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: