Connecticut DCF Defense Progress Report

I first became a DCF defense lawyer in 1991. At that time, I was a part-time contractor paid by the State to represent kids and adults in Juvenile Court. I now represent private-paying adults on a full-time basis.

Let us take a look at how things have progressed since 1991 to the present (April, 2010).

1. 1991: If an adult was substantiated, administratively, for abuse or neglect, he or she was automatically placed on the registry and not even told about it. Those adults were unable to defend themselves, and often found that they were denied jobs, or the ability to be a foster or adoptive parent, due to charges that they were not even aware of.

2010: This is fortunately no longer true. Adults are informed of substantiations and registry recommendations, and have the ability to appeal. A minor substantiation is no longer an automatic registry placement. We are currently working on a procedure to enable adults on the registry to be removed, upon the filing of a petition showing clearly that they have rehabilitated, after five years.

2. 1991: Adults had no right to a court-appointed lawyer in DCF administrative proceedings (substantiation or registry, and certain other matters).

2010: This is still true. If you are fighting a substantiation or registry placement, and cannot afford a lawyer to fully represent you, then you need to at least see a lawyer to get advice on how to defend yourself.

3. 1991: Adults who were summoned to Juvenile Court, for abuse or neglect, or termination of parental rights, were often presumed to be guilty. Their court-appointed lawyers were not expected to meet with them, let alone hear their side and defend them. Any information that the lawyers obtained would usually come solely from DCF.

2010: This is largely no longer true. Court-appointed lawyers, in general, are far more professional than they used to be. However, some still do not fight for their clients, and I hear horror stories regularly. Many court-appointed lawyers, however, are truly heroic.

4. 1991: Parental rights could be terminated by “clear and convincing evidence”, the same standard as for fraud or adverse possession of real estate; not “beyond a reasonable doubt”, as for even petty larceny.

2010: This is still true. We are trying to get this changed, but it will be a very long battle with only a small chance of success. Thus far, the Legislature and the courts have not been willing to change the situation. Only one state (New Hampshire), and the Indian Child Welfare Act (when genuine Native American children are involved), require proof “beyond a reasonable doubt” for termination of parental rights. Only one state (Wisconson) allows a jury trial for such cases.

5. 1991: DCF referred adults to various service providers (clinicians, therapists, counselors, etc.) The adults signed releases allowing DCF to get information from the providers. DCF cherry-picked the information that it wanted to report to the court, and no one was the wiser.

2010: This is far less true today. Many, but not all lawyers, have figured out to get the same releases that DCF gets, and to check the information for themselves. Some even recommend different service providers for the clients. The lawyers often know which providers are more likely, due to financial pressures, to reflect DCF’s viewpoint.

6. 1991: Adults were sent for psychological evaluations. DCF told the psychologists what questions were to be answered, sent background information often containing damaging hearsay statements to the psychologists, and told the psychologists which collateral contacts to call for more information. The psychologists, furthermore, were hired, paid by, reviewed by, and subject to decertification by, DCF itself; even though the psychologist was presented as an “independent” Court-ordered evaluator. For defense lawyers to present their side to the psychologist, including questions, collateral contacts, and important background information, or to challenge DCF’s background information, was unheard-of.

2010: This is most fortunately no longer true. Lawyers are allowed to challenge the questions, documents, and collateral contacts given to psychologists, and to present questions, documents, and collaterals of their own. After some pressure from this office, the Judicial Department even redesigned the psychological evaluation form document to ensure this fairer treatment.

Further, this office convinced the Attorney General to ensure that independent psychologists would be hired, paid by, reviewed by, and subject to decertification by, the Judicial Department, and not by DCF. This was scheduled for implementation by January 1, 2010, and thanks to the excellent efforts of Judge Barbara M. Quinn, the implementation is almost fully operational. DCF no longer has total control over court-appointed psychological evaluators.

Also, DCF had the practice of occasionally speaking to psychologists, privately, before their evaluations were completed. The purpose of this contact can only be surmised, but it was seldom to the parent’s benefit. Fortunately, a 2000 Connecticut Superior Court decision ended this DCF practice.

This office also communicated with all court-appointed psychologists, to end some questionable practices in psychological evaluation reports. The result is that, today, Court-ordered psychological evaluations are much fairer than they used to be.

7. 1991: Children had separate lawyers, who in most cases never saw the kids or talked to them. The parents did not have the right to request different lawyers for their kids, if those lawyers were not doing their job properly.

2010: This is no longer true in general. As mentioned, court-appointed lawyers are better today than previously. Also, thanks to the Connecticut Supreme Court, parents themselves have the right to challenge an incompetent lawyer appointed for their kids.

We have come a long way since the infamous McMartin case of the 1980’s. In that case, children in a day care were pressured by social workers to testify that adults had physically and sexually abused them. The adults were eventually cleared, and the social workers discredited; but the lives of the innocent adults were ruined.

Children are not a “tool” of social workers, to be used to further the ends of State Power. It is incredible that that idea actually existed in my lifetime.

8. 1991: The pay for court-appointed lawyers was low, reimbursement for expenses was very difficult to get, and paperwork requirements to get paid were burdensome.

2010: Pay is still low, but better than it used to be. Expense reimbursement remains inadequate, but is better than it used to be. As to paperwork requirements: some court-appointed lawyers complain; others say it is OK. However, there is anecdotal evidence that court-appointed lawyers who displease the Chief Child Protection Attorney (CCPA) run the risk of not having their contracts renewed.

Further, the training of court-appointed lawyers is heavily child-oriented, rather than parent-oriented. Court-appointed lawyers may be certified as “child protection specialists”, with higher pay. However, to date, the CCPA has denied this office the opportunity to offer adult-oriented training. Also, the CCPA has limited each court-appointed lawyer to practicing in one Juvenile Court location only; which is incomprehensible to me.

Unfortunately, the CCPA has introduced, at every recent legislative session, a bill to exempt court-appointed lawyers from malpractice lawsuits, except in the most egregious circumstances (which are nearly impossible to prove in practice). We have been able thus far to defeat these efforts; but surely they will be reintroduced. The effect would be to further lessen the legal protections that parents currently have.

9. 1991: If a kid had an unexplained serious injury, the kid would almost always be removed from the parents; no questions asked. It mattered not if the parents might be totally innocent.

2010: This is fortunately changing, but it will be a slow change. See our article: The Problem of Unexplained Fractures. Further, as of this writing, unexplained fractures will virtually always result in a substantiation for the parents, even though medical science cannot be certain if the injury was intentionally inflicted. It is similar to the problem of an innocent person countering eyewitness evidence before the advent of DNA testing. Our office is in the midst of a long-term effort to deal with this problem.

10. 1991: Lawyers who had other commitments during a scheduled court hearing commonly sent other lawyers to “fill in” for them at the hearings. The fill-in lawyers were usually from different firms, and seldom had any idea of what the case was about.

2010: This problem, sadly, continues to occur.

11. 1991: DCF routinely visited adults at their home, and had them make statements and sign documents. Any legal advice for the adults was provided by DCF. It was unheard-of for lawyers to attend DCF home visits.

2010: This is less true today. Many lawyers will attend some home visits; it is not possible (or usually economically feasible) to attend all. The problem of DCF social workers, who are not lawyers, giving advice to frightened parents, still continues. Our office does what it can to fight this problem. The goal is to ensure that parents know that they have rights when dealing with DCF.

12. 1991: DCF, to punish adults for any reason, including an insubordinate attitude, would curtail visitation of the adults with their children. There was no effective way to appeal this, no matter how arbitrary it may have been. Judges were reluctant to hear visitation motions, considering them as an interference with DCF administrative procedures.

2010: This is fortunately changing. Many Judges will hear visitation motions. Pressure from this firm has caused DCF to be less arbitrary and arrogant in using reduced child visitation as a punishment for less-than-deferential adult clients. We are currently working with the Legislature to formalize the fact that Judges have full authority to hear all visitation motions.

13. 1991: If the adult had a related criminal court or family court case, the court-appointed Juvenile Court lawyer would not be authorized to handle it.

2010: This is still true. However, private lawyers will generally handle related cases, to save time and money for the client.

14. 1991: DCF was not allowed, by law, to speak privately to children without the parent being present, except in cases where parental abuse was reasonably suspected. However, DCF always spoke to children without parental knowledge or consent, even in routine cases; and got away with it. A common DCF practice was to go to the school, pull the kid out of class, and have him grilled by a social worker; with a school official, and often a police officer in uniform, being present.

2010: This is still true, but we are working actively with the Legislature to put teeth into the existing parental consent law. See When DCF Talks To Your Kid Secretly. As a matter of practice, we encourage DCF to interview to the kid privately, provided that the parent’s lawyer is present (if an investigation is in progress), or the kid’s lawyer is present (if the case is in court) during the interview.

15. 1991: DCF regularly tried to tell so-called independent service providers what to report, in a manner favorable to what DCF wanted to hear. DCF discouraged parents’ lawyers from presenting their point of view to the providers.

2010: This is less true today, but remains a problem. Many independent service providers can and do stand up to DCF. We remain vigilant in trying to ensure the independence of service provider reports.

16. 1991: There was no feasible way to sue DCF for civil rights violations, even for egregious conduct.

2010: Unfortunately, this is still true, and is not likely to change any time soon. However, progress in a few decades is possible. There is simply no public support for applying the civil rights laws to DCF and the child protection system. Further, federal court decisions have made it harder to apply the civil rights laws to “discretionary” State action.

17. 1991: DCF social workers never advised parents that they had the right to a lawyer. They sometimes implied that lawyers would make things worse. Parents, even those who knew that the police needed a warrant, were pressured into believing that they must speak to DCF and allow DCF in their homes. Sometimes, after a DCF interview, parents were given a DCF-prepared booklet that purported to explain their rights; but which was totally inadequate.

2010: After some pressure, more DCF social workers are giving parents a booklet of rights before the interview starts. However, parents do not generally understand this booklet; and, incredibly, ask the social worker (not a lawyer) to explain their legal rights to them. We are working with the Legislature to try to require a simple and understandable one-page statement to be given to the parents before any interview with them may be conducted. See “What To Do When DCF Calls.”

18. 1991: When asking a Judge to remove a child from the home immediately, via an order of temporary custody (OTC), DCF had to provide an affidavit to the Judge. That affidavit always contained facts unfavorable to the parent or guardian. Many of those facts were unverified hearsay rumors, often unreliable. Exculpatory information favorable to the parents was almost never presented.

2010: This problem has dramatically improved, but remains something to be on guard against. After being chastised by a Judge in a well-known decision, DCF changed its procedures, requiring OTC affidavits to include exculpatory information, and requiring a DCF lawyer to review the sufficiency of all affidavits before they were presented to the Court. Enforcement of this requirement, however, varies from office to office.

In addition, DCF has seriously begun to lessen its emphasis on OTC’s, and to use “intensive family preservation” procedures to try to keep the kid at home whenever possible. DCF is to be commended in this effort, although it took many years to bring it to pass.

19. 1991: Parents could be forced by Court order to submit to both urine tests and hair tests.

2010: This is still true. The State Legislature has mandated at least seven situations in which persons may be required to undergo urine tests. These include testing of employees, and testing of prisoners for community release programs. In no case is hair testing permitted.

The Juvenile Courts are given no such explicit testing powers. Yet the Juvenile Courts, under their general powers to ensure child welfare, are allowed in practice to require both urine testing and hair testing. Our recent effort to prohibit hair testing without informed consent of the parent was defeated, and further efforts remain on the long-term back-burner.

20. 1991: Psychological evaluations of children were permitted by Court order. However, DCF sometimes tried to get around this by having a child in its care undergo a psychological evaluation, for the purpose of gathering information to be used against the parents, simply by disguising the evaluation as “treatment” needed to help the child.

2010: This practice has largely disappeared, although our efforts to specifically prohibit it by law have not yet been successful. Lawyers still have to remain vigilant against attempts to conduct unauthorized psychological evaluation of children.

21. 1991: There was no statewide organization of DCF defense lawyers. Such an organization would permit the usual lawyer education activities, such as: sharing motions; sharing ideas for briefs; sharing ideas from new cases; organized lobbying to pass some laws and defeat others; sharing intelligence on various social workers, judges, and assistant attorneys general (AAG’s); sharing ideas for client management; sharing case management techniques; and others. Virtually all types of lawyers (and doctors, accountants, engineers, and other professionals) had professional education associations; but not DCF defense lawyers.

2010: This is unfortunately still true. The reason appears to be that DCF largely targets the lower middle classes, and most lawyers see little money in DCF defense; certainly not enough to give time to an educational association. The practical result is that DCF and the AAG’s, who do share information, have enormous advantages at trial.

It is true that the CCPA conducts educational activities. But again, these are largely child-oriented, not adult-oriented. In one instance, all Connecticut court-appointed lawyers were sent at taxpayer expense to a conference in Savannah, where they heard, among other things, calls for a U.N. takeover of child protection activities. This is hardly “DCF defense education” in any meaningful sense of the word. As the CCPA pointed out to me, the Savannah conference was paid for by a federal grant; but that is still taxpayer money.

Further, there is no national organization of CPS (child protection system) defense lawyers. Our office tried for several years to get such an organization going, but there was simply no interest among the Bar. When someone in another state asks us for a referral, we do our best, by guess and by gosh. Someday, this will change.

22. 1991: The UConn Law School had no meaningful course in DCF defense law.

2010: The UConn Law School now has a course in Juvenile Law. It is currently taught by an AAG, who represents DCF in court. When I requested to be able to present a guest lecture at one class session, I was not given a reply.

23. 1991: Foster parents had no standing in court, and no rights regarding the child if they attempted to protest DCF activities.

2010: This is less true today. In certain cases, foster parents can be heard in court. However, if a couple is planning to adopt, and DCF changes its mind for any reason, the foster parents may not even have the right to a meaningful hearing. See the story of “Bernard and Elizabeth” in the Cases under DCF Substantiations. There have been other cases in which parental rights were terminated, the foster parents were preparing to adopt, and DCF (the so-called “statutory parent” for terminated children) pulled the rug out from under the foster parents. Rights of foster parents remains a matter which must be gradually ceded from DCF to the Courts.

24. 1991: There was no general child welfare system in Connecticut. If parents needed psychological or psychiatric help for their child, and did not have adequate means, they could apply for DCF “voluntary services”. The parents then often found themselves the subjects of neglect petitions and were hauled into Juvenile Court.

2010: There is still no general child welfare system in Connecticut or in the United States. However, parents are now less likely to be hauled into court when they ask for voluntary services. This was accomplished only after a lot of parent agitation, and awareness by the State Legislature that DCF was often punishing parents without means who simply needed mental health services for their kids. (I recall one woman tearfully telling her story at a Children’s Subcommittee hearing in Hartford).

This is a problem without a good solution, as meaningful child welfare requires expenditures of funds that are simply not there.

Perhaps national health insurance reform will help to solve the problem. This simply remains to be seen. See our article, Meaningful Child Welfare.

25. 1991: Minority groups often felt that DCF was unfairly targeting them.

2010: I am reliably informed that many minority groups still feel that way. However, I see absolutely no evidence that DCF as a whole is biased. I believe that DCF has an excellent record in ensuring fair treatment for diverse groups; even if I may disagree with some of the treatment plans themselves.

26. 1991: When a Juvenile Court neglect petition was filed (not an OTC), parents were often pressured into pleading “Nolo” even if they did nothing wrong. The reason was that otherwise they would be tied up in court for months, and possibly incur large legal fees. In a criminal case, the defendant can file a “motion to dismiss” if the case is baseless. In a normal civil case, a party can file a “motion for summary judgment”. However, there was no such motion allowed in Juvenile Court. DCF had, in effect, stacked the deck.

2010: This is still true, but it may change. We are working on getting a motion for summary judgment allowed in Juvenile Court, to get a baseless case dismissed without having to wait for months and incurring additional delays. It is unfair to force parents to plead to something they did not do just to end DCF interference in their lives.


To summarize:

In 1991, DCF defense lawyers were largely, to use a phrase from the 50’s, “lunch-box lawyers.” They went to court, collected fees for nominally representing clients, and told clients to do what DCF said. They used those fees to pay office bills, and then concentrated on making a living through regular paying clients.

By 2010, DCF defense lawyers had generally recognized that representing clients in DCF and Juvenile Court matters was serious business. Most of them understand the huge advantages that DCF has, and strive to level the playing field by helping clients to achieve their due process Constitutional rights. Motion practice and trial preparation techniques are better understood. Still, there is a long road to travel.


As in all legal evolutions, new social and economic conditions will bring yet new problems. DCF defense work is never done; for example, the problem of dealing with unexplained fractures is a current major research area. But at least, today, many of the problems are at least recognized.

We are also understanding that, just as people have rights when accused by the police, they also have rights when accused or investigated by DCF. That seemingly-simple and obvious notion has been a long time coming, but it is gradually being accepted today.