US Constitutional Rights
Lucy came into the office with a huge weight on her shoulders. She had many unanswered questions. Her children had been removed from her home by DCF on a very cold New England night.
Lucy heard the doorbell and answered the front door. Standing out front were four complete strangers. Two DCF social workers, who were accompanied by two armed police officers for “back-up,” identified themselves to Lucy.
Lucy’s four children were quickly taken away after a brief discussion. Lucy said the whole incident “was a blur” and couldn’t remember anything after the workers said they were taking her children. Left behind was a DCF phone number, a parent’s pamphlet, and the sad news that her children were being placed in “foster care.”
Lucy pleaded with the social worker not to take the children. This fell on deaf ears. Lucy next said to place all four children together. The social worker said, “I can’t make any promises.”
The next day after a sleepless night Lucy called the DCF social worker who did the removal and left a message. Lucy next frantically called the social worker’s supervisor. The supervisor told Lucy the children were placed in different foster homes. Lucy was stunned.
Lucy was unaware that her parental right to her children is one of the oldest protected rights by the due process clause of the United States Constitution. The Massachusetts Declaration of Rights similarly recognizes this critical legal right.
Lucy was also unaware that her children have legal rights. Many parents, like Lucy, often overlook or are unaware of their entire family’s legal rights when involved with DCF. Lucy unfortunately learned the hard way that “if you do not know what your legal rights are, you have no legal rights.” Lucy suffered terrible anguish when learning that her rights had been trampled and the protected rights of her children by DCF had been violated.
Lucy inquired into when the state can intervene and take her children. She learned that DCF may take her children when DCF, in its discretion, believes it is necessary to protect the children’s safety and well-being. Lucy could not believe how broad this action can be construed. The state of MA through DCF intervenes daily in large and small ways into families’ lives. Some examples of smaller issues that result in possible DCF removal of children include compulsory schooling requirements not being followed or failure to follow mandatory use of infant car seats.
However, the allegation against Lucy was more serious. Lucy was adamant the child abuse allegation against her was false and she had proof of this. The person making the allegation was a jealous ex. The removal could have and should have been avoided if some fact-checking had been completed by DCF, according to Lucy.
The first step of DCF intervening begins with an allegation of child abuse. Lucy lamented that she had huge regrets that she did not fight DCF from the first false allegation previously made by her ex. The numerous false allegations by her ex kept escalating and led to Lucy’s children being removed. The allegations were that Lucy was abusing prescription drugs, had a substance abuse problem, and the children were regularly left unattended at night.
Lucy explained how she fully cooperated with DCF in the past, as she felt she had “nothing to hide.” Lucy believed that once DCF saw her home, children, and lifestyle that everything would turnout fine.
All DCF decisions of state intervention are supposed to be a balance between Lucy’s right to make parental decisions for her children and the obligation of DCF to protect children. The ex’s previous allegations were never supported against Lucy; however, his newest allegations were of such a serious nature that DCF took no precautions and sought out removal until the allegations could be figured out.
Unfortunately, Lucy’s children are the victims no matter how DCF plays this case. If DCF does not remove the children allegedly being victimized, then they are liable. If they do remove the children and the allegations are indeed false, then the children are also victimized. This fine balance is a difficult discretionary call by DCF. This is not black or white, but a grey area that dominates many DCF cases.
The state law requires DCF to interpret the statutory scheme governing Massachusetts’ child protection system. State law requires the Department to protect children from harm. This harm must be caused by the “absence, inability, inadequacy or destructive behavior” of children’s parents or caretaker. State law also requires that DCF first direct its efforts to strengthen and encourage “family life for the protection and care of children.” DCF must also make efforts to assist and encourage families to use all available resources to care for their children. Lucy quickly responded that “DCF never did this for my children and now they are in different foster homes.”
This strong emphasis on family preservationist can be found in the constitutional requirements, as well as in a presumption that children are best cared for in their own homes. Lucy then asked, “Why were my children removed as this does not add up.” I agreed with Lucy. Children are better raised by their own families rather than removed at night and placed with complete strangers. DCF must make “reasonable efforts” to prevent Lucy’s children being removed from her home. This, Lucy claimed, was “not done by DCF.”
Lucy then asked me, “What happens next with DCF?” I told Lucy that DCF must also must make “reasonable efforts” to reunify the family. I explained that her children removed from their home should now be placed either back with her at the 72-hour hearing or be placed with relatives. I asked her for a list of family members, friends, and neighbors who have no criminal record or DCF involvement and have space for the children. Lucy was told that her children should be placed in a stable home. This is only temporary and NOT permanent. The law requires DCF to reunite the children with Lucy or her family as quickly as possible.
Lucy asked about foster care and its role. I told Lucy that foster care should be short-term and temporary. I further told Lucy that the state intervention proceedings should be expedited. This is because the health and safety of her children is the paramount concern in all decisions. Lucy asked about the total picture when it comes to “health.” Health includes not just physical health, but also the overall long-term well-being of her children.
Lucy admittedly told me that she was still quite confused by the “system” and DCF. I told her she has many others who feel the same way, as it is confusing.
I also told Lucy that the balancing of these multiple, and often conflicting, goals create obvious tensions. I told her when she has a question to not stress out, but rather send me an email or call me. DCF has conflicts on their cases regarding preserving family integrity and protecting children from harm. DCF also must navigate between promoting reunification while ensuring children are placed in stable, safe homes as quickly as possible. This, I told Lucy, is quite the juggling act, which at times fails parents that are not careful.
This balance has shifted back and forth over the years. In 1997, Federal Adoption and Safe Families Act placed greater emphasis on expediting permanency for children. Consequently, parents, like Lucy, are afforded less time to remedy the problems that brought their children into foster care.
Therefore, from the “get-go,” all parents involved with DCF need to get moving fast. DCF makes decisions at about nine months for certain children, depending on the age, to find the “permanent plan.” Do not wait or hesitate. Take prompt action to avoid such a solution as “termination of parental rights” and “adoption” of your children.
Kevin Seaver has been trusted lawyer since 1991. He is a recognized expert, who successfully specializes in fighting the Department of Children and Families (DCF). Attorney Seaver turns DCF negatives into positive throughout the entire Commonwealth of Massachusetts, both in-and-out of court.