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.

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