Appeals Court hears challenge to DCF practice for incarcerated parents; counsel urges court to require proof of "reasonable efforts" before adoption notices

The Massachusetts Appeals Court heard argument in an impounded termination-of-parental-rights appeal in which the father's lawyer asked the panel to require the Department of Children and Families to show it made "reasonable and/or special efforts" to serve incarcerated parents before a court will entertain a notice of intent to dispense with parental consent to adoption.

"We propose that this court require the department to show and the court to find that it has made reasonable and/or special efforts before it will entertain a notice of intent to dispense with parental consent to adoption," attorney Laura Loe told the three-justice panel. Loe said there is no binding precedent enforcing 110 CMR 110's special provisions for incarcerated parents and argued DCF repeatedly failed to adapt service plans for a father who remained incarcerated for more than two years while court reports continued to list unchanged tasks the father could not complete.

The argument centered on whether the record in this case — seven court reports over a 2½-year span by multiple social workers and supervisors documenting that the father could not adhere to his action plan because of incarceration — demonstrates that DCF failed to make reasonable efforts. Loe proposed that requiring an evidentiary showing before a notice of intent would incentivize the agency to pursue alternatives such as in-prison counseling, Zoom sessions, individual counseling arranged through correctional facilities or advocacy between state agencies.

Justice Sachs and other members of the panel pressed Loe on the source of the court's authority to adopt such a rule and on the practicality of some remedies. The panel repeatedly emphasized the procedural point that claims about inadequate reasonable efforts must be raised early in trial court proceedings so they can be remedied there, not only on appeal. "By the time it gets to us, there's not a great deal that can be done," one justice observed during questioning.

Arguing for the department, Lyn Murphy said the father had been incarcerated for most of the child's life, stipulated to unfitness 14 months before trial and repeatedly declined to cooperate with DCF, refusing to sign releases and limiting the department's ability to verify his participation in in-prison programs. "The department cannot provide services or assist a parent who will not work with them," Murphy said, noting the agency provided regular visits and attempted consultations with prison officials but that the record showed limited information about the father's in-prison programming.

Felicia Shaman, representing the child, urged the court to focus on the child's best interest and permanence. Shaman said the child, four at trial, had formed a secure bond with a pre-adoptive mother who had cared for him most of his life and that a short-lived relative placement had proven unsuccessful, producing significant anxiety in the child.

Counsel and the panel also discussed available remedies when reasonable-efforts findings are lacking, including interlocutory appeals or other trial-court motions; Loe said some statutory or administrative remedies are rarely used in juvenile court because they often take many months and offer limited practical relief.

After questioning, the panel thanked counsel and submitted the impounded appeal for decision. No ruling was made from the bench.

The case is Department of Children and Families v. Father (impounded), argued before Justices Rubin, Saxs and Smith; the court has taken the matter under advisement.