ISSUE
Whether the DCF can support their claim that the substantiated concerns of Child 1 under the care and custody of Mrs. A and Mr. B support the claim that there is substantial risk of harm to Child 2 while in the care and custody of Mrs. A and Mr. B. Whether the Department of Children and Families (hereinafter, “DCF”) can support an allegation of “neglect” against Mrs. A and Mr. B.
RULE OF LAW
110 CMR 2.00 states that “neglect means 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).”DCF investigation process.
ANALYSIS
The alleged incident between Mrs. A (hereinafter Mrs. A), Mr. B (hereinafter Mr. B) and Child 1 (hereinafter Child 1) which led Department of Children and Families to support an allegation of “neglect” against Mrs. A and Mr. B. Child 1 was dropped off by his mother, Ms. C (hereinafter Ms. C) at approximately 7 pm in the evening and picked up by Ms. C the next morning. Child 1 was accidentally injured while being babysat by Mrs. A in her home. There was a 51A filed against Mrs. A and Mr. B as the caretakers of Child 1 after they babysat them. DCF supported this report for “Substantial Concerns” that Child 1 was injured under the custody of Mrs. A and Mr. B.
Mrs. A is a stay at home mom, who previously worked in Early Childhood Education, has no prior DCF history, no mental health diagnosis, is not on any medications, is not in therapy, and was never required to have a postpartum appointment. Her husband, Mr. B, has no prior DCF history, has never had any mental health diagnosis, is not on any medications, and works as a Police Officer. Ms. C has trusted Mrs. A to watch the child at least six times in the past.
Child 1’s mother, Ms. C, told the DCF that she has known Mrs. A for many years and did not think that she would ever intentionally harm Child 1. Ms. C states that Child 1 is young and has rolled of the couch before. It has been noted by Ms. C that Child 1 is a “wiggler,” and has fallen off the couch before and that because of their previous behavior she believes that it was an accident.
Child 1 was taken to the Emergency Department (hereinafter ED) by Ms. C. following the incident. Child 1 was evaluated by Dr. 1, a Suspected Child Abuse and Neglect (SCAN) doctor. Dr. 1 did an oral consultation with the ED. The laboratory evaluation came back as unremarkable for any bleeding disorders of abdominal trauma, and Child 1 was discharged from the Children’s Hospital ED. Child 1 was then seen by his Primary Care Physician (PCP) for a follow up appointment later in the month and was healing well; Child 1’s second set of skeletal x-rays were negative. The SCAN doctor, Dr. 1, did not physically see Child 1 until a month later. During this visit, Dr. 1 stated that Child 1’s injuries were “inflicted.” He also told DCF that one cannot date a bruise. Child 1 was in Ms. C’s care, possession, and control from the afternoon to the present, during which Child 1 has been seen by the ED, his PCP, and the SCAN doctor, Dr. 1.
The Department filed for emergency custody of Child 2 before speaking to Dr. 1, then removed Child 2 from the home, and Child 2 spent one night with a foster home family. Custody was returned to the parents, Mrs. A and Mr. B, by the judge filing in the Juvenile Court.
The 51B Report, was supported for neglect of the minor child, Child 2, against Mrs. A and Mr. B. Child 2 was seen consistently since his birth at least 32 times, by at least seven doctors as well as other associated nurses and medical personnel who are all mandated reporters. There have never been any concerns filed.
The Department’s Response Worker (hereafter RW) and Ongoing Social Worker, SW (hereinafter SW) visited the home of Mrs. A and Mr. B and observed that Child 2 was clean and free from any visible injuries.RW and SW also took a tour of the home, viewing the parents’ room and the minor child, Child 2’s separate bedroom with a crib. They also observed the kitchen which was clean with observable amounts of food as well as the living room and play area, which were both clean with no observable hazards. RW and SW also viewed Child 2 this same day upon removing Child 2 from the home. RW and SW viewed Mrs. A changing Child 2’s’ diaper, noting that no marks were seen.
While the DCF filed for Emergency Custody of Child 2, they did not finish the 51B Investigation until almost a full month later. The Department states one of their “concerns” to be that Child 2 was in the home at the time of the incident, and would have been a witness to the incident where Child 1 received the alleged inflicted injuries, however RW and SW observed Child 2’s separate bedroom and crib, in which he was asleep at the time of the incident.
DCF also spoke with the paternal grandmother of Child 2, who stated she has no concerns as to Mrs. A and Mr. B’s parenting, describing them as great parents who would never harm a child. The grandmother also explained that she last saw the child, Child 2, on his birthday and he was free from injuries and happy.
According to the DCF Case Dictation Report, SW and RW visited the home. During the visit, they observed that Child 2, Mrs. A and Mr. B being clean, appropriately dressed, and free of any visible marks or bruises and the home as being clean. But they nevertheless came to the conclusion that due to the information gathered by …, they reported that Mrs. A and Mr. B were not suit to care for any children due to the incident that had happened a couple weeks ago and consequently, removed Child 2 from the home. Clearly, the incentive for this home-visit was to remove Child 2, but the grounds for which they removed him from the home are not sound. Child 2 was returned to the home the next day.
The assessment of existing safety regarding the incident stated that the family does not have any prior DCF history, that the child is up to date medically, and that the family was cooperative during the investigation. The assessment also noted that there are no major concerns reported and that Child 2 has adequate food, shelter, clothing, and education. Child 2 appeared to be happy and healthy as observed in the assessment.
DCF filed for emergency custody of Child 2 which was reversed by the judge and continued to file for emergency custody of Child 2. DCF claims that based upon Child 1’s injuries, Child 2 is at substantial risk of harm being in the custody of his parents Mrs. A and Mr. B and that he was in the home when the incident occurred resulting in Child 2’s seeing the incident. The first 51A was filed and was supported for “substantial concern.” Child 2 remained in Mrs. A and Mr. B’s care until emergency custody was filed by the Department, if the Department had “concerns” that Child 2 was neglected in their care why did the Department wait 18 days for this removal?
The SCAN medical doctor, Dr. 1, has never seen Mrs. A or Mr. B in the caretaking role with neither Child 1 nor Child 2. Dr. 1 has never met Mrs. A or Mr. B, never been to their home, never spoken to Child 2’s pediatrician’s office or any other medical personnel who has been involved with Child 2.
The DCF failed to meet its burden to go from substantiated concerns of Child 1, who was accidentally injured in the care and custody of Mrs. A and/or Mr. B, to then claim there was substantial risk of harm to Child 2 while in the care and custody of Mrs. A and Mr. B. The Department still filed for custody of Child 2.
Expert 1 completed a voluntary examination of both Mrs. A and Mr. B. Expert 1 has been performing these particular Examinations continuously since 1983 and has previously been deemed an expert and testified for the DCF at the Juvenile Court. Expert 1 concluded that Child 1 was hurt unintentionally and that Child 2 is not at risk in the home.
SW conducted a home visit and present at the home visit were several members of the family as well as Mrs. A’s and Mr. B’s lawyers. SW reported that there would be a family assessment and that she will provide release of information forms to Mrs. A to sign so that the SW can follow up with collaterals. There was a home visit to Mr. B, at which Mrs. A was present, interacting with Child 2. The SW observed that Mrs. A was being very attentive with Child 2.
The Social Worker advised Mrs. A and Mr. B via a Family Action Plan. Mrs. A and Mr. B were each advised to provide appropriate supervision for Child 2 and other children if (s)he’s in a caregiving role. They were also advised to continue keeping Child 2 medically up to date and to follow any recommendations by health care professionals if needed.
An Independent Court Investigation was submitted by the Court Investigator. The court report stated that Child 2 is up-to-date with his well-child checkups and immunizations and that his current and former pediatricians have no concerns about the care Child 2 was receiving from his parents. The report also states that the family has a support network made up of friends and family members. The court investigator concluded that Child 2 is well cared for and not at risk in the care of his parents.
CONCLUSION
Since the alleged incident between Mrs. A, Mr. B, and Child 1 and the subsequent fight against DCF 51A filed against Mrs. A and Mr. B as the caretakers of Child 1, Mrs. A and Mr. B have taken all necessary measures to be fit caregivers. Child 2 is medically up to date and his pediatricians do not express concern regarding the care he receives from his parents. Child 2 is appropriately dressed and lives in a clean home. The family has a strong support system of friends and family. For these reasons, the Court Report conducted by the Independent Court Investigator recommended dismissing the matter since Child 2 is well cared for by his parents. We kindly requested that the Fair Hearing Officer reverse and overturn the neglect allegation against Mrs. A.
CASE STUDY DISCLAIMER
The above case study has been edited to remove any possible identifying information. This is done 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. The complete Finding of Fact and Rulings of Law is not limited to the following “Analysis.”
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.