Massachusetts child welfare officials violated a mother’s constitutional rights when they denied her request for a hearing to challenge neglect allegations, a Suffolk Superior Court judge found, in a decision that could have implications for thousands of parents and caregivers investigated each year by the state.
The ruling, handed down in late May, has already prompted the Department of Children and Families to shift course. State officials said they are now offering those accused of neglect — but who, under a DCF policy, were not given the chance to appeal to an impartial hearing officer — the ability to request a so-called fair hearing. In the quasi-judicial settings, DCF’s decisions are just as likely to be overturned as upheld, state data show.
Attorneys in the case said the decision has the “potential to have a profound effect” on how DCF interacts with families going forward.
“There is an interest in families being able to be free from government intervention. And that requires due process,” said Shari I. Dwoskin, a partner at the firm Brown Rudnick, which helped represent the East Falmouth mother — identified in filings as Jane Doe — in the case.
The court decision found DCF missteps on several fronts. Judge Katie C. Rayburn ruled the agency violated the mother’s due process rights because it didn’t afford her, under its policy, a “meaningful” appeals process after ruling it had “substantiated concern” that she had neglected her son.
DCF allowed her to submit only a written grievance, which it denied, as opposed to offering the chance to challenge DCF’s decision in a hearing where evidence and witnesses could be introduced.
“I felt backed into a corner,” the mother, who spoke on the condition of anonymity, told The Boston Globe in an interview. She said DCF did not provide her with a written report detailing how it reached its conclusion before she had to file her grievance. “I didn’t feel like I had an equal say in what was going on in my life.”
The mother had admitted to investigators to slapping her son after she saw him hit a friend during a sleepover, according to court filings. The boy, whom she adopted at age 3, had suffered “significant trauma” before then. He attempted suicide at age 7, and he has been diagnosed with a range of disorders, including chronic aggression, according to court documents. The son’s age at the time of the incident was not disclosed in court documents.
After its investigation, DCF conducted home visits for about three months before closing the case. “I felt invaded in my home,” the mother said.
A DCF spokeswoman did not say whether the agency plans to appeal. But it has begun to comply with the ruling by offering those subject to a “substantiated concern” finding a fair hearing as of May 30, the day Rayburn issued her decision.
“DCF is reviewing the court’s decision to determine next steps,” spokeswoman Andrea Grossman said.
Central to the court decision is the so-called substantiated concern finding that DCF issued in the mother’s case. DCF created the designation under the Baker administration in 2015, and revised it in 2020, as a third option for investigators probing allegations of abuse and neglect. Previously, investigators could come to just two conclusions: the allegations were “supported,” which means they found reasonable cause to believe a child was abused or neglected, or “unsupported.”
Allowing investigators to find there was a “substantiated concern” in neglect cases created what Rayburn called a “middle ground” option. And DCF has used it often, issuing more than 6,800 “substantiated concern” findings in 2022 and nearly 8,000 the year before.
But the policy came with a caveat: While parents who had “supported” allegations against them could challenge the finding in a hearing, no such hearing would be available to caregivers subject to a substantiated concern ruling, even though either determination opens up the family to a DCF case.
Rayburn also ruled that DCF’s very adoption of a “substantiated concern” finding was flawed. While dubbed an internal policy, the new determination affected not only the internal workings of DCF but the rights of the people who interact with the agency. That, Rayburn wrote, effectively created a rule change that requires a more intensive process, including seeking public comment, before it can be implemented.
It wasn’t until January — or nearly a year after Jane Doe filed suit — that DCF, after going through the necessary steps, changed its regulations to reflect the addition of “substantiated concern.”
Grossman, the DCF spokeswoman, did not address questions of why DCF originally created the designation or whether it intends to formally change its policy or regulations to reflect that hearings are now offered in those cases.
That DCF for years categorized cases as “substantiated concern,” when before the policy change they may have risen to the level of “supported” allegations, also “deprived thousands of individuals” of being able to challenge the agency’s findings at a hearing, Rayburn wrote.
Denying them that chance has consequences. DCF decisions are regularly overturned when people challenge them in fair hearings, state data show. In 2022, a hearing officer reversed DCF’s decision 48 percent of the time. In 2020, it was even higher, at 54 percent.
“Stated differently, more than half of the DCF’s initial ‘supported’ determinations were wrong,” Rayburn wrote in her ruling. “There is no obvious reason that the DCF’s determinations of ‘substantiated concern’ would be any more accurate.”
The reversal rate surprised even attorneys who represent those at fair hearings. “Unbelievable. Shocking statistics,” said Rebecca Greening, an attorney and clinical instructor at the Family Justice Clinic of the Legal Services Center of Harvard Law School.
Parents accused of neglect, she said, are often poor and don’t have access to legal help or the wherewithal to navigate a hearing process. In fiscal year 2022, DCF “supported” allegations of abuse or neglect in 16,151 reports, but received just 1,731 requests for a fair hearing.
Given the reversal rate, Greening said, “you would think a lot of people would request fair hearings.”
To others, the data may also be an indication of obstacles in DCF’s investigatory process. Susan Elsen, a child welfare policy advocate at the Massachusetts Law Reform Institute, which also represented Jane Doe, said investigators may feel pressure to support allegations of abuse and neglect, even if they don’t have evidence to back it up.
“And workers don’t necessarily have the time, given caseload pressure, to do the thoroughness of investigation that’s needed,” Elsen said. “I think it’s similar with substantiated concern cases, where the standard is that much more vague.”
DCF officials said hearings often are scheduled months after an incident occurs, allowing new information to surface that perhaps the investigator didn’t have at the time. The cases captured in state data also include more than only decisions on abuse or neglect allegations, officials said. People can also appeal the denial of a foster home license, for example, or the removal of a child from a foster home.
With DCF now allowing for hearings in cases like hers, the mother identified as Jane Doe said the ruling can give other families hope that “truth can prevail.”
“It changes the tide,” she said, “at least with families, particularly marginalized families that get this finding, that they can rely on faith and the law — not fear.”