DCF Attorney Nicole K. Levy outlines the DCF Fair Hearing process for individuals seeking to appeal a supported finding of neglect or abuse.

In Massachusetts, the Department of Children and Families (DCF) conducts so-called “51A investigations” into allegations of abuse or neglect against parents or caregivers of children. After the investigation is completed, DCF is required to enter one of three findings with respect to neglect or abuse: supported, unsupported, or substantiated concern. Parents and caregivers facing a “supported” finding of neglect or abuse by DCF must decide whether to seek a “fair hearing” within 30 days of the finding. A fair hearing is a kind of administrative appeal in which an attorney for the parent or caregiver can challenge DCF’s finding, call witnesses, and present evidence.

According to DCF regulation 110 CMR 4.32, DCF will enter a “supported” finding of neglect or abuse against a parent or caregiver if “Department has reasonable cause to believe that an incident (reported or discovered during the investigation) of abuse or neglect by a caretaker did occur.” The regulations provide a murky definition of what constitutes “reasonable cause to believe” abuse or neglect has occurred:

"Reasonable Cause to believe" means a collection of facts, knowledge or observations which tend to support or are consistent with the allegations, and when viewed in light of the surrounding circumstances and credibility of persons providing information, would lead one to conclude that a child has been abused or neglected.

Notably, the decision to “support” or “unsupport” an allegation of neglect or abuse is not made by an outside decision maker, such as a judge. The “51A investigation” is administrative in nature, which essentially means it is not a formal legal proceeding in which a party is entitled to due process, such as an independent fact finder. DCF is both the investigator and decision maker.

A parent or caretaker subject to a supported finding of neglect can “appeal” the decision at two levels. First, the individual may seek a fair hearing within 30 days of the decision. Although DCF remains the decision maker in fair hearings, the matter is determined by specially designated hearing officers who are not part of the regional office that conducted the investigation. If the individual is unsuccessful in the fair hearing, he or she can seek judicial review of DCF’s decision in the Superior Court, where the matter will be determined by a judge.

What Does a “Supported” Finding of Neglect or Abuse Mean?

A “supported” finding can mean different things for different people – be it a parent, guardian, teacher, bus driver, care provider, etc. and can have lasting effects on your life. As noted in our blog about the family assessment process:

[I]t is important to know that parents and caretakers who are subject to a supported findings are added to DCF’s “Central Registry”, and are added to a list of “Alleged Perpetrators” if DCF refers the case to the District Attorney, even if the DA does not ultimately press charges. The Central Registry can be searched by other state agencies, including agencies responsible for licensing professionals in child-related professions.

For licensed caregivers, such as teachers, bus drivers, or other professionals, a supported finding of neglect or abuse can have a serious impact on the individual’s career. For parents who are involved in child custody proceedings in the Probate & Family Court, a supported finding of neglect or abuse can have an immediate and serious impact on an individual’s parental rights, custody rights, and parenting time. (Indeed, where portions of DCF records are admissible in Probate & Family Court proceedings, the statements made by caregivers, children, and witnesses to DCF can effect custody cases, regardless of DCF’s specific finding.)

Finally, it should be noted that it is sometimes unclear which parent or caregiver the supported finding applies to, where DCF regulations provide:

To support a report does not mean that the Department has made any finding with regard to the perpetrator(s) of the reported incident of abuse or neglect. It simply means that there is reasonable cause to believe that some caretaker did inflict abuse or neglect upon the child in question. (Emphasis added.)

In other words, DCF can enter a supported finding of neglect or abuse for a different parent or caregiver who was not the initial subject of the investigation, and the one-page letter indicating that DCF has “supported” may not state that the finding applied to a different parent or caretaker than the specific individual that DCF’s investigation focused on. It is important for parents and caregivers who receive notice of a supported finding of neglect or abuse to determine who the “perpetrator” was of the alleged neglect or abuse, to determine which name will be added to DCF’s Central Registry.

Not every supported finding of neglect or abuse has a huge impact on the life of alleged perpetrators. In some instances, parents and caregivers can participate in the Family Assessment process, follow the DCF Service Plan, and move on with their lives with relatively little disruption. For many parents and caregivers, however, a supported finding of neglect or abuse is a serious enough matter to warrant retaining a DCF attorney for the Fair Hearing process.

What Happens After a “Supported” Finding of Abuse Enters?

A “supported” finding often means the matter remains open with DCF, but DCF can also close the matter. For example, if the individual who was the subject of the investigation is no longer in a caretaking position, the matter may be closed, despite the allegations being “supported.” More often, DCF remains involved with a family following a supported finding of neglect or abuse. The formal basis for DCF’s continued involvement with the family often comes in the form a “family assessment.” For more information about the family assessment process, check out our blog, “Surviving a DCF Family Assessment in Massachusetts”.

Simply because the matter is closed after a supported finding does not mean an individual has to accept DCF’s finding. Regardless of whether the DCF matter continues to the Assessment phase or closes out, individuals have the right to challenge a “supported” finding of neglect or abuse.

What is a “Fair Hearing” Following a DCF Finding of Neglect or Abuse?

As noted above, individuals generally have 30 days to make a written request for a fair hearing following a supported finding of neglect or abuse by DCF. DCF describes the purpose of the fair hearing as follows:

The Department strives to provide services to clients equitably and fairly. Toward that end, clients shall have the opportunity to appeal certain matters via a Fair Hearing Process, and to present other matters to the department via a Grievance Process. 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 general, DCF informs parents and caregivers in writing when it enters a supported finding of neglect or abuse. The written notice generally includes instructions regarding the timing and method of appealing the decision through a Fair Hearing. It is important to follow these instructions, and to prepare for the Fair Hearing appropriately.

As described by DCF, a Fair Hearing involves an informal hearing, which generally includes the alleged perpetrator and his or her attorney, the Fair Hearing Officer, and one or more representatives of the DCF regional office that conducted the investigation. Both the individual and DCF may call witnesses. In many Fair Hearings, DCF will restrict its witnesses to the specific investigator and supervisor responsible for the investigation and report. However, in cases involving more serious allegations of neglect or abuse, DCF may elect to choose additional witnesses.

Although the Fair Hearing involves an “informal” process, counsel for the alleged perpetrator may use many of the tools available to attorneys in the litigation process, including conducting discovery (such as issuing subpoenas), entering documentary exhibits, and calling witnesses. Following the conclusion of the hearing, individuals must generally wait an additional period of weeks or months for the Hearing Officer to issue his or her decision, which must be subsequently reviewed and approved by senior DCF managers in Boston.

When is a “Fair Hearing” Worth Pursuing After a Finding of Neglect or Abuse?

It should be noted that a Fair Hearing is not a right for every DCF decision. Supported findings of neglect or abuse that result from voluminous medical records and physical evidence are difficult to reverse if the evidence supporting the finding is sufficiently overwhelming. Similarly, if the subject of the investigation makes incriminating statements to the investigator during the crucial first steps of the 51A investigation, such admissions can be very difficult to reverse. In addition, if the individual is facing criminal charges arising out of the same incidents or facts that gave rise to the finding of neglect or abuse, participating in the Fair Hearing process can expose the individual to criminal liability if his or her case is not handled carefully. (It is important for individuals to always disclose any past or present police investigations or criminal charges before a DCF attorney begins the Fair Hearing process.)

Many successful Fair Hearings are the result of DCF’s failure to adhere to the voluminous rules and regulations set out in CMR 110 during the course of the investigation. Investigators are required to interview witnesses at the request of alleged perpetrators, and must ensure that their written report includes sufficiently clear allegations of neglect or abuse to support a finding. Moreover, investigators are required to consider – and include in their report – evidence that detracts from the Department’s supported finding. Many reversals of supported findings are successful at the Fair Hearing stage due to the Department’s failure to interview witnesses favorable to the alleged perpetrator, or failing to adequately document evidence or statements that run contrary to the Department’s conclusions in the Department’s written report.

It is important to note that the "Reasonable Cause" standard the DCF relies on when determining neglect or abuse is a relatively low standard of proof, such that even a reasonable suspicion of abuse or neglect may be sufficient to support a finding. Accordingly, most successful Fair Hearings are won on procedural grounds.

Are Fair Hearings Available for Findings of “Substantiated Concern”?

Notably, the Fair Hearing process is only available to individuals facing a supported finding of neglect or abuse. Fair Hearings are not available for individuals who are subject to a finding of “substantiated concern,” which falls short of a formal supported finding. If you wish to appeal another issue with DCF, but you are not entitled to a Fair Hearing, you will may file a “grievance.”

A brief review of 110 CMR 10, Fair Hearings and Grievances, reveals more than 35 numbered regulations pertaining to the Fair Hearing process. In contrast, the grievance process is described in just three numbered regulations, which contain few details. This lack of detail makes the grievance process less clearly defined than the Fair Hearing. Nevertheless, for individuals subject to a finding of “substantiated concern,” the grievance process provides a means of appeal that can be successfully pursued by an experienced DCF attorney.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Nicole K. Levy today at (781) 253-2049 or send her an email.