Procedural History
The father, Mr. B, had a report of neglect filed against him by the Department of Children and Families (hereinafter DCF). He had no prior history with DCF or a criminal record. The police were called after an alleged altercation between the mother and father. The allegations were that the father accidentally touched the mother with an open hand over a phone.
The children did not witness the incident but heard the disagreement. The report was filed six days after the incident. The police and DCF suspected this to be a case of domestic violence that the children may have witnessed. The 51A report was screened in by DCF. The 51B investigation includes interviews with parents and any providers of care for the children.
This can include schools, therapists, and medical providers. During the 51B investigation, the investigator was only in the home once. During this visit, we advised the father to not speak with DCF to protect his fifth amendment rights against self-incrimination. DCF initially supported the allegations, stating that the father “failed to provide children with emotional stability by engaging in domestic violence, which negatively impacts a child’s emotional growth.
The father filed a timely request for a Fair Hearing within the 30 days of receiving a letter stating the allegations were supported. A Fair Hearing is the only place that false allegations of child abuse or neglect can be reversed. To prepare for the Fair Hearing, we procured an expert witness. We also had the father undergo testing regarding the incident. We prepared a Finding of Facts and Rulings of Law to supplement the hearing.
Issue
Did the father “neglect” his children due to the alleged domestic violence incident?
Rule of Law
110 CMR 2.00: Neglect means a 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 inadequate economic 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 out-of-home or in-home setting.)
Analysis
The incident occurred at the family home. Police responded to the incident, and a 51A was filed six days after. Once the 51A report was screened in, a DCF 51B investigation occurred. Noted: Parents’ rights against DCF are an important aspect of any DCF investigation. During the investigation, there was only one home visit occurred. This visit was a full 15 days after the 51B investigation had been opened, which was outside the three working days a visit must be done after a report has been screened in. At this visit, it was revealed that the maternal grandmother who was present, did not speak English. The DCF investigator failed to gain first hand knowledge from the maternal grandmother who was present on the night of the incident.
The allegations of neglect were supported after a minimal investigation, including the single home visit. The supported decision was based on the findings that the father had failed to provide the children with emotional stability. This was based upon the alleged domestic violence incident. By engaging in domestic violence, which negatively impacts the child’s emotional growth. There was no family history with DCF. This alleged domestic violence was isolated event. Upon receiving the letter from DCF, we filed, on behalf of the father, for a Fair Hearing.
To prepare for this hearing, we filed several documents, including a definition of domestic violence as follows: “A pattern of coercive and controlling behaviors and tactics used by one person over another to gain power and control. This may include verbal abuse, financial abuse, emotional, sexual, and physical abuse.” The mother is employed outside the home with access to her vehicle, personal bank account, and access to a joint bank account. The mother’s lifestyle is inconsistent with the definition of domestic violence. In addition, the father has never emotionally, physically, or sexually abused the mother. They described the incident as “accidental and unintentional,” and the mother stated that she was not injured.
The father underwent expert testing. The father’s expert witness was qualified in both probate and family courts, as well as being an expert in various juvenile courts throughout the state. In the expert’s independent investigation, they interviewed the child’s pediatrician and reviewed their medical records. The expert witness spoke to the maternal grandmother, both paternal grandparents, and three early intervention workers. The expert concluded that DCF had failed to conduct a thorough investigation and that they premeditated the support decision. In the expert’s opinion, they believed that the supported decision should be unsupported.
Conclusion
According to the department, neglect was present because the children had witness the alleged domestic violence. It is important to note that the 51A wasn’t filed until six days after the incident, and a home visit wasn’t conducted until 15 days after the 51A report was screened in. The DCF investigator had failed to interview critical parties and follow procedures. This was a case of alleged domestic violence and the investigator failed to corroborate this alleged domestic violence had negatively impacted the minor children.
The incident itself did not meet the definition of domestic violence as it was “accidental and unintentional.” Also, this was an isolated incident since there is no history with police or DCF. The allegations of neglect were unsupported by the DCF Fair Hearing Officer, based upon all the documentary and expert witness testimony evidence. The Fair Hearing Officer did not find any domestic violence in this case. Therefore, there was no neglect of the children due to this alleged incident.
Case Study Disclaimer
I have edited the case study to remove any possible identifying information. I do this to protect client confidentiality. The analysis is taken straight from the Finding of Fact that is written on the case, but certain parts have been excluded again to protect client confidentiality. I do not limit the complete Finding of Fact and Rulings of Law to the following “Analysis.”parents rights against DCF
Kevin Seaver is an experienced, trusted lawyer who successfully represents clients against DCF from Boston, Massachusetts. Call Kevin at (617) 263-2633 or request a Consultation online!
DISCLAIMER
You find yourself in this situation, it’s advisable to seek legal representation from a qualified attorney, like those at the Law Office of Kevin Seaver, who can advocate for your rights and guide you through the complex process of a DCF investigation.
Remember that the ultimate goal of DCF is to ensure the safety and well-being of children while supporting families in crisis.
Please note that this article does not create an Attorney-Client relationship between our law firm and the reader and is provided for informational purposes only. Information in this article does not apply to all readers.
Readers should not rely on this information as legal advice and should seek specific counsel from the attorney based on personal circumstances. Thank you.
Kevin Patrick Seaver is a Massachusetts DCF Defense Lawyer who represents parents against false child abuse allegations.
Massachusetts DCF Defense Lawyer Kevin Seaver has been successfully fighting false child abuse allegations since 1991.