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: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR4.pdf. 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: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR5.pdf.

"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: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR6.pdf.

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: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR12.pdf, 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: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR10.pdf.

Definitions of abuse and neglect (though not particularly good ones) are in the Glossary, article 2.00, here: http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/110CMR2.pdf.  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: http://www.lawlib.state.ma.us/subject/about/childabuse.html. 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: http://www.lawlib.state.ma.us/subject/about/childabusefaq.html#car. There's a similar subsection called "How young a child can be left home alone?" Here is it's link: http://www.lawlib.state.ma.us/subject/about/childabusefaq.html#home.

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.