The Fair Hearing

So, you had a 51A supported by the Department of Children and Families for abuse or neglect and you were named the perpetrator.  You are now in DCF’s “Central Registry.” If the investigation concluded that you sexually abused a child or physically assaulted a child causing injury, there is a very good chance that you are also listed in a separate internal registry that the Department uses to flag high-risk individuals. And perhaps you are a teacher, a day care provider, foster parent, pre-adoptive parent, or work for the Department of Youth Services or a vendor or contractor for DCF.  Now your livelihood is on the line because of the supported 51A.  In fact, if you work directly with children under 18, your career could be finished unless that supported 51A is reversed. Therefore, you rightly request a fair hearing within 30 days of receipt of the support letter.  Better yet, you contact an experienced DCF attorney immediately upon learning of the supported 51A because you know that a number of things have to happen quickly and correctly in order for you to have the best chance to get the decision reversed, and in some cases, to prevent your children from being removed from your home or from you being arrested or both.

What you need to know, however, is that the system is literally rigged against you and that you will likely lose the fair hearing unless you have an attorney who is extremely familiar with the administrative appeal process.  In fact, it is hard enough for someone like myself, who has handled numerous fair hearings over the past ten years, to win.  It is nearly impossible for a parent or caregiver to win unrepresented.  I know because I get the calls from these unwitting appellants after the fact, when they are scrambling to file a 30A appeal in Superior Court or when they find out they can’t get another job in their chosen field because the employer ran their CORI and found out about the supported 51A.

I say the system is rigged because you, as the appellant, have to prove at the hearing, by a preponderance of the evidence, that DCF failed to follow its regulations which resulted in substantial prejudice to you, or, if there is no applicable policy or regulation or procedure, that the Department failed to “act with a reasonable basis or in a reasonable manner which resulted in substantial prejudice.”  (Under the new regulations on Fair Hearings, the grounds for appeal have been expanded to include “whether based on the record as a whole, and giving due weight to the clinical judgments of the Department social worker, there is reasonable cause to believe that a child has been abused or neglected.”  Also, for a person to be listed on the registry of alleged perpetrators, substantial evidence that the person is responsible for abuse or neglect is now required.”)  As you can see, (a) the standard–reasonable cause to believe–is extremely low, and in fact the lowest recognized standard in our jurisprudence and (b) you really need to understand the regulations and relevant case law in order to effectively cross-examine the investigator, know what other evidence you will need to present and successfully argue to the hearing officer in your closing statement exactly why he or she needs to reverse the decision.  The hearing is not simply a chance “to tell [your] story.”  If you think it is, you will lose.

Years ago, after trying many cases in various Juvenile, Probate, District and Superior Courts, I viewed Fair Hearings as, well, a joke, not worthy of my time, not unlike small claims court.  I now see that they are extremely important and that they can be won, if I prepare for them just as I would for a trial in court.  And I know that they often are critical to my clients–for professional and personal reasons–and frankly, I find them just as rewarding as any case that I handle when I win.  I now truly enjoy handling these hearings.  I’ve gotten very good at doing them and tend to know and respect most of the hearing officers and I think the feeling is mutual.

Fair Hearings are now conducted by the officers much more professionally than ever and I really do believe that they take their role seriously and do not simple rubber stamp the Department’s decisions to support.  I think the officers also know that I put a lot of effort in to presenting the case and that I expect that they genuinely listen to the evidence and apply the law correctly.

Lastly, it should be said that I have gotten many supported 51As reversed prior to the fair hearing, sometimes just before the hearing starts.  These are generally cases in which I truly believe that the social worker simply didn’t have a legitimate basis to support–either because he or she was biased against my client and ignored or discounted evidence wrongly or because new information has evolved since the investigation exonerating my client, such as information  that came up during the 45 day assessment.  And of course, there are other reasons why I might push for a reversal prior to the hearing.  Every case is different.  But over the past three or so years, I have had at least 15 or so 51As reversed before the fair hearing.

The key to my success often–but not exclusively–is that my client hired me early in the process so that I was able to guide him or her during the assessment and influence the worker or gather the right evidence needed to win at the hearing.  I really like to get involved during the 51B investigation, and if not then, then certainly during the Assessment.  During the very first meeting with the assessment worker I make it clear what it is that I want to see happen: I want the case closed at the end of the assessment and I want the support  decision reversed.  And if he or she isn’t going to recommend a reversal to the supervisor or area clinical manager, I will write a detailed letter that often looks like a legal brief to the Area Director urging DCF to reverse.  Not every case lends itself to this approach, but many do and I have been very successful using this technique.  

The bottom line is Fair Hearings are no longer a “joke”…they are taken seriously by the hearing officers and they should be taken seriously by you.  As too many of you have already found out, supported 51As can have very serious consequences.  The outcome of an investigation and of a fair hearing may very well determine whether you can continue to earn a living working with or raising children or continue being a foster or pre-adoptive parent or not.  And  frankly, I have represented plenty of parents who were not at such risk but simply could not accept being found by the state to have neglected or abused their child.  I understand fully how they must feel and why they believe they need to do whatever they can to have the support decision reversed.  It’s critical, though, that the hearing be done right.

JMI

Taking a little break...

Those of you who have read the bio portion of my website know that in addition to being passionate about the work that I do–representing people facing some pretty difficult situations involving the Department of Children and Families, insurance companies, Early Education and Care, the police and the myriad assistant district attorneys of the Commonwealth etc.–I am just as passionate about mountains and the great outdoors, especially remote places.  Seven years ago I climbed Mt. Kilimanjaro and have continued to seek the summits of several Sierra Nevada mountains in California (“14ers”) and Mt. Rainier in Washington.  I usually train in  New Hampshire’s White Mountains and the Blue Hills.   Well, on October 10, 2014, I will be heading to Nepal for perhaps the ultimate high altitude, non-technical trek: a 90-mile, three week trek to Everest Base Camp (EBC) and Kala Pattar (18,200 feet).

While I am gone my office will be monitored by my assistant, Betty Sampson.  For those of you who still would like to speak to an experienced attorney who I trust implicitly, just tell Betty when she calls you back and she will provide you with his contact information.  I look forward to returning with my batteries recharged and ready to continue to do battle with the powers that be.  If your matter can wait, I will be happy to call you upon my return on November 3, 2014.  Just leave the details on a voice mail or in an email.  Betty will call you back.  Until then…Namaste!

JMI

The Pelletier Case and "Medical Child Abuse"

It has been very difficult to sit back and just watch the travesty that is the Justina Pelletier case as it slowly works its way through the juvenile court system and now the press. Of course, nothing can compare to what the family has been going through. And with hopes dashed that the Hon. Joseph Johnston, with whom I had the privilege of working on other Care and Protection cases before he became a jurist, would render a decision yesterday that would allow Justina to leave the godforsaken “Bader 5″ psychiatric ward of Boston’s Children’s Hospital, her parents are resigned to spend Christmas without their precious daughter. The case has been continued until January 10, 2014. According to the Boston Globe, The judge appointed a new investigator to gather more current information in the case, presumably in order to assist him in making his ruling. Thus, Justina remains in the custody of the Department of Children and Families at least until mid-January.

Having myself handled a number of these “medical child abuse” cases (physical abuse, shaken baby syndrome, PANDAS and Mitochondria), I know how difficult these cases are, especially for such a thoughtful jurist as I know Judge Johnston to be.

The problem with these cases, of course, is not any one thing, and certainly not the judge. Instead, its much more complicated–the problem is systemic. It’s the way the system is currently designed. The current laws and regulations overwhelmingly favor the government, and specifically the Department of Children and Families, which prosecutes child protection cases, and in medical child abuse cases, the hospitals which report them. For example, even though the burden of proof is always with the state (DCF), my colleagues who regularly try these cases know that in practice, the burden may as well be on the parents. Why? Partly because of the rules of evidence in these cases, what the judge is able to see (DCF reports etc) and how he or she is able to use such evidence (51A’s to “set the stage” and 51B’s as “primary fact” etc.) And also because in child abuse cases the benefit of the doubt almost always goes to DCF and the medical institutions that file the 51A, at least initially (at the 72 Hour Hearing). And that is a huge advantage to DCF, since it can retain custody for a lengthy period of time before a judge actually renders a decision. The ten plus months Justina’s parents have had to wait–surely an eternity to them–is actually on the short side for these types of cases. I’ve seen complicated C&Ps linger for considerably longer before getting a trial. In fact I have several that fit the bill right now…

That said, the Pelletier case and my own “mito” case involving BCH are extremely unsettling and in fact horrifying in an Orwellian sort of way, where Big Brother comes in the form of Children’s “Child Protection Team.” In Justina’s case, Dr. Mark Korson, head of the metabolism department at Tufts Medical Center and a leading mitochondria expert in Boston, referred Justina’s parents to Children’s specifically to see a gastroenterologist who had moved his practice from Tufts to Children’s. And without any warning or ability to stop it, the CPT swooped in with its own team of doctors and takes total control of Justina’s case, including filing a 51A against the parents and locking her in Bader 5, where she remains 10 months later. Worse, the CPT wouldn’t even let Dr. Korson evaluate Justina. Her parents were told to IMMEDIATELY LEAVE THE HOSPITAL WHILE SECURITY GUARDS QUICKLY ASSUMED POSITIONS ON JUSTINA’S FLOOR AND AN AROUND-THE-CLOCK MONITOR TOOK HER PLACE IN OR NEAR JUSTINA’S ROOM. You ask, “How can this happen in America? What happened to the parents’ right to make medical decisions on behalf of their child?” Good questions. Frankly, I would expect this frightening scenario to occur in North Korea or the former Soviet Union, not the United States of America. And please note that this all happened without any meaningful oversight or “check” on Children’s conduct in real time. Instead, the parents were left to defend themselves for months thereafter at considerable financial expense in an egregiously lopsided court system while their daughter’s condition has at best remained the same, or, as some reports suggest, actually gotten worse.

When I appeared on Glenn Beck’s internet tv show this past Tuesday, just before he had to go to a “hard break” and end the interview, he said the courts were supposed to serve as the “check” in these cases but that the court system “was broken.” He’s got a point, but I might re-word that sentiment a little. Instead, I would suggest that our system is in need of some significant re-calibrating, and that parents could use a few more tools in their arsenal. The fact is, if you as the parent find yourself in court staring down DCF and Children’s Hospital at a “72 Hour” custody hearing–where the burden of proof is the relatively low “preponderance of the evidence” standard (in Massachusetts, anyway)–you probably already lost, at least the first round of the battle. And that is simply because most judges at this stage are more likely to give DCF (and a BCH) the benefit of the doubt. And such rulings of temporary custody to DCF are usually amply supported by the evidence at such an early stage.

What I wanted to say to Glenn Beck is that way before parents find themselves in court, there should be something in place at the hospital–a referee of some sort, like an Ombudsman’s office that DCF has, with a right of review and/or administrative appeal–that can serve as a “check” on the Child Protection Team before it is allowed to file a 51A in a case where experts may disagree over a diagnosis. Why? Simply because, in many cases, once DCF gets involved, it’s already too late…the damage has already been done. Think about it…in the case of a medical disagreement, all it takes is one doctor to contact CPT and another call by the CPT to DCF to unleash the awesome power of the state. How is that fair? (Allow me to digress for a moment…as I am thinking about another situation, I am not sure what troubles me more–that the CPT was allowed to monitor the on-line activities of parents who no longer had any affiliation with Children’s, as it did in one of my cases, or that it chose to spend its time that way. Sadly, I think that while it surely started over the past 40 years with the best of intentions, the CPT has suffered from so much “mission creep” that it remains a scary shadow of its former self.)

In an effort to hopefully advance the discussion, I ask the following questions: Why does the Child Protection Team get to decide that a child is at severe and immediate risk of “medical child abuse” or that the child’s symptoms are psychiatric in nature AND ARE FURTHER ALLOWED TO COMPLETELY IGNORE OR DISCOUNT OTHER MEDICAL EXPERTS WHO HAVE ALREADY CONCLUDED THAT THE CHILD’S ILLNESS IS MEDICAL, such was the case in Justina’s situation and in two cases I handled, including the “mito” case of Jessica Hilliard, who appeared with me this week on Fox 8 and Fox 25? Because they are, after all, the “Child Protection Team” and thus know more than everybody else? Really? Because they are “mandated reporters” and thus “because they can?” (with little or no consequence.) Why does the CPT refuse to allow specialists outside of the hospital to evaluate a child –and in some cases, shove aside some of their own doctors? Why does it get to decide that a parent is not allowed to get a second opinion? And if the CPT thinks a child is being “medically” abused by their parents, what were the other renowned specialists doing? Are they complicit in medical child abuse? Are they simply being manipulated by the parents, as was the accusation in my cases? Really? Then how does it explain the cases in which there is vigorous disagreement amongst BCH’s doctors too? What about the cases in which Children’s actually diagnosed a child with mitochondrial disease and later revokes the diagnosis after (or just before) the CPT gets involved, as also happened in my mito case? Are the doctors at Children’s being bamboozled by pushy parents, many of whom are, after all, highly educated and articulate, too? What is the motivation of the doctors to “mis-diagnose” a child with a medical condition, such as mitochondria or PANDAS? To harm their patient? To advance their career or a relatively new and still somewhat controversial diagnosis? What awesome and absolutely unfettered power this Child Protection team has! And, if you think the Department of Children and Families is an impartial “referee” set up to adequately investigate these medical child abuse cases, I have a bridge to sell you.

(As an aside, to illustrate just how the sands can shift underneath the CPT’s lofty perch in these “medical child abuse cases,” Massachusetts General Hospital just recently opened a PANDAS clinic, despite the fact that just a year ago the CPT and certain doctors at Children’s insisted that PANDAS was a phony diagnosis and my clients were medically abusing their daughter.)

As the Boston Globe’s very thorough investigative reporter, Neil Swidey, and The Blaze’s Liz Klimas reported extensively in the past two weeks DCF simply doesn’t have the resources to effectively handle these complicated medical cases. They don’t have adequate, paid medical staff for thorough case reviews and often ask Boston Children’s Hospital’s doctors and psychiatrists to perform free consultations. Furthermore, what hasn’t been said yet is another painful truth: While we are all familiar with the criminal standard of “beyond a reasonable doubt,” which is the highest burden of proof required in our jurisprudence, all DCF needs to support a 51A is “reasonable belief,” which hovers in the realm of “reasonable cause.” It is in fact lower than “probable cause,” which the police need to charge someone with a crime and is, along with “reasonable suspicion,” what is needed to lawfully demand that someone exit a car. All to say that…it takes very little to support a 51A, and when the accusation is medical child abuse filed by the Child Protection Team–the so-called “child abuse” experts…get yourself ready to be placed on their Central Registry as the perpetrator of child abuse.

I would be remiss in saying that occasionally, DCF actually does the right thing, as was the case during Jessica Hilliard’s investigation. We were quite fortunate to get a very seasoned investigator who had considerable experience handling complex medical cases and after an exhaustive review of the allegations and after turning over every stone to get all of the relevant information available…he UNSUPPORTED the 51A…in a case that was eerily similar to the Pelletier Case and could have easily been its predecessor. He remains one of the best social workers I have every confronted. (Of course, I certainly don’t think it hurt her to have legal representation either, particularly someone who has experience with complex DCF cases. Whether that person be me or someone else…the fact is, parents are taken more seriously by DCF when they are adequately represented. Also, effective advocacy can steer the case in the right direction at the very beginning of the investigation, which often makes a huge difference.) The most disturbing thing about Jessica’s case, however, occurred after DCF closed its case and after she moved all of her child’s care to Tufts. Astonishingly, Children’s Child’s Protection Team wouldn’t let the matter go…it called Tuft’s version of the CPT and tried to “warn” them that the parent’s were seeking unnecessary medical treatment for their child. Thankfully, the same DCF investigator found the parents had done nothing wrong.)

So…something needs to change. The CPT can’t simply be allowed to wield this much power without oversight and continue to destroy or at least cause substantial harm to families in the name of “saving” children. Experts should be allowed to agree to disagree–it’s the American Way–as they tend to do in emerging medical fields, and the CPT should not be allowed to take sides, ignore countervailing medical authority, blame parents for “medical child abuse” and use the government to advance their own agenda, which, of course, remains a mystery.

Let’s hope the spotlight that has been put on this case and this very disturbing trend yield’s some fruit soon. Until then, parents who find themselves being accused of “medical child abuse” need to act swiftly and assemble a team that has the chops to go up against a system that is badly in need of some fine-tuning.

Jim Ianiri, Esq.

Boston Children's Hospital and the Department of Children and Families

In Massachusetts, we are extremely fortunate to have the world’s best medical institutions and facilities (medical schools, teaching hospitals, rehab centers etc) practically at our fingertips. And when it comes to finding a specialist for a complicated or rare disorder or disease, you probably wouldn’t want to be anywhere else in the country. That said, at least two premier Boston Hospitals–Children’s Hospital and Massachusetts General Hospital–have a dark side to their otherwise sterling reputation. I have had several cases involving very serious but controversial diagnoses of children where the parents unwittingly brought their child to Boston Children’s Hospital and/or Massachusetts General Hospital and wound up being investigated by the hospital’s Child Protection Team and the Department of Children and Families, and in two of my cases, actually taken to court by DCF, which sought custody of their child. In one case, my client was also criminally charged and later acquitted. In that case I represented him in the Care and Protection petition.

Not too long ago, Shaken Baby Syndrome (SBS) was the controversial diagnosis du jour. Think Louise Woodward (the “nanny” case). Shortly after that highly publicized case, I had my own SBS case in the Boston Juvenile Court, in which my child client’s mother was accused by the Child Protection Team at MGH of deliberately (and violently) shaking her. More recently, I represented a father in Norfolk County Juvenile Court who was not only petitioned by DCF in a Care and Protection case but charged criminally for several A&B related charges. In both cases, the parents brought their child to MGH for emergency medical attention and, because the child presented with the so-called SBS triad of retinal haemorrhage, subdural hematoma, and acute encephalpathy, the Child Protection Team and DCF quickly became involved. Since the Woodward case there has been a significant amount of research challenging the efficacy of the Triad, rendering the SBS diagnosis highly questionable. (I plan to write exclusively about Shaken Baby Syndrome in a future blog.) Suffice it to say, in my Boston case, the mother was quickly reunited with her baby after a month-long temporary custody (72 Hour) hearing, a result I strongly supported. In the other SBS case I mentioned, my client father was acquitted by a jury. Still, due in part to an over-reliance on the opinion and reputation of Children’s Hospital and MGH, the juvenile court judges in both of those cases made a threshold finding that DCF had met its burden of proof that the children were the victims of SBS. (Juvenile Court judges have been slow to react to the new research casting doubt on the SBS diagnosis. In future SBS cases, it is crucial for counsel for parents to quickly line up a top notch expert that is aware of the new data and research before a custody hearing or trial.)

More recently, I have had two other highly controversial cases involving Mitochondrial Disease and PANDAS. My parent clients were accused by Children’s Hospital of neglecting their child when a disagreement over their respective child’s diagnosis and recommended course of treatment arose. Not only did both cases involved a diagnosis not universally accepted in the medical community (the aforementioned mitochondrial disease and PANDAS), sadly, in both instances the parents previously lost a child due to illness or disease. In my Mitochondria case, the parents were merely seeking to RULE OUT Mitochondria for their son and simply wanted him tested for it because their daughter had died from the disease not long before (after spending most of her short life in Children’s Hospital). Unbeknownst to the parents, an internal battle within the multi-disciplined treatment team was erupting (some specialists thought the child should be treated or at least tested for Mitochondria and at least one strong-headed doctor believed otherwise and even accused the mother of Munchausen by Proxy) and enlisted the services of the Child Protection Team (CPT). Frighteningly, for several months, after her son was discharged from Children’s, the CPT monitored my client’s blog that chronicled her son’s illness and suspected Mitochondria! The CPT filed a 51A against my client wrongly accusing her of seeking unnecessary medical treatment, and worse, suggesting that she was deliberately sabotaging her son’s health (Munchausen). Fortunately, after several meetings with a seasoned DCF investigator and my encouraging the investigator to talk to the parent’s treatment team outside of Children’s, DCF UNSUPPORTED the 51A.

In the PANDAS case, my clients’ daughter was diagnosed with the disease, thought to be connected to strep throat, by Dr. Denis Bouboulis, a well-known PANDAS expert in Connecticut and was responding favorably to his treatment that included antibiotics. My clients took their child to Children’s when she was experiencing stomach pain and was told by Children’s that the hospital did not recognize PANDAS as a legitimate medical disorder. They were advised to immediately stop treatment with Dr. Bouboulis. Children’s terminated the antibiotics regimen and placed the child in Bader 5, its psychiatric unit. (The details of this PANDAS case are worthy of a separate blog, which is forthcoming.) Not surprisingly, the children’s symptoms worsened. The child refused to eat, and exhibited Tourettes Syndrome-like tics. (The child also lost ability to talk or walk and exhibited significant attachment disorder.) Eventually, the child was released from Children’s and the parents once again sought treatment for PANDAS. Children’s filed a 51A expressing “concern” that the parents were seeking unnecessary medical treatment (including a G-Tube, tonsillectomy and plasmapheris) and even accused the child’s mother of Munchausen by Proxy).

DCF initially supported the 51A, which often happens when Children’s Hospital is the reporter. (After all, how is DCF in a position to challenge the expertise and experience of Children’s Hospital when it comes to a complicated medical case?) However, a curious thing happened at the beginning of the 45 day assessment. My clients were fortunate enough to get a good, experienced social worker with whom I was familiar, having had cases with her in the past. Significantly, over the course of several weeks, the child showed significant improvement while on antibiotics, which the social worker was able to see and report to her supervisor.

In light of these developments, I advised the social worker that the parents would NOT participate in the 45 Day Assessment AND, to my clients’ surprise, …she told me that there would be no negative consequences of this and, more importantly, DCF would be UNSUPPORTING the 51A. This was a huge turn around, considering just two weeks prior DCF was threatening to file a Care and Protection if the parents did not agree to treat their child at a rehabilitation facility and engage her in counseling. (The parents had already tried rehab with negative results and the notion of forcing therapy was simply mystifying, given the child was still nonverbal experienced extreme separation anxiety when not at her mother’s side for even a minute, was non-ambulatory, had tics still etc.)

The take away for Parents is this: In controversial medical cases, you absolutely have to be on guard and should NOT assume that the big-named hospitals (especially, it seems, Children’s and MGH) always know best or that they wouldn’t turn on you when you disagree with them; also, if possible, do your own research first!; Seek out others in your situation (for example, there are wonderfully informative on-line sites and web-based communities for many of the more controversial and less understood diagnoses out there, including PANDAS and Mitochondria); Find out who the experts are before taking your child to one of the big hospitals; Understand that you are the parent and have the right (and responsibility) to seek the opinion of more than one expert and cannot be forced to seek treatment at any particular facility; Maintain a log or calendar and detailed notes of the treatment and your dealings with the hospital–that is, document everything!; And, if/when you find yourself the target of an investigation either by the hospital or DCF (or for that matter, the police), quickly line up your support system (doctors and collateral sources) and by all means, get a lawyer! Do not think you are going to get through this alone or that you can’t hire a lawyer because you will “look guilty.” Believe me, they have lawyers reviewing their controversial cases very early on in the process too–sometimes even before they file a 51A, so you should too. In fact, I would go so far as to say you may want to have an attorney on board as soon as you begin battling a Children’s Hospital or an MGH and not after they file a 51A report. It’s certainly not going to hurt you and in all likelihood, if you hire a seasoned attorney with experience handling these complicated medical cases, having a legal advocate will help you.

As always, feel free to email me if you have any questions/concerns at: jim@ianirilaw.net

Is it legal for a school official to interrogate child?

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.

DCF's New Integrated Casework Practice Model

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.

What You to a 51B Investigator Can and Will Be Used Against You

(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.

Let’s Define Some Key Terms

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

First Things First

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.)

Ianiri Law

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