Bill H.204

HOUSE DOCKET, NO. 2590 FILED ON: 1/19/2023

HOUSE . . . . . . . . . . . . . . . No. 204

By Representative Meschino of Hull, a petition (accompanied by bill, House, No. 204) of Joan Meschino and others relative to minimizing trauma to court-involved children and families. Children, Families and Persons with Disabilities.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act minimizing trauma to court-involved children and families.

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

SECTION 1. Chapter 18B of the General Laws is hereby amended by inserting after section 25 the following section:-

Section 26. The department shall report each quarter on the number of cases in which it took custody of a child under section 51B of chapter 119 without first obtaining a court order under section 24 or 24A of chapter 119, the total number of children over whom it assumed custody in those cases, the median amount of time between the department taking custody and its employees requesting court approval of that decision, and the number of cases in which it took more than four hours to request court approval. Data in the report shall be broken down by area office. The report shall be made publicly available on the department’s website consistent with section 19 of chapter 66.

SECTION 2. Section 1 of Chapter 119 of the General Laws is hereby amended by inserting the following sentence at the end of the third paragraph:-

Consideration of the child’s long-term well-being shall include consideration of how to best preserve and promote the child’s cultural, racial, ethnic, religious, and linguistic identities.

SECTION 3. Subsection (c) of section 23 of chapter 119 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by striking out said section and inserting in place thereof the following:-

(c) (1) Whenever the department places a child in foster care, the department shall immediately commence a search to locate any relative of the child, including the parents of siblings or half-siblings who have custody of the siblings or half-siblings, or other adult person who has played a significant positive role in that child’s life in order to determine whether the child may appropriately be placed with that relative or person if, in the judgment of the department, that placement would be in the best interest of the child.

(2) The department shall seek to identify any minor sibling or half-sibling of the child. The department and the court shall ensure that children removed from their home and placed in the department’s care, custody or responsibility are placed together with all siblings and half-siblings unless the department makes a showing to the court by clear and convincing evidence that (i) a joint placement is contrary to the safety or well-being of any of the siblings or half-siblings; or (ii) in cases involving more than four siblings or half-siblings, the department made active efforts to place all of the children together but, notwithstanding those efforts, it is impracticable for the department to do so. The court shall make written findings in support of its decision to deny the joint placement and may make any other order regarding placement of siblings and half-siblings in the children’s best interests.

(3) In the case of siblings or half-siblings who are not jointly placed, the department shall provide for frequent visitation and other ongoing interaction between them, unless the department makes a showing to the court by clear and convincing evidence that frequent visitation and other ongoing interaction is contrary to the safety or well-being of any of the children; provided further, that the court shall make written findings in support of its decision to deny the frequent visitation or other ongoing interaction. Any sibling or half-sibling may ask the court at any time to review its decision regarding visitation or other ongoing contact or any action by the department implementing the court’s decision.

(4) Notwithstanding any provision of this section, the department may separate a child from siblings or half-siblings to avoid immediate risk of harm to any child; provided, however, that if the department does separate a child from a sibling or half-sibling without prior court approval, it shall file a petition for court approval of its placement decision within 1 business day after the placement and provide notice to all counsel in any proceeding held pursuant to this chapter or chapter 210. The court shall hold a hearing regarding the placement change within 7 days of filing the petition. The department shall bear the burden of showing by clear and convincing evidence at the hearing that the best interests of 1 or more of the siblings or half-siblings require a separate placement.

(5) Any child who is placed apart from any sibling or half-sibling, even if placed with other siblings or half-siblings, may ask the court at any time to review its decision authorizing a separate placement or any action by the department implementing the court’s decision. The department shall bear the burden of showing by clear and convincing evidence that its current placement arrangements are warranted.

(6) If the court authorizes the department to place siblings or half-siblings in separate placements, or if the department places siblings or half-siblings in separate placements pending review by the court, the department shall make ongoing efforts to remedy any concerns found by the department that led to the separate placements, including the impracticability of joint placement of larger sibling or half-sibling groups. The department shall document its efforts in the case plan.

(7) Notwithstanding the definition of “custody” in section 21, the court may make any order to ensure the joint placement of, frequent visitation with, or other ongoing interaction with siblings or half-siblings as may be in the children’s best interests, including an order to place a child with his or her sibling or half-sibling in a foster home notwithstanding department regulations preventing such placement, provided the foster parent is willing to accept the child.

(8) The department shall develop and implement a plan to increase the number of placements available for siblings and half-siblings. The department shall report annually on the status and effectiveness of its plan, including past and current data regarding the joint placement of siblings and half-siblings in the department’s care, custody, or responsibility, to the joint committee on children, families and persons with disabilities not later than March 31 of each year.

SECTION 4. Section 24 of Chapter 119 of the General Laws is hereby amended by striking out the third paragraph and inserting in place thereof the following paragraph:

If the court is satisfied after the petitioner testifies under oath that there is reasonable cause to believe that: (i) the child is suffering from serious abuse or neglect or is in immediate danger of serious abuse or neglect; (ii) immediate removal of the child is necessary to protect the child from serious abuse or neglect; and (iii) continuation of the child in their home is contrary to their best interests, the court may issue an emergency order transferring custody of the child for up to 72 hours to the department or to a licensed child care agency or individual described in subclause (i) of clause (2) of subsection (b) of section 26. The court also may make any other appropriate order, including conditions and limitations, about the care and custody of the child as may be in the child's best interest, including, but not limited to, those set forth in subclauses (1) to (3) of subsection (b) of section 26. In assessing whether continuation of a child in their home is contrary to their best interests under this section and section 29C, the court shall consider the potential short and long term harms of transferring custody to the department or to another person or entity, including trauma caused by removal of the child from their home.

SECTION 5. Chapter 119 of the General Laws is hereby amended by inserting after section 24 the following section:-

Section 24A. When the juvenile court is closed for business, any justice acting under section 9(vi)(B) of chapter 211B may grant relief authorized under the third paragraph of section 24. Such relief may be granted and communicated by telephone to an agent of the department, who shall record such order on a form of order promulgated for such use by the chief justice of the trial court and who shall deliver a copy of such order on the next court day to the clerk-magistrate of the juvenile court having venue and jurisdiction over the matter. If relief has been granted without the filing of a written petition with the clerk under section 24, the department shall appear in court when the court is next open for business to file a written petition under section 24. The matter shall then proceed under section 24.

Any order issued under this section and any documentation in support thereof shall be certified at the latest on the next business day by the clerk-magistrate or register of the court issuing such order to the court having venue and jurisdiction over the matter.

The trial court shall promulgate rules specifying the procedures applicable to matters initiated under this section. All such proceedings shall be recorded.

SECTION 6. Section 26A of Chapter 119 of the General Laws is hereby amended by inserting the following two sentences at the end of subsection (h):-

If the crime was committed more than five years before the date on which it is reviewed under this subsection, the mental health or criminal justice professional shall presume that it is irrelevant to the question of whether the individual poses a risk of harm to the child, and the department shall presume that the offense is irrelevant to the person’s application. The mental health or criminal justice professional may not presume that any crime or group of crimes, other than ones referred to in subsection (f) or (g), create a presumption that the person poses a risk of harm to the child. The department may not establish any presumption that any such crime or group of crimes warrants rejection of the person’s application.

SECTION 7. Section 26A of Chapter 119 of the General Laws is hereby amended by adding the following new subsection:-

(i) The department may not reject a person’s application to become a foster parent on the basis of criminal history information other than under subsections (f), (g), and (h).

SECTION 8. Chapter 119 of the General Laws is hereby amended by inserting after section 26C the following section:-

Section 26D. (a) Whenever a court transfers temporary custody or responsibility of a child to the department, a licensed child care agency or an individual as described in clause (i) of paragraph (2) of subsection (b) of section 26, the court shall order regular and frequent visitation between the parent and child unless the court finds that such visitation would be harmful to the child’s health or safety. The court may review and modify any such order or finding at any time thereafter upon the motion of any party for good cause shown.

(b) An order entered pursuant to subsection (a) shall specify the frequency, duration and other terms of parent-child visitation, including the extent to which the visitation shall be supervised or unsupervised. In setting the terms of the visitation, the court shall consider the child’s age, developmental stage and any other needs of the child.

(c) There shall be a rebuttable presumption that parent-child visitation will be unsupervised. The court may require that all visitation be supervised only upon a finding that unsupervised visitation would endanger the safety or well-being of the child.

(d) (i) Regular and frequent parent-child visitation shall not be less than once every week and shall include at least 2 hours of visitation per week unless the court determines that such visitation would be harmful to the safety or well-being of the child.

(ii) The court may not suspend parent-child visitation for more than 4 weeks or terminate parent-child visitation unless it finds, by clear and convincing evidence, that parent-child visitation would harm the safety or well-being of the child.

(e) The court may issue orders for communication between the parent and child, including telephone calls, video calls, electronic mail, text messaging or regular mail. When issuing such orders, the court shall consider the child’s age, developmental stage and any other needs of the child.

SECTION 9. Section 29 of chapter 119 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after the second paragraph the following paragraphs:

No later than five business days before any non-emergency change in a child’s or a young adult’s placement or any non-emergency hospitalization, and no later than one business day after any emergency change in a child’s or a young adult’s placement or any emergency hospitalization, the department shall provide notice of the change in placement or hospitalization to the child’s or the young adult’s attorney.

No later than the first business day thereafter, the department shall provide notice to a child’s attorney if it receives a report under section 51A and the child is the subject of the report. No later than the first business day thereafter, the department shall provide notice to a child’s attorney or a young adult’s attorney if it receives a report under section 51A that raises substantial questions regarding the suitability of the child’s or young adult’s current placement or any of the child’s or young adult’s service providers.

No later than the first business day thereafter, the department shall provide notice to a child’s or young adult’s attorney whenever it becomes aware of: (1) the child or young adult being arrested; (2) the child’s or young adult’s potential involvement in any proceeding under this chapter or any criminal investigation or proceeding; (3) the child or young adult being suspended from school; or (4) the child or young adult being the subject of any proceeding that could result in his or her suspension or expulsion from school.

SECTION 10. Section 51B of Chapter 119 of the General Laws is hereby amended by striking out the first sentence of subsection (c) and inserting in place thereof the following sentences:-

If the department has reasonable cause to believe that (i) a child is suffering from serious abuse or neglect or is in immediate danger of serious abuse or neglect; and (ii) immediate removal without first obtaining a court order under section 24 or 24A is necessary to protect the child from serious and imminent physical harm, it shall take the child into its immediate temporary custody. If the department takes the child into its temporary custody under this subsection, it shall, within four hours, obtain judicial approval of such action from the juvenile court or, if the juvenile court is closed for business, any justice acting under section 9(vi)(B) of chapter 211B. To obtain such approval, the department employees who made the reasonable cause determination shall provide the court a sworn affidavit stating the basis of that determination or, if providing information to the court by telephone, shall do so under oath and shall provide the court with a sworn affidavit when the court is next open for business. The matter shall then proceed as set forth in sections 24 or 24A of this chapter.

SECTION 11. Section 51B of Chapter 119 of the General Laws is hereby amended by striking out subsection (e).

SECTION 12. Section 5-207 of Chapter 190B of the General Laws is hereby amended by adding the following sentence at the end of subsection (a):-

The court’s consideration of what would be in the best interest of the minor shall include consideration of how to best preserve and promote the minor’s cultural, racial, ethnic, religious, and linguistic identities.

SECTION 13. Section 3 of Chapter 210 of the General Laws is hereby amended by striking out the last sentence of the second paragraph of subsection (c) and inserting in place thereof the following two sentences:-

In making the determination, the health, safety, and well-being of the child shall be of paramount, but not exclusive, concern. The court’s consideration of the child’s well-being shall include consideration of how to best preserve and promote the child’s cultural, racial, ethnic, religious, and linguistic identities.

SECTION 14. Section 9 of Chapter 211B of the General Laws is hereby amended by striking out subparagraph (vi) of the third paragraph and inserting in place thereof the following subparagraph:

(vi) the responsibility to establish, manage and implement a mandatory emergency judicial response system:

(A) for all judges other than judges of the Juvenile Court department, except when the chief justice of the trial court determines that the participation by a particular judge would create a hardship for such judge; and

(B) for all judges of the Juvenile Court department, except when the chief justice of the trial court determines that the participation by a particular judge would create a hardship for such judge, to hear matters under section 24A of chapter 119.

SECTION 15. The department of children and families shall promulgate regulations to implement section 9 of this act no later than six months from the effective date of this act.

Name:	District/Address:	Date Added:
Joan Meschino	3rd Plymouth	1/18/2023
Lindsay N. Sabadosa	1st Hampshire	1/19/2023
Jennifer Balinsky Armini	8th Essex	2/21/2023
Natalie M. Higgins	4th Worcester	2/23/2023
Samantha Montaño	15th Suffolk	5/4/2023
Mary S. Keefe	15th Worcester	6/6/2023