Victimized Twice: The Reasonable Efforts Requirement in Child Protection Cases When Parents Have a Mental Illness

State child protection agencies are required by federal law to exert reasonable efforts to keep families together before seeking termination of parental rights. Some states, however, have created an exception to this requirement when the parent involved suffers from a chronic mental illness. Moreover, even in those states that enforce the requirement, the reunification services provided to parents with a mental illness often do not meet the needs of those parents. This Article argues that although parents with a mental illness face serious challenges in caring for their children, they should not be categorically excluded from reunification efforts by means of a state statute. It further contends that in order to be reasonable reunification services must be reasonably calculated to address the specific issues faced by parents with a mental illness. The Article concludes with several suggestions on how this goal can be accomplished even in the face of scarce resources.

Moving Violations: An Examination of the Broad Preemptive Effect of The Carmack Amendment

This Article addresses the general principles of preemption, and describes the history, purpose and language of the Carmack Amendment. The Article then demonstrates that at the time the amendment was passed, Congress had no intention of preempting claims based on moving industry misconduct. Part II discusses the constitutional principles that govern application of the law of federal preemption and describes how application of preemption in Carmack Amendment cases has diverged from the overall application of preemption principles in other areas of congressional legislation. Finally, Part III argues that the courts have improperly granted the moving industry carte blanche to deceive and mistreat consumers without consequence, and suggests congressional action to solve this problem

Finding a Reasonable Way to Enforce the Reasonable Efforts Requirement in Child Protection Cases

Under federal law, state child protection agencies are required to exert reasonable efforts to reunite abused and neglected children with their parents before seeking to terminate parental rights and free the children for adoption. The scope of this requirement is undefined in federal statutes and in the statutory law of many states. As a result, it has fallen to appellate courts to determine the degree of effort a state agency must exert before the relationship between a parent and a child is severed. This has proven no easy task. By the time a parental termination case has reached an appellate court, the children may have been in the care and protection of the state for a lengthy time and may have developed a bond with foster parents who are hoping to adopt them. This leaves the appellate court with a difficult choice if it finds that the efforts of the state agency have been insufficient or poorly matched to the needs of the family in question. Faced with these circumstances, many appellate courts have simply rubber-stamped the efforts of the state agency without much review, and in effect read the reasonable efforts requirement out of existence. Other appellate courts have done a more exacting examination of whether reasonable efforts were made. When these courts have found deficiencies, the almost inevitable effect has been to delay permanency for the children involved by requiring the agency to go back and make further attempts at reunification. After reviewing appellate decisions of both types, the Article concludes that neither approach is satisfactory. The Article offers three ways to alleviate the thorny problems faced by appellate courts in these difficult cases. First, it contends that in the absence of a federal definition of reasonable efforts, states should develop more precise definitions of their own. Second, it argues that courts make better use of empirical research when evaluating whether a state agency has made reasonable efforts, so as to make a more accurate assessment of whether the state‘s efforts are satisfactory. Finally, it suggests that state courts discontinue the practice of considering reasonable efforts as a condition precedent to termination of parental rights. The Article acknowledges that these approaches singly or in combination will not completely resolve the issues raised by reasonable efforts cases, but asserts they will help ease the problems created by those difficult cases

Finding a Reasonable Way to Enforce the Reasonable Efforts Requirement in Child Protection Cases

Under federal law, state child protection agencies are required to exert reasonable efforts to reunite abused and neglected children with their parents before seeking to terminate parental rights and free the children for adoption. The scope of this requirement is undefined in federal statutes and in the statutory law of many states. As a result, it has fallen to appellate courts to determine the degree of effort a state agency must exert before the relationship between a parent and a child is severed. This has proven no easy task. By the time a parental termination case has reached an appellate court, the children may have been in the care and protection of the state for a lengthy time and may have developed a bond with foster parents who are hoping to adopt them. This leaves the appellate court with a difficult choice if it finds that the efforts of the state agency have been insufficient or poorly matched to the needs of the family in question. Faced with these circumstances, many appellate courts have simply rubber-stamped the efforts of the state agency without much review, and in effect read the reasonable efforts requirement out of existence. Other appellate courts have done a more exacting examination of whether reasonable efforts were made. When these courts have found deficiencies, the almost inevitable effect has been to delay permanency for the children involved by requiring the agency to go back and make further attempts at reunification. After reviewing appellate decisions of both types, the Article concludes that neither approach is satisfactory. The Article offers three ways to alleviate the thorny problems faced by appellate courts in these difficult cases. First, it contends that in the absence of a federal definition of reasonable efforts, states should develop more precise definitions of their own. Second, it argues that courts make better use of empirical research when evaluating whether a state agency has made reasonable efforts, so as to make a more accurate assessment of whether the state‘s efforts are satisfactory. Finally, it suggests that state courts discontinue the practice of considering reasonable efforts as a condition precedent to termination of parental rights. The Article acknowledges that these approaches singly or in combination will not completely resolve the issues raised by reasonable efforts cases, but asserts they will help ease the problems created by those difficult cases

Constitutional Law--First Amendment--No Constitutional Right to Vote for Donald Duck: The Supreme Court Upholds the Constitutionality of Write-in Voting Bans in Burdick v. Takushi

This Note examines the Supreme Court decision in Burkick v. Takushi in detail and questions the Court\u27s conclusion that the voters\u27 interest in casting write-in votes is so slight that write-in bans are presumptively valid. The Note concludes that the Burdick decision is both inconsistent with the Court\u27s previous ballot access jurisprudence, and restricts the electoral process at a time when voters are clamoring for more diverse choices in the voting booth. Section I of this Note briefly reviews a number of cases that considered the constitutionality of legislation governing candidate access to election ballots. The ballot access cases are relevant because federal courts considering write-in voting restrictions have adopted a standard of review originally tailored for ballot access restrictions. Section II describes the majority and dissenting opinions in Burdick. Section III analyzes the nature of write-in voting as an expression of political speech and association protected under the First and Fourteenth Amendments of the Constitution. This section will challenge the Burdick Court\u27s interpretation of the standard of review applied to ballot access cases. Finally, this section demonstrates that the Supreme Court failed to correctly weigh the injury to voters imposed by the write-in ban against the relatively insignificant state interest in banning such votes

Using a Literary Case Study to Teach Lawyering Skills: How We Used Damages by Barry Werth in the First-Year Legal Writing Curriculum

First-year law students arrive for their first day of classes with varying perceptions about the practice of law and what it means to be a lawyer. Although some students have first-hand knowledge of the profession based on their work in a law office or from family members who are attorneys, many students base their entire conception of what it means to be a lawyer on images from popular media. The Authors discuss how they used a literary account to acquaint students with an authentic picture of litigation, while still teaching the rudiments of legal research and writing. The book used was Damages, Barry Werth’s account of a medical malpractice case. This Article details the use of Damages in the first-year legal research and writing program at Western New England College School of Law. Section I of this Article describes the pedagogical objectives achieved by using the book and reviews the literature about the best practices in teaching. Section II describes the substance of the book and, briefly, how the book was used both to teach discrete topics and as a source of legal research and writing assignments. Section III details the evaluation of the use of the book and how it served to achieve teaching goals. Finally, Section IV provides the Authors’ conclusions and plans for the future

An Elective Advanced Course

The Authors discuss Legal Research and Writing course requirements at Western New England College School of Law. Although the students must complete a qualified writing course, previously there was no general advanced legal research and writing course. However, recently Western New England College School of Law has offered an Advanced Legal Research and Writing tutorial as an elective. This course is taught by a member of the Legal Research and Writing faculty on a rotating basis

An Elective Advanced Course

The Authors discuss Legal Research and Writing course requirements at Western New England College School of Law. Although the students must complete a qualified writing course, previously there was no general advanced legal research and writing course. However, recently Western New England College School of Law has offered an Advanced Legal Research and Writing tutorial as an elective. This course is taught by a member of the Legal Research and Writing faculty on a rotating basis

Family Law—The Revictimization of Survivors of Domestic Violence and Their Children: The Heartbreaking Unintended Consequence of Separating Children from Their Abused Parent

Massachusetts law governing child custody recognizes the damaging effect that witnessing domestic violence can have on a child. Accordingly, the law requires courts to give special attention to the effects of domestic violence on a child when determining custody. An unintended consequence of this scrutiny is that parents who have been the victims of domestic violence can lose custody, or even their parental rights, for failing to protect children from witnessing their abuse. This result can be prevented by requiring courts to apply the same level of attention to the effects of domestic violence when removing a child from an abused parent as they do when placing a child with an abusive parent