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Three SJC Justices Blast DCF in Recent "Spanking" Decision

Massachusetts divorce lawyer Jason V. Owens reviews a recent Massachusetts Supreme Judicial Court decision criticizing DCF for the Department’s inconsistent treatment of foster parents.

Three justices of the Massachusetts Supreme Judicial Court strongly rebuked the Department of Children and Families in a concurring opinion released Tuesday in a case addressing whether foster parents who spank their children are eligible for adopting foster kids through the Department. As discussed in Tuesday’s blog on child discipline vs. child abuse, the SJC addressed the issue of “spanking” in the context of foster parents in Magazu v. Department of Children and Families, decided on January 4, 2016. In Maguzu, the SJC ultimately supported DCF‘s position prohibiting foster parents who admit spanking their children from adopting foster kids through the Department.

What Tuesday’s blog did not mention, however, was the remarkable concurring opinion offered in Magazu by SJC justice Hon. Robert J. Cordy, who was joined by Justices Botsford and Duffly in a strong rebuke of the Department. Justice Cordy offers a stinging criticism of DCF in the concurring opinion, contrasting the Department’s rigid position on spanking with the Maguzu family with its non-existent oversight over another foster parent who was recently in the news:

One is left to wonder, however, whether the real problem in this case was not so much the department’s concern for child safety, but rather a disagreement with the plaintiff’s beliefs regarding the upbringing of their children. While we have no other licensing investigation files in the record before us, it is hard to ignore the highly public tragedies of the last two years regarding children under the supervision of the department in foster homes, and not to question whether the high standards and intensive assessment and scrutiny applied to the plaintiffs [in Maguzu] is the exception rather than the norm, particularly in the western region.

Fuel for this concern comes most recently in an official investigative report of the death and near death of two foster children placed in the foster home of a woman, also located in the western region. The death and injury were due to severe neglect. The investigative report of the case is revealing in many respects, but most particularly in its description of the licensing investigation, and its inadequacies, that led to the licensure of the woman as a foster parent shortly after the plaintiffs’ application was denied. According to the report, the applicant was an unmarried woman with medical issues, who was supported by Supplemental Security Income disability payments, and who had two children who no longer had contact with their father, as well as an adopted third child. At least one of these children also had serious medical issues, and during the licensing investigation the doctor for the woman’s children advised that she was already overwhelmed by managing her own children’s medical needs. In addition, G. L. c. 119, § 51A, reports of abuse and neglect had been filed against her; the school attended by one of her children reported that the child was chronically absent, and was out of control; and it was known that there was a family history of neglect. Further, the licensing investigation did not include a routine check with the local police, which would have revealed that the police had been called at least twenty-five times in response to problems at her home. Regardless, the woman was licensed by the department, and at the time of the tragedy, she had three children assigned to her care by the department (in addition to her other three children).

Whether the department’s process and standards resulting in the licensing of this foster mother is the norm or the exception, we do not know. Hopefully, it is the exception and, whatever the licensing standard actually is, it will be uniformly applied.

This criticism of DCF is not only unusual for its harshly ironic tone. It is notably rare for judges to step outside of the record fore them – in this case, the facts surrounding the Maguzu family’s case – to focus on media reports and government investigations involving other cases and individuals. Here, Justice Cordy cited Boston Globe articles and government reports that had nothing to do with the Maguzu family, but which highlighted the Department’s failure to exercise even minimal oversight over other foster parents in the system.

DCF often cites its difficult public mandate and budget limitations in explaining its public failures, but Justice Cordy’s opinion suggests that patience for such excuses is wearing thin at the highest levels of the government and judiciary.

Do You Need a DCF Attorney?

Nicole K. Levy of Lynch & Owens represents parents and caregivers who are under investigation by DCF, as well as individuals pursuing a fair hearing appeal of a supported finding of neglect or abuse by DCF.

About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

Schedule a consultation with Jason V. Owens or Nicole K. Levy today at (781) 253-2049 or send him an email

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