Skip to Content

General Laws

Section 23. (a) The department shall have the responsibility, including financial responsibility, for providing foster care for children through its own resources or by use of appropriate voluntary agencies, according to the rules and regulations of the department, in the following instances:—

(1) If a child, parent, guardian, or any person acting on behalf of a child, applies for foster care, the department may accept a child who, in the judgment of the department, is in need of foster care. Such acceptance shall entail no abrogation of parental rights or responsibilities, but the department may accept from parents a temporary delegation of certain rights and responsibilities necessary to provide the foster care for a period of time under conditions agreed upon by both and terminable by either. If the department determines that continued placement beyond 6 months is required for reasons unrelated to parental unfitness and the parent consents to continued placement, the department may file a petition for care and responsibility in the probate court on behalf of a child accepted into foster care. At the initial hearing on the petition, the court shall determine whether continued placement with the department is in the child’s best interests and shall issue its determination, including its rationale, in written form. The allowance of the petition shall not abrogate a parent’s right to make decisions on behalf of the child, but the department may accept from the parent a temporary delegation of certain rights and responsibilities necessary to continue to provide foster care for the child under conditions agreed upon by both and terminable by either. Notwithstanding any general or special law to the contrary, a permanency hearing shall be held within 60 days of the transfer of responsibility by order of the probate court or within 12 months of initial placement into foster care with the department, whichever date is later. The hearing shall be conducted as provided in section 29B.

(2) If a parent or parents apply for voluntary surrender of custody of a child for purposes of giving consent to adoption, the department may accept the child following the procedure described in clause (1).

(3) If a child is without proper guardianship due to death, unavailability, incapacity or unfitness of a parent or guardian or with the consent of a parent or parents, the department may seek, and shall accept, an order of the probate court granting responsibility for the child to the department. Such responsibility shall include the right to: (i) determine the child’s abode, medical care and education; (ii) control visits to the child; (iii) consent to enlistments, marriages and other contracts requiring parental consent; and (iv) consent to adoption only when it is expressly included in an order of the court. In making an order, the probate court shall consider section 29C and shall make the written certification and determinations required by said section 29C. If a child is in the care of the department of mental health or the department of developmental services, the responsibility for the child as described in this section and all rights therein contained shall continue in the department. If a person with mental retardation who has been declared mentally incompetent was the responsibility of the department prior to reaching the age of 18, the department shall continue to exercise responsibility for that person until that person is declared to be no longer legally incompetent.

(4) The department shall accept on commitment from the juvenile court any child declared in need of foster care under section 26 or declared to be a child in need of services under section 39G.

(5) Any child who is left in any place and who is seemingly without a parent or legal guardian available shall be immediately reported to the department, which shall proceed to arrange care for that child temporarily and shall forthwith cause search to be made for that child’s parent or guardian. If a parent or guardian cannot be located or is unable or refuses to make suitable provision for the child, the department shall make such lawful provision it deems in the best interest of that child as provided under this chapter.

(6) If the department has in its care a child whose parent or parents have consented to the child’s adoption and the department has been unable to place that child in an adoptive home within 60 days of receipt of the consent, the department shall so notify all children’s foster care agencies in the commonwealth licensed to place children for adoption. The notice shall request that each such agency attempt to find an adoptive home for such child. If 1 of the agencies locates an adoptive home for this child, the department shall cooperate with the agency in the placement of the child in this home and in the supervision of the placement during the 1 year waiting period. Any person in whose home a child has been placed by the department shall also be informed by the department if the child has become eligible for adoption, and this person may request consideration as a prospective adoptive parent.

(7) A temporary shelter care facility program or a group care facility, licensed under chapter 15D, may provide temporary shelter for a 72-hour period to a child without parental consent, if the child’s welfare would be endangered if such shelter were not immediately provided. At the expiration of the 72-hour period, the licensee shall: (i) secure the consent of a parent or guardian to continued custody and care; (ii) refer the child to the department for custody and care; or (iii) refuse to provide continued care and custody to the child.

(b) The department shall develop guidelines and standards for the placement of children in foster care. The guidelines and standards shall be reviewed by the executive office of health and human services and the child advocate.

(c) Whenever the department places a child in foster care, the department shall immediately commence a search to locate any relative of the child 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.

The department shall also seek to identify any minor sibling or half-sibling of the child and attempt to place these children in the same foster family if, in the judgment of the department, that placement would be in the best interests of the children.

(d) The department may pay to a funeral establishment a sum not to exceed $1,100 for the funeral and final disposition of a child in its care if there are insufficient resources to pay for the cost of such funeral and final disposition. The commonwealth shall have the right of reimbursement from whatever resources may exist in the estate of the child.

(e) If a child is placed in or transferred to a foster home, a completed child profile form shall precede or accompany the child to the foster home. In the case of an emergency placement, the department, the department of youth services, the department of mental health, other departments of the commonwealth responsible for the placement of foster children, or a placement agency shall immediately provide a brief verbal or written statement describing the child’s outstanding problem behaviors and mental and emotional problems and shall provide the child profile form within 10 days to the foster parents.

The department shall develop a child profile form to be used by all other departments of the commonwealth or placement agencies that shall contain the child profile and any other relevant information necessary to the care, well-being, protection and parenting of the child by the foster parents, including, but not be limited to: (i) a history of the child’s previous placements and reasons for placement changes; (ii) a history of the child’s problem behaviors and mental and emotional problems; (iii) educational status and school related problem behaviors; and (iv) any other necessary psychological, educational, medical or health information.

The child profile form shall immediately be prepared by the department of the commonwealth which is granted care and custody of the child at the time such care and custody is granted.

(f) The department shall offer to continue its responsibility to any young adult who is under the custody, care, or responsibility of the department including, but not limited to, those persons who meet any of the criteria set forth in 42 USC § 675(8)(B)(iv): (i) for the purposes of specific educational or rehabilitative programs, or (ii) to promote and support that person in fully developing and fulfilling that person’s potential to be a participating citizen of the commonwealth under conditions agreed upon by both the department and that person. The department’s continued responsibility for such persons is contingent upon the express written consent of the person or their guardian unless: (i) before reaching the age of 18, the person had an intellectual disability and was declared mentally incompetent under clause (3) of subsection (a) while under the responsibility of the department; or (ii) the person is under the responsibility of the department pursuant to section 5-305 of chapter 190B. The purposes and conditions of such responsibility may be reviewed and revised or terminated by either the person or the department; provided, however, that within 90 days before the termination of such responsibility, the department shall provide the person with assistance and support in developing a transition plan which fulfills the requirements of 42 USC § 675(5)(H). If after termination the person requests that the department renew its responsibility therefor, the department shall make every reasonable attempt to provide a program of support which is acceptable to the person and which permits the department to renew its responsibility; provided, however, that the department may require the person to meet 1 of the criteria set forth in 42 USC § 675(8)(B)(iv). If the department renews its responsibility, all other provisions of this subsection shall apply. The department shall report annually to the child advocate, the senate and house chairs of the joint committee on children, families and persons with disabilities and the chairs of the senate and house committees on ways and means on the number of persons it serves and declines to serve under this subsection.

(g) The department shall obtain and provide to the IV-D agency, as set forth in chapter 119A, an assignment of support rights on behalf of each child receiving foster care maintenance payments under Title IV, Part E, of the Social Security Act. The department shall be subrogated to the rights of each such child and shall obtain and provide to the IV-D agency information that may be reasonably necessary to enforce the department’s right including, but not limited to, the following information: the child’s name, date of birth, place of birth, Social Security number, address and benefit level and, if known, each parent’s name, date of birth, place of birth, Social Security number, most recent address and most recent employer. The department shall immediately notify the IV-D agency when a child whose rights to support are subrogated no longer receives foster care maintenance payments under said Title IV, Part E, of the Social Security Act.

(h) The department shall, subject to appropriation, provide assistance to foster care families which includes maintenance payments at the daily rate recommended and periodically adjusted by the United States Department of Agriculture. The department shall periodically review the level of assistance including maintenance payments provided to adoptive and guardianship families and may, subject to appropriation, and consistent with federal law and policy, adjust such assistance as warranted by the financial circumstances of the family, the needs of the child or the rate of inflation.

The department shall report annually on September 1, to the senate and house committees on ways and means and the joint committee on children, families and persons with disabilities on the amounts expended to provide to foster care, adoptive and guardianship families financial and other assistance including, but not limited to, payments to provide for the care of children.

(i) The department, in consultation with the executive office of public safety and security, shall work with the department of state police and municipal police departments to ensure that adequate efforts are being made to identify and to provide for the immediate protection, care and custody of the minor children of a person arrested or placed in custody by police officers in the performance of their official duties.

Error