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This is a question I have been asked too often lately from extremely anxious clients–parents who find themselves the target of a 51B investigation by the Department of Children and Families and, in some cases, the focus of a criminal investigation by the local police department and/or district attorney’s office.
In two recent cases involving children with special needs–one with autism and the other with cerebral palsy–troubling statements were made at school by the children alleging the use of physical discipline by their father. In one case, some redness was allegedly observed on the child’s face where she was allegedly slapped. And without parental consent, a school official questioned the child. And most, if not all of the questions were what lawyers call “leading” questions, not open-ended questions, such as “Did your father do this to you?,” “Does your father ever hit you?,” “How often does your father hit you?,” “Is that how you got that mark on your face?,” “Does your father ever slap you?,” “Does your father spank you with a belt?,” “Does your father ever touch you?” “Does he ever touch you in your private areas?” etc. And before the parents knew it, a social worker from the Department of Children and Families was at the school further interrogating their child and then at their house questioning them. And suddenly, the families lives were turned upside down. In both cases, the truthfulness,extent or intent of the statements were highly questionable, and in one of the cases, the physical discipline was solely in the context of trying to keep the child from harming herself and one of the parents. In the other case, there was an admission of a slap on the face of an out-of-control child but that was all.
Is this legal? What about the right of the parent to consent to such questioning? What about Miranda Rights?
Recently, the Supreme Court heard a case involving this very issue. Alford v. Greene involved a police officer and a social worker who interrogated a speech-delayed child for two hours, which is how long it took before the poor girl finally “confessed” that her father sexually abused her. Here’s a quote from the respondent-child’s Supreme Court brief:
“The State’s interview approach, with a young,fragile, speech-delayed child, forced an involuntary and an unreliable admission to parental abuse out of desperation to regain her freedom from the seizure. See Greene, 588 F.3d at 1017. Assuming that every child witness will eventually “break” is hardly a mechanism for achieving “accuracy” in fact-finding. Lassiter v. Dept. of Social Servs. of Durham Cty., 452 U.S. 18, 27 (1981) (“[a] parent’s interest in accuracy and justice … is … a commanding one”).”
Unfortunately, the Supreme Court punted on the critical issue before it. Why? Quoting from a post by Jennifer-Clark of the SCOTUS blog:
“The Ninth Circuit agreed that the interview violated S.G.â’s Fourth Amendment rights, but it held that Camreta and Alford were entitled to qualified immunity. And although they had ultimately prevailed at the Ninth Circuit, Camreta and Alford filed a petition for certiorari, asking the Supreme Court to grant review to clarify the underlying Fourth Amendment issue. However, S.G. did not file a cross-petition seeking review of the qualified immunity ruling.
In an opinion by Justice Kagan, which was joined by the Chief Justice and Justices Scalia, Ginsburg, and Alito, the Court vacated the Ninth Circuitâ’s decision in part and remanded. The Court then declined to rule on the underlying Fourth Amendment question, however, finding the matter moot.”
What’s the bottom line, then? It’s this: In Massachusetts, school officials and social workers can interview your child without your consent and without giving your child Miranda Warnings as long as the questioning is not specifically under the direction of a law enforcement agency. As the Massachusetts Supreme Judicial Court held in Commonwealth v. Snyder:
“There is no authority requiring a school administrator not acting on behalf of law enforcement officials to furnish Miranda warnings. Even if we were to assume that, during the questioning in the principal’s office, the environment was coercive because Snyder was in custody (or because his freedom was significantly restricted) and that, therefore, Miranda warnings would be required if the questioning had been by the police (see Commonwealth v. Bryant,390 Mass. 729, 737 [1984]), Principal Day and Assistant Principal Canning were not law enforcement officials or agents of such officials. The Miranda rule does not apply to a private citizen or school administrator who is acting neither as an instrument of the police nor as an agent of the police pursuant to a scheme to elicit statements from the defendant by coercion or guile. See Commonwealth v. Allen,395 Mass. 448, 453-454 (1985); Commonwealth v. A Juvenile, supra at 278-279. The fact that the school administrators had every intention of turning the marihuana over to the police does not make them agents or instrumentalities of the police in questioning Snyder.”
The take away: you should take any investigation or inquiry by DCF or the police about alleged physical or sexual abuse–no matter how ridiculous or incredible it sounds–extremely seriously and do not answer questions about the allegations or allow further questioning of your child without first consulting with an attorney. There’s simply too much at risk. You should, however, prepare yourself for perhaps the most unpleasant journey as a parent. Take a deep breath and write down the names and contact information of everybody you know that may be able to disprove the allegations of child abuse or neglect. Neighbors, relatives, pediatricians, treatment providers, school bus drivers etc. And to put this in perspective, just one slap or spank–no matter how well-intentioned–may be considered as child abuse by DCF and/or the police.
In the past year or so, the Department of Children and Families rolled out a new model for how the agency handles 51A’s. It’s called the Integrated Casework Practice Model. While the jury is still out on whether it is going to achieve it stated purposes (see below), what seems clear to me is that DCF has a lot more flexibility in responding to 51As than it did before. For example, instead of routinely “screening in” 51As when the call comes in, now DCF has up to three days to decide whether to screen a 51A in. Equally as important, now DCF doesn’t necessarily have to conduct a 51B investigation once a 51A is screened in but instead can do an “initial assessment” (IA) in order to determine whether a “comprehensive assessment” is necessary.
While these changes are certainly welcome, parents still need to be extremely concerned about having a 51A filed against them and having DCF coming to their home or to their children’s schools. Make no mistake, even if DCF calls it an “initial assessment,” it is still “investigating” the circumstances of the 51A and once they are in your home, anything can happen. That is, everything is on the table, not just the allegations of the 51A, but how the family is functioning overall, whether the children are at risk generally and whether the family needs services.
One major concern with the new model is that if the Department recommends keeping the case open and putting the family on a “service plan,” they can be involved in the family’s life indefinitely. Parents need to know that they can refuse services, but they also better understand the risks in denying services. Again, it is vital to engage a lawyer right away…
Here is a summary (taken from the DCF website) of the new Integrated Casework Practice Model:
The Integrated Casework Practice Model is designed to:
_ Stabilize families so that children can safely remain at home;
_ Reduce repeat maltreatment of children; and
_ Effectively target DCF resources to meet the needs of families requiring DCF services.
What is DCF’s Integrated Casework Practice Model?
The DCF Integrated Casework Practice Model (ICPM) establishes the framework, structures
and processes, expected outcomes, and underlying core values for DCF’s involvement with
children and families. Through the ICPM, DCF’s involvement with children and families
focuses on families’ strengths, and seeks to build parenting capacities that will support safe,
secure, and permanent homes. The new approach also ensures consistency in casework
practice and provides opportunities for children, families and their support systems to be
actively engaged and empowered in decision-making.
Key features of the casework practice model include:
_ Extended timeframes for screening and investigations to allow greater opportunity
to gather information about a family’s circumstances and determine how best to target
DCF resources;
_ Differential Response to enable DCF to respond to allegations of child abuse and/or
neglect based on the unique circumstances of a case and the individual needs/strengths
of a family. This includes two tracks: Investigation or Assessment, depending on the
severity of the allegation.
_ Use of new research based assessment and planning tools to support consistent
clinical practice in assessing danger, safety and risk; and to focus on what families need
to keep children safe; and
_ Connections to supports and resources within the child and family’s own
community first.
What Happens When DCF Receives a
Report of Child Abuse and/or Neglect?
DCF may receive a report of abuse and/or neglect, called a “51A report,” from a “mandated
reporter” or another concerned citizen involved in the child/family’s life. Under DCF’s new
model, a report of abuse and/or neglect may be handled in one of several ways, depending on
the allegations and other case-specific circumstances.
Here are the steps in the process:
1. The report is screened. The purpose of screening is to determine if the allegation meets
DCF’s criteria for suspected abuse and/or neglect, if there is immediate danger to the child and
whether DCF involvement is necessary. During screening, which begins immediately, DCF
obtains information from the person filing the report and also contacts professionals involved
with the family (e.g., doctors, teachers). DCF may also contact the family if appropriate. A
report may be “screened-out” if it does not meet the criteria for a reportable concern or the
definition of a caretaker. Families may also be referred for appropriate community services as
needed.
2. If the report is “screened-in,” it is assigned either for a Child Protective
Services (CPS) Investigation or Assessment Response:
• CPS Investigation Response: Generally, cases of sexual or serious physical abuse, or
severe neglect will be assigned to the CPS Investigation Response. The severity of the
situation will dictate whether it requires an emergency or non-emergency investigation.
The primary purpose of the Investigation Response is to determine the safety of the
reported child, the validity of an allegation and person(s) responsible, whether continued
DCF intervention is necessary and to assess risk to the child.
• CPS Assessment Response (Initial Assessment): Generally, moderate or lower risk
allegations, are assigned to the CPS Assessment Response. The primary purpose of the
Assessment Response is to determine if DCF involvement is necessary and to engage and
support families. This response involves a review of the reported allegations, assessing
safety and risk of the child, identifying family strengths and determining what, if any,
supports and services are needed.
3. A determination is made as to whether the child can safely remain at home and whether
the family would benefit from continued DCF involvement. If DCF involvement continues, a
Comprehensive Assessment and Service Plan are developed with the family.
Some families come to the attention of the Department outside the 51A process. These cases
are generally referred directly for a Comprehensive Assessment and include: Child in Need of
Services (CHINS) cases referred by the Juvenile Court, cases referred by the Probate Court,
babies surrendered under the Safe Haven Act, and voluntary requests for services by a
parent/family.
Does DCF have the same legal authority and responsibility
under the new Model?
No change has been made to DCF’s legal authority. DCF continues to have the same authority,
provided through Massachusetts General Law (MGL) Chapter 119, Section 51B, to gather
information from collaterals, mandated reporters and others whether a case has been assigned
for an Investigation or Assessment Response.
(The title is suppose to read: “What you say to a Social Worker Can and Will be Used Against You!” but for some reason the change won’t go through…)
The worlds of criminal law and DCF law often collide when children are involved and result in both criminal charges and supported 51As and assessments. Take, for example, the case I mentioned in my first post about the war veteran and high-level technician working in emergency rooms. Struggling to get a handle on why his fiance’s son was getting into trouble at school (relatively small stuff but concerning nonetheless), he asks the vice-principal for help immediately after a school play on a Friday. That week the boy had gotten into trouble for the third or so time. But all the vice-principal had to offer was “Learn to pick your battles.”
The next day, my client confronted the boy about his recent trouble-making and he repeatedly refused to talk about it. So, as was the protocol in this household, my client made the boy perform various calisthenics as constructive punishment. Unfortunately, that did not work either. So, in a final attempt to get the boy (about 11) to talk about what was going on in school, he brought the boy to the basement and asked him something like: “Do you really want me to get the belt and spank you like a little boy?” No response. So, my client went upstairs and got the belt. After a few whacks, the boy said, “OK, I’ll tell you.”
That Monday, the vice-principal asked the child to come to her office and she began asking him questions about how his “father” disciplined him. The boy admitted that just that weekend he was spanked. The vice-principal then asked the boy to drop his pants and sure enough, there were bruises. In no time, a social worker from DCF was there and also saw the bruises and talked to the child about how he had gotten them.
Thereafter, during an immediate 51B investigation, my client admitted to spanking the child and the 51A was quickly supported. For the next five or six months, my client was not allowed to be in the house. And during our first meeting, I warned him that he would probably be criminally charged since spanking a child is assault and battery (A&B) in Massachusetts and doing so with a belt is assault and battery with a dangerous weapon (ABDW). Of course, I added that doing so causing injury to a minor is…assault and battery with injury to a minor. (He was horrified to learn this just as many parents would be. I wonder if most parents in this state are aware of this.) Sure enough, within a month or so, DCF made the referral to the district attorney’s office. And after speaking to the investigating police officer (about 4 months later!), I asked her a simple question: If my client doesn’t talk to you, are you still going to charge him? Of course the answer was “yes.” And of course my answer was “No.” It would have been anyway.
And although I would not have let him talk to the officer, I did let him talk to the social worker (in my presence), but not about the alleged criminal act. What I really wanted to do was let the social worker see that my client was not a monster, but a decent, hardworking, loving de facto parent who had only good intentions for the boy, his sister and their mother. And although it took some time, DCF came to understand that.
Because his case was virtually indefensible and he was facing felony charges and the potential for serious jail time, it was clear that I had to work out a deal with the D.A. And, after spending time “humanizing” my client and getting the ADA to see my client as a “good guy” who did a dumb thing, I was able to get him a very good deal: Count I (ABDW) was reduced to a simple A&B and continued without a finding for one year and Count II (AB with injury) was dismissed.
In this case, my client probably would have been charged regardless of whether he had admitted to the spanking to the social worker because of the obvious injury to the child and the child’s statements. Still, in many other cases alleging physical abuse or extreme neglect, criminal cases can be successfully defended if the defendant does not admit to the charges to either the police or a social worker.
The takeaway: Once again, it is vitally important for a parent not to admit to criminal (or potentially criminal) conduct to a social worker during a 51B investigation (or during an assessment). And it is equally as important to have an attorney (who specializes in both DCF law and criminal defense) representing you whenever a social worker or police officer wants to talk to you.
For those parents or guardians (or daycare providers or foster parents) out there who are or have been the subject of a 51A report alleging abuse or neglect, it is critical for you to understand a few key terms and how they may apply in your situation. In my last post, I started providing examples of cases that I have recently handled. I will provide some additional case summaries shortly, but before I do I think a quick crash course in DCF Regulations is in order. Therefore, I am providing definitions straight from the DCF Regulations (110 CMR) for the following critical terms: (1) Caretaker; (2) Abuse; and (3) Neglect:
Caretaker means a child’s:
(a) parent
(b) stepparent
(c) guardian
(d) any household member entrusted with the responsibility for a child’s health or welfare
(e) any other person entrusted with the responsibility for a child’s health or welfare whether in the child’s home, a relative’s home, a school setting, a day care setting (including babysitting), a foster home, a group care facility, or any other comparable setting. As such “caretaker” includes (but is not limited to) school teachers, babysitters, school bus drivers, camp counselors, etc. The “caretaker” definition is meant to be construed broadly and inclusively to encompass any person who is, at the time in
question, entrusted with a degree of responsibility for the child. This specifically includes a caretaker who is him/herself a child (i.e. a babysitter under age 18).
Abuse means the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of physical or emotional injury, or constitutes a sexual offense under the laws of the Commonwealth or any sexual contact between a caretaker and a child under the care of that individual. This definition is not dependent upon location (i.e., abuse can occur while the child is in an out-of-home
or in-home setting.)
Neglect means failure by a caretaker, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability and growth, or other essential care; provided, however, that such inability is not due solely to inadequate
economic resources or solely to the existence of a handicapping condition. This definition is not dependent upon location (i.e., neglect can occur while the child is in an out-of-home or in-home setting.)
Look for my next post about cases alleging “abuse” and how important it is to pay extra attention to potential criminal liability arising from such an allegation, no matter how precarious or far-fetched it may be. JMI
What every parent needs to know and what many have already found out is this: it doesn’t matter how much money you have (or don’t have) or what town you live in, or where you went to school or what school your child goes to or what pediatrician you use. What I have observed, in over 14 years of representing parents (and children) in DSS/DCF related cases (investigations, Care and Protection and CHINS cases, Fair Hearings etc.), is that EVERY PARENT is now suspectible to getting a 51A filed against them. No parent or guardian (or for that matter, foster parent or day care provider) seems to be off limits to a DCF investigation. In just the past year I have represented parents across the economic spectrum–from the very wealthy to the very poor in a variety of situations such as:
* A day care facility (mandated reporter) files a 51A because a child dropped a prenatal vitamin (that her mother had accidentally left on a table in their home that morning…the child had put it in her pocket). The school filed the 51A even though Poison Control confirmed that one child would have had to consume 30 such pills to have been harmed by it. Needless to say, the 51B caused the parents, both highly educated and professional and, frankly, wonderful and caring parents, needless anxiety and frustration. They hired me and after writing a detailed letter to the Area Director (while on vacation, I might add), I am pleased to say that DCF unsupported the 51A. And the parents did not have to wait one to two years for a Fair Hearing! This occurred at the end of the assessment.
* A decorated war hero who did three tours of duty who now works in emergency rooms as a highly skilled technician in life and death situations made the unfortunate mistake of spanking his fiance’s son with a belt, a child who referrs to him as “daddy” and clearly loves him. The child had been getting into trouble at school and my client first used calesthenics to encourage the boy to tell him what was going on in school (a scene right out of “The Great Santini” I might add) and eventually resorted to corporal punishment (which he did not want to do). The day before he spanked the boy, my client actually asked the school vice principal what he should do with the boy and was told that he should learn to “pick his battles.” The following Monday, the vice-principal brought the child into her office and asked how his “father” disciplined him. A few minutes later, the child dropped his pants to reveal bruises. You can guess what happened next. (I will write more about this one later.)
* An ex-husband, sick and tired of paying child support, gets his 12 year old son to accuse his mother of “hitting” him just two or so weeks before a custody hearing (his second attempt). My client, who was looking forward to teaching again in the fall (and thus was at risk of losing her job), was doing her absolute best trying to raise her two kids. Unfortunately, her son was finding his visits with his father–where no restrictions were placed on him–too good to be true so he wanted to live with him. During the investigation, the social worker talked to the child’s therapist (who wouldn’t even talk to the mother, only the father) and the father’s attorney, who filled up 3/4s of a page in the 51B investigation that was redacted (blacked out) so I couldn’ read it. DCF did not support the physical abuse charge (because by that time the boy recanted) but found the mother neglectful because “There are concerns that the child appears to have issues with the divorce and is angry about the situation. Mother has inappropriate high expectations of the child for his young age i.e. he has to do his own laundry. There are concerns that the mother has pitted the siblings against each other.” After absolutely blasting the Department in writing for an incompetent and one-side investigation (and for failing to see what was really going on), I was able to get DCF to admit that they should never have supported the 51A and to overturn it by the end of the 45-day assessment.
(Will provide additional examples soon.)
Welcome to the Ianiri Law blog, the best place to obtain crucial, up to the minute information about the Department of Children and Families (DCF) (formerly the Department of Social Services, or DSS) and what to do if you find yourself the target of a DCF investigation or if your child or children are removed from your home.
I (Attorney Jim Ianiri) will also provide you interesting and valuable tips about how to deal with social workers and investigators, school officials and doctors, as well as inform you of the latest trends in child protection law and the most recent court decisions and, most importantly, how best to prepare yourself (and what your legal rights are) when DCF or the police come knocking on your door, or when your child’s school or doctor files a 51A report alleging abuse or neglect, or when a social worker wants to interview you as part of a 51B investigation, or a court investigator or probation officer calls you after a Care and Protection Petition has been filed in Juvenile or Probate court.
I will also share with you recent cases I have handled and how I handled them. I hope you find this blog useful and informative and please feel free to visit often. JMI
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