Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

HOW MASSACHUSETTS DCF INVESTIGATIONS CAN DESTROY YOUR FAMILY

We began this discussion about the Massachusetts Department of Children and Families (“DCF”) focussing on its abysmal handling of the Oliver family. This is the matter in which 5-year-old Jeremiah Oliver, under DCF’s watch, vanished long before DCF even had a spark of recognition that something was wrong despite the fact it was allegedly watching.

We will return to how DCF seems to have responded under the resulting scrutiny next blog. Today, however, let’s look at the other side of the coin

Most of my DCF cases have involved the initial stages of DCF involvement into clients’ lives. At this point, the situation is much different than what had happened in the Oliver matter. Similar to that tragedy, it is best to discard whatever you call “reasonable” even at the onset.

Attorney Sam’s Take On A Parent’s Nightmare Of Dcf


Peter and Pauline Parent, a couple who live in downtown Fantasyville, have been married for 8 years. They have a child, Penny, who is 6 years old. She enjoys a very vivid fantasy life and speaks fluent hyperbole.

Like most kids.

One fine day, she appears at after-school care. She seems to be sad and a teacher asks her what is wrong. She explains that, soon, mommy is coming to pick her up and bring her home. When asked why she is worried, she explains how mommy and she got into an argument on the way to school. Pressed further, Penny says that she was really angry with mommy because mommy had been “mean” to daddy and, as she left the car, she told mommy, ” You should just shut up! You are just a mean old bitch and nobody likes you!”.

Penny is embarrassed of course, knowing that she should not have said that to mommy. The teacher, showing surprise, asks if she is afraid she is going to be punished. Penny says, “yes, I am afraid she is going to kill me “.

When the teacher says she doubts that, Penny exclaims, “Yes she will! She’s going to take an axe and chop my head off! Last week, she she smashed me in the head with a hammer! Ten times!”

This ends the conversation with the teacher faced with a problem. Does she believe that the abuse Penny told her about took place. Surely, she noticed no sign of trauma, bruises or wounds. She also knows that Penny has an on-again off-again relationship with the truth sometimes. On the other hand, as a teacher, she is a mandated reporter.

Being a mandated reporter means that she must report allegations of abuse against a child. Therefore, figuring that DCF is the expert in such matters, she calls the department to make the report that was just told to her. She tells nobody else.

One of two scenarios is likely to happen.

SCENARIO ONE

The Parents will receive a written notice that a “51a investigation” has begun by DCF. Likely, a DCF investigator has already interviewed the teacher who is now basically a confidential informant, or unnamed reporte as well as little Penny. That’s right, the investigator conducted interviews without notice to the Parents. In fact, the Parents will not be told who the reporter is.

In this scenario, the Parents are lucky…they still retain custody of their daughter…for now.

DCF will now conduct an investigation into the Parent family. This will include another conversation with Penny as well as, potentially, conversations with the parents themselves. Sometimes the investigation will go a bit further before the inevitable decision is reached.

The conductors of the investigation are generally, inexperienced people, perhaps just out of school. In any event, none of the interviews will be recorded. In fact, if somebody insists that these interviews are audio recorded or video recorded, DCF will refuse to do the interview and act “accordingly”.

Instead, DCF will rely on the investigator’s notes, whenever they get written up into a report. I have not found a fully accurate one yet, by the way.

In case you were not aware, whacking the child on the head with a hammer, or any such behavior, is illegal. It is assault and battery at the very least. Since there is now an investigation which includes DCF as well as law-enforcement, clearly Mrs. Parent has a Fifth Amendment right not to make any statements. Again, DCF is not the police department. They do not have to honor that Fifth Amendment right. They can’t force her to make statements, but, again, they can act “accordingly”.

It really does not matter, because so long as Penny repeats her story, or says something remotely like it, the allegation is going to be found “supported”. This means a variety of things which include the insertion of a DCF caseworker into the family. The caseworker will want signed waivers so that each aspect of the Parent’s life can be examined – any right to privacy becomes history. The caseworker will come up with a “plan” with demands of what the Parent parents must do next in order to retain custody of their child. Do not kid yourself into thinking any experts will be involved in the making of these demands. It will be the DCF caseworker’s decision.

The parents will be notified, however, that they have a right to appeal the finding of support. However, that will come at something called a “fair hearing” which is presided over by…you guessed it…DCF itself. Of course, that hearing will not come for a number of months and, as in the original investigation, Mrs. Parent must choose whether or not she will waive the Fifth Amendment privilege or give the testimony in her own defense. The child will not be at the hearing. The child’s statements have already been taken. Therefore, out of the only two witnesses to the alleged hammer incident only the child will be heard.

Criminal charges may or may not have come by this time. If they have, the prosecutors are in luck. Again, DCF can do things that the police cannot do. The District Attorney’s Office can take advantage of that it’s gathering of information.

SCENARIO TWO

On her way to pick up her daughter, Pauline receives a call that she should not come to the school but should expect a telephone call from DCF. She is told nothing more.

Shortly, Pauline and Peter are told that, due to allegations made against them, DCF has taken their daughter into custody and that they will be receiving paperwork advising her about their right to a “72-hour hearing” to determine whether the court will allow DCF to keep Penny in DCF custody for the time being.

The hearing may or may not occur in 72 hours. In fact, the Parents may not even know the specifics of the allegations against them until the day before the hearing is scheduled to take place.

Meanwhile, Penny stays away from her parents wondering why she cannot go home.

When the hearing does take place, Penny will not be heard from. It will simply be the attorney from DCF and newly appointed appointed attorneys for the child, mother and father. The court will give great wait to the allegations of the child, and therefore DCF’s discretion.

By the way, I will remind you that there were no marks or any physical evidence of pennies being bashed on the head with a hammer. However, DCF’s argument that children do not lie about such things will most likely carry the day.

In either scenario the parents would be most unwise not to retain an experienced attorney as soon as possible. Particularly since there will likely be criminal charges, or the need to avoid them, a criminal defense attorney is the likely candidate if that attorney has experiences with DCF Matters.

Needless to say, once the child is removed from the parents, life is likely not going to be the same again. The next step, after the “72 hour “hearing, If DCF is unsatisfied with the parents, is to try to dissolve their parental rights.

If DCF has gone with the first scenario, there is already a mark of “supported” on the record of The parents. Regardless of when and how the matter and, this mark will remain to effect attempts to get certain kinds of employment and abilities to attend certain functions with their child.

This is the other side of the nightmare that is DCF. We have already seen, given the Oliver family debacle how inefficient, poorly supervised and inexperienced these workers can be. Yet, these workers, often with their equally able supervisors, make these decisions every day that can tear families apart. The reality that children do sometimes lie is seldom acknowledged. I have even dealt with a DCF investigator who claimed that he was so gifted that a child had never successfully lied to him. Such a person, of course, is either simply a fool or so arrogant that he has no place in such matters. However, such are the people in control of these issues.

We will finish this topic, at least for now, in my next blog.

In the meantime, have a great, safe and law-abiding weekend!

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