Our Massachusetts DCF Lawyers Help Parents during Hard Times
Serving a client in DCF Investigations for Neglect or Abuse
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Attorney Nicole K. Levy provides Lynch & Owens clients with a unique range of services in connection with Massachusetts Department of Children and Families (DCF) investigations for child abuse or neglect. Attorney Levy is a leader in the field of DCF representation in Massachusetts, having written extensively about DCF investigations, including her groundbreaking blog, “The Crucial First Steps of a DCF ‘51A Investigation’ for Child Abuse or Neglect in MA”, as well as blogs on the DCF family assessment process, DCF fair hearings and findings of substantiated concern.
When a parent or caregiver is investigated by DCF for neglect or abuse of a child, early intervention is often crucial. Following a DCF report of neglect or abuse made pursuant to G . L. c. § 51A there are often multiple opportunities early in the investigation process for the agency to “screen out” the allegations of neglect or abuse, or to enter an “unsupported” finding of neglect or abuse against the caregiver following an investigation. For cases in which an “unsupported” finding by DCF is not realistic, a skilled attorney can mitigate the exposure experienced by a client, thereby avoiding some of the severe consequences that can accompany DCF’s continued involvement with the client and his or her family.
Our Family Law Offices of Lynch & Owens Give 100% DCF Representation
We provide services to clients before, during and after DCF investigations for child neglect and abuse. We do not currently represent clients in Care and Protection proceedings in the Juvenile Court, although our staff is happy to provide a referral if you are seeking an attorney in your Juvenile Court case when available. DCF supervisors, investigators and social workers know our work and respect our position in the field.
Our DCF services focus include the following forms of representation:
- Consulting Services During a DCF Investigation for Child Neglect or Abuse – The first days of a DCF investigation are often critically important. Lynch & Owens advises clients on interacting with DCF during this period, particularly the response worker, including home visits, interviews with children and family members, and risk mitigation. During an investigation, Attorney Levy will travel to the client’s home and be present during the DCF investigator/social worker interviews. In addition, the attorney will speak and correspond directly with DCF investigators and supervisors in writing and by phone, taking affirmative steps to address DCF’s concerns in a manner that reduces the likelihood of a supported finding of neglect or abuse and/or substantiated concern.
- Consulting Services During a Family Assessment – Should DCF enter a supported findings of neglect or abuse, or a finding of substantiated concern, a DCF social worker is typically assigned to a family to perform a family assessment. We advise clients undergoing a family assessment with a focus on mitigating and minimizing harm to the client’s interest and family. Services included the attorney’s presence in the home for DCF visits and interviews, as well as direct contact between the attorney and DCF social workers and supervisors to mitigate concerns and reduce client exposure.
- Fair Hearing Appeals of Supported Findings of Neglect or Abuse – We represent clients in “Fair Hearing” appeals should DCF enter a supported finding of neglect or abuse, including preparation and direct representation of the client before and during the Fair Hearing itself.
- Filing Grievances, including those for Substantiated Concern Findings – We represent clients seeking to appeal a DCF finding of “substantiated concern” through the grievance process.
- As-Needed DCF Consulting – We advise clients who are subject to DCF service plans or otherwise engaged in long-term interactions with DCF with a goal of guiding the client through the DCF engagement to a positive resolution.
The Stages of the DCF Investigation Process
A typical DCF investigation of allegations of neglect or abuse against a parent or caregiver includes the following four stages:
1. The Intake Call – DCF receives a call or written communication from an individual or from a mandated reporter that describes a possible incident of child neglect or abuse. Before proceeding to the next step, DCF intake personnel determine whether the alleged neglect or abuse involved a parent or caregiver, where other forms of abuse – such as child-on-child bullying – falls outside of DCF’s scope. Intake staff also determine whether the conduct described by the reporter, if true, would rise to the level of abuse or neglect, where questions are often raised about spanking and parental discipline vs. child abuse.
2. The Investigation – If intake personnel determine the incident may be neglect or abuse, DCF screens in the allegation and commences is what is commonly known as a “51A investigation”, the name being a reference to the Massachusetts statute under which DCF begins investigations, G . L. c. § 51A, although it is actually § 51B that authorizes such an investigation to proceed past the earliest stages (In terms of terminology, a “51A report” generally refers to the initial report of neglect or abuse. The statute under which DCF actually conducts the majority of its investigation MGLC 119 § 51B.). This is usually the earliest stage of a DCF investigation that an attorney can intervene on behalf of a parent or caregiver being investigated for neglect or abuse.
The screening process under 51A involves two parts. First, DCF must determine within five days of a report whether an emergency exists involving any children. If DCF determines that an emergency exists in the first five days, the agency may seek an order from the Juvenile Court for emergency custody of the children, to remove them from a dangerous situation. DCF generally only takes this extreme step in cases where children face an immediate and serious danger.
If DCF determines that no emergency exists, the agency proceeds with a slower investigation to determine whether the report of neglect or abuse should be supported, unsupported or a source of substantiated concern. .
The timeframe for the investigations are set out in 110 CRM 4.31, which provides:
The investigation of all “non-emergency reports” shall commence within two working days of initial contact and shall be completed within 15 working days following the receipt of the report by the Department.
At the conclusion of the investigation, DCF must prepare a report that includes summaries of all calls, interviews and documents reviewed by the investigation team. Although DCF rules call for the investigation to be completed within 15 days, it is not uncommon for the agency to complete some investigations in less than a week.
In most cases, the goal for caregivers under investigation, and their attorney, is to have the report unsupported at the 51A stage, thereby minimizing DCF’s involvement with the family. If a investigation lasts substantially longer than 15 days, a caregiver’s attorney often engages in a careful and respectful dialogue with DCF, as the attorney seeks to guide the investigation towards a positive outcome while acknowledging the strained resources and difficult mission that DCF investigators face. (It is important to recognize that Massachusetts has the highest rates of neglect of abuse in the United States, and DCF resources are often stretched thin and chronically underfunded.)
3. Investigation Outcomes. After the 51A/51B investigation is complete, there are three possible outcomes:
a. An unsupported finding of neglect or abuse. This means that DCF determined that no neglect or abuse occurred.
b. A supported finding of neglect or abuse. This means that DCF determined that neglect or abuse by a caregiver occurred, and a “family assessment” and further DCF involvement will frequently follow.
c. A finding of “substantiated concern”, where DCF falls short of finding that neglect or abuse by a caregiver occurred, but the agency remains concerned about caregiver conduct. (Another variation is when DCF enters an “unsupported with concern” finding.)
In order to enter a supported finding of neglect or abuse against a caregiver, DCF is required to follow a series of specific steps during its investigation, including interviewing all parents, guardians and caregivers, as well as third-party “collaterals” who can provide DCF with additional information about the children and caregivers. DCF’s formal findings are included in what is known as a 51B report. Caregivers who have been investigated by DCF have the right to request a copy of the 51B report from DCF; however, such copies often include heavy redaction, where individuals who report alleged neglect or abuse are granted anonymity.
4. The Family Assessment – After DCF enters a supported finding of neglect or abuse, or a finding of “substantiated concern”, the Department generally conducts a “family assessment”, which includes additional home visits by a DCF social worker. Parents and caregivers subject to a family assessment must balance the risks and benefits of providing DCF with access to their homes and families while avoiding complications and problematic outcomes.
5. The Service Plan – During or after the family assessment, DCF will frequently ask parents and caregivers to sign a “Service Plan” or “Family Action Plan” in which the individual or individuals agrees to be subject to certain goals and service outcomes, including parenting classes, substance abuse treatment, and other obligations and restrictions. Parents and caregivers often face challenging decisions when presented with a Service Plan in which an individual must balance the risks and benefits of complying with DCF’s request with the risks and obligations embodied in the terms of the Service Plan.
6. Fair Hearing and Grievance Appeals – Parents and caregivers who are subject to a supported finding of neglect or abuse may appeal the decision through the Fair Hearing process, which blends elements of a traditional court hearing with a formal informal administrative process. Parents and caregivers subject to a finding of “substantiated concern” may appeal the decision through the DCF grievance process, a relatively new and poorly understood process. Parents and caregivers appealing DCF decisions are often required to continue meeting and interacting with DCF investigators and social workers, most often during the family assessment phase, while their appeal is pending.
Attorney Nicole K. Levy’s Services During the DCF 51A/51B Investigation Process
Nicole K. Levy provides clients under investigation by DCF with a unique series of services that are intended to reduce negative outcomes in 51A and 51B investigations. These services often include a mix of consultation and direct representation including:
- Attending home visits by DCF investigators
- Advising the client on interviews of the client, child and/or collaterals
- Direct representation of clients during interviews with investigators
- Advocating directly with DCF on the client’s behalf
- Preserving the client’s right to a fair hearing by asserting the client’s rights and seeking DCF’s adherence to rules and procedures during the investigation
Many Massachusetts attorneys who represent clients in DCF cases have a background in criminal law. Attorney Levy’s background in family law has a resulted in a productive working relationship with DCF offices across many areas in Massachusetts that is built on mutual respect. DCF investigators have broad administrative authority to enter supported findings of neglect or abuse against Massachusetts caregivers. Attorney Levy’s knowledge of DCF procedures and reputation with DCF staff enables her to achieve client goals while avoiding some of the pitfalls that attorneys who take a purely confrontational approach to DCF often encounter.
In most cases, Attorney Levy’s goal is to obtain an “unsupported” finding of neglect or abuse, or, if such a finding is not achievable, obtaining a “substantiated concern” finding instead of a “supported finding” of neglect or abuse. Attorney Levy also represents clients after a “supported” finding of neglect or abuse, generally with a focus of limiting the post-investigation involvement of DCF in the client’s life and limiting the duration and severity of DCF’s intervention in the family. Mitigating of the negative impacts of a supported finding of neglect or abuse may include:
- Engaging DCF to avoid DCF referrals to law enforcement for criminal charges of neglect or abuse
- Engaging DCF for services the caregiver may participate in to limit the duration of DCF involvement with the family
- Avoiding care and custody proceedings in which DCF seeks emergency custody of children
- Limiting negative impacts on a client’s parental rights, reputation and professional career
The Effects of a Supported Finding of Neglect or Abuse
A supported finding of neglect or abuse against a caregiver can be a serious matter, particularly for individuals who work with children. For caregivers subject to a supported findings of neglect or abuse, the caregiver’s name will be entered into a state database, which is subject to background checks for individuals who work with children:
EEC's current BRC process requires the completion of a Massachusetts Criminal Offense Record Information ("CORI") check through the Department of Criminal Justice Information Services ("DCJIS"); a Department of Children and Families ("DCF") check of supported findings of abuse or neglect with DCF; a Sex Offender Registry Information ("SORI") check for level 2 and level 3 sex offenders registered with the Sex Offender Registry Board ("SORB"); and a state and national fingerprint-based criminal information ("fingerprint") check, which includes Massachusetts and out of state criminal information reflected on a fingerprint.
(It is important to note that as of 2018, the names of caregivers who are subject to findings of “substantiated concern” or “unsupported with concern” are generally not added the DCF database for state and local background checks. Where DCF is an administrative agency, however, changes in its reporting policies can sometimes change with minimal outside scrutiny. How DCF will report findings in the future is a significant unknown.)
In addition to professional licensing concerns, individuals who have been added to the state database can be subject to search by law enforcement and other state and local agencies and/or individuals who have access to the DCF database. A supported finding of neglect or abuse against a parent can prevent the parent from participating in some of their children’s school activities and can have a serious impact on a child custody case involving the affected children. For example, Probate and Family Court judges have the authority to order the release and review DCF records in child custody proceedings.
In addition to the known consequences that a supported finding of neglect or abuse may have on parents or caregivers, one must also consider how such findings might be treated under the law in the future. High profile cases involving the neglect or abuse of children – particularly those involving DCF – often make headlines, and it is extremely difficult to predict whether Massachusetts and other states will expand background checks and access to DCF databases in response to future high profile incidents. State agencies often respond to crises involving individual children by increasing background checks and subjecting individuals against whom a supported finding of neglect or abuse to new scrutiny, sometimes many years after DCF made its finding.
When tragedy strikes children, the pattern is clear: law enforcement, schools, government agencies and employers all face questions about the incident could have been prevented. If and when the perpetrator of a crime against children is found to have been part of the DCF database, the media and public cry out for ever more access to the database. After all, wouldn’t you want to know if your neighbor or the parents of your child’s friend was once subject to a supported finding of neglect or abuse?
In addition to the impacts described above, individuals against whom a supported finding of neglect or abuse enters must always be wary of criminal prosecution under the state’s many child abuse and neglect laws. DCF investigators have discretion to refer supported findings of neglect or abuse to county district attorneys for prosecution. In cases where evidence of abuse or neglect is clear, the primary goal of caregivers under investigation, and their attorneys, may be to avoid a referral from DCF to prosecutors by engaging DCF directly about services the caregiver may participate in to convince DCF that a criminal referral is not necessary.
How Do You Fight DCF in Massachusetts?
Lynch & Owens also represents clients in fair hearing appeals of DCF findings of neglect or abuse.
Following the entry of a supported finding of neglect, a caregiver may appeal DCF’s finding by requesting what is known as a Fair Hearing. An attorney’s representation of a client in a fair hearing is similar to representation in a formal court proceeding. However, succeeding in a fair often turns on the attorney’s knowledge of the complex web of administrative rules that DCF operates under Code of Massachusetts Regulations Title 110, as well as the state’s statutory scheme. (Although caregivers subject to a finding of substantiated concern do not have a clear right to an appeal through the fair hearing process, there may be mechanisms for obtaining a review of the finding through a separate grievance process.)
Although the rules of evidence are relaxed in fair hearings, the process includes many familiar concepts taken from traditional litigation, including the opportunity to seek discovery, cross-examine witnesses (including DCF staff and interview subjects), and presenting evidence on the client’s behalf.
Retainers and Legal Fees for DCF Representation
In general, we require Clients seeking representation during a DCF investigation to provide a retainer of $6,000. Depending on the stage of the investigation and scope of representation, DCF consulting services may be available for a reduced retainer on a case-by-case basis.
Our minimum retainer for representation in a DCF fair hearing appeal is typically $7,500.
DCF representation services are generally billed at our attorney’s standard hourly rate, with retainers subject to replenishment by the client when his or her client fund account becomes depleted.
Massachusetts DCF Lawyers in Hingham and on Cape Cod
Are you seeking representation for a DCF investigation for neglect or abuse, or for a fair hearing appeal of a DCF finding of neglect or abuse? Our Massachusetts DCF attorneys are here to help.
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