By Andrew Cohen
Berkeley Law has announced plans to launch an in-house Family Defense Clinic, enabling students to represent indigent parents threatened by state intervention with the removal of their children. This new clinic will be the first of its kind on the West Coast, filling an urgent gap in free legal services in the East Bay.
“One of my most important goals is expanding the size of our wonderful Clinical Program,” says Berkeley Law Dean Erwin Chemerinsky. “We are adding five new clinical professors and three new clinics over a five-year period — including our Family Defense Clinic, which will provide much needed legal assistance and advocacy in this vital area of the law. It is one of the few clinics like this in the country and can be a model for other law schools.”
Alameda County Chief Public Defender Brendon Woods says the new clinic will fill a key gap in the existing landscape of services and provide desperately needed legal advice to marginalized families at risk of having their children taken from them.
“Berkeley Law is met here with an opportunity to not only fill a major need in our community, but to also hold true to its commitment to racial justice,” he says.
Black children make up 10% of children in Alameda County, but 43% of the county’s open dependency cases. In California, one in two Black and Native American children are investigated by child protective services during childhood, and Black children are represented in foster care at three times their rate in the general population.
Family defense advocates note that this data mirrors how Black, Brown, and Native American families across the country disproportionately have their children taken from them due to higher rates of poverty making them more visible to child protective systems, coupled with racial bias and discrimination.
Filling the void
The law school is currently conducting a search for a clinical professor to launch and direct the new clinic. In addition to addressing an important legal services gap in the community and centering the perspectives of impacted parents in the area, it will help students develop vital lawyering skills to enhance their future careers.
Students will work closely with clients during acutely traumatic moments in their lives, when they face the possible permanent removal of their children. While the criminal legal system usually resolves cases through elaborate plea bargaining, the family regulation system neither accepts plea agreements to ensure a child’s return nor punishes the accused for insisting on an evidentiary hearing. As a result, clinic students will receive meaningful opportunities to participate in trials and hone trial practice skills.
“It is exciting to plan for a new clinic that will help fill a community need, meet student interest, and provide opportunities to develop advocacy skills in different ways from existing clinical offerings,” says Clinical Program Director Laura Riley.
The family defense movement has strong roots in New York City, where New York University School of Law Professor Martin Guggenheim created the country’s first clinic in the field 30 years ago. Now, public defense offices, law schools, and other community-based organizations support parents in New York City at a higher level than anywhere else in the country by bringing litigation, initiating policy changes, and educating community members about their rights.
New York City’s foster care population has dropped from around 28,000 in 2003 to about 7,000 today. But California, and particularly the Bay Area, has struggled to provide similar holistic support for families.
“This is where this new clinic comes into focus as beyond important,” Guggenheim says. “Berkeley’s desire is to do more than train future lawyers; it also wants to serve the community of which it is a part. And the East Bay has long been in desperate need of a robust family defender community, with a disproportionately non-white population living in relative poverty which has long suffered both economic and court-initiated injustices.”
Student involvement
When they became Berkeley Law students in August 2021, Justine DeSilva ’24, Greta Sloan ’24, and Ariane Walter ’24 noticed a lack of support available for impacted parents in the area and a lack of pro bono or career development opportunities for students and recent graduates eager to provide this support. In their second semester they created the Family Defense Project (FDP), one of 40-plus Student-Initiated Legal Services Projects at the school, which assists parents facing investigations, creates know-your-rights training sessions, and conducts research to publicize bias in the family defense system.
“Black and Brown families have their children taken from them at shockingly disproportionate rates — not due to severity of abuse or neglect, but due to the normalization of family separation as a response to poverty,” Walter says.
Sloan notes that “instead of providing parents and families with support, children are often removed when families of color face unstable housing, the rising cost of child care, mental health and substance use challenges, grief, or health troubles.”
As a student-led group, FDP has worked on impactful projects that include investigating and publicizing racial bias in the drug testing of mothers and newborns in Bay Area and Los Angeles hospitals — and finding that such testing leads to racially disproportionate, unnecessary, and deeply traumatizing removals of newborns from their mothers by child protective services.
“Our work underscores how racism and bias too often bleed into dependency court decisions,” DeSilva says. “The system has a misguided belief that children of color are better off in state custody, which leads parents of color to understandably stop trusting institutions.”
In addition to their research, FDP students have staffed the East Bay Family Defenders’ intake line and have continued to work with the organization throughout its merger with Legal Services for Prisoners with Children to determine whether they could support parents at the investigation stage, refer them to specific social services, or help them contact their panel attorney if their case was already filed.
They also worked with impacted parents to create a systems-navigation workshop for those involved in the family regulation system, which FDP leaders Addie Gilson ’25 and Eli McClintock-Shapiro ’26 presented at last spring’s American Bar Association Access to Justice Conference.
Since the project’s creation nearly three years ago, FDP leaders have bolstered the expansion and evolution of family defense in the Bay Area through diligent policy work and community organizing. In doing so, they energized fellow Berkeley Law students, impacted parents in the Bay Area, and community partners across California to support the development of a new family defense clinic.
“We look forward to establishing a clinic that provides legal support for family preservation and works against excessive government intervention that disproportionately impacts families of color,” says Ty Alper, the Clinical Program’s faculty co-director and a clinical professor of law. “It is more important than ever to fulfill our mission of advancing racial, economic, and social justice and this is a critical area in which to do so.”