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 inquestion, 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 inadequateeconomic 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.