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COLLECTION
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University of Massachusetts
Depository Copy
Termination of Parental Rights Cases
in the Probate and Family Court:
Recommendations for Improvements
to the System
A Report by the Probate and Family Court Department
Honorable Mary C. Fitzpatrick
ChiefJustice
March 1995
1,
I
Termination of Parental Rights Cases in the
Probate and Family Court:
Recommendations for Improvements to the System
A
Report by the Probate and Family Court
March 1995
1,
THE STATUTORY MANDATE
1
INTRODUCTION
1
THE METHODOLOGY UTILIZED
3
IDENTIFICATION OF ISSUES AND ANALYSIS OF DATA
5
Tremendous Increases in Volume 5
Chart 1 6
Chart 2 6
Chart 3 6
Chart 4 6
Lack ofResources 7
Lengthy DSS Involvement before Court Filing 8
Systemic Time Delays 8
Chart 5 10
Chart 6 10
Chart 7 11
.
Chart 7 11
Lack ofAccountability and Case Management 11
Uniform Practices ofthe Probate Courts Xa 12
CONCLUSIONS
12
THE FEASIBILITY OF PROPOSED SOLUTIONS 13
Establish pilot 210 sessions 13
Create a 210 Case Manager Position 14
Additional Judicial Resources 15
Investigate feasibility ofCourt Stenographer Contract 15
Adopt Proposed Rules ofChild Welfare Procedure 16
Examine the feasibility ofan intermediate appellate review board 16
Bifurcate the services offered by the Department ofSocial Services 17
SUMMARY OF RECOMMENDATIONS
BY THE PROBATE AND FAMILY COURT
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2014
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I
THE STATUTORY MANDATE
An outside section ofthe Massachusetts Appropriations for 1995 "Budget
Bill" (st. 1994, ch. 60, sec. 215) requires "[t]he chief justice ofthe probate and
family court, in consultation with the department ofsocial services, [to] conduct a
study to examine the causes ofthe backlog ofcases seeking termination of
parental rights in the probate courts. Said study shall also propose and examine
the feasibility ofsolutions to address the backlog. Proposed solutions shall
redeploy existing resources whenever possible. Proposed solutions shall include,
but not be limited to, a special session ofthe probate court and a temporary recall
ofjudges." This provision became effective in July 1994. Data gathering efforts
began in September 1994 and continued through February 1995. Meetings with
representatives from the Department ofSocial Services, including Commissioner
Linda K. Carlisle and Alec Gray, General Counsel, among others, were held on
November 14, 1994; December 4, 1994; and February 9, 1995.
INTRODUCTION
The statutory equivalent ofa termination ofparental rights case in
Massachusetts is a petition to dispense with parental consent to adoption pursuant
to M.G.L. c. 210 § 3 (hereinafter "210".) These are the cases where ajudge must
make the Solomon-like1 decision. First thejudge must find that the parent is unfit
to parent the child who is the subject ofthe petition and second, that the
placement plan submitted by the Department ofSocial Services (hereinafter "the
Department" or "DSS") is in the best interest ofthe child.
Stanley v. Illinois, 405 U.S. 645 (1972)
1
Usually a 210 petition is filed with the Probate and Family Court after the
child has come into the Department's custody through a care and protection action
brought by the Department in the District or Juvenile Court. An investigation
conducted by Massachusetts General Hospital and the Boston Juvenile Court
followed 206 children through the court process.2 This study reported that the
mean length oftime from the Department's introduction to the child (first report of
mistreatment) to the initial filing ofa court action is 2.7 years. The child then
spends an average of 1.4 years awaiting a determination that he or she is in need
ofcare and protection in the Juvenile Court. Until legislation was passed last
year3, the child would have experienced an additional 1.6 years in the
Department's care while a separate 210 case was litigated in the Probate and
Family Court for a decree dispensing with the consent ofthe parent(s) to a
subsequent adoption.
Thus, a child who is mistreated by a parent/caregiver at the age ofsix
months could, ifthe parent is unable to comply with court orders and the
Department's service plans, spend the next 5.7 years in the Department's care and
custody. This child, on average, would not be secure in a final placement until he
or she is six years old.4 A civil case which takes five or six years to proceed
"Serious Child Mistreatment in Massachusetts: The Course of206
Children Through the Courts" Michael S. Jellinek, et al, 16 Int'l J. Child
Abuse and Neglect 179 (1992). Hereinafter "Jellinek Report."
The enactment ofst. 1993, ch. 303 allows a Juvenile or District Court
(juvenile session) to grant a petition to dispense with consent to adoption
at the dispositional phase ofthe care and protection case. This alleviates
the need for a subsequent filing in the Probate and Family Court.
The study followed thejuvenile court cases through the entry ofa decree
on the 210 petition. Thus, any appeal taken ofthe 210 case was not
included in the time factors reported.
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through the court system usually causes no harm to the parties or to a third party.
However, a five or six year span to secure a permanent placement for a young
child is detrimental to the child's physical and emotional development.
The Probate and Family Court is committed to upholding a parent's
constitutionally protected right to rear his or her child. Moreover, the Court must
also guard the best interest ofthe child. Focusing on these oftentimes competing
interests, the Court is frequently frustrated by the diminution ofresources and
personnel available to assist in expediting the decision-making process. This
opportunity to describe the barriers that impede the process and an occasion for
introspective identification ofareas for improvement to the child welfare system
is welcomed. This report also proposes alternative strategies to handling cases at
DSS and managing cases within the courts which would ameliorate delay. The
accompanying narrative includes a discussion ofthe methodology employed by
this office in conducting this study. Pursuant to the statutory mandate, the
analysis section discusses the problem areas identified by the data. The final
section proposes recommendations for improvements to the system to alleviate
the backlogs in 210 cases. Also contained in this report are seven (7) charts to
which the reader is referred within the narrative. These charts are contained in the
appendix section.
THE METHODOLOGY UTILIZED
To begin a study ofthe backlog in 210 cases, the Probate and Family
Court, in consultation with the Commissioner and General Counsel ofthe
Department ofSocial Services, identified the initial questions requiring
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