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

Link

The CPCS Mental Health Litigation Division is now accepting applications for its 3 day Civil Commitment Certification Training taking place November 2, 3 and 17, 2017.  The training will be held at the Brockton CPCS office, 144 Main Street, 1st floor conference room on the following dates:

Thursday, November 2, 2017 from 9:00 am to 4:30 pm

Friday, November 3, 2017 from 9:00 am to 4:30 pm

Friday, November 17, 2017 from 9:00 am to 4:30 pm

To apply, please click on the link to download the application here.

Deadline to submit the application is October 12, 2017.

Applicants to the program must be accepted prior to registering for the training.

For further information about the Mental Health Litigation Division Civil Commitment Certification Training process, please contact Joe Robinson at 617-910-5784, jrobinson@publiccounsel.net or Paulette Marie at 617-910-5844, pmarie@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

CPCS Alerts Media of Petition Seeking Relief from Convictions Tainted by Amherst Lab Chemist and the Misconduct of Two Assistant Attorneys General

Upon filing a petition at the SJC that seeks relief for the thousands whose cases were tainted by Amherst Drug Lab Chemist Sonia Farak and further exacerbated by the misconduct of two assistant attorneys general, CPCS sent out the following press release:

CPCS Files Petition Seeking Relief from Convictions Tainted by Amherst Lab Chemist and the Misconduct of Two Assistant Attorneys General

 (Boston) – Today the Committee for Public Counsel Services (CPCS) filed a petition in the Massachusetts Supreme Judicial Court on behalf of thousands of potential clients, requesting that the Court dismiss with prejudice every case tainted by the misconduct uncovered recently at the Amherst Drug Laboratory by chemist, Sonia Farak.  This action comes after the dismissal of thousands of other convictions tainted by another state laboratory employee, Annie Dookhan. Continue reading

Mental Health Litigation Appellate Certification Training – Fall 2017

The CPCS Mental Health Litigation Division is now accepting applications for its 3 day Appellate  Certification Training taking place in the Fall of 2017.  The training will take place at the Registry of Deeds in Worcester over the course of three days**:

Monday, Nov. 6, 2017 from 9:00 – 4:30

Tuesday, Nov. 7, 2017 from 9:00 – 4:30

Wednesday, Nov. 8, 2017 from 9:00 – 4:30

Applicants to the program need to be accepted prior to registering for the training.

** Day One (11/6/17) will be an overview of mental health trial proceedings.  Experienced mental health panel members may apply to waive this first day, or they may choose to attend for a “refresher” on mental health litigation.

To apply, please download the application from our website available HERE.

Deadline to submit the application is September 30,  2017.

Further Information:

For further information regarding the appellate panel certification process, please contact Karen Talley at (508) 583-0560 or ktalley@publiccounsel.net.

Congratulations to the Essex County Bar Association Advocates – Updated

 


David Hallinan receiving the American Bar Association’s Harrison Tweed Award

The following article on the Essex County Bar Advocate Program being named this year’s recipient of the American Bar Association’s Harrison Tweed Award appeared in The Salem News on June 28, 2017:   http://www.salemnews.com/news/local_news/local-legal-assistance-program-receives-national-award/article_825265e8-c83e-5c41-9873-f47c655446ed.html

Continue reading

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

 

CPCS HELPS UNITED WAY HELP THE HOMELESS

CPCS Chief Counsel Anthony Benedetti was one of the guest speakers kicking off the United Ways’ Project Homeless Connect at the Reggie Lewis Track and Athletic Center in Roxbury, MA on August 11, 2017.  He explained to the more than 350 staff and volunteers what CPCS does, saying, “We defend the accused; we demand justice; we stand for the voiceless; we fight for the rights of children and parents, and we protect the rights of clients who suffer with mental health issues and drug and/or alcohol use issues.”  He praised the crowd for volunteering and giving back to the community, and thanked them for their help.  He told them that you can show you care by posting on Facebook or tweeting on Twitter, but people who really make a difference are people like you who give their time and effort to help others.

Staff from CPCS volunteered to help answer questions of the more than 250 homeless families that were expected to seek help from an array of service providers at the day-long event.  Other volunteers manned tables that offered housing, employment, and health and dental care, as well as legal advice from fellow legal volunteers from Greater Boston Legal Services and Massachusetts Law Reform.

Our CPCS colleagues volunteering at the day’s event were (in the photo in the back row from left to right) Chief Counsel Benedetti, Social Worker Sandra Caron from the Brockton CAFL Office, Atty. Jeff Richards the AIC from the YAD Roxbury Office, and Atty. Rosemarie Clinch from the Lowell CAFL Office, and (in the photo seated in the front row from left to right) Atty. David Satin from the Lowell CAFL Office, Atty. Maura Hardiman from the Brockton CAFL Office, and Atty. Connie Tran from the Malden District Court Office.

Lisa Kavanaugh’s Victory for Frederick Clay

INCREDIBLE!

CONGRATULATIONS to our colleague, Atty. Lisa Kavanaugh, Director of the CPCS Innocence Program, and her co-counsel, Atty. Jeff Harris of the Boston law firm Good, Cormier, Schneider and Fried, on their victory in convincing the Commonwealth to vacate the conviction of Frederick Clay, convicted of first degree murder in 1981.

Clay was convicted on the evidence of two eye witnesses who confirmed his identity only after being hypnotized by police investigators and shown the same array of photos several times.  New identification science reveals that this type of identification is profoundly flawed.  In addition, other witness statements that should have led police to investigate other suspects who more accurately fitted descriptions of the perpetrators were never followed up by them or by Clay’s trial attorney.

Below are links to some of the media reports that followed this incredible outcome, as well as to the press release issued by CPCS:

Chief Counsel Anthony Benedetti receives NACDL 2017 Champion of State Criminal Justice Reform Award

Congratulations to Chief Counsel Anthony Benedetti on receipt of the National Association of Criminal Defense Lawyers (NACDL) Champion of State Criminal Justice Reform Award, which “recognizes an individual or group whose tremendous efforts have led toward progressive reform of a state criminal justice system.” Continue reading