Procedural History
Our client (hereinafter Mr. B) was working at a Youth service treatment program as a care provider. He faced a report alleging physical abuse of a child. A mandated reporter filed a 51A report following an altercation between Mr. B and a resident. The report stated that Mr. B physically abused a resident while trying to restrained the resident.
Following a 51B investigation, DCF supported the allegation of physical abuse. Mr. B appealed the Department’s decision in writing. A Fair Hearing was held. The Fair Hearing Officer upheld the Department’s finding of physical abuse. The officer supported the department’s decision after hearing from multiple witnesses at the Fair Hearing. The department’s decision prejudiced Mr. B and violated his due process rights under the United States Constitution.
Mr. Seaver believed the Department supported the decision based on an error of law. The court reversed the Department’s decision upon appeal, highlighting the importance of understanding the DCF appeal process in such cases. This case underscored a lack of thorough and proper investigation that violated Mr. B’s due process rights, pointing to a critical need for awareness about parents’ rights against DCF. Furthermore, the Department did not reach a decision with substantial evidence and did not adhere to its own rules, policies, and regulations.
Issue
Whether Mr. B improperly restrained a combative resident rises to the level of physical abuse.
Rule of Law
DCF defines child abuse as any non-accidental act by a caretaker causing harm, posing risk, or involving sexual offenses. Abuse is not dependent upon location.” [110 CMR 2.00]
Analysis
Mr. B was working at the program for several years prior to this incident. Mr. B has worked in direct care for many years. During his employment at the Program, Mr. B’s evaluations were satisfactory. He had a spotless disciplinary record with treatment of residents. Mr. B earned a promotion to Assistant Supervisor after dedicating a year to the Program. During his extensive tenure as a direct care provider, nobody has ever accused or suspected him of mistreating residents, including abuse or neglect. According to all the residential youths he worked with, they liked him very much.
Another staff member removed the resident’s roommate until the staff could get the resident to calm down. Mr. B and another staff member (hereinafter staff member 1) entered the resident’s room. The resident was extremely agitated and was shouting profanities. Mr. B offered the resident a choice: “timeout room” or calm down in his room, warning of point deductions for disruptions. The program used a point related reward system to encourage resident to act properly.
The Program has a policy that requires at least two staff members to participate when engaging in the physical restraint of a resident. The resident continued swearing and aggressively approached Mr. B. Mr. B took a step backward. Mr. B kept trying to calm the resident down, but the resident continued to approach Mr. B in a threatening manner. This continued for several seconds until, Mr. B determined that safety was compromised. He made the judgment call to initiate physical restraint. Mr. B indicated a restraint when the resident posed a threat, following the Program’s policy
Asthma in Mr. B flared up when he had a confrontation with the resident. Asthma in Mr. B was triggered during the struggle with the resident.)Because he was having difficulty breathing, and the resident was still struggling, Mr. B put his head down on the resident’s shoulder and waited for assistance. Due to the asthma attack, Mr. B was unable to speak or ask for assistance. At this point, the Program Director entered the room. The Director ordered staff member 1 to assist Mr. B in restraining the resident.
The resident’s resistance made it challenging to restrain them effectively. Eventually, another staff member (hereinafter staff member 2) returned to the resident’s room to relieve Mr. B. Staff member 1 and staff member 2 were eventually able to restrain the resident after several minutes. Though the resident suffered some rug burns during the interaction, the resident was not seriously injured. After the incident, Mr. B left the resident’s room and went directly to the staff office. When he arrived, a nurse evaluated Mr. B. She reported that Mr. B could not breathe, was clammy, and sweating from head to toe. The nurse administered a nebulizer treatment, but Mr. B’s vital signs remained abnormal, and he began vomiting about 7-8 times.
When Mr. B’s asthma became uncontrollable, the nurse promptly dialed for an ambulance, and they rushed him to the hospital. The emergency room staff received Mr. B and admitted him for overnight observation before releasing him the following day. The program collected incident reports from all of its staff members shortly after the incident occurred. DCF received a 51A report from a mandated reporter alleging that Mr. B engaged in the physical abuse of a resident. The Program Director was directly involved in filing this 51A report. The Department assigned a Special Investigator to conduct a 51B investigation shortly after; The investigator began interviewing Program staff members.
About a month later, the investigator submitted their findings to the Department. In their conclusion, the investigator confirmed that Mr. B had warned the resident about the possibility of restraint. They also acknowledged that Mr. B had suffered an asthma attack and that they had sent him to the emergency room. The investigator pointed out serious issues with the incident reports written by three principal staff members.
The staff members admitted that their initial incident reports were not factual. The investigator concluded that Mr. B’s attempt to restrain the resident alone was not justified. The investigator stated that ample staff members were present to safely manage the situation. However, in this incident, staff member 1 never attempted to intervene or assist Mr. B. Despite the contradictory reports and findings, the investigator supported the allegation of physical abuse by Mr. B.
The colleague never questioned the Program Director’s involvement in filing the 51A report or inquired about the communication between the incident and the interviews two weeks later. In the initial report, one colleague mentioned threats from the resident and a subsequent restraint, but the Director requested revisions. The revised report alleged that Mr. B threw the resident on the floor, with the colleague claiming to have knelt down to offer assistance, a detail not mentioned initially.
Other colleagues’ reports had similar inconsistencies, notably aligning more closely with the Director’s account in their second reports.The employees and the Director were not present at the Fair Hearing and did not testify. Mr. B was the only witness present at the incident and fair hearing. The Fair Hearing Officer found Mr. B’s explanation less credible than others who observed the incident.
The Fair Hearing Officer fails to acknowledge that the employees changed their stories to align with their boss’s report. The Fair Hearing Officer also discredited Mr. B’s assertion that the asthma attack impaired his ability to properly restrain the resident because Mr. B’s “subsequent behavior was not indicative of such an impairment.” However, on the evening of the incident, the nurse emailed a statement to the Director regarding her treatment of Mr. B. According to the nurse: “Staff had an untoward reaction after a unit restraint. I observed him in a sitting position leaning forward and unable to breathe, was clammy, and sweating head to toe. They have a known history of asthma. They received a nebulizer treatment for asthma. The vital signs were abnormal, and they began vomiting 7-8 times. I followed their direction to contact 911; they were transported to the hospital via ambulance secondary to above emergency.
The nurse’s incident report was presented during the Fair Hearing. However, the Fair Hearing Officer discredited Mr. B’s testimony about the asthma attack affecting his ability to restrain the resident. They relied solely on a colleague’s report mentioning a few minutes of surveillance footage showing Mr. B talking to staff and drinking water after the incident. This video wasn’t submitted as evidence, and the officer never viewed it, basing their decision on the investigator’s analysis.
This disregarded the nurse’s firsthand report and Mr. B’s asthmatic condition description. The Fair Hearing Officer ultimately found Mr. B’s actions “non-accidental” and a “substantial risk of physical injury,” confirming the department’s supported allegation of abuse. When reviewing administrative decisions, the court considers party rights and substantial evidence while respecting agency expertise.
The Fair Hearing Officer completely ignored the incident report from the nurse, who treated Mr. B immediately after the incident. The nurse found that Mr. B’s asthma condition was so severe. She could not treat Mr. B successfully and had to call an ambulance to transport him. Mr. B was eventually admitted and treated overnight at the hospital. Despite the nurse’s report and the medical records confirming Mr.
B’s treatment during the DCF fair hearings process raised significant concerns. Despite the Fair Hearing Officer’s conclusion that Mr. B’s asthma attack did not contribute to his inability to properly restrain the resident, this decision seems to overlook crucial evidence. DCF’s determination was based on an investigator’s brief review of surveillance footage, as described in their report. However, without viewing the surveillance footage themselves, it’s challenging to see how they could dismiss the certified nurse’s firsthand account of Mr. B’s severe asthmatic condition. This scenario underscores the importance of understanding parents rights against DCF, especially when it comes to contesting conclusions drawn from incomplete or potentially misinterpreted evidence.
Conclusion Of Case Study
Case Study Disclaimer
I have edited this case study to remove any possible identifying information. I may have omitted or changed names, dates, and locations to protect client confidentiality. This analysis condenses the Finding of Fact written in the case submitted to the Fair Hearing Officer. The complete Findings of Fact and Rulings of Law extend beyond this analysis. This case study aims to educate the public on successfully fighting and winning a DCF Fair Hearing.
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.
DCF is very corrupt and has their own laws andruins many children and adult lives. In Canto, MA. the judges could not be more corrupt and DCF employees are in Charlie Bakers pocket. You must be Catholick and donating to the correct political party. And related to a Brazillian or drug dealer. Ask judge Menno.