When it comes to protecting Massachusetts’ most vulnerable children, stemming this awful wave of news about kids perishing and suffering on the Commonwealth’s watch, Governor Charlie Baker’s plan to reform the Department of Children and Families is an important step.
But it’s not the only step.
We also need to focus on the courts.
The juvenile court system oversees the legal case of every child taken into state custody. It ought to be a backstop, a critical check and balance on DCF’s decisions. Yet in a couple of key ways, Massachusetts’ courts are severely hamstrung, compared to other states.
First, courts don’t always have access to the best information. I’ve written before about the need for more guardians ad litem, court-appointed officers charged with representing a child’s best interests. (That can be different from a child’s wishes, which the court-ordered attorney is sworn to represent.)
A guardian ad litem also can serve as a critical set of eyes and ears — reporting to a judge on the particulars of a case, supplementing the information that comes from time-strapped social workers.
But budget cuts have severely shrunk Massachusetts courts’ ability to assign these guardians. Some juvenile courts, such as Boston’s, work with a nonprofit called CASA, which trains a network of volunteers to provide the service. Still, there aren’t enough volunteers to meet the courts’ needs — or, in many districts, enough court officers to oversee the process.
So let’s say the Legislature makes this a priority and gives courts the funding they need. Even if a guardian ad litem is in place, and even if a judge gets the fullest possible picture of a case, Massachusetts case law still ties the court’s hands. A 2008 article by Eleanor L. Wilkinson, in the Boston College Third World Law Journal, outlines the longstanding effects of two 1995 Supreme Judicial Court cases with a outsized legacy for DCF cases.
The first involved “Isaac,” a boy in state custody with serious behavioral problems. The state agency, then called the Department of Social Services, wanted him to stay at a psychiatric hospital rather than return to a residential school, but the trial court and the guardian ad litem disagreed. The second was the case of “Jeremy,” a boy who had bounced from foster home to foster home; DSS wanted to place him in a large residential facility, but the boy, his father, and the trial court wanted him to stay in specialized foster care.
The SJC’s ruling was less about the ideal placement for these boys and more about the balance of power. It essentially ruled that the trial courts had overstepped their bounds, and that the party that challenged a DSS decision in court had a heavy burden: to prove not just that the department was wrong, but that it had violated the law or abused its discretion.
In other words, unlike in other states, a Massachusetts judge who questions a social worker’s judgment can’t do very much about it. As Wilkinson wrote, the rulings “set a dangerous precedent for allowing DSS almost free reign [sic] over children whom the courts have placed in the department’s custody.”
There are potential solutions, Wilkinson wrote. In its “Jeremy” ruling, the SJC actually suggested that the Legislature better define the court’s authority. Other states, such as Maryland, Georgia, and Wisconsin, have written the court’s oversight powers explicitly into law.
The SJC could also reinterpret its old rulings, Wilkinson wrote, considering a paragraph added to state law in 1999, confirming that the department’s duty is to “define the best interests of the child.”
That may be the law Baker cited this week when he announcing his sweeping DCF reforms. But protecting kids, really, is everyone’s duty. It’s time for everyone to act.