Gotay v. Creen: Groundwork for Children’s Constitutional Right to be Free of Harm

In Gotay v. Creen, the Massachusetts Supreme Judicial Court (SJC) provides critical groundwork for children's rights in the Commonwealth by clarifying the state’s obligation to children in its care. In its decision, the SJC announced for the first time that children living in foster care in Massachusetts have a constitutional right to safety and adequate care, stating “once the state assumes wardship of a child, the state owes the child, as part of that person's protected liberty interest, reasonable safety and minimally adequate care and treatment appropriate to the age and circumstances of the child.”  

In November 2024, Alexis Williams Torrey and Lauren Russell, Co-Directors of Strategic Advocacy, together with the Committee for Public Counsel Services (CPCS), authored an amicus curiae brief arguing that a child in the legal custody of the Department of Children and Families (DCF) has a clearly established  constitutional right to reasonable care and safety in substitute care placements due to the special relationship between a child in foster care and the Commonwealth. The case centered on a child who suffered severe and permanent impairment while in a DCF-licensed foster care placement. Although the SJC ultimately reversed the lower court's decision to allow the child’s claims against DCF to proceed, the Court declared that DCF has a duty to protect children in its care from harm. 

CLCM's involvement in Gotay v. Creen stemmed from our commitment to advancing children’s constitutional rights to family integrity and safety in foster care.  In addition to urging the SJC to recognize a foster child’s right to safety, adequate care, and treatment in foster care, CLCM and CPCS’s brief highlighted the evidence that a significant number of children experience a myriad of harm in the foster care system and that this harm is disproportionately endured by the Commonwealth's children of color.  

"Our amicus brief in Gotay v. Creen was born from the urgent need to shed light on the conditions and outcomes children in foster care experience," stated Alexis Williams Torrey. "There is a false presumption that the State removes children from 'harmful' parents to keep them 'safe' in substitute care.  This overlooks the inherent trauma of family separation and, critically, the additional harms many children face in unsafe foster care and congregate care environments. We wanted the Court to acknowledge that children in foster care have a constitutional right to be kept safe and receive the treatment and care they need." 

"While this decision offers some important acknowledgments for children in state care, we believe there is still significant ground to cover to improve the lives of children at risk of or living in foster care," added Lauren Russell. "Nevertheless, the Gotay decision reinforces the principle that children in the state's care deserve more than just placement; they deserve an environment that actively promotes their safety, development, and eventual reunification with family whenever possible and appropriate. The SJC's ruling helps ensure that DCF may be held accountable for providing not just shelter, but genuinely safe and supportive care."  

CLCM's mission is to ensure that every child has their voice heard and their rights protected. Through direct legal representation, systemic advocacy, and strategic litigation like the Gotay v. Creen amicus brief, CLCM strives to improve the lives of vulnerable children and families across Massachusetts. The Gotay decision represents a step forward, and CLCM remains committed to pushing for comprehensive legal protections for children and youth living in and aging out of foster care.