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 www.mass.gov/lists/review-dcf-policies, 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 - www.mass.gov/files/documents/2017/09/12/110cmr12.pdf - 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

Mass.gov is a great resource

Check out its "Laws by Source" page http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-source/. 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
www.mass.gov/eohhs/gov/laws-regs/dcf/regulations-and-policies.html

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.

Amendments

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 avvo.com, which lays out some of my reasoning, can be found here: http://www.avvo.com/legal-answers/my-child-is-being-questioned-at-school-by-dcf.

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.

Saturday, August 31, 2013

Dear Principal: No DCF or law enforcement interviews


If you think your child may be about to be interviewed at school by DCF or law enforcement, you might want to consider having him/her carry a card similar to the one in my previous post and sending this letter to the Principal and school district administration:

Dear Principal ____________:

My/Our child, [Child's Name], has been instructed not to discuss any non-academic matters with school administrators and not to speak at all with personnel from any outside agencies until one or both parents or my/our attorney is/are present. The only exception would be an emergency that concerns the immediate safety of my/our child or other children. Under no circumstances is my/our child to sign any document or write out any statement unless I/we am/are present.

If any [Name of School] administrator desires to question my/our child regarding any incident, please inform me/us immediately and I/we will come to the school as soon as possible. If anyone from an outside agency desires to meet with or question my/our child, please inform them that you do not have parental permission for them to meet with my/our child at school and ask them to schedule an appointment with me/us. My/Our home number is [Home Phone]. My/Our work numbers, for school emergencies only, do NOT provide to outside agencies except in a medical emergency, are [Name, Work Phone, Name, Work Phone].

I/We intend to cooperate with school officials regarding appropriate matters and will require that my/our child also cooperate. We simply ask that you wait until I/we are present to undertake any questioning.

Respectfully,

[Parent's(s’) Name(s)] [Address(es)]
[
City(ies), State(s) Zip(s)]

The blog of Atty. Michael L. Rich*
Concentrating in Children’s and Family Law
37 Middlesex Circle – Unit 21
Waltham, MA 02452
781-373-1582, fax: 339-368-7662

Emergencies: 339-707-0050
mike@michaelrichlaw.com

www.MichaelRichLaw.com

*Atty. Rich does not represent this child or family unless his signature appears on the form.

Available to copy at www.michaelrichlaw.blogspot.com and for group members for download at www.groups.yahoo.com/group/kidlawrich.

It is strongly suggested that you have an attorney and consult with him/her before sending this form to your child's school.

When you think DCF is going to talk to your child at school

For students to carry with them:

My Right to Remain Silent

My parents agree that I have the following rights*:

1. To refuse to talk to any school official, police officer, counselor or social worker about anything that is not related to my school work.

2. To refuse to sign any forms or discuss anything related to my family.

3. To deny consent to any search of my person or articles in my possession.

4. To insist that the school call my parents and ask my parents to come to the school immediately if I am to be questioned.

In the exercise of these rights:

I will be respectful to all officials at all times.

I will not be threatening or aggressive in my resistance.

__________________        ___________________
Child’s signature             Parent(s)’ signature(s)

* Many of these "rights" have not been specifically recognized by the legal system. Some derive from case law, some from Massachusetts statutes and regulations, some from model school department policies and some are merely desired interpretations.

Form copied from:
A service of Atty. Michael L. Rich*
Concentrating in Children’s and Family Law
37 Middlesex Circle – Unit 21
Waltham, MA 02452
781-373-1582, Fax 339-368-7662
Emergencies 339-707-0050
                                   
Available as a post at www.michaelrichlaw.blogspot.com and to group members for download at www.groups.yahoo.com/group/kidlawrich

*Atty. Rich does not represent this child or family unless his signature appears on the form.

Go over this form and the situation with your child, preferably after retaining a DCF/CPS defense attorney in your area. If you are unable to connect with an attorney before the next school day, consider whether to send the form to school with your child.

Sunday, August 25, 2013

Arlington Mass. Gun Buyback Program

Several faith communities in Arlington have gotten together with the Arlington Police Department and sponsors from around Town to offer grocery gift cards in exchange for unwanted firearms.

The event will be held on Saturday, September 28, 2013, from 10:00 a.m. to 3:00 p.m., at the Arlington  DPW lot at 51 Grove Street.*

Here is a video clip from Arlington Community Media, Inc., in which I am being interviewed about the event --



* Rain date Saturday, October 5, 2014.

For more information go to www.arlingtongunbuyback.org.

Saturday, May 18, 2013

Arlington, MA, Police Arrest Innocent Man in New York

Not really.

But the reporting of the arrest here: http://www.yourarlington.com/archive/news-archive/374-police1/5895-abuse-51813 and here: http://arlington.patch.com/articles/arrest-made-in-arlington-boys-girls-club-sexual-abuse-investigation bumps up against one of my pet peeves.
Mr. ___ is innocent until proven guilty.
If he is "innocent", why did they arrest him? What they are talking about is the constitutional presumption of innocence. The presumption of innocence says that we must treat a criminal defendant AS IF he is innocent until he is proven guilty. Mr. ___ may actually be innocent. His arrest on a warrant just means that the police thought and convinced a judge or magistrate that they had probable cause to believe he had committed a crime. What the APD should have said in its press release, and what I will say here, is "The charges are only allegations at this point. Mr. ___ is presumed innocent until proven guilty."

In actuality, if someone IS actually innocent, he will remain that way EVEN IF he is convicted in court. Unfortunately, we have way too many incidents of innocent people being convicted or even pleading to crimes to ignore the irony of misrepresenting the constitutional provision.

Innocent people are convicted but they remain innocent nonetheless.