-: SJC-13072, in the matter of an impounded case.
-: Okay, we'll start with attorney O'Malley O'Connor.
-: Thank you madam chief justice.
Good morning, and may it please the court.
Ann O'Connor on behalf of the--
Man: Could you talk a little louder?
-: Sorry. Man: Sorry, yeah.
-: May I take this off?
Man: Yes (indistinct). -: Sorry.
-: Ann O'Connor on behalf of the child's mother.
This court decided the case of care and protection
of Rashid, despite a concern about mootness,
in part ,because the court deemed judicial determination
of DCF's efforts toward reunification,
to be a matter of public importance.
The court explained in the decision,
that timely judicial oversight of DCF's provision
of reasonable efforts, serves the purposes
of the care and protection statute by protecting children
and families against unnecessarily prolonged placement
in foster care.
The court assigned DCF the burden of proving, I'm sorry,
the burden of proving that it has made
reasonable efforts to reunify.
Because in deciding what services
to provide to families,
DCF has the power to shape the historical facts
that may form a basis for a future request
for termination of parental rights.
The question now, is what standard of proof DCF must meet?
Applying the balancing tests set forth
in Matthews versus Eldridge, it's our position
that the appropriate standard
is clear and convincing evidence.
As this court recognized in care and protection
of Robert, a higher standard of proof,
increases the likelihood of an accurate determination.
-: Can I ask you a couple of,
so the, if the 72-hour hearing,
we'll take in Robert, the case you just cited.
We decided that preponderance of evidence is sufficient
to remove the child from the parents.
Does it make sense to have a higher standard
for the reasonable efforts at the 72 hour,
than, the more consequential decision
which is to remove the child?
-: Sure, your honor, yes, it does.
I know my brother for the department argues otherwise,
but, in applying the Matthews versus Eldridge tests,
you have to look at the circumstances that pertain
in the particular situation.
In the particular situation presented
in care and protection of Robert, the question was,
what standard of proof to maintain custody,
temporary custody, but I'll be at, for, you know,
maybe a year or more?
And the court balanced there, the temporary nature
of that deprivation, that the parent would suffer
as against the harm to the child.
The child's what this court said
was an absolute constitutional right
to be free from harm, parental harm.
And it was a situation where a court already
had made a finding that the parent either had abused
or neglected the child, or presented an immediate risk
of abuse or neglect to the child.
And the court said that in that situation,
balancing the parent's rights as against
the child absolute constitutional right to be free
from harm, the child shouldn't bear the risk
of an erroneous fact-finding that puts the child back
in an abusive and neglectful environment.
In this case, the child's absolute right
to be free from harm also is implicated.
It's implicated in a reasonable efforts determination
but it cuts the other way here, because the harm
to be prevented is the harm-- -: Why?
Isn't the same, don't we have the same issue all the time?
I'm confused why at that point in time,
there's that danger of harm from the parents,
but there's not a danger of harm other times?
I'm-- -: In this situation
your honor, where the child is in DCF foster care
and there's an allegation that DCF is not,
or a burden of production has been met,
that DCF is not providing the necessary services
to reunify the risk of harm to the child
if is the risk of loss remaining in DCF care
for longer than is necessary.
And given that, that's the risk of the harm, again,
the higher standard would promote
a more accurate determination,
you-- -: Can I ask,
I understand why we have the clear and convincing standard
for the ultimate determination.
What other parts of this DCF process do we impose
a higher standard?
Where else do we impose the clear and convincing
besides, in the ultimate termination decision?
-: Well, for a finding even fitness itself
for an adjudication
that the child's in need of care and protection
and on a review and redetermination,
where a previous determination, adjudication
of care and protection has been made,
and a party seeks to revisit that DCF must prove
that not withstanding any changes that have occurred
since the adjudication, by clear and convincing evidence
the parent remains unfit.
So looking at the Matthews versus Eldridge factors again,
the issues, the private interests is at stake
are the shared right to family integrity,
which is a fundamental interests that the parent
and child share.
The child's right to be in foster care
for no longer than is necessary.
And the child's right to be free from harm, and as again,
the court recognized in the main case
in care and protection of Rashid.
The harm accrues to a child for as, the longer the child
is in foster care, the more the trauma of family separation
and placement in foster care gets extended.
So the court recognized again in Rashid
that the purpose of timely judicial oversight
of reasonable efforts is to protect these individual rights.
The court was clear that timely judicial determination
of this issue is important to advance the goals
of chapter 119.
And I can't imagine what good timely is,
if it is not also accurate, and again a higher standard
of proof promotes accuracy and decision making--
-: Can I ask one last question?
You mentioned the other times we have the clear
and convincing, are those all in the statute itself
that or if we impose that through judicial interpretation?
-: The latter your honor, not, the standard of proof
isn't set out in any of any of the statutes.
I would point out too, that what the court requires
in this instance in under 29-C,
is a determination, what the statute requires
is a determination by the court
not a fact finding, a determination the same way
under 11926-4, and 210-3.
The statutory term is a determination
that determination of parental rights
is in the best interest.
Again-- -: Okay.
When I hear again, I'm gonna-- -: Okay.
-: I'm gonna say, thank you,
and we'll now hear from attorney (indistinct).
-: Thank you.
(clears throat)
-: May it please the court.
In Rashid, quoting judge Edwards, this court said,
"Children and families are in trauma,
as the result of social services and court intervention.
The longer the process takes the more extensive the trauma.
The child's right to avoid trauma, this trauma,
or be subject to it for only as long as necessary,
should be central to this court's analysis
of the correct standard of review."
I'm gonna focus my argument, your honors,
on challenging the department's assertions.
And the first assertion was, there was a comparison,
the temporary custody hearings could be compared
with reasonable efforts hearing
as far as the appropriate standard.
Because the standards is a fair proponents
in temporary custody hearing,
it should also be that in a reasonable efforts hearing.
I would, first of all point out that,
in addition to the instances that my sister mentioned--
-: At the 72 hour hearing there,
it's the exact same moment, right?
You're doing the first reasonable efforts determination,
or the second one? -: Second.
-: Is at the 72 hour hearing.
-: Yes.
-: We've already imposed
the preponderance standard for removing,
so we will have a preponderance for removing
and a clear and convincing for the reasonable efforts.
It seems-- -: Yes.
-: It seems like unworkable.
-: I would argue your honor, that it is an unworkable
and the reason is because the facts that you're assessing
are completely different.
The fact-- -: At 72 Hours?
-: As a basis for removing custody
and a basis for determining whether the department
has made reasonable efforts.
The removal of custody is what the parents
have or have not done.
Reasonable efforts is what the department
has or has not done.
And so the issue there is completely separate--
-: I don't understand
why they have to be completely separate.
Why isn't there sometimes a relationship
between what might be a reasonable effort
based on changes in the parent's behavior?
-: Well, yes, yes, certainly the department has to take
the facts as they are presented to them,
and make efforts to keep the family intact,
based on those facts.
I didn't mean to suggest anything different,
but, at a temporary custody hearing, the court is assessing
whether the child is at immediate risk,
thank you, judge, good idea.
Is at immediate risk of serious abuse or neglect
and unreasonable efforts question,
the question is simply is, did the department
make reasonable efforts to keep the family intact?
Those are separate and distinct considerations
that the court has to make, and there's there's no,
there shouldn't be any confusion just by applying
a separate standard to them.
I just wanna make sure that I point out Justice Cypher
in response to your question,
my sister mentioned several instances where clear
and convincing was the standard, in the care.
There's one other one, and that is a motion to terminate
parental rights, excuse me, terminate visitation.
And, the reason that that's important is because,
in all of those instances,
I would argue that it is the familial relationship
that raises the standard.
And so, obviously in a circumstance where reasonable efforts
are in question, that also implies a familial relationship,
the right to that relationship,
whether the parents are getting enough visitation,
for instance.
-: There's a termination, a complete termination
of visitation, not a change in visitation arrangement.
-: That's correct.
-: Can I ask,
so, you won the last case, the critical,
so you can bring a reasonable efforts determination
more often than, you know,
there's really no specific null limitations.
So, you get to keep coming back.
How does that affect the analysis?
Because, okay, you lost it,
but you get to do it again, you know?
-: Well, you can, and you can't, you lost
and, I can't bring the same motion
before juvenile court judge
every time and say, "Well, judge you denied
this the last time, would you allow it this time?"
That's just not appropriate, and it wouldn't happen.
I can bring reasonable efforts motions
depending on changed facts.
If the department has failed to make reasonable efforts
after the first motion, if they continue
to fail to make reasonable efforts,
I can bring it back.
If it's a separate issue, I can bring it back.
I can't bring it back on same issue.
-: Right, now I get you on that.
-: I see-- -: But it seems like,
the custody issue and the best interest of the child,
is this overarching determination that's going on.
Reasonable efforts doesn't necessarily dictate
the ultimate determination, but it's really important
and now we're talking about it can be re-evaluated
and situations are fluid, just like you referenced,
you can bring it back for something else.
It just seems that, if we're looking at reasonable efforts
and we're seeing what the department's doing,
there's a whole bunch of different opportunities
that might give the parents an opportunity,
which was what we want. -: Mm-hmm.
-: That to impose as part of the long-term process
of where this is going to end up.
A clear and convincing along the way for reasonable efforts.
It seems to me, it doesn't promote accuracy
is indeed might slow things down
and make evaluating reasonable efforts
in a way that's fluid, actually more difficult.
-: Well, the analysis under Eldridge is really about,
you know, the danger of an erroneous or the risk
of an erroneous decision.
And the risk of an erroneous decision in this situation,
is the risk to the child and the parents
of the breaking of the family bond,
one of the most sacred things that we as human beings have.
And so I would argue that a lower standard
would not impose anything more on the department,
it would comply with the statutory mandate,
and it would, certainly if it were applied appropriately,
ensure that children are returned to families
when they should be, and not later.
And so I don't know that a lower standard would ensure that,
the risk of error is too great for that basic human right.
I can see that my time is up.
-: Okay, thank you. -: Thank you.
-: Attorney Bayless.
(sighs)
-: May it please the court.
I wanna start by touching on kind of a theme
that's been running through the argument,
which is the repeated reference
to a child's right to timely resolution.
And one important consequence
of an increased standard of proof
at reasonable efforts hearings,
be they at the temporary custody hearing,
or at the sort of intermediary hearings that are going
to come about as a result of the Rashid decision,
is that a higher burden of proof necessitates more.
Which means those hearings will go on longer.
And as we've already seen through temporary custody
hearings, they're, they can often take
a significant amount of time.
It's difficult for the juvenile court in some jurisdictions
to have consecutive trial dates,
which kicks it out even further,
and so it's not simply a matter of, the department
has a stack of evidence of its reasonable efforts
that it can provide.
And then the standard of proof has no impact
on how that's evaluated beyond the burden--
-: But there are other areas, I mean,
if the clear and convincing standard were only limited
to the sort of the ultimate termination,
or, you know, the termination of visitations,
basically the old,
that would be an ultimate determination
in all effect, I think.
But, isn't, we do have it in other contexts,
so, you know the, both DCF and the courts are capable
of managing it, right?
-: And, that actually kind of goes to the discussion
you had with attorney (indistinct),
regarding the termination of visits
that one, that is distinguishable from these,
because it is the cessation of visitation,
it isn't a dispute over daily, weekly,
that's closer to an ultimate question, admittedly, it's not.
But the second response is that those hearings
take an ample amount of time.
That's not resolved by, affidavit,
which is at least within the realm of possibility,
under the Rashid decision,
there's nothing expressly requiring an evidentiary hearing.
And so the same concern is still there.
It is certainly possible, and one other factor
that at least other jurisdictions have implemented.
It's not the department's position here,
but it is one that's been considered is, using different
standards of proof for different stages in the proceeding.
If it doesn't make sense to uncouple
and I contend it does not make sense to uncouple
the standard of proof in a 72-hour hearing,
from the standard of proof used to remove a child
from their parents' custody for a year or more.
And perhaps the standard of proof at trial
could be pegged to the standard, that the standard of proof
that is being used for the other determinations at trial.
That is certainly one
that has been considered by other jurisdictions
throughout the country.
But, here, there's been an acknowledgement in Robert,
that, a year removal of custody is a temporary deprivation.
That preponderance of the evidence is appropriate
for given the competing interests.
-: How is-- -: That's also the case--
-: How are Alabama, Alaska, California, Connecticut,
Delaware, et cetera, surviving what you consider
to be this practical impediment?
All of those jurisdictions and more,
have this clear and convincing standard for reasonable
efforts, and somehow they're processing cases.
-: I don't believe that I intended to say that it would cause
an implosion of our judicial system,
it would simply lead to, increased delays
in the ultimate resolution of the case.
If a reasonable efforts motion requires a month
of chronological time, because the court
only has available dates on a certain number of days,
and it takes that long,
there have been temporary custody hearings out west
that have lasted for months.
It's certainly not preferable, but it does happen.
It leads to delays--
-: Your point is that it will delay the ultimate resolution,
and it's not worth that cost?
Or I'm confused, like, so yeah.
So I'll grant you, it will be longer hearing.
Why is that a bad thing?
And, how does that cut?
-: It delays one, yes, it will lead to extending
the proceedings and delaying the ultimate resolution.
That was a concern raised by this court,
and is part of the reason why this court gave discretion
to the judges, to deal with these motions, as they see fit.
Secondly, it will delay resolution of the ultimate question.
A long protracted hearing means there's no resolution
until the hearing is over, which if we have--
-: Right, and all these costs you have to look at the benefit
and I take it, the argument, you know,
in favor of a higher standard, is that the benefit
is, where the legislature has said
is really an important goal,
which is preserving the child-parent relationship,
if at all possible.
Which is the whole point of requiring the department
to make reasonable efforts.
-: Of course, and that's, what's being balanced,
is that benefit and whether or not preponderance
of the evidence creates too much,
or clear and convincing evidence creates
such an added protection against the erroneous deprivation,
that it is worth delaying a potential order,
a remedial order, or delaying permanency for the child.
And the department's position is that it does not.
We already use that standard for removal,
and so it's not simply causing error left and right.
Secondly, as has been pointed out--
-: You were just, opposing counsel's point
that in the removal, the temporary removal,
the child has a counter veiling interest under Matthews.
Whereas here the child and the parent
both are on the same side,
marshaling the same interest in terms of trying to preserve
the parent-child relationship.
-: I don't think that's a safe assumption to make,
if the child and parents have the same interest here.
There're plenty of cases where the child is opposed
to a return to the parents.
-: No, not a returned to the parents,
isn't it, we're talking about whether the department's
making reasonable efforts to make that possible.
-: Certainly. -: Yeah.
-: And there're sorts of situations in which if you ask
child's counsel, they would be a hard no.
That that should not be pursued and that the, you know,
and that's what ultimately leads to a goal change
at a permanency hearing, which this court
is aware changes what the reasonable efforts requirement is.
So that I, that's not always the case,
but I agree it is frequently the case.
-: Can I ask you to address, this?
A number of the other states have sort of different
statutory constructions too, right?
-: Yes.
-: So the reasonable efforts to, like California,
the ones that Justice Wendland just listed.
Do they have the same number of reasonable effort
determinations that we do?
You know, sort of incrementally through the process,
including it 72 hours or, do they,
does everyone sort of have a similar structure?
I just don't know.
-: I hesitate to speak with confidence
as to 50 state systems.
-: Right, Yeah, it's too complicated.
-: I agree with attorney O'Connor that I was unable
to locate any jurisdictions that appeared
to have this motion practiced,
the way that Rashid contemplates.
It appears that one of the amici has identified
that Vermont has, must have something similar
based on one of their blurbs.
Although, the 50 states survey in the amicus brief,
slightly exaggerates the clear and convincing evidence
because they include, it's required under certain grounds,
or it's required if it's a basis but--
-: A number of them are required by statute itself, so--
-: For various specific types of basis for termination,
parental abandonment, clear and convincing,
but not for the rest that along those lines.
But, so it's, we're in a little bit,
if not uncharted, poorly charted waters with how to go
with the intermediary at the sort of whim of the parents,
whim is too dismissive, at the motion
of the parents or the child.
That is not well-represented.
-: Counsel, can I ask you one question?
When you keep referencing that it might make the process
longer, are you talking in terms of quantity of evidence,
or how good the evidence is?
-: It's, that's going to be case case by case.
You know, there's certain witnesses
that are always going to testify and then depending
on what the specific, so I guess the shorter answer
is actually more likely to be quantity.
But, it's going to really depend on what's being challenged?
What the factual situation is?
And that's gonna dictate who is brought in to testify.
The dispute isn't over whether or not the department
is providing services, and whether or not it needs to meet
the burden, but meeting a higher standard of proof
is going to at times,
necessitate significantly more evidence.
It might necessitate expert witnesses, the list can go on
and on and is it going to be unfortunately
very fact specific.
-: Okay.
-: (indistinct) time is left, thank you.
-: Thank you very much.