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Amicus Argues for the Child

Clinical professors co-author SJC brief that makes foster care policy more humane.


For four years, the Amicus Brief Clinic has offered a way for BC Law students and faculty to use their expertise to influence legal precedent. Under the stewardship of Professor Thomas Carey ’65 (above right), this “pop-up” clinic has resulted in amicus briefs filed in matters involving criminal law, evidence, corporations, right to counsel, and judicial independence.

The fruits of this arrangement were realized once again this summer. An amicus brief filed by professors Carey, Jessica Berry (above left), and Claire Donohue ’05 (above middle) was instrumental in the Massachusetts SJC’s decision in Care and Protection of Rashida. According to Carey, while the parties to the case bear the brunt of persuading the court, “one can tell from reading an opinion whether the amicus brief got read and had influence.” Here, Carey’s sense is that “the amicus brief was of assistance.”

Though the clinic has celebrated success before, the win in Rashida is yet another milestone—it is the first time that clinical faculty members from the Center for Experiential Learning were involved. As a clinical faculty member, Berry teaches in the Juvenile Rights Advocacy Program and is deputy director of the Children’s Law Center of Massachusetts. Donohue, a former public defender, is the director of Interdisciplinary Practice at BC Law. She teaches family law and supervises the student social workers embedded in BC Law’s clinical education programs.

Berry and Donohue were uniquely qualified to work on the Rashida brief. Both have coupled their legal education with a master’s degree in social work. They are well-versed in the complex legal and social issues that are present in care and protection cases. For Carey, the work done in Rashida provides a clear example of the importance of taking an interdisciplinary approach. “Judicial decision-making at the highest level includes the need to educate and convince the court on these nonlegal issues.”

Rashida presented a narrow, seemingly technical, question of statutory interpretation: If a child has been removed from the custody of his or her parents by the state and placed in the foster care system, must a juvenile court judge wait at least one year before determining whether the Department of Children and Families has made “reasonable efforts” to enable the child to return home safely to its parents?

As advocates like Berry and Donohue know, “technical” legal questions are rarely that for clients who have real skin in the game. From her family law background, Donohue is all-too aware of the ways that the state “comments on, intervenes in, or disrupts families.” As she has become more well-versed in the child welfare system, witnessing what she describes as the Department of Children and Families’ “inadequate use” of the time they have in a child’s life, it has become clear that state action in these types of cases is often “painful, punitive, and then unproductive to boot,” she says.

Echoing this sentiment, Berry highlights that “when DCF does not make good use of its time in the life of a family … I want to be able to go to court to demand that my client’s rights be enforced.”

In its argument, the Department of Children and Families contended that judges could make a reasonable efforts determination only once a year—during a hearing known as an “annual review.” The amici argued that judges could make the determination if one of the parties made a motion for the court to do so. The SJC agreed.

In their brief, Carey, Berry, and Donohue looked to the plain language of the relevant statute and the role courts have in safeguarding the best interest of a child in care and protection cases. In addition, the brief focused heavily on the impact that periods of separation have on children. Specifically, it incorporated research on trauma and the importance of limiting a child’s time in foster care. As Berry contends, “Strong and clear judicial oversight… is essential to ensuring that children do not have to endure the trauma of entering foster care unnecessarily or staying in foster care for longer than necessary.”

All in all, Carey says the brief writing process “worked the way the clinic is supposed to work.” “Here is a case in which the regular clinical programs stepped outside of their main focus to participate on an amicus brief addressing policy concerns in a case that influences the area in which the clinical opportunities are taking place.”

Reflecting on the outcome of the litigation, Berry notes that “the SJC decision confirms that the juvenile court has a vital role in ensuring that Massachusetts does as it says it should and will do: provide support and services to struggling families so that children can leave the foster care system and return home as quickly as it is safe to do so.”