Wednesday, February 12, 2020

DCF Fair Hearings

The DCF Fair Hearing Unit has created a useful set of links regarding Fair Hearings.

If you already know you want to request a fair hearing, you can now do so using an online docusign form:
I haven't used it yet, so I don't know if it sends a copy to the Area Office or only the Fair Hearing Unit, but it seems as if it should have that capacity.

Their Guide to Fair Hearings is pretty comprehensive and seems to be written in plain English:

Monday, November 11, 2019

Proof of Child Sexual Abuse?

It has been several years since my last case in which a parent was accused of sexually abusing a young child based on evidence of shared pathogens. The one I was reminded about today was the father of a 4 or 5 year old girl who was accused because his daughter was found to have Chlamydia in her throat. Yes, horrible, I know.

The child abuse pediatrician with whom I consulted told me she thought the abuse would be confirmed if father tested positive for the same strain of the bacteria. I was only handling the child custody part of the case, not any criminal charges that may have resulted. My involvement ended quickly when the mother agreed to keep the father away from their daughter while the cases were pending.

I was reminded about it today when the headline Biomarker Diagnoses Deadly Infant Disease appeared in my inbox from the Breaking Science News email from Technology NetworksThe article mentioned in the subject line was about "A diagnostic study of 136 premature infants [that] found that a protein involved in managing harmful bacteria in the human intestine is a reliable biomarker for the noninvasive detection of necrotizing enterocolitis (NEC)."

I haven't had any cases in which NEC was mistaken for child abuse, but a different article at the top of the Top Headlines list caught my attention: Genetic Tools To Explore Zoonotic Chlamydia. A Zoonotic disease is, "an infectious disease that is transmitted between species from animals to humans (or from humans to animals)." via Google.

Interestingly, the MN article doesn't list chlamydia. But the write up of the Molecular Infection Medicine Sweden article Targeted Gene Modification in Animal Pathogenic Chlamydia says:
The human pathogenic bacterium Chlamydia trachomatis is the most common sexually transmitted bacterial pathogen worldwide. It is estimated to infect more than 100 million people each year and is a frequent cause of infertility. Moreover, Chlamydia trachomatis also causes eye infections and represents the most frequent infectious cause of blindness in developing areas of the world.
Less widely known is that Chlamydia affects not only humans, but also animals. By causing disease in farm animals, such as in cows, sheep, pigs and chicken, Chlamydia can cause significant economic damage. Moreover, Chlamydia also infects pet animals, such as cats, guinea pigs, and parrots. While the Chlamydia species that infect animals are biologically different from the human pathogen Chlamydia trachomatis, some animal pathogenic Chlamydia can occasionally also infect humans. These zoonotic infections in which the bacteria are transmitted from an infected animal to a human can be severe and life-threatening.
Not knowing to question whether the pediatrician's assertion that father and daughter having the same strain of a pathogen was proof that father transmitted it to daughter, I didn't even inquire if they had any pets or handled farm animals. Similarly, until Attorney Randy Gioia brought a couple of Evidence Based Medicine physicians to speak at the Massachusetts Juvenile Bar Association annual conference a decade ago, I didn't think that there might be scientific evidence to rebut presumptions of causation tendered by the medical witnesses the state had proferred.

Practice note for lawyers: Listen to your clients. Do scientific as well as legal research. Don't easily write off pleas of "But I didn't do anything like that to my child."

Practice note for accused parents: Do scientific research. Insist that your attorney does so as well. Make it easier for them to find the articles, experts, and lawyers who have gone before them and found innocent explanations for conditions that the state has said couldn't have caused the conditions your child exhibited and you know you didn't cause.

Sunday, July 21, 2019

I should have known re: Massachsuetts General Laws online

Now I know why I often can't find new statutes or language that I know was amended when I go to the Massachusetts General Laws links that I have saved for myself. Thanks to an alert that the Trial Court Law Libraries recently added to the top of the "General laws, session laws & bills" pages, I realized that:

Mass. General Laws online have not been updated since February 28, 2017

Warning: Mass. General Laws on the Legislature's site have not been updated in over 2 years

The Trial Court Law Libraries strongly discourage users from relying on the Mass. General Laws provided online by the Legislature, because they are over 2 years out of date.

We are working to compile a collection of laws that have changed in that time. Please try Mass. General Laws amended since January 1, 2017 first, whenever you are searching for laws.
If you need a law, and it is not in the list of amended laws, please use the Legislature's online Mass. General Laws as a finding aid only, and then use our free document delivery service to request a current version of the law.

By Mass. Trial Court Law Libraries,, 7/10/2019

Wednesday, March 27, 2019

DCF Family Assessment - What's involved?

I was recently asked, "How many meetings are in the assessment?"

The answer is essentially "It depends."

The Family Assessment policy says that there must be a minimum of 3 face-to-face contacts with "the family" and 2 of those must be in the home.

But there are also information gathering requirements and monthly meeting requirements that can increase the 3 meetings to 4 or even 7. If the worker doesn't touch on all the relevant subject areas during the first 3 meetings, they will have to insist on another. If the assessment starts near the end of a calendar month or is scheduled to end after the beginning of the next month, they will have to come at least once during each of those months if only for a "quick view of the children".

See pp. 11 & 13-15.

Friday, February 9, 2018

Persnickety Reporters

What to do when they keep reporting.

I was asked if there is any way to stop school personnel from reporting minor incidents that are not an indication of children being at risk of abuse or neglect. My response, edited to remove identifying information, was:

Since DCF is not allowed to tell you or confirm your suspicions about who filed a report and since reporters do not have to answer about whether they filed a report, the response from system stakeholders in situations such as yours is often that you should be happy the system worked the way it was supposed to. That is, someone believed there was some reason to worry about one of your children and reported it to DCF. DCF inquired and came to the correct conclusion that your children are not at risk of injury from or experiencing abuse or neglect.

The mandated reporting statute makes it a crime to "knowingly and willfully file[ ] a frivolous report of child abuse or neglect." (Mass. General Laws Chapter 119, section 51A(c).) But it seems it would need to be DCF who would have to make the determination of frivilosity, since you would have no proof of who made the report. On page 17 of the DCF Protective Intake Policy (which may be found in the "Intake" section at this link, you will find the following criteria for when a report may be "screened out":

3. Screen Out
This is a determination that:
  • the report does not involve a child or the allegations are not within the Department’s mandate concerning child abuse and neglect; and/or
  • there is no indication that a child(ren) has been or may have been abused or neglected or may be at risk of being abused and/or neglected by a caregiver; and/or
  • the alleged perpetrator has been identified and was not a caregiver, and the child(ren)’s caregiver is safely protecting the child(ren) from the alleged perpetrator, unless the allegations involve sexual exploitation or human trafficking; and/or
  • the specific injury or specific situation being reported is so old that it has no bearing on the current risk to the reported or other child(ren); and/or
  • there are NO other protective concerns, and the only issue is maternal use of appropriately prescribed medication resulting in a SEN(s), AND the only substance affecting the newborn(s) was appropriately prescribed medication, AND the mother was using the medication(s) as prescribed which can be verified by a qualified medical or other provider.

It's on page 17 because there are bunches of steps and inquiries that the DCF Screener must make before they are permitted to decide that an allegation is frivolous.

You may want to start with obtaining all of your family's records from DCF. See it's records regulations, here - - about how to request those files. Those would be the first things I would need to look at to determine whether there was any readily apparent frivilosity or bad faith in the school's reporting, and it often takes quite some time to get the records from DCF.

You also might want to look through your School Committee's Policies and Procedures Manual and any staff training material to see if there are definitions and defined procedures for deciding when and how something must be reported and how incidents are to be vetted and documented. It is possible that a report could fall within DCF's definitions but not be something that Anytown Public Schools (APS) permits to be reported. And APS may have record keeping and disclosure rules that are different from the rules governing reports once they are communicated to DCF.

Tuesday, June 6, 2017

DCF Law, Regulations, and Policies is a great resource

Check out its "Laws by Source" page To find DCF law and regulations, look under the "Massachusetts" heading. Sources of Mass. law are listed in their order of priority - each one of the links there goes to a category of law. 

Regulations or Policies

Note that "Regulations" are listed there but policies aren't. That is because regulations have the force of law once they are published in the Massachusetts Record for public comment, then amended based on the comments, then approved by the Secretary of the Commonwealth, then published in the Code of Mass. Regulations. But policies do not.

Statutes relating to DCF

DCF has an enabling statute, which is Mass. General Laws chapter 18B. Sections 2, 3, and 4 tell them what they can and have to do. Then, Mass. General Laws chapter 119 is about child protection law. It is where the "51A report" and "51B investigation" get their names; i.e., sections 51A and 51B of chapter 119. There are other statutes in which DCF is involved, but these are the two main ones for purposes of this article.

DCF Regulations

DCF and all state agencies are required to write regulations that expand on and provide specifics about the statutes. You can find DCF regulations at the Title 110 link following the "Code of Massachusetts Regulations" link at the Trial Court Law Libraries "Laws by Source" page to the "Alphabetical list" or the "100-199" to "110"and at DCF's Regulations and Policies page

DCF Policies

Most agencies, DCF included, have policies, which further flesh out the regulations and are what their people are trained to follow. DCF just (August 17, 2017) linked a slew of their policies on their website

Massachusetts Continuing Legal Education, MCLE®, periodically publishes a manual with a CD including then current DCF policies and the Massachusetts Juvenile Bar Association recently developed a thumb drive that included the regulations and policies, amongst other things; but I am not sure if it is available for purchase. Once you know the name and number of any DCF policy, you can have them emailed or faxed to you by the Mass. Trial Court Law Libraries using their Document Delivery Service.


At the DCF Regulations and Policies page you will notice that there are also "Proposed Amendments" to a few regulations and a few policies. But, the proposed amendments to effectuate the, most relevant, 2/28/2016 "Protective Intake Policy" and the 2/17/2017 "Family Assessment and Action Planning Policy" are not there. Those regulations, though they have already been written and open to public comment, for some stupid reason, are published at a link in the "News" section of the top page of DCF's website - "Regulation Review: Proposed Changes to DCF Regulations". They seem to be pretty close to final so I don't know what they are waiting for to add them to the actual Regulations page.

Check with your attorney

If you are involved in an investigation, assessment, or case with DCF, always talk to your attorney about which constitutional provisions, statutes, regulations, court rules, or policies affect your case. Feel free to use the Web Resources page of my main website for the links in this article and others, which you may find useful in your DCF or child protection law research. Read my Initial Consultation Policies page if you need to consider retaining counsel for your DCF matter.

Thursday, March 27, 2014

DCF Interviews at School

It is a pet peeve of mine that DCF investigators think they can talk to children at school and that schools let them.

It has been a major debate in several federal appeals courts, amongst attorney members of the National Association of Counsel for Children, on the American Bar Association Child / Parent Attorneys email discussion list, amongst members of the National Association of CPS Defenses Attorneys and even at the U.S. Supreme Court.

Unfortunately it remains an open question. But I lean toward the proposition that schools should not permit DCF personnel, police or other employees of outside agencies to interview children, who are not in the custody of the interviewing person, at school.

My answer to the question "is it legal?"on, which lays out some of my reasoning, can be found here:

If your school committee has a policy about visitors or interviews and you know or suspect that your child might be a target for an interview, consider adapting the form letters in my previous post to your situation.

And consult with an attorney who is familiar with DCF policies and practices.