Care and Protection of Dor.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-852

CARE AND PROTECTION OF DOR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from an order issued by a Juvenile Court

judge in the context of a permanency hearing pursuant to G. L.

c. 119, § 29B, that in part determined that the Department of

Children and Families (department) had made reasonable efforts

to reunify the father with his child, pursuant to G. L. c. 119,

§ 29C.1 We affirm.

1We note that this appeal comes to us in a highly unusual
procedural posture. Both parents initially appealed from the
judge's decision after the permanency hearing pursuant to G. L.
c. 119, § 29B (e), but the mother has since filed a motion to
dismiss her appeal and the father has moved to dismiss "Count I"
of his appeal, which is the argument that pertains to the
judge's determination regarding the permanency plan. We allow
both motions to dismiss. Thus, the only issue that remains
before us is the father's challenge to the judge's reasonable
efforts finding. The mechanism for obtaining appellate review
of a reasonable efforts finding is ordinarily through a petition
for interlocutory relief under G. L. c. 231, § 118, see Care and
Protection of Walt, 478 Mass. 212, 218 (2017), which can be
heard expeditiously by a single justice of this court based on
current facts. The procedural posture of this case has led us
1. Background. Dor was born in August 2018. On May 29,

2019, the department filed the underlying G. L. c. 119, § 24

petition in the juvenile court, and temporary custody of Dor was

transferred to the department. On March 10, 2020, the

department filed a permanency plan pursuant to G. L. c. 119,

§ 29B. On April 23, 2020, a judge held the permanency hearing

and entered an order approving the goal of reunification. Later

in 2020, the Department changed Dor's permanency goal to

adoption. In April 2023, the father was convicted of sexually

abusing Dor's half-sister and was expected to remain

incarcerated for the next seven years.

On May 8, 2023, the mother stipulated to a finding of

parental unfitness. In June 2023, a second judge (trial judge)

presided over a trial at which the department sought to

terminate the father's parental rights. After trial, the trial

judge found that the department proved the father's unfitness

but declined to terminate the father's parental rights because

she concluded that the department had not made reasonable

efforts to engage the father with Dor. The trial judge found

Dor in need of care and protection and committed him to the

permanent custody of the department.

to consider the reasonable efforts question after a far longer
passage of time.

2
On March 25, 2024, the department filed a permanency plan,

and the parents filed written objections to the department's

proposed goal of adoption and requested an evidentiary hearing.

On May 10, 2024, a third judge (hearing judge) held the

permanency hearing. On July 15, 2024, the hearing judge issued

findings of fact and conclusions of law, concluding that the

department had "made reasonable efforts to encourage the

integrity of the family and reunify Dor with Mother and Father"

and that it was "in Dor's best interest to have his permanency

goal changed to adoption."

We summarize the hearing judge's findings of fact, which

the parties do not dispute. Dor has special needs and a speech

delay, and there are concerns that he may have autism spectrum

disorder. The hearing judge's determination of reasonable

efforts covered the period between June 2023 and May 2024.2

Since June 2023, the father had visits with Dor in August,

September, and November 2023. The department tried to schedule

a visit in April 2024, but the visit did not take place because

the father was being transferred between facilities. The

department rescheduled a visit in May 2024 because the father

2 The father contends that the period of review should start
from April 2020, when the last permanency hearing took place.
Because the trial judge found that the department had not made
reasonable efforts to reunify the father and the child in June
2023, we begin our period of review from that date.

3
was in "lockup" following an altercation with another prisoner

and would have been shackled during the visit. The department

had scheduled another visit to take place after the permanency

hearing.

2. Discussion. The father argues that the hearing judge

erred in finding that the department made reasonable efforts to

reunify him with Dor.3 We are not persuaded.

"When a child is removed from his or her home and placed

into the custody of the Department of Children and Families, the

department is required . . . to make ongoing 'reasonable

efforts' to make it possible for the child to return safely to

his [or her] parent or guardian." Care and Protection of

Rashida, 488 Mass. 217, 218 (2021) (Rashida I), S.C., 489 Mass.

128 (2022), quoting G. L. c. 119, § 29C. The father contends

that the department failed to provide him with any services to

facilitate his reunification with Dor and denied him adequate

parenting time. While the department is required to "make all

reasonable efforts to work in cooperation with incarcerated

3 The department and the child argue that G. L. c. 119,
§ 29C (iv) relieves the department of its obligation to make
reasonable efforts to reunify Dor with his father due to the
father's conviction for sexually abusing his stepdaughter.
Because the parties did not raise this argument at the
permanency hearing trial, "it has not been preserved for
appellate review we do not consider it." See Adoption of Larry,
434 Mass. 456, 470 (2001). However, nothing prevents the
parties from raising it in future proceedings.

4
parents to promote a healthy relationship with their children,

and to avoid permanent separation," 110 Code Mass. Regs. § 1.10

(2008), we conclude that the hearing judge did not err in her

determination that the department made reasonable efforts

considering the circumstances of the case. See Care and

Protection of Walt, 478 Mass. 212, 227 (2017) ("What constitutes

reasonable efforts . . . must be evaluated in the context of

each individual case"). In making a reasonable efforts

determination, a judge must consider the contested service, "but

it is a more comprehensive review of the entirety of the

department's actions in the context of a particular case."

Rashida I, 488 Mass. at 229.

Here, at the time of the hearing, the permanency goal for

Dor was adoption. The father was incarcerated and was not

expected to be released for seven years. Furthermore, the

father had not communicated to the department that he wanted to

reunify with Dor once he completed his prison sentence. As we

have mentioned, between June 2023 and May 2024, the department

provided three visits and unsuccessfully attempted to schedule

two additional visits. The visit scheduled for April 2024 did

not occur because the father was in the process of transferring

facilities, and the May 2024 visit did not take place because

the father had been involved in a fight and would have been

shackled during the visit. Because these facts support the

5
hearing judge’s determination that the department made

reasonable efforts, we conclude the judge did not abuse her

discretion.4

We add a few observations on issues that might arise again

while Dor remains in the department's custody. The department

must make efforts to conduct "regular visitation at the

correctional facility," 110 Code Mass. Regs. § 1.10, but "the

visitation right is . . . subject to adjustment for temporary,

unusual, or extraordinary circumstances, in the reasonable

discretion of the department." Thaddeus v. Secretary of the

Executive Office of Health & Human Servs., 101 Mass. App. Ct.

413, 422 (2022). See Adoption of Rhona, 57 Mass. App. Ct. 479,

488 (2003), quoting G. L. c. 119, § 35 ("Biological parents are

entitled to visitation with their child so long as the visits

are not harmful to 'the welfare of the child and the public

interest'"). As the father notes, the department has an

4 Even if we were to agree with the father's contention that
the department failed to make reasonable efforts, we are
constrained to conclude that we cannot provide any effective
relief for any missed visits due to the passage of time. We
understand the father to be asking us to order either that the
department make up for past visits that were missed or that the
department provide him with visits going forward according to a
set schedule. But given that the best interests of the child
are paramount, any order on visitation must take into
consideration the present circumstances of the case, including
where the father is confined, where Dor is living, and what
effect visitation would have on Dor's current welfare.

6
internal policy stating that child-family visitation should not

be less frequent than once a month and the record does not

explain in full the deviation from that policy. Although the

policy does not have the force of law, it would be advisable

going forward for the department to explain deviations from its

own policy and for the judge to make findings on the issue.

So much of the order dated
July 15, 2024, related to
reasonable efforts to
reunify the father and the
child is affirmed.

The parents' appeals are
otherwise dismissed.

By the Court (Meade, Shin &
Tan, JJ.5),

Clerk

Entered: August 7, 2025.

5 The panelists are listed in order of seniority.

7