It has long been recognized that people have a right to familial cohesion while the government has the capacity and responsibility to interfere with the integrity of the family when necessary. Laws that intrude on family life are ostensibly intended to strike a balance between these two principles. When the government removes a child from a parent, the extent and conditions of contact between that child and his or her parents must be arranged. The circumscription of child-parent contact is a parameter of the ongoing removal. The harmful impact of separation is defined, in large part, by the extent to which subsequent child-parent access is restricted. When a child is placed with strangers, the harm of separation on the child is intensified. To ameliorate the trauma, the state must ensure the provision of appropriate parenting time. The executive, judicial and legislative branches all play roles in how parenting time is decided after a removal.
Judicial Deference to the Department
In Massachusetts, the Department of Children and Families has initial “jurisdiction” over parenting time in care and protection cases filed in Juvenile Court. Courts in the commonwealth only modify the department’s parenting time plan if it is deemed an abuse of discretion. In the typical case when a child is in stranger foster care, parents are relegated to a singular one-hour visit each week at the department’s offices for at least six months with little chance for a modification. A combination of case law, statute and policy has led to this imbalance of power on parenting time.
The term “custody” is defined within the General Laws to include the “power” to “control visits to a child.” Under this definition, a parent who “objects to the carrying out of any power conferred” therein “may take application to the committing court and the court shall review and make an order on the matter.” M.G.L. c. 119, § 21. The statute does not provide any standard for determining the conditions and circumstances of parenting time orders and lacks any instruction as to what level of scrutiny is to be applied when reviewing the department’s provision of familial contact.
In 1984, the Supreme Judicial Court (SJC) issued two decisions that addressed judicial discretion and departmental control over parenting time. In Care and Protection of Three Minors, the court held that the department has “virtually free rein” over the conditions of parenting time “subject only to a petition for review.” 392 Mass. 704, 718 (1984). While accepting its deferential position, the court did acknowledge a critique of its own position: “‘[t]he paternalistic justification for this broad discretion — that the professionals and not the parents always know what is best for children — underlies most of what is wrong with the present system. Thus, reform that fails to end the blind deference to professionals will be inadequate.’” Id. (quoting R.R. McCathren, “Accountability in the Child Protection System: A Defense of the Proposed Standards Relating to Abuse and Neglect,” 57 B.U.L. Rev. 707, 731 (1977)).
In Custody of a Minor (No. 2), the court clarified the standard where the department seeks to terminate parent-child contact. 392 Mass. 719, 725 (1984). “[B]efore terminating visitation rights, a judge must make specific findings demonstrating that parental visits will harm the child or the public welfare.” Id. To support this encroachment on department discretion, the court quotes M.G.L. c. 119, § 35, as giving parents “the right to visit their children if ‘the welfare of the child and the public interest will not be injured.’” Id. This reliance on Section 35 fails to include surrounding language that assigns the court seemingly greater authority over parenting time. Section 35 provides that the court may require the department to permit parents “to visit the child at such times and under such conditions as the court orders” and “may revise its order or make new orders or decrees as the welfare of the child and the public interest may require.” M.G.L. c. 119, § 35. Section 35, however, authorizes the “probate court for the county,” and not the Juvenile Court, to issue such orders, thus creating potential doubt as to the section’s application in Juvenile Court, where nearly all child protective cases are heard. Id.
In 1995, the SJC decided two cases on judicial discretion over custodial decisions by the department. The court addressed the statutory requirement, pursuant to M.G.L. c. 119, § 21, that the Juvenile Court must “review” any petition filed by a parent objecting to the department’s execution of its custodial powers. As parenting time is one of the statutorily defined custodial powers granted to the department, it is broadly accepted that these decisions apply to the parenting time context even though both cases related to foster care placements.
In Care and Protection of Isaac, the court addressed the implications of the word “review” in Section 21. 419 Mass. 602, 610 (1995). “The word ‘review’ requires, in the context of judicial consideration of an administrative decision, a reexamination of an agency’s actions, and not a de novo consideration of the merits of the parties’ positions.” Id. The court looked to precedent outside of child welfare to determine the level of scrutiny warranted by the term “review.” When a business entity sought legal relief after a request for a license to open a video-game arcade was denied, the SJC held that the appropriate level of judicial review would be the “‘arbitrary and capricious’ test.” Caswell v. Licensing Commission for Brockton, 387 Mass. 864, 878 (1983). The court in Isaac held that the same legal standard as applied in Caswell, “arbitrary and capricious,” must be applied by trial courts in reviewing the department’s custodial actions due to “[c]ompelling policy considerations.” Id. The commanding policy consideration was a legislative mandate that the department administer a “complex social services program within the constraints of a finite annual appropriation.” Isaac, 419 Mass. at 611. The reasoning for this deferential level of judicial review of all custodial decisions regarding children in foster care was articulated in three sentences about the judiciary refraining from “impinging” upon “executive functions.” Id. Left unaddressed were the constitutional and policy counter arguments against this approach.
There is an unsaid but crucial distinction between the cases relied upon in Isaac and the context of a child protective filing in Juvenile Court. Decisions such as Caswell and Roslindale Motor Sales Inc. v. Police Commissioner of Boston involve administrative actions taken prior to and independent of court involvement. 405 Mass. 79, 84 (1989). In Caswell and Roslindale Motor Sales, the judicial involvement arises only after the executive agency has denied a license. In the typical department-initiated child removal case, the department’s authority to make custodial decisions commences only after the court takes underlying jurisdiction over the matter first and then grants the department temporary custody. The department’s custodial powers are dependent upon, and a function of, the court’s authority.
In Isaac, the appeal regarding the child’s placement was filed after the child was adjudicated in need of care and protection and committed to the department’s permanent custody. The court in Jeremy ruled that the “arbitrary and capricious” standard adopted in Isaac would also apply to pre-fact-finding custodial decisions made by the department while the child was in its “temporary custody.” Care and Protection of Jeremy, 419 Mass. 616, 618 (1995). The distinction between a pre- and post-adjudicatory posture is that in the latter, the department has proven by clear and convincing evidence that the parent is unfit “to further the welfare and best interests of the child,” while in the former, it has proven nothing. See Custody of a Minor, 389 Mass. 755, 766 (1983) (quoting Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 589 (1981)). The court decided in Jeremy that this distinction has no effect on the scope of judicial review because it finds no statutory language indicating that the “definition of ‘custody’ set out in Section 21” is inapplicable prior to an adjudication. 419 Mass. 616, at 619. The court hands the department carte blanche over all custodial decisions about a child whose parents have not been proven unfit, subject only to a meager “arbitrary and capricious” review. Id. at 623. In its conclusion, the court “recognize[s] that the statutory scheme is, in some respects, unclear and leaves room for” opposing parties to “make conflicting arguments about the proper role of a court in reviewing the department’s placement decisions” and suggests that the “Legislature may wish to examine the statute to state more definitively the scope of a court’s authority when passing on those decisions.” Id. Over 25 years later, the Legislature has done nothing of the sort.
Judicial Constraint as a Violation of Procedural Due Process
What process is due to a parent or child who seeks to challenge a department decision to provide one hour of family time per week at an agency office? The 14th Amendment provides that the state shall not deprive any individual of their “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Is the “arbitrary and capricious” test sufficient process for parents and children seeking family time orders in Juvenile Court?
The test for evaluating if the process provided is sufficient was established in Mathews v. Eldridge. 424 U.S. 319 (1976). The three factors laid out by Eldridge are: (1) the private interest impacted by state conduct; (2) the “risk of erroneous deprivation of such interest” and the “probable value, if any, of additional or substitute procedural safeguards;” and (3) the interest of the state, including the “function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335. The three-part analysis was adopted in the context of state intervention within the family domain in Lassiter v. Department of Social Services of Durham County. 452 U.S. 18, 27 (1981).
One year after Lassiter, the Supreme Court held that procedural due process requires that a termination of parental rights be based on a “clear and convincing evidence standard of proof.” Santosky v. Kramer, 455 U.S. 745, 769 (1982). In a shift from the majority in Lassiter, Justice Harry Blackmun in Santosky progresses the state interest in the welfare of the child by attaching an ongoing presumption in favor of family integrity. “[W]hile there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural family bonds.” Id. at 766-767.
The “Constitution recognizes higher values than speed and efficiency.” Stanley v. Illinois, 405 U.S. 645, 656 (1972). Amongst those “values” should be a child’s and parent’s interest in spending time with one another while custody of the child has been temporarily granted to the state. Due process was “designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy.” Id. An “overbearing concern for efficiency and efficacy” is found in the nearly automatic cookie-cutter visitation plans being manufactured for families in Massachusetts. The parameters of parent-child contact merit a de novo judicial review, and the state’s concern for efficiency should pose no obstacle. That Stanley ought to imply greater due process is little consolation for families until that precedent is brought to bear on the department.
Parenting Time Law in the Other 49 States
Forty-seven states have established a legal framework that permits the court to conduct a de novo review of parenting time. Only Massachusetts, Kentucky and North Dakota restrain the Trial Court from addressing parenting time unless the plan is so irrational as to be deemed an abuse of discretion. These states, constituting less than 4% of the national population, are outliers from the nearly unanimous national preference that courts have the authority to grant and modify parenting time orders based on the merits.
Most states have enacted laws that assign trial courts the authority to define parenting time during a child protective case. Virginia unequivocally assigns broad judicial discretion over parenting time, authorizing the court to “grant visitation rights” and to “state the nature and extent of any visitation rights granted.” VA Code Ann. § 63.2-912. The Nebraska Supreme Court provides guidelines on parenting time, which recommend that parents receive robust time with their children, including a minimum of five visits per week when the child is under 18 months; four visits per week when the child is between 18 months and 3 years old; three times per week when ages 3 to 8; and twice a week when ages 8 to 14. “Guidelines for Parenting Times for Children in Out of Home Care,” Nebraska Supreme Court Commission on Children in the Courts (June 12, 2009).
In Maryland, courts have held that a trial court “may not delegate judicial authority to determine the visitation rights of parents to a non-judicial agency or person.” In Re Mark M., 365 Md. 687, 704 (Md. 2001). In Mark M., the court noted that it “would be an improper delegation of judicial authority to allow the Department to determine the minimal level of access to a child.” Id. The contradiction inherent in asking a court to take jurisdiction over a child by filing a petition but then immediately relinquish it regarding parenting time was not lost on a Connecticut court that soundly rejected the department’s argument for judicial deference. In re Christopher M., 2008 WL 249744, *4, 44 Conn. L. Rptr. 782 (Conn. Super. Ct. 2008).
There are various paths toward protecting parenting time from within the child welfare system. However, parenting time is a community and political issue that requires legislative involvement in Massachusetts. Lawmakers can enact parenting time frameworks for state intervention cases. The statute should grant the judiciary the authority to issue parenting time orders on a de novo basis without deference to the department. The new law should permit the judge to address parenting time frequency, duration, location, and supervision requirements within its orders. The legislation should follow the example of Michigan and incorporate basic minimums for parenting time frequency and length into the law.
The United States has a history of policies that have removed children from their parents in oppressed communities on a variety of legal grounds. Many fathers “did not walk out on their families voluntarily; they were taken away in handcuffs, often due to a massive federal program known as the War on Drugs,” noted Michelle Alexander in The New Jim Crow
. The formerly legal but hideous institution of slavery also separated families. And with the enforcement of child welfare laws, the families that are broken apart are poor and working class and disproportionately Black or Hispanic. This is not to conflate all forms of state-mandated parent-child separation, but rather to suggest that history requires a closer scrutiny of legal child removal, and all its features, than we may otherwise be inclined to undertake.Simon Daillie is a staff attorney for the Children and Family Law Division of the Committee for Public Counsel Services (CPCS) in Springfield. Daillie graduated from Northeastern University School of Law in 2003. He practiced in Brooklyn, New York, for 15 years before joining CPCS. The opinions expressed herein are his own and not those of his agency.