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When 'Hitting' Your Child is not Abuse

Quite often I am asked to represent a parent who has been accused of physically abusing their child.  The report often comes in like this: the child tells some one at school or their therapist that mommy or daddy “hits” them, sometimes not even offering much more than that.  Sometimes the allegations are more graphic: “Daddy hit me in the face” or on the buttocks etc. ( I have had a few kids allege their father tried to ‘strangle’ them as well.  But that is a topic for another day.)  Usually these allegations come out of the blue (meaning there is no history of such claims).  And, at least in these cases, there is absolutely no physical injury to corroborate the allegations.  (In the cases where some physical injury is reported, at least initially by the school, therapist or doctor, more often than not the cause of the injury is disputed by the parents and are usually gone by the time a social worker sees the child).

Now, before I go any further and before readers begin accusing me of being a monster because I don’t think children tell the truth or because I choose not to believe these kids,  I want to make it absolutely clear that in fact that is NOT at all what I am saying.  And further, in my 21 years of handling DCF cases, I can assure you I most definitely have believed children’s claims of being physically abused, and in a number of cases made sure they never went back to that home again.  But what I am suggesting is this: often, when a child says his parents ‘hit’ him, (a) he may not understand what the word actually means  or perceives the action as worse than it really was, and probably should have used a different word to describe what his parent(s) did to him, such as ‘slap,’ ‘tap,’ ‘whack,’ or ‘touch,’ none of which would likely constitute abuse by DCF’s regulations and current case law; (b) the DCF investigator, by asking a child whether his parents ‘hit’ him or her–a blatantly leading and improper question–is actually encouraging the child, who often wants to please, to agree to something that is not true; (c) the investigator, when he hears the child say he was ‘hit,’ wrongly assumes that the conduct was worse than it really was and constitutes abuse as that term is defined by the Department’s regulations; and/or (d) there are those cases in which children do deliberately lie because they are angry at their parent(s) or have serious mental health issues.

Merriam Webster’s Dictionary defines “hit” as (a) to reach with or as if with a sudden blow; (b) to come in quick forceful contact with; (c) to strike [something] with an object…so as to impart or redirect motion; (d) to deliver (something, such as a blow) by action etc.  Importantly, the word ‘hit’ does not appear in the Department’s regulations defining abuse and neglect.  Moreover, DCF defines ‘abuse’ as “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…”  Furthermore, case law makes it clear that in order for their to be substantial evidence that a caretaker abused a child there must be evidence of physical injury beyond temporary redness (like bruises, cuts, scratches and welts).  

The point is this: too often, when mandated reporters and DCF hear a child claim that they’ve been ‘hit’ by their parent(s), false assumptions are made and incorrect conclusions are drawn.  There is a certain ‘hysteria’ factor generated whenever that word is used.  What needs to be made clear, if not by the mandated reporter before they file, than during the ensuing DCF investigation–best by a lawyer who understands the law and who can clearly explain it to the investigator–is exactly what the child meant when he used that word (was it really just a slap, a whack on the arm or butt or even a spank over clothing?) and whether, perhaps the child made up the story because he was mad at his parent(s). (I have had plenty of those cases.)  Look at DCF’s definition of abuse: it clearly states that the level of force has to be such that the action actually caused physical injury or created a ‘substantial risk of physical or emotional injury.’  Too often that is simply not the case.  In many instances, parents merely slapped or grabbed their child’s arm in an effort to get their attention or to move them along, or even slapped their face (not abuse) to scold them or get their attention, or spanked their butt (not abuse) or ‘dope-slapped’ them.  But sloppy investigators or ones who are predisposed to believe children over parents (or ones who cling to the fantasy that children never lie) will nonetheless support a 51A for physical abuse, or, increasingly, for neglect.

A final comment, in case some people still think I am being unfair to children…when a parent called me once seeking representation, and after she told me that she only intended to whack her kid’s chest with a belt but somehow the belt buckle hit the kid square in his neck really hard I told her that I couldn’t help her and that next to the definition of abuse should be a picture of her with her belt.  Cheers.

Call me if you need help! Jim (617) 650-4520.  

 

Interesting Developments on the Fair Hearing front...

Just wanted to share some recent developments on the Fair Hearing front…As many of you know, in addition to representing anybody and anything (schools, churches, day care centers etc.) in DCF investigations, family assessments and in court (in Care and Protection cases, for example), I handle at least two to three fair hearings a month across the Commonwealth of Massachusetts.  And the types of cases I handle truly run the gamut: from domestic disputes, substance abuse, allegations of physical abuse and / or neglect, substance exposed newborns (SENs)(usually involving marijuana and/or suboxone) and home alone cases to very serious sexual abuse cases, alleged unlawful restraint cases at DYS and, in one recent case, the death of an infant at a daycare center.

Continue reading Interesting Developments on the Fair Hearing front…

2017: A Quick Look Back

As this year quickly comes to an end and I begin planning for next year, I thought I would take a moment and reflect a little bit on 2017.  What a year it has been at Ianiri Law LLC! This year saw a significant increase in DCF-related representation, from assisting parents with 51B investigations and comprehensive assessments to representing parents in court (Care and Protection Petitions and CRA’s) and at fair hearings (18 this year!).  It also saw a steady influx of personal injury cases, mostly automobile accidents.  Next year I will be looking to increase the number of fair hearings and personal injury cases I handle.

Continue reading 2017: A Quick Look Back

Substance Exposed Newborn (SEN) Cases

In January 2013, the Department of Children and Families (DCF) issued a policy change geared toward mandated reporters, community partners and other stakeholders.  The new protocol allowed DCF the option of screening out 51A reports involving Substance Exposed Newborns (SEN) if “the only reported condition is maternal use of methadone, buprenorphine (Subutex), buprenorphine with naloxone (Suboxone) or another prescribed and used medication (such as psychotropic and narcotic prescription medications) as substance abuse or medical treatment resulting in SEN” when certain conditions exist.  Those conditions include the verification that one of these three drugs were in fact part of substance abuse or medical treatment, were taken as authorized and there are no other concerns of child abuse and/or neglect.  In all other cases, such as a newborn testing positive for an opiod or marijuana, not only are mandated reporters (medical doctors and hospital staff) required to report a 51A, DCF is required to screen it in for a investigation.  Moreover, as long as the hospital concludes through appropriate testing that the newborn tested positive for an illicit substance, the 51A will be supported.

Continue reading Substance Exposed Newborn (SEN) Cases

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. Continue reading The Fair Hearing

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). Continue reading Taking a little break…

The Pelletier Case and

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. Continue reading The Pelletier Case and "Medical Child Abuse"

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

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