Category Archives: Children and Family Law

Care and Protection of Walt

On October 20, 2018, the SJC delivered a tremendous win for vulnerable families in Massachusetts through its decision in Care and Protection of Walt. In a unanimous opinion authored by Chief Justice Gants, the Court affirmed that the Department of Children and Families must comply with its legal obligation to make “reasonable efforts” to avoid separating children from their families and to reunify families it has separated. Consistent with the intent of Congress in codifying federal reasonable efforts requirements decades ago, the Court stated repeatedly that removing children from their parents and placing them in foster care must be DCF’s “last resort.”

The context: When DCF seeks to remove a child from her home, it typically does so by having a caseworker first ask for emergency custody at a closed hearing at which no other party (and no other party’s attorney) is present. If the court finds reasonable cause to believe that the child is at immediate risk of serious abuse and neglect and that keeping the child at home is contrary to her best interest, the court issues an order transferring custody of the child to DCF for up to 72 hours. The court must also determine whether DCF made reasonable efforts to keep the family together. The parents and child then are entitled to a full evidentiary “72-hour hearing” to oppose DCF’s request to maintain custody of the child, to challenge the best interest determination, and – unless one of four narrow exceptions applies – to contest whether DCF made reasonable efforts to avoid removing the child.

 

The decision:  The Court rejected DCF’s argument that the Juvenile Court can excuse DCF’s failure to make reasonable efforts for a reason other than one of the four exceptions. The SJC further held that when a court determines that DCF failed to make reasonable efforts to keep a family together, it can enter orders to hasten the family’s reunification.  Such orders could require DCF to provide more parenting time to families (when children are placed in foster care, DCF typically allows them to see their parents only one hour per week); enable parents to continue to participate in their children’s education and medical care; and mandate the provision of specific services that a family needs in order to be reunified, such as housing assistance.

The SJC also made clear that:

  • DCF should consider short-term informal custody arrangements as an alternative to removal;
  • DCF has a continuing obligation to make reasonable efforts after removing a child;
  • If a parent’s circumstances change (at least in a no-reasonable-efforts case), the court should revisit the initial custody order and determine whether it should still stand; and
  • DCF has an array of services available, and it should provide those services to parents and children who need them.

This is a major victory for CPCS’s clients and for other vulnerable families. By requiring DCF to fulfill its legal obligations to keep families together, the Court is also protecting children from a type of harm, often traumatic, that is frequently ignored or discounted in our cases – specifically, the harm caused by the inappropriate use of foster care. Walt also has the potential for helping children for whom removal is appropriate. At a time when the foster care system is operating well beyond its true capacity, ensuring that DCF keeps children at home when they can stay there safely means that scarce foster care resources will be available for children who really need them.

Who’s responsible for this win:  This case resulted from the hard work of many CAFL staff members, especially Ann Balmelli O’Connor, Attorney-in-Charge of CAFL Appeals Unit, who shepherded the case through the single justice process and wrote the brief and argued the case before the SJC, and Beth Ranz Sherwood and Gretchen Gillung-Fontanez, who advocated for Walt’s father from the outset of the case in the Worcester Juvenile Court.  Congratulations to them, to CAFL attorneys – panel members and staff – who litigate these important issues every day, and to everyone who supports them!

Michael Dsida
Deputy Chief Counsel
Children and Family Law Division – Committee for Public Counsel Services
44 Bromfield St.
Boston, MA  02108
617/910-5713
mdsida@publiccounsel.net

REPRESENTING CHILDREN IN CHILD REQUIRING ASSISTANCE (CRA) CASES CPCS CERTIFICATION TRAINING

The Children and Family Law Division of the Committee for Public Counsel Services is seeking qualified attorneys to represent children in Child Requiring Assistance cases in the Juvenile Court.  Admission to the CRA panel is by application only and requires completion of a two-day training.  Applicants must be members of the Massachusetts Bar, or be admitted to the Bar of another state and be eligible to practice law in Massachusetts.  All attorneys who accept CPCS assignments are required to maintain malpractice insurance.

The 2018 February CRA Training Application can be found in the link below:
2018 February CRA Application

SAMHSA Releases Recommendation Letter on the Treatment of Women with Substance Use Disorder and Their Infants

The Substance Abuse and Mental Health Services Administration (SAMHSA), the agency within the US Department of Health and Human Services responsible for issues of mental health and substance use, recently released a letter with recommendations for the treatment of pregnant and parenting women with substance use disorder and their infants. The text of the letter, containing many useful links, is available here: https://www.publiccounsel.net/cafl/wp-content/uploads/sites/7/2017/08/SAMSHA-Dear-Colleague-Letter-2017-2.pdf

 

DCF New Family Assessment and Action Planning Policies

The Massachusetts Department and Children and Family Services (DCF) has a new policy directing social workers how to conduct clinical assessments and create “action plans.” The policy went into effect on February 6, 2017 and replaces DCF’s “Assessment Policy # 85-011” and “Service Planning and Referral Policy # 97-003.”   As part of the new policy, the term “action plans” will replace “service plans.”

A full summary and comments on the new policy are available here: Action Plan Summary and Comments.

The new DCF policy is available here : https://www.publiccounsel.net/cafl/professional/triallitigation-practice-tools-and-resources.

ESSA Creates New Federal Rights for Foster Children to School Stability

In December 2015, President Obama signed into law the Every Student Succeeds Act (ESSA).  ESSA amends the Elementary and Secondary Education Act (ESEA).  Two parts of the amended ESEA are particularly relevant to children in foster care: Title I, which now provides school stability rights for children in foster care, and Title IX, the McKinney-Vento statute.  Some of the changes to McKinney-Vento went into effect in October 2016.  The Title I changes related to foster care are effective December 10, 2016.  Additional information is posted under “Trial Resources – Education” on the CAFL site. Or you can click here to go directly to the ESSA information page.

 

 

DCF Rewriting Its Regulations

DCF is in the process of rewriting its regulations.  The agency anticipates submitting between one and four sets of proposed changes to the Secretary of State every two weeks during the next several months. In total, they are planning on publishing 19 new or revised CMR sections. CPCS will be submitting comments on each section, and we encourage private bar to submit comments as well. We will be posting proposed sections on the CAFL site as we receive them. Please click here for additional information and links to the proposed regulations.

 

 

Amy Karp named one of this year’s recipients of the MCLE Scholar-Mentor Award

Congratulations to CAFL Training Director, Amy Karp!  She has been named one of this year’s recipients of the Massachusetts Continuing Legal Education (MCLE) Scholar-Mentor Award, which is presented to members of the Bar who have “demonstrated leadership through long-term service to MCLE, excellence in teaching or writing, and creativity in the suggestion of program and publication ideas.”

Attorney Karp’s commitment to zealous advocacy for children and parents is evident through her exemplary work with CAFL, which began in 1995, and her service as training director since 2000, where she developed a model program for providing counsel in child welfare/state intervention cases and established, and continues to oversee, the certification training program for CAFL’s private attorneys.

Her work with MCLE has enhanced the reasons for her receipt of the Scholar-Mentor Award.   There, in addition to co-chairing the annual MCLE Juvenile Delinquency/Child Welfare Conference, Attorney Karp created, organized, and led countless training and education programs, which she facilitated on her own or with a team she assembled and managed.   She also assisted in the development of detailed performance standards and, in collaboration with others, authored MCLE’s Child Welfare Practice in Massachusetts on the representation of children and parents in child welfare/state intervention cases.

“Amy’s dedication and her passion for her work inspire others to undertake the challenges of advocating for children and parents who are confronted with state intervention and truly dire circumstances.  Her keen intellect and her affable manner make her a natural for imparting knowledge to others, especially on issues as complex as those confronted by the CAFL practice.  For all of these reasons and more, it is no surprise to me that MCLE is recognizing Amy’s outstanding work by bestowing upon her the Scholar-Mentor Award,” said CPCS Chief Counsel Anthony Benedetti.

Mike Dsida, CPCS Deputy Chief Counsel of CAFL also had high praise for Attorney Karp.  “Amy has been indispensable in establishing CPCS’s Children and Family Law Division as a national model for providing high-quality representation in state intervention cases.  She has trained nearly every child welfare lawyer in the state and a substantial number of Juvenile Court judges as well.  She knows child welfare law inside and out.  She also is extremely well-versed in the wide array of non-legal issues that affect CAFL lawyers’ work, and she knows how to share her expertise and the expertise of others with panel members and staff.  It’s impossible to list all of her other accomplishments, but they are all grounded in her unrivaled commitment to our clients – parents whose children have been taken away by DCF and children who have been removed from their homes, their families, and their communities.  We are thrilled to see Amy being honored with MCLE’s Scholar-Mentor Award.”

For those interested in attending the award ceremony and reception, MCLE will present the Scholar-Mentor Award to Amy Karp on Wednesday, October 19, 2016, 5:30 pm, at the MCLE Conference Center, 10 Winter Place, Boston, MA.

State holds first “Reunification Day Celebration” in Berkshire County

On Tuesday, June 28, 2016, for the first time in Berkshire County, local agencies hosted a Reunification Day Celebration to recognize the reunification of families after separation through the child welfare system.  This event was hosted by Berkshire Children & Families, the Department of Children and Families, and the Committee for Public Counsel Services – Children and Family Law Division (CAFL), in collaboration with the Berkshire Juvenile Court and the local bar.

The two hour celebration was held at the Berkshire Children and Families’ Family Resource Center and honored local families for their reunification success.    The Honorable Amy L. Nechtem, Chief Justice of Juvenile Department of the Massachusetts Trial Court, the Honorable Joan M. McMenemy, First Justice of the Berkshire Juvenile Court, Carolyn Burns, CEO & President of Berkshire Children and Families, and Margie Gilberti, Pittsfield DCF Director of Areas addressed the audience.  Brian Litscher, a local CAFL panel attorney, entertained the crowd with an acapella performance of “Somewhere” from West Side Story. The honored families were presented with passes donated by local attractions, and gifts that were generously provided by CAFL.  Arts and crafts and face painting followed the structured portion of the celebration.  A commemorative canvas, donated by CAFL panel attorney, Peter Brewer, was decorated and will be displayed in the Berkshire Juvenile Court.

This event was held in connection with the American Bar Association’s National Reunification Month.  National Reunification Month is celebrated around the country every June to honor the importance of the reunification of children with their families in the child welfare system.  The event was first celebrated in 2010 by the American Bar Association in collaboration with many national agencies.  National Reunification Month celebrates the accomplishments of families who have overcome an array of challenges to safely reunify, recognizes the vital role that community partners play in strengthening families, and is designed to inspire other families in pursuit of successful reunification.

Reunification Day Celebration 2

CAFL Announces the Establishment of the Margaret Winchester Award

We are pleased to announce the establishment of the Margaret Winchester Award to honor excellence in child welfare advocacy, in recognition of Margaret’s long-lasting and deep commitment to her CAFL clients and helping others provide high quality representation.

From the moment she took on the challenge of representing CAFL clients until her passing in 2015, Margaret Winchester was a zealous, committed advocate who believed with all her heart that children and parents deserved the highest level of advocacy.  No one worked harder or took the responsibility of being a role model more seriously than Margaret.  She brought her passion and her work ethic to every role she played for CPCS, and she inspired CAFL private attorneys and staff to follow her lead.  Margaret made it her mission to teach and to model for others a sincere commitment to the highest quality representation for the families of Massachusetts.  She did not merely talk about zealous advocacy; she lived it. 

In every phase of her legal career, Margaret served as a teacher and model for staff and for private attorneys.  Margaret joined the CAFL trial panel in 1990 and quickly stepped up to mentor others who had recently begun working as child welfare attorneys.  Her mentees were uniformly well-trained; she supported them and taught them by example.  She also held their feet to the fire, instilling in them a belief in the importance of the practice. Margaret next served as the Regional Coordinator for Worcester County, providing guidance and direction for her colleagues while ensuring that they received support from the CAFL administrative office.  Margaret was an invaluable resource for the attorneys of Worcester County, as well as for the Worcester County courts and judges.  In addition, Margaret handled dozens of appeals and mentored newly-certified appellate attorneys.  In 2000 Margaret became Co-Director of the CAFL Program and as such provided oversight and support for CAFL attorneys throughout the state.  Her teaching legacy continued as she conducted numerous trainings for staff and private counsel and helped oversee CAFL’s administrative staff. 

With the expansion of CAFL’s staff operations in 2006, Margaret was the obvious choice to be the founding Attorney in Charge for the new Worcester office.  Over the next eight years, the office grew from three attorneys, one social worker, and one support staff to more than 20 full-time staff.  Margaret loved the challenge of managing an office comprised of mostly brand-new attorneys.  As Attorney in Charge, she developed the gold standard for supervision.  She also helped establish a model for the effective, client-centered use of social workers.  Those who were lucky enough to work for Margaret knew that her expectations were high.  But Margaret was also supportive of, and kind to, staff who were struggling.  She was also generous with her time and assistance to the other Attorneys in Charge and the CAFL Training Unit.

Establishing the Margaret Winchester Award will help continue Margaret’s work by recognizing others who serve as model advocates for children and parents in Massachusetts.

Information about the May 24, 2016, awards ceremony and nominations will be announced soon.

Boston Globe Letters: “Can we get a grip on protecting kids?”

On October 10, the Boston Globe published several letters to the editor regarding DCF and the courts, including the following one from Deputy Chief Counsel Michael Dsida:

GOVERNOR BAKER has rightly urged the state Department of Children and Families to keep children safe (“Baker moves to ‘keep kids safe,’ ” Page A1, Sept. 28). DCF, however, must balance the risks of keeping children at home with the trauma that removal causes children, along with other risks of harm that some foster placements present.

As DCF Commissioner Linda S. Spears noted, child protection and family preservation aren’t competing goals. When provided with appropriate supports, DCF-involved parents can meet the needs of their children. Foster care, though sometimes necessary, should be reserved for children whose families cannot meet their needs. The trauma that DCF placements cause children — including removal from siblings, extended family, and community — is too significant to use foster care in any other way.

The law reflects the importance of child protection andfamily preservation. Under state law, while “the health and safety of the child is of paramount concern,” foster care may be used “only when the family [or] resources available . . . are unable to provide necessary care and protection.”

As Governor Baker noted, DCF caseloads must also decline. In addition, DCF should provide more services to families, to meet what the Child Welfare League of America has called the agency’s “dual obligations — to protect children and . . . respect the right of families to be free from unwarranted state intervention.”

Michael Dsida
Deputy chief counsel
Children and Family Law Division
Committee for Public Counsel Services
Boston