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.

Articles Posted in Department of Children and Families

So you are standing there with the letter that came to you from the Department of Children and Families (“DCF”). The letter says that they have investigated reports of your being abusive and neglectful to your young children.

When you got the first letter, the 51A letter, you agreed to meet with the DCF investigator. You figured that you did not need a lawyer. After all, to your best knowledge, you are neither neglectful nor abusive. Nothing could be further from the truth!

You met with the investigator, who struck you as having just graduated from high school, and explained the absurdity of the allegations. She nodded politely and seemed very nice.

Yes, you had an argument with your spouse. Yes, the kids where home. Yes, sometimes you are forced to raise your voice a bit with your children when they get out of control. Who doesn’t?

No hitting. No violence. Certainly nothing like what you grew up with!

How could they find against you?

    Attorney Sam’s take on 51A, 51B and what to do next.

As I mentioned in my last posting, the definitions of words like “abuse” and “neglect” have different meetings in the DCF world. Very often, for example, verbally chastising somebody is considered abuse. Yelling at someone when the children are around, witnessing it, is often found to be neglect.

“Sam… That’s ridiculous! That’s daily life!”

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It’s been a hard week and, admit it, you have not really been at your best. Or, perhaps your significant other has not been at his or her best. Either way, somebody may have done something stupid.

All you know for sure now is that you have received word that the Department of Children and Families (“DCF”) wants to meet with you. Someone said something about receiving a “51a” or something and now DCF is saying they need to see if you have been neglectful.

Neglectful???!”, you say to yourself. “Are they kidding? Look at all the things my kids have. My every thought is about my kids! Believe me, my kids are anything but neglected!”

“I don’t need to get a lawyer for this, do I?”

Attorney Sam’s Take on DCF Investigations And Whether You Need A Lawyer

Unfortunately, the answer tends to be “it depends”. However, I can tell you that in the vast majority of cases, my advice is generally “Yes”.

“But I did not do anything?”

Actually, you don’t know that for sure. You see, DCF, like many government agencies, has its own definitions for all kinds of things…including what is called “neglect”.

“My kids have a roof over their heads. The place is clean.”

Great!

“They have plenty of food. They want for nothing!”

Fantastic!

“We do not believe in corporal punishment. I mean, sure we get angry sometimes, and sometimes may yell…”

Uh-oh.

Here is the problem. Someone has made a report to DCF that your kids may be being neglected or even abused. DCF has screened the report in and begun a “51a Investigation”. Now, they have a fairly short amount of time to size the entire situation up and decide whether they can ignore your home.

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If your children may be taken from you due to false allegations of child abuse or neglect, it is important to know your rights. Unfortunately, false accusations are more common than most people think. This is especially true in dysfunctional family situations, or during parental custody disputes. In addition to being extraordinarily damaging to an individual’s reputation, accusations of child abuse and neglect can result in removal of the child from the family home, and even jail time.

51A Report

When reports of child abuse and neglect are made, the Department of Children and Families’ (DCF) will investigate the situation to determine whether the reports are credible. In MA, anyone can report another person to DCF, whether or not a problem actually exists. These reports of abuse and neglect are called 51A reports, and they are often made by ex-spouses and others who seek some sort of revenge or advantage.

If DCF believes that the report of abuse or neglect is an emergency, the agency may present a judge with the 51A to obtain permission to remove the children from the home without prior notification. In these situations, you may hear about the 51A report for the first time when the police are at your door.

A Fair Hearing is basically your opportunity to tell your side of the story. If the Department of Children and Families’ (DCF) supports a decision of abuse or neglect against you, you may file for a DCF Fair Hearing. In most cases, you will have 30 days in which to file this request. However, if DCF removes a child from your home, that time frame decreases to 10 days.

Seek Legal Counsel

At the fair hearing, you will have an opportunity to address decisions made by DCF. In fact, a fair hearing is the only way to reverse a decision of abuse or neglect. If you believe that DCF’s decision is based on inaccurate or false information – or a misunderstanding – it is critical to act fast, and contact an experienced Boston defense attorney immediately. An attorney can help you obtain the necessary documentation and records, call and subpoena witnesses who can substantiate your claims, and build your overall case.

Following the fair hearing, you will receive a written decision, but this can take several months. If the decision is unfavorable, you have the right to appeal it to the Superior Court. A MA defense lawyer can help you protect your rights if you are dealing with DCF or facing child abuse charges.

Who is Entitled to a DCF Fair Hearing?

In most cases, the person requesting a fair hearing is a parent. However, any of multiple parties may request a DCF fair hearing. These include:

  • a parent
  • a caregiver
  • the child who is the subject of the report

The hearing officer must notify the aggrieved party of the scheduled hearing date within 20 business days of the request, and the hearing must occur within 65 business days of the request. If, however, circumstances deem it necessary, DCF may expedite the hearing date. Reasons for expediting include:

  • removal of a child from the home,
  • reduction or termination of a particular service or services,
  • a denied subsidy, or
  • closure of a case.

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Hello. This is “Attorney Sam”. You may remember me as I regularly wrote this blog.

Now that we are finally thawing out, welcome to 2018. Although it has admittedly been awhile, I am still around, handling criminal cases and, of course, representing parents and teachers against the Department of Children and Families (DCF).

Since we are starting off a new year, I thought that I would do something new. In all my blogs about DCF, I don’t think I have ever written one that is favorable to the department.

The previously stated views remain, unfortunately, but there is one aspect where DCF has surprised me in a positive way.

For those of you unacquainted, when DCF gets a report about abuse or neglect of a child, or what passes for such in some people’s minds, they do an investigation. At the end of that rather short investigation, they make a determination as to whether the allegations are “supported”.

There are various ways in which such a finding can, and will, negatively effect your life. Not just in the short term…years later as well.

There is only one way to challenge such a finding. It is an appeal procedure within DCF culminating in what is known as a “Fair Hearing”.

At a Fair Hearing, the investigator explains why the decision was made to support the allegations. The aggrieved parent (or teacher) has a chance to question the investigator and present his or her own witnesses. What passes for a judge in such hearings are men and women known as “Hearing Officers”. They have their own unit at the Boston headquarters of DCF.

“Who do the Hearing Officers work for, Sam?”

They work for DCF.

“Wait a minute. You’re telling me that it comes down to asking DCF to find that DCF had made a mistake in its finding?”

I know that, particularly if you know DCF, this seems like lunacy. Particularly if they continue to call it a “Fair” Hearing. Frankly, that is how it seemed when I started handling these matters years ago.

The good news is that, contrary to what one might expect, these Hearing Officers actually seem to take their job seriously. I have won many of these hearings and found many of the Officers quite fair.

 

“Is it just one Hearing Officer whom you have somehow won over or are dating?”

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The Department of Children and Families (DCF) protects children and helps troubled families. To do this, the agency investigates reports of child abuse or neglect, and provides services to help families in need. These services can include daycare and counseling, but DCF may also remove children from the home if they think they are in danger. This is a good thing. Unfortunately, however, DCF is comprised of humans, and humans make mistakes. It is not uncommon for kids to be removed from the home due to false accusations or misunderstandings. That being said, it’s important to know – If DCF is investigating your family, what are your rights?

In addition to investigating reports of abuse and neglect, DCF is a licensed child placement agency. As such, the agency can place kids in foster care or arrange for their adoption. If DCF investigates your family, you may be asked to accept services as a condition of your children remaining in the home. If your children are removed from the home, the agency may require you to accept services before getting them back. In addition to daycare and counseling, DCF may also provide (or require) homemaker and parenting skills education services. If the court orders you to complete certain programs or partake of certain services, they will be presented to you in the form of a service plan. It is a good idea to contact a Boston defense attorney before you sign your service plan.

Why Am I Being Investigated?

In MA, any report of abuse or neglect (known as a 51A report) must be investigated. There doesn’t have to be probable cause, beyond the report itself. For this reason, anyone from a jealous ex-spouse to an angry neighbor can make false or exaggerated accusations. And to make things even more frustrating, these reports can be made anonymously. In most cases, emergency reports are investigated within 24 hours and non-emergency reports within 10 days.

Can DCF Take My Kids if I Don’t Know the 51A Has Been Filed?

Depending on the circumstances of your case, DCF can take your children before notifying you.  This is almost exclusively in the event of an emergency situation. In these cases, police may appear at your home with a social worker and an order obtained from the judge to remove your children immediately. If this happens, contact a MA defense attorney right away. You will need to go to court, which sometimes happens immediately after the children have been removed from the home. It is your right to be granted a hearing within 72 hours, at which point the judge will decide if your child will be in danger if he or she remains in the home pending the full hearing. Having a lawyer by your side throughout this process is essential.

What Are My Rights?

Although there’s not much you can do, in the moment, to stop an emergency order to remove children from your home, you do have rights. And any violation of these rights can be used in your favor. When the social worker tells you the details of the allegations against you, he or she must be as specific as possible. If you believe that the accusations were made out of spite, you may wish to tell the social worker. But be careful. As in any interaction with law enforcement and social workers, anything you say can be used against you.

 

  • You have the right to request a copy of the report, as well as the investigative summary.
  • If a social worker notifies you of an investigation, you have the right to have an attorney present during the investigation.
  • You have the right to refuse to speak with the social worker, and you can refuse to let the social worker into your home. However, DCF will likely obtain a court order to enter.
  • It is also your right to have an attorney view any documents before you sign them.

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False accusations occur more frequently than most people think. Especially when it comes to cases involving bitter divorces and child custody battles. Depending on the circumstances of the accusation, however, penalties range from a proverbial slap on the wrist to up to 20 years in prison. The penalties you may be facing for making false criminal accusations are largely dependent on your intent, what you accused someone of, and how you made the accusation.

Accidentally making a false accusation is not a crime. If you report in good faith that someone has committed a crime, you are not likely to face criminal prosecution even if that person did not, in fact, commit a crime. Of course, you may have to convince the court that your accusation was made in good faith. A MA defense lawyer can help if you find yourself in this situation. If, however, you cannot show that you reasonably believed the accusation to be true, you may find yourself criminally and civilly liable.

Was There Intent?

In MA, it is a misdemeanor to knowingly report false information to police. In addition to up to one year in jail, you may also face a civil lawsuit for falsely accusing another person of a crime. False accusations can result in emotional distress and suffering on the part of the person being accused. For these reasons, you could be facing punitive and compensatory damages for making a false accusation. Compensatory damages compensate victims for any losses they suffered due to your actions, while punitive damages are paid as a form of punishment.

When you falsely accuse another person of committing a crime, the legal claims you are most likely to face will be civil claims based on one of the following: malicious prosecution, false imprisonment, or defamation of character.

Accusations of Terrorism

In some cases, false accusations can carry felony charges. If you falsely accuse someone of terrorist activity, or of something serious and immediate enough to require urgent response from police, your punishment will be more severe. “Swatting” occurs when a SWAT team or other urgent response from law enforcement is necessitated. Penalties for this type of false accusation are much higher for two reasons: there is a greater chance that the civil rights of the accused will be violated if an urgent response occurs, and the cost of deploying a SWAT team or similar response is great. As such, false accusations involving terrorism may be punishable by up to 20 years in prison.

Randomly making a false accusation about someone to a friend or acquaintance isn’t likely to result in criminal charges. When you make false accusations to law enforcement, however, you are likely to find yourself in hot water.  A Boston defense attorney can help you determine the best legal strategy if you are facing these charges. Of course, as with all offenses, prior criminal history will factor heavily in the outcome of your case. Continue reading

If the allegations against a certain 28-year-old Boston woman, hereinafter The “Defendant”, are true, she has demonstrated quite an example on what not to do.

According to the Boston Herald, law enforcement says that the Defendant was driving while intoxicated. This, in itself, is against the law and very unwise. But that’s not all.

The police also allege that the Defendant was driving at a very high rate of speed. Certainly, the speed was well over the speed limit. Also not a great idea. Still not all.

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In my last blog, I laid out the facts for a case, which was recently dismissed because we were able to uncover exculpatory evidence from the Department of Children and Families. Our client was charged with Assault and Battery on a minor (his 7 year old step-son). The child made the initial disclosure of the abuse 2 years after the abuse was alleged to have occurred at a time when the Department of Children and Families were already involved. We motioned the court, pursuant to Massachusetts Criminal Procedure Rule 17; to issue a summons to DCF for their records regarding the child at the time abuse was alleged to have occurred.
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A basic rule of criminal procedure is that the Commonwealth must turnover any and all exculpatory evidence (evidence which can lead the fact finder to believe the defendant is innocent) within their possession to the defense. In most cases there is rarely much exculpatory evidence, because if there were, the defendant would probably not have been charged in the first place. A problem arises when there is exculpatory evidence but it is not in the Commonwealth’s possession (even if commonsense says it should be).
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There are some cases where it is best for defense counsel to offer no comments before he receives specifics of allegations against his clients.

These include matters where there are many moving parts and competing interests.

Cases like when one’s liberty is caught between law enforcement and the caught-in-the-public’s-headlights, the Department of Children and Families.

The case of Alexandrea Delyla Chadwick, 22 years of age and hereinafter, the “Defendant” for example.

The Defendant was just in Worcester Superior Court to plead not guilty to charges that she was, at least in part, responsible for the abuse of her boyfriend’s 7-year-old son (hereinafter, the “Son”). Authorities say that the Son was starved and burned.
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