Child welfare law at a critical juncture in Massachusetts

Issue January 2015 By Cristina F. Freitas and Debbie F. Freitas

From the monumental Connor B. federal class action lawsuit to the tragic death of Jeremiah Oliver to the controversial treatment of Justina Pelletier, the Department of Children and Families (DCF) has received an unprecedented level of public attention and scrutiny this past year. Child welfare law, a relatively overlooked practice area until now, has recently captured not only the increasing attention of the public, but the legal profession, as well. This year, all three branches of government in Massachusetts are poised to tackle this complex and essential area of law.

The candidates' views on and role with the struggling child welfare system were prominently featured in the gubernatorial debates between Martha Coakley and Charlie Baker. Now that Charlie Baker has entered the corner office, the governor has spotlighted DCF as one of the state agencies that will be prioritized during his term. With agency caseloads burgeoning, the critical issues of adequate funding and sufficient staffing at the agency charged with safeguarding this commonwealth's most vulnerable children will be paramount.

At the same time, the commonwealth's Juvenile Courts experienced a 93 percent increase in care and protection filings alleging abuse or neglect of children in January 2014, compared to the previous year, with similar increases throughout the remainder of the year. A significant majority of these cases involved families impacted by poverty, substance use or mental health issues. These families have struggled to address these issues in a climate of limited access to and availability of services that were intended to address parental shortcomings while providing a safe home environment for children. In the wake of an overburdened social service agency, an ever increasing number of child welfare attorneys are working case by case with community service organizations and providers to ensure access to necessary services. These attorneys are not only litigating cases, but also assisting clients in accessing services that will address the medical, mental health, safety or education barriers preventing reunification, or helping families with more chronic and serious issues reorganize themselves with the help of extended family and kin - all while protecting constitutional parental and child rights.

From bills looking to reform the foster care system to adding a best-interests representative for each child in a care and protection case, the legislative branch was equally engaged in identifying and repairing the weaknesses in our child protection system. When the legislative session recessed in August 2014, dozens of bills addressing aspects of the child welfare system that were filed during the previous biennial session went unpassed. The incumbent and returning legislators will have the difficult task of continuing this work, redrafting, re-filing, and reconsidering the Legislature's responsibility in keeping the commonwealth's families together and their children safe.

Perhaps the greatest challenge, however, will be at the agency level, where the struggling agency must reform its public perception from an adversary of intact families to an ally in strengthening families. The agency has already begun this strategic planning process to promote a greater sense of collaboration via innovative and culturally sensitive partnerships with community supports in one of the poorest and most challenging cities in Massachusetts. If successful, it will serve as a new model of child welfare practice.

This critical time in the child welfare system provides a unique opportunity for practitioners in this area of law to advocate not just for their clients but also for systematic change in the way our clients, parents and children alike, interact with DCF and the services available to them. As all three branches of government tackle this sensitive area of law, our input as practitioners into how the system is reformed to provide more effective services to families is vital.