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DSS stories spur court reformers Proposals aim at tangled legalities of child abuse custody cases: [City Edition]

Wong, Doris Sue. Boston Globe (pre-1997 Fulltext); Boston, Mass. [Boston, Mass]21 Oct 1992: 27.

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[Jinanne Elder], who spearheaded a class-action lawsuit against the district courts earlier this year over a backlog of 800 abuse cases that were awaiting trial, said part of the problem also is that a "culture" has developed among some judges and lawyers that favors monitoring the birth parents for progress rather than seeking a permanent resolution to the case.

After a juvenile or district court judge rules in an abuse case, DSS must start the legal process anew by filing a petition in the probate and family court to terminate the rights of the birth parents and free the child for adoption.

Francis G. Poitrast, chief justice of the Juvenile Court, who favors establishment of a family court, and Jacquelynne Bowman, an attorney specializing in family and children's issues at the Massachusetts Law Reform Institute, said the problem of delays also can be attributed to DSS, which lacks the lawyers it would need to file the petitions quickly in probate court.

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Hundreds of children who have been placed in foster homes because of alleged abuse are victimized again, family law specialists say, by Massachusetts' notoriously clogged court system and an unusual two-court method of handling their cases.

The court backlog, seen as one more challenge for the social workers assigned to protect such children, is prompting proposals designed to speed up the process and place children in permanent homes as soon as possible.

The role of the courts in the foster care and adoption system has come under scrutiny by state officials and others over two cases that many say were mishandled by the state Department of Social Services or judges.

A 3 1/2-year-old boy who has been identified only as Andy was returned to the custody of his birth parents by a juvenile court judge last week over the protests of his longtime foster family, which had been led to believe it would be allowed to adopt him.

In another case, an 11-year-old known as Mikey was abruptly taken from his foster home of eight years last summer by DSS caseworkers.

Among the changes being proposed are:

- Creation of a court division devoted to handling all cases involving family and children's issues.

- Authorizing judges in existing courts to handle both abuse cases and adoption cases.

- Setting an 18-month limit for rulings on parental fitness and termination of parental rights.

- Changing the laws so that the best interests of the child, rather than parental fitness, become the focus of court proceedings.

Many who now watch the courts say the need for change is clear.

"You have a mosaic of different courts and different state agencies and you are trying to wend your way through," said Sandra Lynch, president of the Boston Bar Association. "Meanwhile, the kids are in limbo, and they don't wait to grow up."

Reformers say that on average, it takes five years, counting from the first report of abuse, to legally terminate the parental rights of abusive parents. For 38 percent of the children, it takes eight years; for 10 percent, more than 10 years.

Part of the delay, these critics say, stems from the DSS practice of spending an average of 2 1/2 years working to rehabilitate the birth family before bringing the case to court.

But once the case reaches the courts, a district or juvenile court judge takes an average of 18 more months before deciding whether the child should be permanently removed from parental custody.

Some attribute the delays to a lack of judges who are available or willing to hear abuse cases. Trials to determine parental fitness are often difficult to arrange or are strung out over months or years.

"It wears you down,"said Jinanne Elder, director of the Family Law Advocacy Project of the Committee for Public Counsel Services. "You scream and holler, and you bat your head against the wall, and nothing happens."

As a result, rather than wait for a trial, parties in a case will frequently try to reach a compromise and bring it before a judge. Reports by social workers and investigators often become the basis for the agreements, but often the reports are riddled with unsubstantiated accusations that go unchallenged in the absence of a trial.

The delays can be heart-wrenching for foster families and children who grow emotionally attached after spending years together, only to be separated if the birth parents are deemed fit to regain custody.

Elder, who spearheaded a class-action lawsuit against the district courts earlier this year over a backlog of 800 abuse cases that were awaiting trial, said part of the problem also is that a "culture" has developed among some judges and lawyers that favors monitoring the birth parents for progress rather than seeking a permanent resolution to the case.

"There is a strong systemic favoring of the birth families," said Rachelle Dinsmore, a spokeswoman for the Children's Adoption & Foster Care Rights Coalition. "So there is a tendency to give the birth parents another three months or six months again and again to give them a chance to rehabilitate themselves."

"We think the best interests of the child should be the primary consideration," said Dinsmore. "The child has no say, has no rights under the law, and is a helpless victim of circumstance under the system."

After a juvenile or district court judge rules in an abuse case, DSS must start the legal process anew by filing a petition in the probate and family court to terminate the rights of the birth parents and free the child for adoption.

This process, reformers say, is duplicative and wasteful because it often involves the same evidence, but different lawyers and judge, and typically adds another 18 months to the legal proceedings.

Francis G. Poitrast, chief justice of the Juvenile Court, who favors establishment of a family court, and Jacquelynne Bowman, an attorney specializing in family and children's issues at the Massachusetts Law Reform Institute, said the problem of delays also can be attributed to DSS, which lacks the lawyers it would need to file the petitions quickly in probate court.

Under a consolidated system for dealing with abuse-adoption procedures or a new family court, reformers say, one judge could decide both issues in the same court.

"The needs of families and children are not being adequately served by the current structure and will only get worse," said the Bar Association's Lynch.

"Once we've made the decision to commit these cases to the court system because they involve very serious issues of integrity of the family, protection of children and being sure that children aren't treated like property, they deserve the full attention of judges," she said.

Lynch said if the need to get abused children into stable homes is not met quickly, society will only pay later.

"It makes more sense to get to these kids early and to try to help them early," she said, "rather than to pay to incarcerate them in Walpole later."


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Copyright Boston Globe Newspaper Oct 21, 1992















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