Succeed at Your DCF Fair Hearing
After DCF supports a decision of child abuse and/or neglect against you, the clock is running. You have thirty (30) days to file an appeal. The DCF supported decision will be mailed out in a letter. Remember to keep the envelope. The envelope can be invaluable.
Sometimes the letter may not be sent out in a timely fashion. According to the United States Postal, 4.9 % of the daily mail get damaged, lost or stolen.
Sometimes the DCF supported letter you receive after your thirty (30) days have elapsed. The envelope with the date stamped is your proof that you received the letter late.
When the letter is NOT received at all can be a more challenging task to overcome. I suggest writing for your DCF entire file to DCF. In the DCF file, there should be a letter mailed to you stating your legal rights to appeal the supported decision. If no such letter is in your file, then DCF did not send out such a required letter. The DCF letter may be lost in the mail but how can you prove this?
I strongly suggest writing an affidavit stating that you never received the letter from DCF indicating that there was a supported decision against you. Since you did not get this letter you were not allowed the legal right to appeal such an adverse decision. You should be given an opportunity to a DCF Fair Hearing.
Sometimes DCF will state a different date on the letter than when they sent it out. This honest mistake can again be corrected by holding onto the envelope from which such a supporting letter was mailed in. If the supporting letter gets sent to the wrong address and takes a much longer time to arrive at its intoned receiver. There are also times when DCF has the wrong address and the letter arrives late or at all. You may have moved, and the letter was not forwarded to your new address.
Finally, you may live with the person who filed the 51 A against you. When the letter comes to your home the other spouse did not tell nor give the “supported” letter to you. This was overcome by showing that the spouse lived in a different address than the supported letter was sent to along with a supporting affidavit. It is very important to keep the envelope for your records to show when DCF mailed the notice out.
Your appeal will be heard by an impartial fair hearing officer. In occurrence with 110 CMR 10.03 “No officer shall hear, or involve themselves in any way, in any matter in which they have, or have had any direct or indirect interest, personal involvement or bias.”
Another fertile ground where mistakes are made in a DCF Fair Hearing is the allowable grounds for appeal pursuant to 110 CMR chapter 10.05. This include(a) the Department’s or provider’s decision or procedural action violated applicable statutory or regulatory requirements, including but not limited to 110 CMR, or the Department’s or Provider’s policies or procedures, and resulted in substantial prejudice to the Appellant; or
(b) if there is no applicable statute, policy, regulation or procedure, the Department or Provider failed to act with a reasonable basis or in a reasonable manner which resulted in substantial prejudice to the Appellant;
(c) for a decision to support a report of abuse or neglect, whether based on the record and giving due weight to the clinical judgments of the Department social workers, there is reasonable cause to believe that a child has been abused or neglected; or
(d) for a decision to list a person on the registry of alleged perpetrators, whether based on the record, there is substantial evidence that the person is responsible for the abuse or neglect. Your Hearing shall be scheduled to be held within 90 calendar days from receipt of a request for a Fair hearing.
The Burden of Proof for a fair hearing is much lower than in Juvenile or Probate & Family court. This means that the evidence that would typically fall under hearsay can be used against you. Child victims shall not be required to testify at a fair hearing unless a compelling reason can be shown as to why the child’s testimony is essential. 110 CMR 10.13 The Hearing officer shall render a written decision. The decisions made during the Fair Hearing process will be confidential. Decisions may be cited and used as precedent but only after removal of identifying information. 110 CMR 10.33.
You have the right to an Attorney, and you should get one. When you fail to plan you have planned to fail. It cannot be overemphasized enough how important preparation for you Fair Hearing can affect a successful result.