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.

Yet Something Else Not To Do To Your Child

This article that I was alerted to via the Snopes.com "Daily Snopes" is perhaps this Georgia mother's reply to the following inquiry:

At a party several years ago, I was introduced to a lawyer who was here from China studying taxation law at Harvard Law School. He asked me what field of law I practiced. When I told him Children's Law he said, "I don't think we have that in China." After a brief discussion of what Children's Law was about, he said, "You can probably tell me then, is it true that you're not allowed to beat your children in America?" When I said yes, that was mostly true he asked, "So, what do you do when they don't study?"

And the answer is:

As punishment for bad grades, a Georgia mother forced her 12-year-old son to kill his pet hamster with a hammer, police said.

The day after he was forced to kill his pet, the child told his teacher [...].

The teacher reported the incident to DFCS authorities, who contacted police [who arrested Mom].

See the rest of the article here: Cops: Mom forces son to kill hamster for bad grade | ajc.com

So there's something else to add to my list of Top 10 Discipline Methods Not to Use on your Child.

SJC strikes down Lowell youth curfew

SJC strikes down Lowell youth curfew - Local News Updates - The Boston Globe

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The case is COMMONWEALTH vs. WESTON W., a juvenile (and a companion case), SJC-10299, decided September 25, 2009.

Justice Cordy's decision noted:

We reject the rationale used by some courts to justify a lower standard of review, that the rights of minors are not coextensive with or are weaker than those afforded adults. Minors possess fully formed constitutional rights. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976) ( "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority"). However, in applying the strict scrutiny test to their infringement, we recognize that the government has a countervailing compelling interest in "protect[ing] children from actual or potential harm," Blixt v. Blixt, 437 Mass. 649, 656 (2002), cert. denied, 537 U.S. 1189 (2003), an interest that often justifies restrictions that could not be sustained when applied to the fundamental rights of adults. See Bellotti v. Baird, supra at 634 (constitutional principles should be applied with "flexibility" to minors because minors are vulnerable and unable to make decisions in "informed, mature manner"); Matter of Gail, 417 Mass. 321, 326-327 (1994), quoting Custody of a Minor, 375 Mass. 733, 754 (1978) (Commonwealth has "long-standing interest in protecting the welfare of children living within its borders"). In other words, the analysis "should consider whether the state's interests may be more compelling but not whether the rights involved are less fundamental." Nunez, supra at 945, citing H.L. v. Matheson, 450 U.S. 398, 441 n. 32 (1981) (Marshall, J., dissenting). See also Qutb, supra at 492 n. 6.

And then concluded:

Applying the strict scrutiny standard, the ordinance's criminal provision unconstitutionally infringes on the minors' rights to freedom of movement. Status offenses such as being abroad at night may not be "bootstrapped" into criminal delinquency and commitment to DYS custody. See Commonwealth v. Florence F., supra at 528-529 n. 8. In response to the first reported question [Does the Lowell Youth Protection Curfew for Minors violate the equal protection rights of the Juveniles under either the United States Constitution or the Massachusetts Declaration of Rights by subjecting the Juveniles to a restriction upon their rights to movement and travel that persons seventeen and older do not have to endure?], the answer is, "Yes," with regard to criminal penalties resulting from violations of the ordinance. The curfew itself and its civil enforcement mechanism, however, represent, as of the date of the proceedings below, a permissible, narrowly tailored response to Lowell's compelling interest in preventing crime by, and against, minors. Because the ordinance contains a severability clause, those provisions remain in force.

Prof. Gates' Unconstitutional Arrest - Forbes.com

It may have been a Town v. Gown controversy rather than a racial incident. Or even, as Steven Colbert proposed on Comedy Central's "The Colbert Report," a jock v. nerd matter with Sgt. Crowley as the jock and Prof. Gates, pictured riding his tricycle on Martha's Vineyard, as the nerd. But I prefer to agree with Massachusetts criminal defense and civil rights attorney Harvey Silverglate, who, in this Forbes commentary, "Prof. Gate's Unconstitutional Arrest: There's a First Amendment right to be rude to a cop," argued persuasively that "fundamentally the situation can, and should, be analyzed as a free speech case."


In my two plus decade criminal defense career, I too saw many police reports that parroted the words "loud and tumultuous behavior which caused a crowd to gather and created public inconvenience, annoyance and alarm." Disorderly conduct is what the Boston police used when the City's equally unconstitutional "Sauntering and Loitering" Ordinance somehow didn't fit or wasn't enough. As a new, young, white law student in 1976, I was threatened with arrest by a Cambridge police officer for insisting that he shouldn't be smoking inside the front of the Porter Square Star Market right under the "No Smoking" sign. Unlike Prof. Gates, I swallowed my First Amendment rights and stopped my confrontation upon the police officer's threat even though I knew it would have been an unconstitutional arrest.


As Atty. Silverglate points out:

There is a serious problem in this country: Police are overly sensitive to insults from those they confront. And one can hardly blame the confronted citizen, especially if the citizen is doing nothing wrong when confronted by official power. This is, after all, a free country, and if "free" means anything meaningful, it means being left alone--especially in one's own home--when one is not breaking the law.

See the article also for Atty. Silverglate's brief but thorough history of First Amendment jurisprudence and the evolution of the "four exceptions to the First Amendment's protection for free speech."