Let Harmony Montgomery be an example: Children’s needs must be prioritized in court cases

Mossaides concluded that the problem was not with Harmony’s case alone. She wrote in her May 2022 report, “The fact that her needs and wellbeing were not prioritized in the court case about her care and protection are not uncommon experiences for children in the Massachusetts child protective system.”

Eleven months after Mossaides released recommendations for policy changes, there has been no change made to children’s representation in court to ensure their well-being is prioritized.

“Although the state has made progress on some of those recommendations, particularly those directed at the Department of Children and Families, the [Office of the Child Advocate] continues to be concerned that the welfare and best interest of the child is not adequately presented in care and protection cases, putting some children in unsafe situations,” Mossaides wrote in her 2022 annual report, released this month.

A major reason no change has been made appears to be a dispute between Mossaides’ office and the Committee for Public Counsel Services, whose public defenders represent parents and children, over what, if anything, needs to change.

This is an enormously complicated issue, with potential solutions including revamping the rules governing children’s legal representation and appointing a guardian ad litem for every child. And in the background lurks a broader philosophical question about how much emphasis the child welfare system should put on keeping even troubled families together. That is why it is vital to implement Mossaides’ recommendation to create a working group that includes the Office of the Child Advocate, the Committee for Public Counsel Services, the Juvenile Court, DCF, and others to examine these issues and determine how best to ensure children’s needs are adequately represented in care and protection cases. Both Mossaides and CPCS raise important concerns. Getting the groups around a table to hash out what works and what doesn’t is the best way to protect the next child in Harmony’s position.

The central issue is who is looking out for the child — and what does that mean. Whose responsibility was it to suggest that living with Adam Montgomery was not in Harmony’s best interest, even if that’s what the 4-year-old said she wanted?

In care and protection cases, there are typically separate lawyers representing the Department of Children and Families, the child, and each parent.

Under the Massachusetts Rules of Professional Conduct, the child’s lawyer represents the child’s wishes, regardless of their age, unless those wishes would subject the child to substantial harm. Mossaides believes it is worth exploring other models of representation. In some states, attorneys represent a hybrid of a child’s expressed preference and what the lawyer determines is their best interest. Other states have a guardian ad litem representing the child’s best interest and an attorney representing the child’s preference. Some have the attorney represent a child’s best interest when they are younger, then express the child’s wishes when they are older.

“In my own experience in cases, if you ask a 5-year-old, ‘do you want to go home to mom and dad,’ even if they’ve been abused, the child will say yes, because in their mind they’re going to a safe home,” Mossaides said. Mossaides said particularly with younger children, there needs to be someone who can take a holistic look at the child’s needs and parents’ circumstances.

But Michael Dsida, deputy chief counsel of the Committee for Public Counsel Services, says there are people in a court proceeding tasked with taking a holistic look — DCF, court investigators, and ultimately the judge. While the child’s lawyer can counsel their client, their role is to represent the child’s perspective. “Children and parents have a right to be heard,” Dsida said. The National Association of Counsel for Children has recommended that attorneys for children use an “expressed interest” model of representation, where the attorney advocates for the position sought by the child.

Another way to improve children’s representation could be to do what former governor Charlie Baker proposed in 2022 — appoint a guardian ad litem to represent every child in cases involving allegations of abuse and neglect. Now guardians ad litem — neutral professionals appointed to represent a child’s interest — are used in only a small fraction of cases.

CPCS opposes this idea, which the Legislature last session dismissed. In an April 2022 written response to a draft of Mossaides’ report, CPCS wrote that appointing a guardian ad litem in every case would be duplicative and redundant. The organization worried that it would cause case delays, particularly since there are already staffing shortages in the fields guardians would draw from — child welfare attorneys, nurses, and social workers.

There have been changes made to the child welfare system in response to Harmony’s alleged murder.

The Trial Court formed a working group to develop recommendations related to achieving permanent placements for children. Juvenile Court judges participated in trainings related to child safety and interstate placement. The court is developing a Family Treatment Court, which will hold specialty court sessions statewide for families with parents struggling with substance use or mental health.

The Department of Children and Families developed policies related to child safety assessments and attorney training, while enhancing legal department staffing. Massachusetts and New Hampshire signed a memorandum of understanding governing the placement of children with family members.

But nothing has been done to address the core legal issue of ensuring a child’s needs are prioritized in court — which, after all, is what the child welfare system is for.

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