We have officially unveiled the first portion of the CAFL Issue/Resource Bank. We are starting with “Procedural Due Process.” Subcategories are listed alphabetically. Please don’t despair if you can’t find the topic you’re looking for; it may be listed under a different word. Word versions of dozens of law student memos and model motions are linked below. If the memo or other document you want does not have a link, please email Andy Cohen in the Administrative Office at [email protected] and he will send it to you.

PLEASE NOTE: The memos below were written by law students, and some were written many years ago. They are intended to jump-start your research; they are not a substitute for your own, current research on a topic.

DUE PROCESS –

  • Due Process – Basic Definitions and Requirements (Short memo re key case cites and quotes; portion of Adoption of Meaghan amicus brief setting forth basic principles)
  • Due Process – Burden-Shifting (Intern Memo 2020)
  • Due Process – Continuance (Intern Memo 2017; several Massachusetts cases; portions of five briefs) (See also “Due Process – Right to Participate”)
  • Due Process – Counsel Conflict of Interest (See “Due Process – Right to Counsel, Counsel’s Conflict of Interest”)
  • Due Process – Delay of Decision/Findings (Short memo re Adoption of Don, 435 Mass. 158 (2001), and Adoption of Rhona, 57 Mass. App. Ct. 479 (2003))
  • Due Process – Delay of Trial  (Intern Memo; Model “Motion for Expedited Conclusion of Trial” with out-of-state case law on speedy resolution of case; Juvenile Court Standing Order 1-10 on scheduling of trials)
  • Due Process – Delay of 72-Hour Hearing (See “Due Process – seventy-two-hour Hearing”)
  • Due Process – Discovery (Intern memo 2020; model memo of law in support of motion to compel production of DCF adoption assessment)
  • Due Process – Disposition, Choice of (Short memo re: Adoption of Cadence, 81 Mass. App. Ct. 162 (2012)) (See also “Due Process – Judicial Bias, Judge Making Sua Sponte Decisions”)
  • Due Process – Evidence (Portion of brief in Titus; list of key Mass. cases and copies of highlighted Mass. cases)
  • Due Process – Experts (Intern memo 2020; List of key authorities, 2020)
  • Due Process – Interpreters (See “Right to Participate – Interpreters”)
  • Due Process – Interstate Compact/ICPC (Model Motion for Custody to Out-of-State Parent  (2021); In re Courtney R, (Tenn. 2017); In re BS (Cal 2012); 2019 AmJur Article; ICPC cheat sheet re: parents; ICPC case list of issues (2017))
  • Due Process – Judicial Bias
    • Conduct, bizarre (LA case re judge’s bizarre conduct 2016; ABA article 2019: NV case re judge’s bizarre conduct)
    • Conflict of Interest (Portions of four briefs; Intern memo 2016 – Judge previously employed; Intern memo 2015 – personal conflict of interest; 2019 ABA article; 2011 NY ethics committee opinion; 2019 ABA Formal Opinion; Comm v. cousins)
    • Ex Parte Communications (Intern memo 2011; Intern memo 2014; portion of brief; Article and ABA ethics opinion re judges researching case on web)
    • Extrajudicial Conduct (Connecticut v. Minh Anh Han, 201 Conn. App. 568 (2020); Marchese v. Aebersold, 530 S.W.3d 441, 445-46 (Ky. 2017); Care and Protection of Zita, 455 Mass. 272, 281 (2009); ABA Model Code Jud. C., Rule 2.9(C) & Comment [6]; Alred v. Comm’r, Jud. Cond. Comm’n, 395 S.W.3d 417, 443 & n. 92 (Ky. 2012); “Game of Thrones” (judicial power/bias) presentation, PowerPoint)
    • “Forcing” Settlement (Intern memo 2020)
    • Recusal (Intern chart re Mass. and other state law (2014); BBJ article (2015); short memo on Rippo v. Baker (SCOTUS on new standard for recusal based on bias); Wash. state brief (long) re judicial bias, conflict of interest & recusal (2018); Comm. v. Deconinck (summary) (SJC re recusal); Interest of NM (PA 2018); ABA Journal article 2018; Hilton v. Central Div of Housing (2019))
    • Judge Asking Questions of Witnesses and Making Comments (Adoption of Norbert, 83 Mass. App. Ct. 542 (2013); brief in Adoption of Norbert; Intern memo 2015 – judicial questioning; Intern memo 2016 – judicial commentary; portions of six briefs; Mass. R. App. P. 16(l) letter with case citations); judicial questioning and constructive denial of counsel Judicial Questioning Intern Memo (7-2021))
    • Judge Calling Witnesses (Intern memo 2015)
    • Judge Interfering with Counsel’s Examination (In re D.C., PA Super. 2018)
    • Judge’s Sua Sponte Decisions (Intern memo 2020)
    • Judge’s Use of Social Media (Intern Memo 2018; Intern Chart 2014 – Survey of Judicial Ethics Opinions; ABA article 2013; Boston Bar J. article 2017; ethics opinion – Tenn. 2019; Carroll v. Miller (WI2020)
    • Structural Error (Adoption of Norbert, 83 Mass. App. Ct. 542 (2013); short memo with case citations 2009; In re J.K., 2015 Ind. LEXIS 385 (2015))
  • Due Process – Notice of DCF’s Specific Unfitness Allegations (Intern memo 2018)
  • Due Process – Right to Counsel
    • Basic Principles (J.K.B., 379 Mass. 1 (1979); list of key authorities; Meaghan amicus brief (Word and PDF); V.V. amicus brief (Word and PDF); L. B. v. Chief Justice (Blouin) amicus brief (Word and PDF); amicus brief in N.H. right-to-counsel case; three charts/memos re source of right to counsel in all fifty states; Intern memo 2014)
    • Child’s Right to Counsel
      • Counsel’s Access to Child (In re A.S., 936 A.2d 1094 (Pa. Super. Ct. 2007))
      • Right to Appointment of Counsel (CPCS amicus briefs in Guardianship of V.V. and B. v. Chief Justice (Blouin) in Word and PDF format; Care and Protection of Georgette, 439 Mass. 28 (2003); Balboni v. Balboni, 39 Mass. App. Ct. 210 (1995); In re Christina M., 908 A.2d 1073 (Conn. 2006) (parents’ right to assert child’s right to counsel); Kenny A. v. Perdue, 365 F. Supp. 2d 1353 (N.D. Ga. 2005); three law review articles)
    • Choice/Change of Counsel (portions of three briefs; Comm. v. Means, 454 Mass. 81 (2009); Comm. v. Carsetti, 53 Mass. App. Ct. 558 (2002); Adoption of Ulon, 81 Mass. App. Ct. 1113 (2012) (Mass. App. Ct. Rule 1:28); In re C.C., 48 P.3d 244 (Utah Ct. App. 2002) (court must make inquiry re reasons for parent’s dissatisfaction with attorney), Adoption of Raissa (2018, not yet paginated)) (See also “Due Process – Right to Counsel, Denial of Counsel – Waiver/Refusal to Appoint Successor Counsel”)
    • Competency to Assist Counsel (Intern memo 2020)
    • Counsel’s Conflict of Interest (Intern memo 2015; chart/memo re Mass. cases and rules on counsel conflicts 2014; portion of one brief; comm. v. Cousin (2018); Adoption of Ted & FAR; Adoption of Trina, 84 Mass. App. Ct. 1123 (2013) (Mass. App. Ct. Rule 1:28) and FAR)
    • Constructive Denial of Counsel (Intern memo 2018; portions of five briefs, two appellant, two appellee; law review article; A.P. v. Commonwealth, 270 S.W.3d 418 (Ky. Ct. App. 2008)) (See also “Due Process – Structural Error”)
    • Denial of Counsel – Non-Indigency/Failure to Pay Fee (Intern memo 2003; two single justice orders; two single justice petitions; motion to waive fee; motion to vacate order striking counsel (for failure to pay fee); affidavit of parent unable to pay; Comm. v. Mortimer, 462 Mass. 749 (2012); Comm. v. Godwin, 60 Mass. App. Ct. 605 (2004)).
    • Denial of Counsel – Refusal to Appoint Successor Counsel (Comm. v. Means, 454 Mass. 81 (2009), Adoption of Ulon, 81 Mass. App. Ct. 1113 (2012) (Mass. App. Ct. Rule 1:28) and memo re Means and Ulon; portions of four briefs; Adoption of Raissa (2018, not yet paginated); summaries of five out-of-state counsel waiver cases in child welfare cases) (See also “Due Process – Right to Counsel, Choice/Change of Counsel”)
    • Denial of Counsel – Structural Error (See “Due Process – Structural Error, Counsel Issues”)
    • Forfeiture of Counsel (by Conduct) (Intern memo 2016; see also “Waiver of Counsel,” below.)
    • Ineffective Assistance of Counsel (Note:  Model new trial motions, motions for leave to file motion for new trial, and supporting affidavits are available in Word format that we can email to counsel.)
      • Advocating against Client’s Wishes (Intern memo 2020; see also “Throwing Client under the Bus,” below.)
      • Appellate Counsel (Intern memo 2013; staff counsel memo 2011; portion of brief; Comm. v. Aspen, 85 Mass. App. Ct. 278 (2014); Comm. v. Stote, 456 Mass. 213 (2010); State v. O’Neil, 99 A.3d 814 (N.J. 2014))
      • Basic Principles (Intern memo 2013 re other states; list of key authorities; intern memo 2008; portion of brief; law review article on IAC in termination cases; website resource re IAC; notes from Attorney Jamie Sultan’s lecture re IAC new trial motions; quote from Justice Kagan; In re E.R.W., 528 S.W.3d 251 (Ct. App. Tex. 2017) (non-indigent parent’s right to raise IAC for retained counsel’s poor performance))
      • Failure to Admit/Object to Evidence (Staff memo 2016; portions of four briefs; Comm. v. Salyer, 84 Mass. App. Ct. 346 (2013); portion of Comm. v. Sepheus, 468 Mass. 160 (2014); State v. Thompson (NH 2011))
      • Failure to Call Witnesses (Intern memo 2017; portions of two briefs; Anderson v. Butler (1st Cir. 1988); portion of Comm. V. Ortega (2004); In Re MJH (Colorado 2007) )
      • Failure to Investigate Case (Key cases; portion of motion for new trial; Comm. v. Baker, 440 Mass. 519 (2003); Comm. v. Alvarez, 433 Mass. 93 (2000); In re Mental Health of K.G.F., 29 P.3d 485 (Mont. 2001)).
      • Failure to Participate at Trial (Intern memo 2016; portion of a brief; Adoption of Azziza, 77 Mass. App. Ct. 363 (2010); Comm. v. Vickers, 60 Mass. App. Ct. 24 (2003); State ex rel. Children, Youth & Families Dep’t v. Maria C., 94 P.3d 796 (N.M. Ct. App. 2004); In re Roque, No. 2005-T-0138, 2006 Ohio App. LEXIS 6961 (Ohio Ct. App. Dec. 29, 2006); State ex rel. State Office for Servs. to Children & Families v. Thomas, 12 P.3d 537 (Or. Ct. App. 2000))
      • Failure to Prepare for Trial (Intern memo 2020)
      • Failure to Pursue Crucial Issue/Defense (List of key authorities 2016; Intern memo 2016; Comm. v. Andrade, 96 Mass. App. Ct. 117 (2020))
      • Failure to Understand the Law (Comm. v. McCrae, 54 Mass. App. Ct. 27 (2002))
      • Improper Withdrawal (Three Ohio termination decisions reversing judgment; In re K.A.S.E., 2018 WL 850303 (Missouri, Feb. 14, 2018))
      • Lack of/Suspension of Licensure (Intern memo 2017)
      • Malpractice/BBO Consequences (for Trial Counsel) (BBO public reprimand No. 2010-5; Glenn v. Aiken, 409 Mass. 699 (1991); malpractice insur. policies and email from insurer; two intern memos re legal malpractice actions against defense counsel)
      • Roles/Duties of Trial Counsel (Seven articles, including a law rev. article and articles from Bar Counsel, NACDL, etc.; ABA Formal Op.; Mass. R. Prof. C. 1.16; California State Bar Formal Opinion 1992)
      • Sitting at Counsel Table (Intern memo 2018)
      • Telling Client Not to Appear (Portion of brief)
      • Throwing Client Under the Bus (Intern memo 2018)
      • Untimely IAC Claim (No New Trial Motion) (Portions of two briefs)
    • Privately-Initiated Adoption Proceedings (Adoption of Meaghan, 461 Mass. 1006 (2012); Meaghan amicus brief; cert petition in Texas case; chart re parents’ right to counsel in private cases; memo re other cases 2014)
    • Stand-by Counsel (Intern memo 2016; intern memo re Mass. and out-of-state cases; Moore v. Hall, 62 A.3d 1203 (Del. 2013))
    • Timing/Stages (Portions of three briefs; Lavallee v. Justices in the Hampden Super. Ct., 442 Mass. 228 (2004); E.W. v. Jefferson Cty. Dep’t of Human Res., 872 So. 2d 167 (Ala. Civ. App. 2003); R.V. v. Ky. Dep’t for Health & Fam. Servs., 242 S.W.3d 669 (Ky. Ct. App. 2007); California case 2020)
    • Unrepresented Parties; Can Parents’ or Children’s Counsel Speak to DCF Social Workers or Foster Parents without the Permission of DCF Counsel? (Intern memo 2015)
    • Waiver of Counsel (by Conduct) (Intern Memo 7-2016; Adoption of Raissa and Raissa FAR application with detailed analysis of issue); see also “Forfeiture of Counsel,” above.
  • Due Process – Right to Notice
    • Adequacy of Publication Notice (Errors in Content/Choice of Publication) (Intern memo 2016; Brown v. Malloy, 546 S.E.2d 195 (S.C. Ct. App. 2001); CML v. BEL (Ala. 2014))
    • Basic Principles (Summary chart of MA statutes, regulations and court rules pertaining to notice; list of key authorities; New Bedford Hous. Auth. v. Olan, 50 Mass. App. Ct. 188 (2000); Andover v. State Fin. Servs., Inc., 432 Mass. 571 (2000); In Re S.P. (CA 2020))
    • Diligence/Efforts to Identify and Locate Parent before Publication Permitted (Intern memo 2017)
    • Failure to Provide Notice (Portion of brief; In re A.H., 86 P.3d 745 (Utah Ct. App. 2004); Mayberry v. Flowers, 65 S.W.3d 418 (Ark. 2002) (setting aside adoption decree); summary of CML v. BEL (AL 2014))
    • Nature of Hearing Noticed  (Short memo re due process requires notice of trial when court holds trial, notice of some other kind of hearing is insufficient; summary of In re GB (CA 2018))
    • Notice to Incarcerated Parent (Adoption of Jacqui, 80 Mass. App. Ct. 713 (2011) (See also “Due Process – Right to Participate, Incarcerated Parent”)
    • Sufficient Time (Intern memo 2016; J.B. v. Fla. Dep’t of Children & Fam. Servs., 768 So. 2d 1060 (Fla. 2000))
  • Due Process – Right to Participate
    • Children – Right to Attend or Testify (A Child’s Voice ACNJ (2011); Intern Memo (unfinished 2016); Cumberland L. Rev. article (2013/2014); Nat’l Counc. of Juv. Ct. & Fam. Ct. Judges policy statement and “Seen, Heard” tech. assist. bull. 2012; “Seen and Heard” ABA article; two emails with resources (not to post))
    • Interpreters (Three intern memos; portion of law treatise; short memo on Comm. v. Lujan (wrong language/informal interp.))
    • Parent – Detained for Immigration Purposes (ICE Policy on Parental Participation; list of key authorities; intern memo 2013; memo re habe’ing defendants from ICE custody)
    • Parent – In Other State or Other Country (Intern memo 2020; List of key authorities 2020; Article re use of videoconferencing; Juvenile Court Uniform Practice re videoconferencing)
    • Parent – Incarcerated (Intern memos 2016 and 2005; list of key authorities; eight out-of-state cases; portions of two briefs; ABA ChildLaw Practice article 2001; intern memo with resources to locate incarcerated parents 2005; ABA article 2019)
    • Parent – Unable to Participate for Reasons beyond Parent’s Control (E.g., Illness, Accident, Mistake of Date/Time) (Intern memo 2020; see also “Due Process – Continuance”)
    • Right to Evidentiary Hearing Generally (In re Armando L., 1 Cal. App. 5th 606 (2016))
    • Right to Testify, Present Evidence, Cross-Examine Witnesses (Intern memo 2020)
  • Due Process – Seventy-Two-Hour Hearing
    • Burdens, Evidence, Timing (List of important Mass. cases; sample “Motion for Timely 72-Hour Hearing” with out-of-state case law; list of other out-of-state cases; ALR article on emergency removals in other states; intern memo 2013; summary of Oglala Sioux Tribe v. Van Hunnik; summary of Moore v. Sims, 442 U.S. 415 (1979))
    • Harm to Child (from Removal) (Five clinical articles.  Note that this will soon be a much larger memo and/or collection of annotated articles)
  • Due Process – Structural Error
    • Basic Principles (Intern memo 2010; list of key SCOTUS and Mass. cases)
    • Counsel Issues (Adoption of Rory, 80 Mass. App. Ct. 454 (2011); brief in Adoption of Rory; PowerPoint page on structural error; two briefs in Michigan structural error appeal; chart with cases in other states re structural error for denial of counsel; In re Torrance P., 724 N.W.2d 623 (Wis. 2006))
    • Interpreter Issues (See “Due Process – Interpreters”)
    • Judge Issues (See “Due Process – Judicial Bias”)
    • Participation Issues (See “Due Process – Right to Participate”)
    • Due Process – Visitation (list of key authorities; Portion of Adoption of Rhona, 57 Mass. App. Ct. 479 (2003))