Saturday, August 25, 2012

When DCF Comes a-Calling: How to Try to Stay Out of the Fire When You're Already in the Frying Pan

In the article "Attorney Participation in Family Partnership Meetings," Sara R Brennan, NACC Legal Intern, wrote:
Without the assistance or guidance of an attorney, many parents volunteer information that can later be used against them, without a complete understanding of the consequences some of their statements can have. Parents may also agree to safety plans that can later be used against them in proceedings if they do not comply with every single provision of the plans. Furthermore, parents are sometimes forced to agree to out-of-home placements for their children, usually without a full understanding of their options.
e-Guardian v. 34, no. 7, National Association of Counsel for Children, August 2012, pp. 1-2.

The article proposes that state courts should exercise their discretion in favor of appointing attorneys to represent parents during the initial, pre-court stages of child protective services (CPS) investigations. It mentions two programs that provide pre-petition representation and suggests that NACC members disseminate information about solo practitioners who provide pre-petition representation.

I provide representation to parents in Massachusetts facing those frightening calls and letters from CPS that a worker "needs" to meet with the family to discuss an allegation that their child(ren) has(have) been abused or neglected. I work with families during Initial Assessments, Investigations and Assessments and represent parents at Fair Hearings, in court and at other aspects of the "variable response," Integrated Casework Practice Model.

A couple weeks ago, I fielded a call from a parent in just that position. S/he was being investigated by the Massachusetts Department of Children and Families [DCF, Massachusetts's CPS agency, formerly known as the Department of Social Services (DSS)] for the second time in as many months. S/he couldn't afford an attorney and so, as I had done for others, many times before, I gave the caller a free, (not so) brief, initial consultation. I say "(not so) brief" because, after our one and a half hour phone call, I spent another half hour writing an email to send links to the Mass. DCF regulations and other material I had summarized on the phone.

The parent who called from a remote part of the state, had, without representation, just gotten through an "Initial Assessment" for an allegation of neglect with a determination of "unsupported." S/he was now being subjected to an "Investigation" by the same intake worker (who was determined to vindicate him/herself by "supporting" this abuse / neglect report from a "mandated reporter," even if the children were no more at risk than they had been the previous month). The caller to my office was worried about what being investigated means that was different than the previous initial assessment and what the consequences of a determination that s/he had neglected his/her children would be.

Since it did not seem that s/he was at risk of having his/her children removed from his/her care even though the DCF worker said it was definitely "illegal" to leave children alone in a car under any circumstances, I started by telling him/her:
Stay calm about your DCF matter and don't let the investigator trick you into saying anything about being overwhelmed or stressed out by the process.

The "variable response" differentiation between an "Initial Assessment" and an "Investigation" are not yet in the official regulations of DCF in the Code of Massachusetts Regulations. For the purposes of this article, it should suffice to say that an Initial Assessment results in a finding of unsubstantiated, minimum risk or refer for assessment, and seems, at least partially to exclude less serious cases from being able to seek reversal of any findings through the Fair Hearing process, discussed later.

Under the statute, DCF must "investigate" whenever there is a report of suspected abuse or neglect of a child. The law setting out when a report becomes mandatory and authorizing any person who has reasonable cause to believe a child is being abused or neglected to report is in section 51A of the statute, so these are typically called "51A Reports." The resulting "evaluation" report is called a 51B because of where the requirements for the investigation are in the statute.

The current DCF "Intake" regulation that attempts to detail the statutory "investigation" scheme is here: The "non-emergency" investigation that I was discussing with the caller is section 4.26.

Once DCF concludes, either through an Initial Assessment or an Investigation, that the family needs to engage in "services" to correct the problems that caused them to be reported to the Department, they enter into a stage called "Assessment." DCF's regulations about the 45 day Assessment are here:

"Service Plans" are the "agreements" DCF workers try to get the parents to sign, either on an "emergency" basis, i.e., during the investigation, or for ongoing case work, i.e. for 6 month increments after Assessment. The regulation about service plans is here:

The regulations about requesting copies of the reports that were filed (51As) and that the caseworker doing the initial assessment or investigation writes (51Bs) are in article 12.00, here:, particularly section 12.08.

How to request a Fair Hearing to appeal the finding that you did abuse or neglect your children is in article 10.00, here:

Definitions of abuse and neglect (though not particularly good ones) are in the Glossary, article 2.00, here: Slightly more detailed descriptions of what they mean by "reasonable cause to believe," "supported" and "The List" (that the worker told this parent s/he would be on "forever") are in article 4 sections 4.32-4.38, linked above.

Most of what it all means is in court interpretations of things DCF did that parents appealed, which is covered in a 3 day course and 1200 page two-binder notebook for lawyers in this field and changes all the time, so you can see why I couldn't really teach you everything you need to know in one phone call or even a way-too-long blog post.

The Mass. Trial Court Law Libraries has a good set of resource pages, called "Mass. Law About ...". You might find the cases and additional links at the one about Child Abuse and Neglect to be informative. Here's a link: Note the subsection with its own link on that page called "Is it illegal in Massachusetts to leave a child alone in a car?" Here's a link to it: There's a similar subsection called "How young a child can be left home alone?Here is it's link:

I have included them here because the handling of these subjects is typical of how mandated reporters and DCF workers in Massachusetts deal with issues. That is, they seem to believe that "there is a law" that makes certain actions "illegal" when, actually, the case law makes it a fact-specific determination and leaves a good deal to the discretion of the parent, as long as the parent is being reasonable.


Anonymous said...

Bravo. You are a very fine man and attorney indeed for posting this information on your blog.

I often work with parents besieged by ACS. Many of whom have been falsely accused.

From an NYC paralegal

Anonymous said...

Very well done, Michael. It might help if you gave suggestions for the investigations or inquiries into allegations of child neglect or abuse. If I were still handling these cases, I would recommend an audio or audiovideo recording of the sessions. Cellphones/iPhones were not available back then.

I found myself on the receiving end of an allegation of sexual abuse concerning a child we were adopting in Massachusetts, but when my wife left me, I had to put the child into a large group home. The investigator essentially assumed I was guilty, though the child had symptoms of anal penetration almost a year after that. I asked if anyone had swabbed or looked for seminal fluid in his rectum. No one had.

I also invited him to talk to some of the neighbors, who reported to me after he left that he had attempted to sexually assault their child(ren) and the paperboy did not like delivering to my house out of fear of this 6 year old boy. I never heard from the investigator. I never was charged with anything.
My only regret was that I could do nothing to protect the boy from his abusers, including the agency running the group home and the agency "investigator."

MLR said...

Dear Anonymous (#2),

Thank you for your comment.

I did not go into all the details of how to handle the investigation because the post was already long enough and I really wanted to encourage client readers to retain counsel and lawyer readers to consider handling these cases at that stage.

I did not recommend recording the sessions because Massachusetts is an "all-party consent" state and Mass. DCF employees seem to have been instructed to never consent. Most audio recordings without consent can be charged as felonies in Mass. [The ACLU has a great website on when recording the police is ok.]

I am sorry that you had to go through the horror you described and that the child was not adequately protected by the system.

MLR said...

To my post on the ABA's Child-ParentsAttorneys email distribution list, Ellington, CT, DCF defense attorney Michael Agranoff replied:

If parents speak to DCF without a lawyer being resent, they are setting themselves up for failure.

The goal of a good lawyer is to try to stop a petition from being filed in the first place.

Please see my web site, Under "Newsroom" and "Press Releases", see the Mini-Miranda articles. In Connecticut, we succeeded in forcing DCF to advise parents of their right to an attorney even at the first DCF home visit. Most DCF
workers, before then, had threatened parents with removal of the kids, if they did not immediately talk to DCF and let DCF in the home. Some still do
this, of course, but there is better control now.

Under "What to do when DCF calls", there is full advisement for the parents. DCF still works
by intimidating many parents.

Thank you,

Atty. Mike Agranoff
Ellington, CT

[Posted with permission.]

Anonymous said...

Thank you so much for posting this, Michael. I was doing a quick search for an argument I was preparing for DCF regarding changing an unsigned Service Plan and the information on your blog was very helpful.

My own lawyer didn't even use these in my defense in today's meeting. I was the one telling DCF that I was not signing it because it needs to be written together, and now I have the law to back me up now. And DCF keeps throwing at me "this is supported," yet they also keep saying "the allegations." I told them that unless the information that was "supported" can be backed up with evidence, it shouldn't be in the Service Plan, otherwise I plan on doing a Fair Hearing or their grievance process.

MLR said...

March 2014 article about lawsuit then beginning in Iowa state court about safety plans, wrongful removals and voluntary placement agreements executed by non-custodial parents:

March 2014 article about the jury decision in DHS's favor after the worker testified he had followed DHS protocols in his actions:

July 2014 article about the results of the constitutional issues in that suit -- Iowa district court judge ruled that it was unconstitutional for DHS (Iowa's CPS agency) to use non-custodial parent safety plans or voluntary placement agreements against the custodial rights of the other parent:

HT to Mass. mother C.J. for bringing this case to my attention.

Anonymous said...

I'm in a family shelter and Dcf just took my baby from me without evidence of neglect. Who do I appeal this and what steps do I take