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.
Showing posts with label 51B. Show all posts
Showing posts with label 51B. Show all posts
Thursday, March 27, 2014
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: http://www.lawlib.state.ma.us/
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/
"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/
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/
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/
Definitions of abuse and neglect (though not particularly good ones) are in the Glossary, article 2.00, here: http://www.lawlib.state.ma.us/
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.
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.
Saturday, May 24, 2008
WHAT?@@!??
A young mother's apparently disturbed young friend steals her baby Thursday night so on Friday
Nothing in the Globe article about poor Ms. Sterrett's troubles indicates that there was any evidence of
It's hard to tell for sure from the Globe article, but it seems as if this is another case of DSS breaking up a family in the name of protecting children from a parent they don't need protection from. Will the Globe report on Tuesday, after Ms. Sterrett's 72-hour hearing , if she gets her children back from the juvenile court judge? Will DSS apologize or even have its spokesperson report that they were wrong if Ms. Sterrett does get her children back?
The Fourth Amendment to the U.S. Constitution gives even young mothers the right not to have their children seized by the state without probable cause.
the Department of Social Services took custody of the baby and his 16-month-old sister, and Sterrett's third child, a 2-year-old boy, was placed with relatives, according to a spokeswoman for the agency.Does DSS not realize, like the Texas authorities in the FLDS case didn't realize, that they need specific, articulable "reasonable cause to believe that the removal of the child is necessary to protect him from further abuse or neglect"? See Mass. General Laws chapter 119, section 51B (emphasis added). Doesn't "further" imply that there had to have been some abuse or neglect in the first place?
DSS previously investigated Sterrett for alleged neglect involving one of her other children. That case was closed last year, according to Alison Goodwin, a spokeswoman for DSS, who gave no details.
Nothing in the Globe article about poor Ms. Sterrett's troubles indicates that there was any evidence of
reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child’s health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birthwhich is the applicable statutory definition from the infamous section 51A.
It's hard to tell for sure from the Globe article, but it seems as if this is another case of DSS breaking up a family in the name of protecting children from a parent they don't need protection from. Will the Globe report on Tuesday, after Ms. Sterrett's 72-hour hearing , if she gets her children back from the juvenile court judge? Will DSS apologize or even have its spokesperson report that they were wrong if Ms. Sterrett does get her children back?
The Fourth Amendment to the U.S. Constitution gives even young mothers the right not to have their children seized by the state without probable cause.
Sunday, December 16, 2007
Corporal punishment
Following a discussion on the Arlington email list about anti-corporal punishment legislation that Rep. Jay Kaufman filed on behalf of Arlington resident Kathleen Wolf, Rep. Kaufman posted his rationale for testifying in favor of the bill.
My reply to Rep. Kaufman's post and letter to the editor:
The issue seems to sharply divide people between those who believe that all corporal punishment constitutes abuse or battery and should be punished and those who think that corporal punishment is a personal choice and may not warrant state intervention in all cases.
My reply to Rep. Kaufman's post and letter to the editor:
was published in The Arlington Advocate as a Guest Column "More on corporal punishment" and was promoted by Atty. Deborah Sirotkin Butler on the Blue Mass Group blog "Legislation on corporal punishment - protection for children or invasion of privacy ?".I believe that the Department of Social Services (DSS) provided misleading statistics to the Legislature that Rep. Kaufman cited in his testimony and Letter to the Editor concerning the corporal punishment bill (The Advocate, December 6, 2007) .
My experience as an attorney who has represented parents and children in abuse and neglect cases for almost 30 years tells me that the "19,000 cases of abuse reported to DSS in the 3rd Quarter" almost certainly included "incidental or minor physical contact" that the bill exempts and its proponents say they are not concerned about.
The mandated reporting statute (General Laws chapter 119, section 51A) is interpreted by DSS to require reporting whenever there is any suspicion of abuse or neglect.
I have had two cases already this quarter and several more in my career in which DSS decided to "support for abuse" in cases where there was merely a "spanking" or "a swat". Involvement of DSS in those families and its erroneous findings that there was abuse occurred even though "abuse" is defined in DSS's own regulations and the Supreme Judicial Court's 1999 *Cobble* case as requiring more than brief, minor pain and a rapidly fading red mark.The referral of 1,200 cases to the District Attorney (DA) level is cited as meaning that "there was compelling evidence of abuse and prosecution was warranted." Not so. Under DSS regulations referral to the DA merely means that a DSS "investigator" has determined that there was "reasonable cause to believe" that certain serious kinds of abuse had occurred. "Reasonable cause" does not require physical evidence or even medical confirmation.
If the cited statistic was even the number of cases referred by DSS on which DAs filed criminal cases, maybe it would be an indication that someone had determined there was "probable cause" to believe a crime had been committed. That is not what a DSS referral to the DA means. "Reasonable cause" in DSS-speak does not equal "probable cause." Rarely are any of the 19,000 reported cases presented to a court or even to anyone outside of the intake unit for independent fact-finding determinations.
The constitutional burden of proof for criminal cases is "beyond a reasonable doubt." Courts have ruled that family relationships can be permanently severed upon "clear and convincing evidence." To temporarily remove a child from a family into foster care while the court determines if the child is at risk of harm requires only "a fair preponderance of the evidence." But DSS referring a case to the DA is an even lower standard -- "reasonable cause to believe" that abuse has occurred. The fact that only "1,200 of [the 19,000 reported cases] "advanced to the DA's level" means that 17,800 were either "unsupported" or were found not to have any evidence of serious abuse.
Yes, abuse is a serious problem and should be uncovered, prosecuted and prevented. Children should be protected from it. But, if this bill passes DSS, an agency that already involves itself with 80,000 cases per year (many of which are not significant enough to refer for law enforcement investigation), will have an excuse to continue its micromanagement of parents who do not conform to its belief that all physical contact in discipline is harmful and warrants intervention.
I am certainly in favor of the legislative deliberations that Rep. Kaufman's testimony suggests but I think focusing on corporal punishment and giving DSS additional incentive to investigate families that use it reasonably, runs the risk of driving parents underground with their questions about how best to raise their children. If medical and other childcare professionals must report a family to DSS every time there is a suspicion of the use of corporal punishment, insecure parents may refrain from asking for advice.
So, yes, have the debate; reforms are needed. The Legislature should consider requiring a judicial determination of probable cause or real, documentable exigent circumstances (as I believe to be required by the Fourth Amendment to the US Constitution and Article XII of the Massachusetts Declaration of Rights) before DSS is allowed to pierce a family's privacy or take their children involuntarily into foster care.
I respectfully urge the legislature not to pass this bill. Stop abuse, prevent abuse, prosecute abuse - but keep the government out of the private affairs of families.
The issue seems to sharply divide people between those who believe that all corporal punishment constitutes abuse or battery and should be punished and those who think that corporal punishment is a personal choice and may not warrant state intervention in all cases.
Tuesday, September 25, 2007
DSS Reform Bill
Massachusetts House Bill 4191 An "Act Relative to Child Abuse and Neglect" is scheduled for public hearing tomorrow (9/26/07, 10:30 a.m. in room 222) by the Legislature's Joint Committee on Children, Families and Persons with Disabilities.
Though the bill fixes several of the issues of lack of real oversight highlighted by the Haleigh Poutre case, too much of the lack of oversight, dearth of definitions, confusing language and lack of due process for families in the current statute are left essentially untouched. What tries to look like major overhaul of the whole statutory scheme is really just a minor tune up of a small portion of what really affects families involved with the child protection system.
I am afraid that passage of the bill in its entirety will make it appear that thoughtful consideration was given by the legislature to the troubling issues that are really not addressed.
I call on Senator Spilka, Rep. Coakley-Rivera and the rest of their committee to recommend passage of the new oversight and second opinion provisions of H. 4191 but to remove the portions that merely restate the existing sections of chapter 18B and 119 until a comprehensive review and restructuring particularly recognizing parents' rights, due process, probable cause and true judicial oversight of DSS or the Department of Children and Families can be accomplished.
Though the bill fixes several of the issues of lack of real oversight highlighted by the Haleigh Poutre case, too much of the lack of oversight, dearth of definitions, confusing language and lack of due process for families in the current statute are left essentially untouched. What tries to look like major overhaul of the whole statutory scheme is really just a minor tune up of a small portion of what really affects families involved with the child protection system.
I am afraid that passage of the bill in its entirety will make it appear that thoughtful consideration was given by the legislature to the troubling issues that are really not addressed.
I call on Senator Spilka, Rep. Coakley-Rivera and the rest of their committee to recommend passage of the new oversight and second opinion provisions of H. 4191 but to remove the portions that merely restate the existing sections of chapter 18B and 119 until a comprehensive review and restructuring particularly recognizing parents' rights, due process, probable cause and true judicial oversight of DSS or the Department of Children and Families can be accomplished.
Tuesday, July 24, 2007
Allegations and investigations
Someone purporting to be a "victim advocate" for DSS wrote to the Arlington (MA) email list with the surname and street name of a "dad" allegedly being investigated for sexual abuse of his children. The writer asserted that s/he had sent the email "OFFLIST" to someone who had asked to be "updated".
The email prompted a flurry of queries and complaints including why the name wasn't on the sex offender notifications that the police department sends out, why the original poster would disclose the information and defending the privacy of the affected family.
Though I was trying to stay away from email other than actual work today, I couldn't resist commenting.
Here is essentially what I wrote to explain the differences between the sex offender info that police departments report to child-involved organizations and the allegations that the original writer said were being "investigated" by DSS:
What was reported on this list is not on the offenders list a daycare provider gets from the APD because the list is of registered sex offenders -- which occurs after conviction of certain "sex crimes" and the posts were about an accused dad, being investigated by the Department of Social Services (DSS).
It doesn't make me question the poster's motives but whether s/he understands the confidential nature of DSS's investigations (even IF s/he only intended to inform one "OFFLIST" correspondent who "asked to be updated").
An allegation that comes to DSS's attention is a VERY FAR cry from being about a "sex offender" who has to register and who would thus be on the list that day care providers and others who provide services to children get from the local police.
Certain professionals are required by law to report and DSS is required to "investigate" whenever there is "reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth". [Mass. Gen. Laws chapter 119, section 51A; see also the Web Resources page of my website.]
I could go on with 30 years worth of anecdotes, regulations and court cases that explain, limit or expand upon what that means and how different it may be from a general public understanding.
Instead, I'll just summarize by saying that "mandated reporters" are often told to err on the side of caution and report even the slightest suspicion; to let the investigation process sort it out. But then DSS is cut a whole lot of slack to not actually conduct any real investigation (and just conclude that if a "mandated reporter" decided to make a report, then it should be "supported") because the law requires them to complete their investigations in 10 days (24 hours if an emergency). (See also my Boston Globe LTE of June 1, 2007 or my blog post about it.)
A large part of my practice is devoted to representing families when DSS seeks to intervene. Feel free to post comments here about your experiences. If you are seeking legal advice, however, remember that this blog is not private and you should contact my office to discuss scheduling a consultation.
The email prompted a flurry of queries and complaints including why the name wasn't on the sex offender notifications that the police department sends out, why the original poster would disclose the information and defending the privacy of the affected family.
Though I was trying to stay away from email other than actual work today, I couldn't resist commenting.
Here is essentially what I wrote to explain the differences between the sex offender info that police departments report to child-involved organizations and the allegations that the original writer said were being "investigated" by DSS:
What was reported on this list is not on the offenders list a daycare provider gets from the APD because the list is of registered sex offenders -- which occurs after conviction of certain "sex crimes" and the posts were about an accused dad, being investigated by the Department of Social Services (DSS).
It doesn't make me question the poster's motives but whether s/he understands the confidential nature of DSS's investigations (even IF s/he only intended to inform one "OFFLIST" correspondent who "asked to be updated").
An allegation that comes to DSS's attention is a VERY FAR cry from being about a "sex offender" who has to register and who would thus be on the list that day care providers and others who provide services to children get from the local police.
Certain professionals are required by law to report and DSS is required to "investigate" whenever there is "reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth". [Mass. Gen. Laws chapter 119, section 51A; see also the Web Resources page of my website.]
I could go on with 30 years worth of anecdotes, regulations and court cases that explain, limit or expand upon what that means and how different it may be from a general public understanding.
Instead, I'll just summarize by saying that "mandated reporters" are often told to err on the side of caution and report even the slightest suspicion; to let the investigation process sort it out. But then DSS is cut a whole lot of slack to not actually conduct any real investigation (and just conclude that if a "mandated reporter" decided to make a report, then it should be "supported") because the law requires them to complete their investigations in 10 days (24 hours if an emergency). (See also my Boston Globe LTE of June 1, 2007 or my blog post about it.)
A large part of my practice is devoted to representing families when DSS seeks to intervene. Feel free to post comments here about your experiences. If you are seeking legal advice, however, remember that this blog is not private and you should contact my office to discuss scheduling a consultation.
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