Tuesday, July 4, 2023

Court stops Mass. family police from crushing minimal due process rights for families

The Massachusetts Department of Children and Families found that their determinations of “child abuse” and “neglect” were being overturned after a hearing half the time. Guess what they did:

A. Realized their process for labeling people child abusers was rife with error and fixed it.

B. Invented a way to evade the hearings.

(After a court saw through DCF’s ploy, the agency started providing the hearings).

Every state has some version of a “central register” of people accused of child abuse or neglect.  The process and the consequences vary from state to state, but they have one thing in common: It is extremely easy to be put on these registers and extremely difficult to get off again.  They amount to state databases of rumor and innuendo. 

In almost every state, getting on the register requires only that a caseworker check a box on a form stating it is slightly more likely than not that you are a child abuser – or simply slightly more likely than not that you are guilty of “neglect,” a label that can be slapped on almost anyone who is poor, if a caseworker is so inclined.  In some states, including Massachusetts, the standard is even lower. 

Sometimes a supervisor has to check the box, too.  That’s it.  There’s no independent factfinding beforehand, no chance to present a defense, no neutral arbiter evaluating all sides. The caseworker’s word is law.  Once on the register, you have to fight your way out.  The process varies from state to state, but again, there’s one thing in common: If you can’t afford a lawyer you’re unlikely to get one.  It’s you, on your own, vs. the entire family police bureaucracy.  And since overwhelmingly the people labeled “child abusers” are poor, well … 

All this does enormous harm to children.  A listing on a central register can be a barrier to a huge number of jobs – often the very jobs most likely to be open to poor people. So the listing drives them further into poverty, harming their children and, of course, making it more likely that the poverty will be confused with neglect. 

And the listing increases the odds that, even if the children weren’t thrown into foster care this time, it will happen if the family is reported again – because the listing raises suspicions, whether it’s the guess of a human caseworker or a computer algorithm raising a family’s “risk score.” 

In spite of the way the deck is stacked, a stunning number of people who fight these determinations win. 

So in Massachusetts, where you can seek an administrative hearing to fight your way out, even though the burden of proof is on you to show you are innocent, families win about half the time.  

One might hope that a record like that might give a family police agency second thoughts; that they might think: Hey, wait a minute, if as soon as a neutral arbiter looks at this, despite the way we’ve stacked the deck, the arbiters say we’re wrong half the time maybe that means we’re wrong half the time and we need to fix this. 

As far as I know, that’s never happened.  Not in Massachusetts and not in other states where the rate at which these findings are overturned on appeal can be even higher. 

But only Massachusetts DCF came up with this oh-so-clever little workaround: make up an entire new category out of whole cloth, make it slightly less harmful than the really bad category  and unilaterally deny families fair hearings!  

Until 2015, DCF had two boxes a worker could check: “supported” and “unsupported.”  An unsupported finding did not lead to a listing in the central register and other adverse consequences, a supported finding did. 

But then, faced with all those supported findings being overturned on appeal, DCF suddenly decreed
the existence of a third category: “substantiated concern.”  There’s supposed to be a formal rulemaking process, complete with public comment, before a Massachusetts agency does something like that; but hey, they’re the family police – rules are for other people, right?  They just pulled this new category out of their – uh, imagination.  Only after the lawsuit described below, did DCF go through the rulemaking process (which was, of course, a foregone conclusion since they already had the rule). 

Here’s what made this new category so dangerous: 

DCF unilaterally decided that victims of “substantiated concern” findings are not entitled to fair hearings.  Instead, they can write to DCF itself and ask them to please reconsider. 

So-called “substantiated concern” determinations don’t result in a listing in the central registry – but they still go into DCF’s internal database.  That means they can still be used, by humans or computers, to ratchet up suspicion if there’s another report, increasing the risk of needless foster care placement.  The new category means DCF can stay in the family’s life for months or more, placing them under constant onerous, stressful surveillance. 

The new category also imposes limits on whether someone so listed can become a foster parent.  That’s what happened to a mother known in court documents as Jane Doe.  She sought to appeal the “substantiated concern” finding and was told that wasn’t allowed.  So she used the only appeal mechanism open to her – writing to DCF – and lost. 

Then she sued.  And won. 

As Superior Court Justice Katie Rayburn wrote in her ruling: 

[M]ore than half* of the DCF’s initial “supported” determinations were wrong.  There is no obvious reason that the DCF’s determinations of “substantiated concern” would be any more accurate than its “supported” determinations.  As such, there is a great risk that DCF will make “substantiated concern” determinations which would be more likely than not to be overturned on a quasi-judicial appeal proceedings. 

In fact, the odds of injustice may be even greater with this category, as a story in Massachusetts Lawyers Weekly explained, citing Susan Elsen of the Massachusetts Law Reform Institute. MLRI and the firm of Brown, Rudnick represented Jane Doe.  From the story: 

By its nature, the “substantiated concern” finding is designed for cases in which there is a low risk of harm to a child, making it that much more important to provide parents a means to challenge DCF’s initial findings, Elsen says. 

DCF’s intervention is not “benign,” Elsen notes. … “Once DCF intervenes, the family lives in fear that their child will be taken from them.”… 

Elsen expects that families facing “substantiated concern” determinations may be even more successful in fair hearings, given that it is an even vaguer standard requiring less evidence and thus less likely to withstand a “competent, careful administrative review.” 

And Elsen raised another vital issue: 

From the beginning, Elsen says, one concern was that the creation of the “substantiated concern” category would only perpetuate racial bias in the child welfare system. 

Statewide, Black and Latinx families are reported to DCF more than three times as much as white families, according to Elsen, while in the Boston area, the numbers are even starker, with Latinx families and Black families reported at more than six and nine times the rate of white families, respectively. 

DCF is now providing administrative hearings for those who appeal “substantiated concern” determinations.  But what about the thousands of families slapped with this label since 2015?** (There were 7,929 such determinations in 2021 alone.) 

And who is going to stop DCF from running amok like this the next time it comes up with a similarly brilliant idea? 

*-The “More than half” statement is based on 2020 figures, when DCF was reversed 54% of the time. The Boston Globe reports that in 2022, DCF did better – they were reversed only 48% of the time. 

** - News accounts make clear that the category took effect in 2015, though it’s not clear if all of the harm dates back that far.  The Globe story says the designation was “revised” in 2020.