In Care and Protection of Rashida

The Massachusetts SJC announced its decision in Care and Protection of Rashida on August 20, 2021, a case dealing with the requirements placed upon state courts when a parent of a child in state custody makes a request for a reasonable efforts determination after a hearing on the fitness of that parent has just concluded. This case dealt with the delicate issues of what the rights of parents are once their children have been removed to state custody, given that a reasonable efforts determination is one of the methods by which parents may allege that DCF is not fulfilling their mission to reunite displaced children with their families, and thus seek to regain custody of their children from the state.

On January 29, 2020, the mother (“Petitioner”) gave birth to a child, “Rashida.” Not long after this, the child came to the attention of the Department of Children and Families (“DCF”) following a 51A report that the mother was unable to care for Rashida due to her “severe cognitive impairments.” 

On February 3, 2020, an emergency custody hearing was arranged, and DCF was awarded temporary custody of Rashida on. After this, the mother was allowed to have supervised weekly visits with Rashida, which continued until the start of the Covid-19 pandemic. After that, supervised weekly remote sessions were done as a substitute until July 15, 2020 when in-person supervised visits resumed.

On July 15, 2020, DCF and the mother reviewed an action plan detailing what she had to do in order to have Rashida returned to her. The plan required that she go through a neuropsychological and parenting evaluation, as well as participate in parenting classes with the Department of Developmental Services (“DDS”). Moreover, there was a requirement that the mother continue receiving services to assist new mothers. As it turns out, she did not enroll in those classes, and consequently did not receive a neuropsychological evaluation. On August 25, 2020, DCF sent the mother a release for parent aide services, but those services were not realized because no aid providers were available who spoke Somali Mai-Mai, the mother’s native and primary language.

On September 15, 2020, the mother filed a motion to determine whether DCF had breached its obligation to make “reasonable efforts” to reunite children taken into state custody with their original families. The motion was appealed and the following questions were addressed:

1. Is a trial judge obligated to make a determination as to whether DCF has made “reasonable efforts” to reunite parents with their removed children on motion by the parents any time the parents make a motion alleging DCF failure to do so; 

2. If not, does a trial judge have discretion to take up that question; and if so what is the burden a child or parent has to raise the issue; 

3. Does DCF bear the burden of proving it has made “reasonable efforts” when challenged; and

4. May a parent or child raise the issue of DCF to fail to facilitate reunification in a motion of abuse of discretion?

To the first and second questions, the court determined that a Juvenile Court judge did not have an obligation to determine any motion on reasonable efforts raised by a parent or child, and did have discretion to determine whether DCF has made “reasonable efforts” at reuniting a parent and child prior to an annual hearing as required by law. The SJC relied on a plain reading of the statute and interpreted this language to set a maximum period that must pass before a hearing on DCF efforts becomes mandatory. As a result it is entirely permissible for the parties to request a hearing on DCF’s “reasonable efforts” more frequently than required by the statute.

The SJC determined that the moving party has to produce enough evidence to reasonably support a claim that a state agency has not fulfilled its mission to make reasonable efforts to reunite children and families.” The court provided some additional guidance, considering the possible difficulty that a motion on “reasonable efforts” may more closely resemble a motion challenging specific services. However, the court highlighted that judges have a wide range of responses for dealing with motions that fail to meet the broad criteria listed above, and courts may firmly claim that “the department’s reasonable efforts as a whole have not been adequately challenged.”

When the motion is made, the movant has the initial burden of production, which, if met, then shifts the burden of proof to DCF. This determination was made because DCF retains the burden of proof in a multitude of circumstances where “reasonable efforts” determinations have been raised. So long as the request for a determination of “reasonable efforts” has been properly made, the movant, the parent or child, can put the burden of proof on the DCF.

In conclusion, the SJC answered the certified question by determining that, while a Juvenile Court judge is not obligated to take up a motion for determination of “reasonable efforts” prior to the one year threshold imposed by law, the judges do have discretion to take up the issue so long as the matter is properly pled, and following certain guidelines set down by the SJC.

Meet the E-Board: Managing Editor

Lillie is a JD/MBA student and a Managing Editor of the UMass Law Review. She also serves as a Teaching Assistant for Professor Freeley’s Legal Skills class as well as the Vice President of UMass Law’s Student Animal Legal Defense Fund.

Prior to attending law school, Lillie received a B.A.in International Relations from the University of Rochester. She then worked as a litigation paralegal at Law Offices of PIP Collect in Salem, Massachusetts, for two years. After completing her first year of law school, Lillie worked for UMass Law’s COVID-19 Clinic assisting small business owners with challenges brought on by the pandemic. Lillie switched gears after her second year of law school and worked with every aspect of the Freedom of Information Act as a summer law intern for the Department of Justice’s Office of Information Policy. Lillie lives in Fairhaven, Massachusetts, and she is always reading a novel in addition to her required legal reading.

Meet the E-Board: Managing Editor

Angela Flanagan is a 3L at UMass Law and a Managing Editor for the UMass Law Review. She has a bachelor’s degree in Communication Studies from James Madison University and a master’s degree in Labor and Employment Relations from Rutgers, The State University of New Jersey. Prior to coming to law school, Angela has worked in Communications and Human Resources for various corporations in her home state, New Jersey. At UMass Law, Angela is a Teaching Assistant for Property I and II. She was also an Academic Fellow during the 2020-2021 school year. Angela has a strong interest in employment law, as demonstrated by her master’s degree and her relevant work experience. She hopes to work as an employment law attorney after graduating law school. 
In her free time, Angela enjoys reading and writing.

You might also find her on the golf course, but she’ll be the golfer with the highest score (way above par). 

Meet the E-Board: Editor-in-Chief

Kevin King is a rising 3L and the Editor-in-Chief of the 2021-22 UMass Law Review. He is passionate about legal research and writing and believes the Law Review is a great way for students to gain valuable experience formulating ideas and becoming versed in legal citation. In the summer following his 1L year, Kevin worked as a member of UMass Law’s Covid-19 clinic where groups of UMass students counseled small businesses navigating the Covid relief process. Kevin has also interned in a private firm and will be working at the Massachusetts Appeals Court in the Fall of 2021. After law school, Kevin hopes to work as a judicial clerk.

Kevin is a native of Lowell, Massachusetts and 2013 graduate of Lowell High school. Before enrolling at UMass Law, Kevin attended UMass Amherst, where he received a Bachelor’s degree in history in 2017.

Haverhill Stem LLC v. Jennings

Recently the Massachusetts SJC heard a case concerning Anti-SLAPP statutes and where the lines lay against the right to petition in Haverhill Stem LLC v. Jennings. 

 Anti-SLAPP (Strategic Litigation Against Public Participation) statutes allow defendants in a case to file a motion to dismiss on the grounds that the communication in question is an exercise of the defendant’s right to petition.

In Jennings, the plaintiffs, Caroline Pineau and Haverhill Stem LLC (“Pineau”), were attempting to open and operate a marijuana dispensary in Haverhill. The process of preparing to set up the dispensary began in 2018. At that time, Haverhill’s local ordinances forbid the operation of marijuana dispensaries in the downtown area, where the plaintiff’s business was intended to open. While laying the groundwork for the eventual opening of the dispensary, plaintiff Pineau’s family purchased the property next to the business owned by the defendants, Brad Brooks and Lloyd Jennings (“Jennings”).

While the plaintiffs attempted to get the necessary changes to the local ordinances to operate their dispensary, they were approached by Jennings who sought $30,000 from Pineau. Jennings had previously paid $30,000 to the prior owner of Pineau’s property to erect a deck on his own property that crossed the property boundary, and evidently wanted to extract his money back from the property/the property’s owners. If Jennings was not paid, Pineau was promised that he “would fight whatever Pineau proposes for use of the building.”

After this initial demand, there were several more meetings between Jennings and Pineau where Pineau described Jennings’s subsequent demands for payment as “threats” or “coercion.”

In early 2019 Haverhill allowed for marijuana dispensaries to operate in the town. Over the course of the following months, Jennings made remarks that Pineau “doesn’t know who she is dealing with” and that she would “see how Haverhill works.” At a meeting between the parties in April 2019, Jennings threatened Pineau’s husband that he would bring a RICO suit against Pineau and was “prepared to try and destroy the Pineaus and their business before it got off the ground.” Jennings further stated that he “was prepared to take everything from the Pineaus, including their house.”

In May, Jennings filed a suit in the Land Court in an effort to invalidate the marijuana zoning bylaw. In June, Pineau brought a complaint against Jennings alleging, among other things, violation of the Massachusetts Civil Rights Act and defamation. Jennings moved to dismiss under the anti-SLAPP statute, claiming that Jennings’s speech was protected by the right to petition the government. The defendants’ anti-SLAPP motion to dismiss was denied, which defendants’ appealed. 

The court based its analysis of the defendants’ anti-SLAPP claims primarily on Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200 (2019) (Blanchard II); and Blanchard I, 477 Mass. 141. In Blanchard I the defendants in that case, a hospital and hospital officials, made a series of allegedly defamatory statements about the plaintiffs, nurses at a local hospital. One set of statements had been made to the Boston Globe newspaper. Those statements were determined to be protected by the right to petition under the anti-SLAPP legislation because, while the statements were not made to a government official/agency, the statements were made for the purpose of influencing a public agency. The distinguishing fact about the statements made were that they were “in connection with” an issue that was before a public agency. That connection allowed the defendants to potentially dismiss the claims.

Using the reasoning of Blanchard I, the court first established that Pineau’s claims did not derive solely from protected petitioning activity, but rather the claims were based on the coercive practices Jennings employed to try to get money from Pineau. Having survived the initial question of an anti-SLAPP motion- re: whether the activity at issue was solely one of petitioning- the court went on to examine the actual content of Jennings’s statements. Finding that the statements about destroying Pineau economically and otherwise threatening Pineau unless they were paid was the true basis of the redress sought, the court ruled that Pineau’s claims must survive an anti-SLAPP motion to dismiss.

The court conceded that, while some of the defendants’ actions were protected petitioning, and that the general type of conduct they were engaged in was not inherently objectionable- a person may lodge their objections to change of laws, use impassioned- even “fighting” language to convey a point, or try to resolve an issue by making claims for compensation- a motion to dismiss under an anti-SLAPP statute must be based on the fact that a claim against the defendant is solely about protected petitioning activity. 

Having established that the claim against Jennings was not solely about their protected petitioning activity, the court ultimately affirmed the denial of Jennings’s motion to dismiss.

Meet the E-Board: Notes Editor

Joey Spadoni is a rising 3L at the University of Massachusetts School of Law and feels so fortunate to be able to serve the school as the Notes Editor for the 2021-2022 academic year. Joey is passionate about writing, having worked in communications before attending law school, and enjoys both legal and creative writing endeavors. He completed an independent legal research project during the spring 2021 semester and has honed his legal research and writing skills during two legal internships over the past summers. In addition to his Notes Editor responsibilities, Joey will serve as the teaching assistant for the Law Review Note Writing course and is excited to work with the rising associate editors on their legal notes. Joey worked as a Contract law teaching assistant during the 2020-2021 academic year and served as an Academic Fellow during the fall semester of 2020. When he is not at law school, Joey enjoys photography
and outdoor activities.

Meet the E-Board: Tech Editor

William Jennings is a rising 3L at UMass Law, and is the current Tech Editor of the UMass Law Review. Before going to law school, William attended UMass Amherst for his undergraduate education, studying political science. Between college and law school, William also worked for several years as a legal researcher and contracts administrator.

William has an interest in tax law, and recently served as an intern with the Massachusetts Department of Revenue, the experience he gained in that internship serving as the basis for his thesis paper “Point of Steal: The Burden of Proof in Tax Fraud Cases and Point of Sale Systems.” As a member of the law review e-board, it is William’s job to maintain and manage the law review’s website and social media presence.

Meet the Law Review

Matthew R. Stevens: Staff Editor

Matthew R. Stevens ’21 is a 3L student and Staff Editor of the UMass Law Review. Matthew grew up in Dartmouth, Massachusetts, and completed his BA in History at the University of Massachusetts Dartmouth. Throughout his time in highschool, college, and part of law school, Matthew worked in the retail industry for 8 years. During his time at law school, Matthew shifted to the legal field where he served as a law clerk at Lang, Xifaras & Bullard for 3 years, as well as being a Torts Teaching Assistant for Professor Cleary. Matthew is a recipient of both the Commonwealth Fellows Scholarship and the Hoff Law Scholarship.

Matthew used his education in history and law to write about the developing legal systems of England and the Holy Roman Empire and their effect on witch-hunting intensity in early modern Europe, and how principles from this period can be applied to concepts like federalism and centralism in the United States. You can read more about Matthew’s work here. Matthew deeply enjoys any type of scholarship, and hopes to continue writing and return to the world of academia down the road by becoming a law professor.

Meet the Law Review

Thomas Brennan: Lead Editor

Thomas Brennan ’21 is a full-time day student and Lead Editor for the UMass Law Review. Tom was born and raised in a small town in Northeast Connecticut before attending Temple University in Philadelphia, Pennsylvania from 2011 to 2015. Tom graduated with a BA in Criminal Justice and a minor in Arabic. After graduation, Tom returned to his home town of Pomfret and worked for three years as a Clerk at the Superior Court in Danielson, Connecticut. In 2018, Tom decided to attend law school, following in the footsteps of his grandfather, father, and brother. 
Tom currently lives in Providence, Rhode Island, with his wonderful Fiancé. He enjoys spending time with his family and friends. After graduation, Tom plans on working in private practice in Eastern Connecticut with his father and brother.  Tom’s research and writing for UMass Law Review focused on the ethical and legal issues regarding the hidden and persuasive techniques employed by social media companies to increase user engagement.