HOUSE DOCKET, NO. 438        FILED ON: 1/21/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1629

The Commonwealth of Massachusetts

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PRESENTED BY:

Sheila C. Harrington

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to the best interests of children.

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PETITION OF:

HOUSE DOCKET, NO. 438        FILED ON: 1/21/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1629

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act relative to the best interests of children.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

WHEREAS, this Legislature recognizes that children are defenseless and that there is no greater moral obligation upon this Legislature than to provide for the care and protection of our children and that our child welfare system needs to be strengthened by establishing a clear policy of the Commonwealth that the best interests of the children must be paramount and shall have precedence at every stage of court proceedings. The best interests of the child shall be the standard for court determinations as to whether a child should be removed from a home, temporarily or permanently, wherein the child has been abused or neglected, remain in a home wherein the child has been abused or neglected or reunited with his or her family in a home wherein the child has been abused or neglected; and

WHEREAS This Legislature finds that children deserve and require competent, responsible parenting and safe, secure, loving, and nurturing homes. This legislature finds that children who have been harmed or are threatened with harm are less likely than other children to realize their full educational, vocational, and emotional potential, and become law-abiding, productive, self-sufficient citizens, and are more likely to become involved with the mental health system, the juvenile justice system, or the criminal justice system, as well as become an economic burden on the State. This legislature finds that prompt identification, reporting, investigation, services, treatment, adjudication, and disposition of cases involving children who have been harmed or are threatened with harm are in the children’s, their families’, and society’s best interests because the children are defenseless, exploitable, and vulnerable. This legislature recognizes that many relatives and other loving nurturing and responsible citizens are willing and able to provide a nurturing and safe placement for children who have been harmed or are threatened with harm.

Chapter 119 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out section 1 and inserting in place thereof the following section:—

Section 1. (a) It is hereby declared to be the policy of this commonwealth to make paramount the best interests of the child by directing its efforts, first, for the care and protection of the children of the Commonwealth of Massachusetts; then to strengthen the family unit if possible and if determined to be in the best interests of the child;  to assist and encourage the use by any family of all available resources to this end; and to provide substitute care of children, either through temporary foster care or permanent placement, when the family itself, or the resources available to the family, are unable to provide the necessary care and protection to ensure the rights of any child to sound health and normal physical, mental, spiritual and moral development.

The purpose of this chapter is to ensure that the children of the Commonwealth are protected against the harmful effects resulting from the absence, inability, inadequacy or destructive behavior of parents or parent substitutes, and to assure good substitute parental care in the event of the absence, inability, inadequacy or destructive behavior of parents whether temporary or permanent. The health and safety of the child shall be of paramount concern in establishing the best interests of the child and shall include the long term well-being of the child.  In all matters and decisions by the department of children and families, the policy of the department, as applied to children in its care and protection or children who receive its services, shall be to determine the best interests of the child. The department’s considerations of appropriate services and placement decisions shall be made in a timely manner in order to facilitate permanency planning for the child.

(b) For the purpose of determining the manifest best interests of the child, the department and the court shall consider and evaluate all relevant factors, including, but not limited to:

1)  Any suitable permanent custody arrangement with a kinship relative of the child, including, but not limited to, grandparents, aunts, uncles, siblings or adult children of the parent;

(2) The ability and disposition of the parent to provide the child with food, clothing, medical care, or other remedial care, and other material needs of the child;

(3) The capacity of the parent to care for the child to the extent that the child’s safety; well-being; and physical, mental, and emotional health will not be endangered upon the child’s return home;

(4) The child’s ability to form a significant relationship with a parental substitute and the likelihood that the child will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties;

(5) The length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(6) The depth of the relationship existing between the child and the present custodian;

(7) The present mental and physical health needs of the child and such future needs of the child to the extent that such future needs can be ascertained based on the present condition of the child;

(8) The love, affection, and other emotional ties existing between the child and the child’s parent, siblings, and other relatives, and the degree of harm to the child that would arise from the termination of parental rights and duties;

(9) The likelihood of an older child remaining in long-term foster care upon termination of parental rights due to emotional or behavioral problems or any special needs of the child;

(10) The reasonable preferences and wishes of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference;

(11) The recommendations for the child provided by the child’s guardian ad litem or legal representative.

The availability of a non-adoptive kinship placement may not receive greater consideration than any other factor weighing on the manifest best interests of the child.

c) A judge may enter an order for the termination of the parent and child relationship when the judge finds from the evidence presented, after giving due consideration to the interests of all parties, that the termination is in the best interests of the child. Notwithstanding the above, all permanency hearings for the termination of parental relationship or reunification with parent shall occur not later than 12 months from the time said child has been removed from the care and custody of said parent. In determining whether it is in the child’s best interests that the parent and child relationship be terminated, a judge shall consider each of the following factors:

(1) The child’s need for continuity of care and caregivers and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages;

(2) The present and projected physical, mental, and emotional health of all individuals involved to the degree that such affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child;

(3) The quality of the interaction and interrelationship of the child with his or her parent, sibling, relative, or caregivers, including the foster or pre-adoptive parent;

(4) Whether the parent, guardian, or custodian of the child has not taken any action or made any effort to maintain a consistent parental, guardianship, custodial relationship, or contact with the child;

(5) Evidence that excessive alcohol or drug-related activity continues to exist in a child’s home environment or is likely to continue to exist in the future after intervention and services have been provided by law; and

(6) To the extent feasible, the child’s opinion of his or her own best interests in the matter. In all court and department proceedings that affect the child’s past, current and future placements and status, when determining the best interests of the child, there shall be a presumption of competency that a child who has attained the age of 12 is able to offer statements on the child’s own behalf and shall be provided with timely opportunities and access to offer such statements, which shall be considered by the department if the child is capable and willing. In all matters relative to the care and protection of a child, the ability, fitness and capacity of the child shall be considered in all department proceedings.

              In the event the court finds compelling evidence, after hearing, that one of the above factors, or a combination of the above factors, exist to the extent they materially affect the best interests of the child, the court shall make a determination to terminate the parental relationship and allow either an open or closed permanent placement of the child forthwith.