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.

NEW REPORT SHOWS DEPARTMENT OF CHILDREN AND FAMILIES IS ILL-EQUIPPED TO HANDLE FAIR HEARING PROCESS

I know I said that I would follow up my most recent blog discussing the insanity defense with an example of how it can be successfully used. However, a recent report was released regarding the Department of Children and Families, which deserves some priority considering the amount of people it affects when compared to the use of the insanity defense. I was contacted yesterday by the Boston Herald to make a brief statement about my history with Fair Hearing Process. In order to stay relevant, I will be going into more depth about Fair Hearings and this new report in today’s blog.

Attorney Goldberg has discussed the Department of Children and Families in previous blogs, but lets recap as to what a Fair Hearing is and the general process one goes through when requesting one.

According to 110 CMR 10.00, “The Fair Hearing Process is designed to enable a client who is dissatisfied with certain actions or inactions by the Department or a provider under contract with the Department to present his or her position in an informal hearing and to receive a just and fair decision from an impartial hearing officer based on the facts and applicable policies, regulations, statutes and/or case law.”

In laymen’s terms, in certain situations, if the Department of Children and Families makes a decision regarding your child/children that you do not approve of, you must go through the Fair Hearing process in order to reverse that decision.

The majority of these “certain actions” are supported findings of abuse or neglect of a child by DCF against the parent or caretaker. Also known as the dreaded “51A.” Once you have a supported finding against you, that finding will follow you around for the rest of your life, unless it is successfully appealed through the Fair Hearing process.

While a supported finding of neglect of abuse does sound as terrible as it is, it is not the same as having a criminal record. The only people/agencies/employers who can see your DCF record (“Department’s Registry of Alleged Perpetrators”) are DCF, law enforcement, employers in the child-caretaking field (i.e. schools, daycare, social work, pediatricians) and judges and attorneys in Probate Court. If you are not involved in the aforementioned areas, a supported finding will have little impact on your life. However, if you happen to find yourself in a custody battle with an ex-spouse, or have invested in a career in the field of education, social services, pediatrics, geriatrics, child-care or simply want to be a chaperone on your child’s field-trip, a supported decision can severely impede those opportunities. Needless to say, the speed in which a Fair Hearing is scheduled, heard and ultimately decided is gravely important to many people.

Unfortunately, a recent report commissioned by the Office of the Child Advocate and the Legislature indicates that the Fair Hearing Unit is inundated with appeals on a daily basis. The report was based on a $200,000 investigation conducted from November 2014 through May 2015 to determine whether DCF’s regulations, funding, staffing levels and processes provide for an administrative hearing system that is timely, independent and fair.

According to the report, on average, parents and caretakers who appeal a DCF caseworker’s decision wait 168 business days from their initial request for a hearing until a decision is rendered. While this may be the average, some cases that are not considered a priority can take much longer. For an example, our office is waiting for a decision on a Fair Hearing that was conducted in the fall of 2013 and we have been informed that the decision will most likely be rendered this September. In DCF’s defense, that specific case is not being considered a priority. Understandably, cases where the outcome of a decision will have a direct impact on the custody of a child are given priority over all others. That being said, the length of time for DCF to render a decision in any type of case is way too long when weighed against the negative effects a supported decision can have.

This does not seem to be the fault of the Fair Hearing Unit, the agency department who presides over the hearings and ultimately renders the decision. According to figures provided by DCF, there are currently 2,614 pending fair hearings, down from 3,429 in 2010. In 2014, there were 1,916 fair hearing requests out of 24,517 substantiated cases of abuse or neglect, the agency said. There simply seems to be too many appeals and not enough staff to handle the requests. The remedy for this backlog rests solely with the administration.

DCF spokeswoman Rhonda Mann, stated, “The administration is working diligently to address the significant backlog of fair hearing requests inherited at the Department of Children and Families, adding another full-time hearing officer just last month to assist with our ability to process existing and new fair hearing cases as they arise.”

Mann also stated “Governor Baker has also proposed an increase in DCF funding to further provide the resources and tools the department needs to protect our most vulnerable children.”

Long story short, there is an issue with the timeliness of the Fair Hearing process and it does not look like it will be rectified soon. This leaves many parents with no other option than to just wait. Right now, the best thing for anybody to do who is requesting a Fair Hearing is to hire experienced counsel. Counsel will make sure a Fair Hearing is requested properly, that all of the records are obtained before the Fair Hearing, and will provide the best representation at the hearing to ensure a proper record is maintained in case a further appeal is necessary (which is a whole other blog topic).

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