenile Court for a 72-hour custody hearing.  The issue presented to the court was whether DCF had exercised “reasonable efforts” during the emergency removal of the three-year-old boy. DCF argued that its actions were justified in not performing “reasonable efforts” to keep the boy in his home. DCF told the court that given the condition of the home, there was immediate risk of harm to the three-year-old boy. A Juvenile Court judge agreed with DCF and granted temporary custody of the child to DCF.

When the court gives custody of a child to DCF, The Juvenile Courts are required to find that there was “reasonable efforts” are made to avoid removing the child from parents unless one of the following four exceptions apply. These exceptions are narrow in scope and include:

  • Child abandonment
  • Felony assault
  • Termination of parental rights to another child
  • Exposing child to aggravated circumstances like murder or sexual abuse.

The Appeals Court determined the Juvenile Court judge’s ruling in favor of DCF custody without “reasonable efforts” an error in law. The Appeals court found that the home conditions did not fall into one of the four narrow exceptions for making “reasonable efforts.”

The case was appealed further from the Appeals Court to the highest court in MA, the Supreme Judicial Court (SJC). AN opinion authored by Chief Justice Gants rejected DCF’s claim that “reasonable efforts” do not need to be made for reasons outside of the four narrow exceptions and that their actions of removing the boy were not in an error of law.  The SJC further stated that when DCF fails to make “reasonable efforts” in removing a child, DCF is responsible for providing extra resources to aid with reunification of separated families. This includes extra parenting time, participation in child’s education, and housing assistance.

Kevin Seaver is a trusted lawyer since 1991, recognized expert, successfully specializing in fighting the Department of Children and Families (DCF) throughout the Commonwealth of MA.

Need Help Fighting Removal of Children by DCF?  Call Attorney Seaver or Request Online A Free Consultation

 

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