There is a knock on the door of the apartment where a mother—we will call her Dee*—lives with her two young sons. Dee is surprised to see a Department of Children and Families (DCF) investigator and a police officer who are demanding to be let in to speak with her and her children. She is told that there was a report of her children being neglected and she needs to cooperate with them.

Having grown up in the foster care system as a child herself, Dee becomes immediately anxious. She thinks about how she works hard to keep her children safe and ensure they have clean clothes and food to eat, even when she skips meals herself. Questions race through Dee’s mind: Why are they here? Who called DCF? Does she have to let them in? Can she say no? Will they meet with her children alone? What if they find something they don’t like in her house?

Are they going to take her kids? Who can she call for help?

Dee has no right to counsel at this stage of DCF’s investigation. Pro bono legal services for parents in this situation are virtually non-existent. To respond to this critical gap in the legal safety net for low-income families, in fall 2023 the Family Justice Clinic (FJC) at the WilmerHale Legal Services Center (LSC) of Harvard Law School began offering pro bono representation to parents, like Dee, who are facing DCF investigations. Through the FJC’s model of early family defense, law student attorneys working under the supervision of FJC’s experienced family law attorneys represent parents who would otherwise lack any access to counsel as they face daunting governmental authority that could lead to the break-up of their family. The new offerings grew out of the evolving needs of clients in the clinic’s longstanding Passageway Health-Law Collaborative, a medical-legal partnership with the Mass General Brigham health system. Passageway’s social workers provide therapeutic and resource supports for survivors of intimate partner violence while connecting them to LSC for legal representation in family law matters, creating a holistic advocacy model to protect the legal rights of survivors—promoting their safety, securing their right to custody of their children, and maximizing their financial independence.

FJC is one of six clinics at LSC that, together, embody LSC’s dual mission of serving the legal needs of low-income, racially diverse and marginalized communities while providing students an exceptional opportunity to gain practical lawyering experience. As an integral and long-standing clinic at LSC, the Family practice evolved over the last 40 years to meet the changing needs of the community and implement innovative ideas developed by students. In the early 2000’s, cutting-edge research shed light on the inextricably intertwined nature of legal problems and negative health outcomes for community members. This led Sarah Boonin (HLS ’04), a student at the clinic, to design and form the Passageway Health-Law Collaborative (PHLC). This partnership continues to serve as a cornerstone of FJC’s practice.

Joining forces with Passageway created a best-practices framework to address the legal and health impacts brought on by intimate partner violence. Mindful of the interconnection between unresolved legal issues and negative health outcomes, the Family practice sought to expand its reach into broader social determinants of health. At the same time, the students at HLS sought opportunities to participate in social justice and movement-lawyering practices that center the community and the pursuit of social change, all in the wake of summer 2020’s “racial reckoning”.

According to a Human Rights Watch/ACLU 2022 report, one in three children in the US will be part of a child welfare investigation by age 18. One in two Black children will be subject to a child welfare investigation by the time they turn 18. Every three minutes a child in the US is removed from their

family and placed in foster care. Even if a child is ultimately not separated from their caretaker, the investigation phase is an expansive search by a state authority into home and family life with the ability for the state to take custody of a child at any moment. Despite the immense liberty and family autonomy interests at stake in these investigations, the system lacks constitutional protections like Miranda-style warnings and lack any right for indigent parents to receive a court-appointed attorneys. As “child welfare” systems have been examined and unpacked by renowned scholar Dorothy Roberts (HLS ‘80), author of Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World, and others, these systems are not actually “broken” and in need of reform, but instead, are operating as designed and need dismantling.

The newly expanded FJC offers second- and third-year Harvard Law School students the opportunity to represent the parent or caregiver being accused of abuse or neglect, and engage in early family defense. Early family defense utilizes a range of advocacy tools to address the state’s coercive tactics when investigating parents or caregivers. If an investigation results in a supported finding of abuse or neglect, FJC students can then represent the parent in an administrative appeal. In Massachusetts, close to half of the DCF determinations brought to an administrative appeal are overturned—only highlighting the avoidable errors and grave injustices that regularly occur at the investigation and determination stage. Despite this, parents are often unaware of their rights, unaware of the importance of filing an appeal, and lack access to legal assistance during this high-stakes process. In far too many cases, parents and caregivers—and their children—must go it alone as they face the trauma of the state’s investigation and the impending threat to family integrity. Families are placed at an extraordinary legal disadvantage from the very moment an investigation commences. FJC aims to respond to these urgent needs for early family defense.

“We designed the clinic to maximize experiential learning and skill building for students. As a teaching tool, the administrative Fair Hearing offers a rich pedagogical environment for students to develop a deep understanding of the law, build authentic connections with the clients and practice trial skills like cross-examinations and closing arguments right off the bat. The quality of work from the students has been impressive and undoubtedly fueled by their personal conviction to bring justice to an unfair system.”

– Marianna Yang, Lecturer on Law and Clinical Instructor at the WilmerHale Legal Services Center, Family Justice Clinic

FJC is already beginning to make an impact. During the Fall ‘23 semester, FJC students co-designed and presented know-your-rights trainings to the community, represented parents in pre-petition investigations, and conducted full administrative Fair Hearings. Through this expansion, FJC and Passageway secured favorable outcomes for clients and helped to lay the groundwork for ongoing transformative work.

“It is critically important that there is increased access to legal information and advice for those facing DCF involvement, way before the point where there is a risk of DCF taking the children away. In order to do this work, we have to listen to those who have been impacted by DCF, particularly grassroots organizations like Family Matters 1st and Proactive Families Advocacy Inc. Our work as attorneys can support the movement to raise awareness and reduce the harms of this system. ”

– Rebecca Greening, Lecturer on Law and Clinical Instructor at the WilmerHale Legal Services Center’s Family Justice Clinic 

For more than 40 years, LSC has served as a home for students to identify emergent community needs and develop innovative responses. FJC is proud to carry forward this tradition of building community partnerships to address the harms faced by our clients.

Student Voices

“When our clients face the potential removal of their children, we are able to step in to defend them and fight to keep families together. Not only has it been a great way to get hands-on defense-oriented experience for me as a future public defender, but I have also been able to help local grassroots community groups with Know Your Rights trainings to empower people in the community and elevate their voices in this important fight for justice.” – Faith Blank, 2L