NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-852
CARE AND PROTECTION OF DOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from an order issued by a Juvenile Court
judge in the context of a permanency hearing pursuant to G. L.
c. 119, § 29B, that in part determined that the Department of
Children and Families (department) had made reasonable efforts
to reunify the father with his child, pursuant to G. L. c. 119,
§ 29C.1 We affirm.
1We note that this appeal comes to us in a highly unusual procedural posture. Both parents initially appealed from the judge's decision after the permanency hearing pursuant to G. L. c. 119, § 29B (e), but the mother has since filed a motion to dismiss her appeal and the father has moved to dismiss "Count I" of his appeal, which is the argument that pertains to the judge's determination regarding the permanency plan. We allow both motions to dismiss. Thus, the only issue that remains before us is the father's challenge to the judge's reasonable efforts finding. The mechanism for obtaining appellate review of a reasonable efforts finding is ordinarily through a petition for interlocutory relief under G. L. c. 231, § 118, see Care and Protection of Walt, 478 Mass. 212, 218 (2017), which can be heard expeditiously by a single justice of this court based on current facts. The procedural posture of this case has led us 1. Background. Dor was born in August 2018. On May 29,
2019, the department filed the underlying G. L. c. 119, § 24
petition in the juvenile court, and temporary custody of Dor was
transferred to the department. On March 10, 2020, the
department filed a permanency plan pursuant to G. L. c. 119,
§ 29B. On April 23, 2020, a judge held the permanency hearing
and entered an order approving the goal of reunification. Later
in 2020, the Department changed Dor's permanency goal to
adoption. In April 2023, the father was convicted of sexually
abusing Dor's half-sister and was expected to remain
incarcerated for the next seven years.
On May 8, 2023, the mother stipulated to a finding of
parental unfitness. In June 2023, a second judge (trial judge)
presided over a trial at which the department sought to
terminate the father's parental rights. After trial, the trial
judge found that the department proved the father's unfitness
but declined to terminate the father's parental rights because
she concluded that the department had not made reasonable
efforts to engage the father with Dor. The trial judge found
Dor in need of care and protection and committed him to the
permanent custody of the department.
to consider the reasonable efforts question after a far longer passage of time.
2 On March 25, 2024, the department filed a permanency plan,
and the parents filed written objections to the department's
proposed goal of adoption and requested an evidentiary hearing.
On May 10, 2024, a third judge (hearing judge) held the
permanency hearing. On July 15, 2024, the hearing judge issued
findings of fact and conclusions of law, concluding that the
department had "made reasonable efforts to encourage the
integrity of the family and reunify Dor with Mother and Father"
and that it was "in Dor's best interest to have his permanency
goal changed to adoption."
We summarize the hearing judge's findings of fact, which
the parties do not dispute. Dor has special needs and a speech
delay, and there are concerns that he may have autism spectrum
disorder. The hearing judge's determination of reasonable
efforts covered the period between June 2023 and May 2024.2
Since June 2023, the father had visits with Dor in August,
September, and November 2023. The department tried to schedule
a visit in April 2024, but the visit did not take place because
the father was being transferred between facilities. The
department rescheduled a visit in May 2024 because the father
2 The father contends that the period of review should start from April 2020, when the last permanency hearing took place. Because the trial judge found that the department had not made reasonable efforts to reunify the father and the child in June 2023, we begin our period of review from that date.
3 was in "lockup" following an altercation with another prisoner
and would have been shackled during the visit. The department
had scheduled another visit to take place after the permanency
hearing.
2. Discussion. The father argues that the hearing judge
erred in finding that the department made reasonable efforts to
reunify him with Dor.3 We are not persuaded.
"When a child is removed from his or her home and placed
into the custody of the Department of Children and Families, the
department is required . . . to make ongoing 'reasonable
efforts' to make it possible for the child to return safely to
his [or her] parent or guardian." Care and Protection of
Rashida, 488 Mass. 217, 218 (2021) (Rashida I), S.C., 489 Mass.
128 (2022), quoting G. L. c. 119, § 29C. The father contends
that the department failed to provide him with any services to
facilitate his reunification with Dor and denied him adequate
parenting time. While the department is required to "make all
reasonable efforts to work in cooperation with incarcerated
3 The department and the child argue that G. L. c. 119, § 29C (iv) relieves the department of its obligation to make reasonable efforts to reunify Dor with his father due to the father's conviction for sexually abusing his stepdaughter. Because the parties did not raise this argument at the permanency hearing trial, "it has not been preserved for appellate review we do not consider it." See Adoption of Larry, 434 Mass. 456, 470 (2001). However, nothing prevents the parties from raising it in future proceedings.
4 parents to promote a healthy relationship with their children,
and to avoid permanent separation," 110 Code Mass. Regs. § 1.10
(2008), we conclude that the hearing judge did not err in her
determination that the department made reasonable efforts
considering the circumstances of the case. See Care and
Protection of Walt, 478 Mass. 212, 227 (2017) ("What constitutes
reasonable efforts . . . must be evaluated in the context of
each individual case"). In making a reasonable efforts
determination, a judge must consider the contested service, "but
it is a more comprehensive review of the entirety of the
department's actions in the context of a particular case."
Rashida I, 488 Mass. at 229.
Here, at the time of the hearing, the permanency goal for
Dor was adoption. The father was incarcerated and was not
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-852
CARE AND PROTECTION OF DOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from an order issued by a Juvenile Court
judge in the context of a permanency hearing pursuant to G. L.
c. 119, § 29B, that in part determined that the Department of
Children and Families (department) had made reasonable efforts
to reunify the father with his child, pursuant to G. L. c. 119,
§ 29C.1 We affirm.
1We note that this appeal comes to us in a highly unusual procedural posture. Both parents initially appealed from the judge's decision after the permanency hearing pursuant to G. L. c. 119, § 29B (e), but the mother has since filed a motion to dismiss her appeal and the father has moved to dismiss "Count I" of his appeal, which is the argument that pertains to the judge's determination regarding the permanency plan. We allow both motions to dismiss. Thus, the only issue that remains before us is the father's challenge to the judge's reasonable efforts finding. The mechanism for obtaining appellate review of a reasonable efforts finding is ordinarily through a petition for interlocutory relief under G. L. c. 231, § 118, see Care and Protection of Walt, 478 Mass. 212, 218 (2017), which can be heard expeditiously by a single justice of this court based on current facts. The procedural posture of this case has led us 1. Background. Dor was born in August 2018. On May 29,
2019, the department filed the underlying G. L. c. 119, § 24
petition in the juvenile court, and temporary custody of Dor was
transferred to the department. On March 10, 2020, the
department filed a permanency plan pursuant to G. L. c. 119,
§ 29B. On April 23, 2020, a judge held the permanency hearing
and entered an order approving the goal of reunification. Later
in 2020, the Department changed Dor's permanency goal to
adoption. In April 2023, the father was convicted of sexually
abusing Dor's half-sister and was expected to remain
incarcerated for the next seven years.
On May 8, 2023, the mother stipulated to a finding of
parental unfitness. In June 2023, a second judge (trial judge)
presided over a trial at which the department sought to
terminate the father's parental rights. After trial, the trial
judge found that the department proved the father's unfitness
but declined to terminate the father's parental rights because
she concluded that the department had not made reasonable
efforts to engage the father with Dor. The trial judge found
Dor in need of care and protection and committed him to the
permanent custody of the department.
to consider the reasonable efforts question after a far longer passage of time.
2 On March 25, 2024, the department filed a permanency plan,
and the parents filed written objections to the department's
proposed goal of adoption and requested an evidentiary hearing.
On May 10, 2024, a third judge (hearing judge) held the
permanency hearing. On July 15, 2024, the hearing judge issued
findings of fact and conclusions of law, concluding that the
department had "made reasonable efforts to encourage the
integrity of the family and reunify Dor with Mother and Father"
and that it was "in Dor's best interest to have his permanency
goal changed to adoption."
We summarize the hearing judge's findings of fact, which
the parties do not dispute. Dor has special needs and a speech
delay, and there are concerns that he may have autism spectrum
disorder. The hearing judge's determination of reasonable
efforts covered the period between June 2023 and May 2024.2
Since June 2023, the father had visits with Dor in August,
September, and November 2023. The department tried to schedule
a visit in April 2024, but the visit did not take place because
the father was being transferred between facilities. The
department rescheduled a visit in May 2024 because the father
2 The father contends that the period of review should start from April 2020, when the last permanency hearing took place. Because the trial judge found that the department had not made reasonable efforts to reunify the father and the child in June 2023, we begin our period of review from that date.
3 was in "lockup" following an altercation with another prisoner
and would have been shackled during the visit. The department
had scheduled another visit to take place after the permanency
hearing.
2. Discussion. The father argues that the hearing judge
erred in finding that the department made reasonable efforts to
reunify him with Dor.3 We are not persuaded.
"When a child is removed from his or her home and placed
into the custody of the Department of Children and Families, the
department is required . . . to make ongoing 'reasonable
efforts' to make it possible for the child to return safely to
his [or her] parent or guardian." Care and Protection of
Rashida, 488 Mass. 217, 218 (2021) (Rashida I), S.C., 489 Mass.
128 (2022), quoting G. L. c. 119, § 29C. The father contends
that the department failed to provide him with any services to
facilitate his reunification with Dor and denied him adequate
parenting time. While the department is required to "make all
reasonable efforts to work in cooperation with incarcerated
3 The department and the child argue that G. L. c. 119, § 29C (iv) relieves the department of its obligation to make reasonable efforts to reunify Dor with his father due to the father's conviction for sexually abusing his stepdaughter. Because the parties did not raise this argument at the permanency hearing trial, "it has not been preserved for appellate review we do not consider it." See Adoption of Larry, 434 Mass. 456, 470 (2001). However, nothing prevents the parties from raising it in future proceedings.
4 parents to promote a healthy relationship with their children,
and to avoid permanent separation," 110 Code Mass. Regs. § 1.10
(2008), we conclude that the hearing judge did not err in her
determination that the department made reasonable efforts
considering the circumstances of the case. See Care and
Protection of Walt, 478 Mass. 212, 227 (2017) ("What constitutes
reasonable efforts . . . must be evaluated in the context of
each individual case"). In making a reasonable efforts
determination, a judge must consider the contested service, "but
it is a more comprehensive review of the entirety of the
department's actions in the context of a particular case."
Rashida I, 488 Mass. at 229.
Here, at the time of the hearing, the permanency goal for
Dor was adoption. The father was incarcerated and was not
expected to be released for seven years. Furthermore, the
father had not communicated to the department that he wanted to
reunify with Dor once he completed his prison sentence. As we
have mentioned, between June 2023 and May 2024, the department
provided three visits and unsuccessfully attempted to schedule
two additional visits. The visit scheduled for April 2024 did
not occur because the father was in the process of transferring
facilities, and the May 2024 visit did not take place because
the father had been involved in a fight and would have been
shackled during the visit. Because these facts support the
5 hearing judge’s determination that the department made
reasonable efforts, we conclude the judge did not abuse her
discretion.4
We add a few observations on issues that might arise again
while Dor remains in the department's custody. The department
must make efforts to conduct "regular visitation at the
correctional facility," 110 Code Mass. Regs. § 1.10, but "the
visitation right is . . . subject to adjustment for temporary,
unusual, or extraordinary circumstances, in the reasonable
discretion of the department." Thaddeus v. Secretary of the
Executive Office of Health & Human Servs., 101 Mass. App. Ct.
413, 422 (2022). See Adoption of Rhona, 57 Mass. App. Ct. 479,
488 (2003), quoting G. L. c. 119, § 35 ("Biological parents are
entitled to visitation with their child so long as the visits
are not harmful to 'the welfare of the child and the public
interest'"). As the father notes, the department has an
4 Even if we were to agree with the father's contention that the department failed to make reasonable efforts, we are constrained to conclude that we cannot provide any effective relief for any missed visits due to the passage of time. We understand the father to be asking us to order either that the department make up for past visits that were missed or that the department provide him with visits going forward according to a set schedule. But given that the best interests of the child are paramount, any order on visitation must take into consideration the present circumstances of the case, including where the father is confined, where Dor is living, and what effect visitation would have on Dor's current welfare.
6 internal policy stating that child-family visitation should not
be less frequent than once a month and the record does not
explain in full the deviation from that policy. Although the
policy does not have the force of law, it would be advisable
going forward for the department to explain deviations from its
own policy and for the judge to make findings on the issue.
So much of the order dated July 15, 2024, related to reasonable efforts to reunify the father and the child is affirmed.
The parents' appeals are otherwise dismissed.
By the Court (Meade, Shin & Tan, JJ.5),
Clerk
Entered: August 7, 2025.
5 The panelists are listed in order of seniority.