DCF Tricks
IMPORTANT NOTE:
Most DCF social workers, supervisors, and managers are good to excellent. As in
any organizations with nearly 4000 employees, a few bad apples slip in. There is no way to look at a person
and know if he or she is being straight with you.
It’s all how you look at it. One judge recently chastised me from the Bench for
criticizing DCF in strong terms, even though I thought my comments were
warranted in that case. And yet I sit and hear client after client coming in
with horror stories of DCF.
This section outlines typical DCF tricks, in the form of slogans used by some
workers. There is no suggestion that all DCF employees do these things. However,
the client must beware. These slogans can put you off your guard.
1. “It’s a routine form.”
The form that you are asked to sign may be routine for DCF, but that does not
make it good for you. It’s like the wills for sale in hardware stores or in
magazines. They may be “legal”, but that doesn’t mean that they will be in your
best interests. Very often, you sign a routine, standard form, and realize too
late that you have lost important rights.
You should never sign a legal document without having a lawyer review it. A
decent small-firm lawyer should not be that expensive.
Just remember: when someone tells you that a form is “routine”, “standard”,
“pre-approved”, “commonly-used”, or the like, ask them: “Who approved it?
And, what does it do to
my legal rights?” And if that person is not your lawyer, they have no business
answering; and you have no business signing.
It does not take that long for a qualified lawyer to review a form before you
sign it.
In particular, DCF often asks you to sign “releases.” People are then surprised
that their friends, employers, neighbors, doctors, and children’s teachers are
being asked for information about them, and wonder what is wrong. It can be most
embarrassing.
Also, DCF often asks you to sign a “Service Agreement.” That is discussed
further below.
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2. “You’ll get a copy.”
Everywhere in the civilized world, you are entitled to a copy of legal documents
that impact your rights. If a police officer writes you out a traffic ticket,
you get a copy. If the sheriff serves you an eviction notice, you get a copy.
Some DCF workers do not subscribe to this philosophy. In earlier days, when you
signed a Service Agreement, DCF promised to send you a copy, and seldom did.
Since then, thanks to the efforts of this office with Commissioner Dunbar, DCF
now uses a carbonless set, and gives you a copy. Unless the worker forgets.
Assuming that your lawyer has agreed to the Service Agreement, be sure to insist
on a copy after you sign.
As of this writing, release forms are not on multiple sets. The worker may
promise to send you a copy, but unless she is organized and makes a note, that
is unlikely to happen. Assuming that your lawyer has agreed to signing the
release, be sure to insist that a copy be mailed to you, make a note of what you
signed, and tell the lawyer for follow-up.
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3. “You don’t need a lawyer.”
This one is tricky. It is true that you don’t “need” a lawyer, as it is not
illegal to represent yourself.
Just foolish.
If you think that you don’t need a lawyer, just ask anyone who has tried to
battle DCF without one.
Do not fall for the suggestion that having a lawyer is an admission of guilt.
Plenty of innocent people have gone to jail, and plenty of decent parents have
lost their kids. When the entire State of Connecticut is marshaled against you,
it helps to have a lawyer on your side.
A more subtle DCF argument is that the lawyer will add to the time to resolve
the case. In my experience, the exact opposite is true. DCF is more likely to
speed things up if it knows that you have a lawyer who is on top of things.
Note that the familiar Miranda rights do not apply. DCF cannot put you under
arrest, and therefore does not have to give you Miranda rights. They do not have
to tell you that you can have a lawyer, and that you don’t have to talk to them.
However, if you do talk or sign without a lawyer, you may regret it.
To provide but one example. DCF will always ask one spouse if the other drinks
too much. If the spouse says something like, “I wish he didn’t drink so much
wine”, DCF may write (and in one notorious case did write) that “Mother states
that Father has a drinking problem, which he will not acknowledge”. The sad
thing is, once such a statement appears on a status report or social study, it
takes on a life of its own, and is almost impossible to overcome.
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4. “Call if you have a
question.”
If you have a question, you should indeed call, but not DCF. Call your lawyer.
It is this simple: verbal assurances are not worth much.
If it’s not written down, it probably won’t be useful to you. Every lawyer has
stories of “he said/she said” disputes, with the parties disagreeing, often
vehemently, as to who said what and who meant what. The problem can usually be
avoided if you call the lawyer, and deal with DCF in writing.
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5. “The evaluation
will help to clear you.”
People are often asked to submit to psychological or medical evaluations for
themselves or their children. Again, these should first be cleared with the
lawyer. The evaluators are almost always talented and dedicated persons, but a
large part of their income is derived from DCF work. In some cases, you may be
able to obtain a different evaluator.
There have been cases in which the conclusions of an evaluator were used against
parents when DCF agreed with those conclusions, but not used when the evaluator
favored the parents and DCF disagreed with the conclusions. Going through your
lawyer will maximize your chance for fairness.
A court can order an evaluation. However, your lawyer can insist that the
evaluation be fair. DCF sometimes tries to submit documents to the evaluator
ahead of time which are loaded with hearsay. Your lawyer can ensure either that
these are not submitted, or that you will be able to submit your own documents
to the evaluator also.
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6. “Sign
this Service Agreement or we’ll seize the kids.”
A “Service Agreement” is a voluntary agreement that you will do or not do
something. For example, you might agree that Uncle Joe cannot be allowed in the
presence of your children; or you might agree that you will submit to a sexual
abuse evaluation. It is not a court order, and you cannot go to jail for
violating it. However, the threat is that if you do not comply, the kids may be
seized, or other consequences.
Most people assume that if they do comply, then all will be well. You will
notice that the Service Agreement never says this. Virtually every week, someone
says to me, “I did everything they wanted, and yet they are still in my lives
after all these months....”
It is foolish to sign a Service Agreement without the advice of a lawyer. This
document can really come back to haunt you. Despite the pressures you will be
under, you have every right to first consult a lawyer.
In order to seize the kids, DCF needs a judge’s order. A DCF manager can also
order the kids seized for a maximum of 4 days, but then must return them unless
a judge signs an order. In other words, Service Agreements should be taken
seriously; but do not be pressured into signing without a lawyer.
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7. “The Court will get you a
lawyer.”
The Court will not get you a lawyer if you are simply being investigated.
The Court will not get you a lawyer if you have been substantiated as a
perpetrator of abuse or neglect, and wish to appeal that substantiation.
The Court will not get you a lawyer if you have been placed on the Central
Registry and wish to appeal that finding.
In fact, in those cases, DCF seldom tells you that you have the right to get
your own lawyer. Some workers imply that you will do better without a lawyer.
The Court will get you a lawyer if DCF files a Neglect Petition, or a
Termination of Parental Rights Petition, in the Juvenile Court; and if you are
found by the Judge to qualify on the basis of financial need. In that case, the
court-appointed lawyer will cost you nothing.
The problem is that, at present, Juvenile court-appointed lawyers are paid at
below-market rates by the State. And on top of that, most direct expenses, such as
auto travel, long distance calls, your own expert witnesses, etc., are either
not reimbursable, or are very difficult to get reimbursed. Further still,
paperwork requirements to get paid are burdensome, and court-appointed lawyers
who complain about the system run the risk of getting audited or not
reappointed.
Many court-appointed lawyers are excellent in spite of the above problems.
Others, however, simply do not have the financial resources to do the demanding
work of challenging the State of Connecticut. The situation did improve in 2007,
but the State remains in a budget-cutting mood.
As of March, 2010, court-appointed lawyers are
paid between $40.00 and $75.00 per hour. Hardly a week goes by
that I do not receive a complaint from an adult, stating that
their court-appointed lawyer is impossible to get hold of. Many
lawyers do not give out their e-mail address to clients; and
playing telephone tag is totally impossible in a contested legal
matter.
Worse yet, many of the better and more-dedicated court-appointed
lawyers complain that the Chief Child Protection Attorney (CCPA)
actually interferes in their day-to-day handling of case
specifics. This seems hard to believe, yet I hear it repeatedly.
I also hear that court-appointed lawyers who give DCF too
difficult a battle may find themselves in trouble.
One of my colleagues, and a good friend, was an
eminently-competent, dedicated, and well-organized state-paid
court-appointed lawyer. Unbelievably, she was not reappointed
when her contract ran out. She wrote to the CCPA, and was
referred to a staffer, who said simply, “This is our decision.”
She told me this. I also wrote to the CCPA, and received a
similar “answer”. Obviously, it is impossible to be sure of the
reason; since, as usual in DCF defense matters, you get no
answer from the authorities. However, in view of the fact that
this attorney was head-and-shoulders above the crowd, I can only
assume that her complaints about the defense system led to her
early demise. Such is life when trying to get justice from a
bureaucracy.
When I did court-appointed cases, I was astounded at how many people told me
that I was the only lawyer who ever visited them or their kids. I was amazed
that many lawyers never followed-up with DCF, but waited until DCF filed motions
and petitions. I was often asked to call other lawyers and beg them to call
their clients.
One of the strangest incidents occurred when I was new to the field. I
represented a child, and attended a case status conference, which is a gathering
in the courthouse of all parties and lawyers on a case, but without a judge. The
idea is to be informal, get status, and try to settle matters. The conference
was run by a Court Services Officer (CSO), and this particular CSO was, and
still is, one of the best. The CSO went around the room and asked every lawyer
and DCF what they thought. She clearly saw me, and yet completely skipped over
me. When all others were done, the CSO started to summarize. I interrupted with,
“I’m the child’s lawyer. Don’t I get to voice my opinion?” The CSO looked
incredulous. She assumed that, as the child’s court-appointed lawyer, I would
not bother to actually visit the child, but would simply adopt DCF’s position.
We straightened it out. Fortunately, that type of thing is no longer a problem;
but it is still common to see lawyers for parents and children absent from case
status conferences.
In other words, you can get a court-appointed lawyer under some conditions. It
is wise to check and be sure that the lawyer is working for you.
I found out in January 2008 that a good friend of mine had waited until twelve days before a TPR trial to ask his client if she had any possible witnesses in her defense at the TPR. This, despite the fact that DCF had been involved with her for over a year, and despite the fact that TPR trial preparation takes months. Preparing witnesses for direct and cross is not a straightforward matter. And he is one of the better, more conscientious lawyers! There is no avoiding the fact that you cannot defeat DCF for free; or at least very seldom can you do so.
In 1991, a committee of the American Bar Association published a volume called “Trial Manual for Defense Attorneys in Juvenile Court.” The volume contained a statement which remains true to this day:
“State intervention proceedings generally bear most harshly on poor persons. It is well established that the children of the poor constitute the vast majority of individuals coming to the attention of the juvenile court….[T]wo family law system exist, one derived from the civil courts and one from the poor laws. In the first system, a powerful presumption is recognized in favor of privacy of the family and parental rights; in the second system…the presumption in favor of the parents does not exist or is substantially weakened.”
I am not saying that I favor universal free legal aid. But keep in mind that the State has enormous resources, and a vast bureaucracy to maintain. You may wish to consider your decision carefully.
IMMUNITY - The Final Insult
Incredibly, a bill was introduced in the State Legislature
which would have made it impossible, effective October 1, 2008,
to sue a court-appointed lawyer for malpractice in an abuse or
neglect case. It would still have been possible in TPR cases;
but that loophole would surely be addressed later. Our office
lobbied against this bill; it was actually passed by the State
Senate, but thankfully died in the State House of
Representatives.
As expected, the bill was introduced again in 2009. (House Bill 6404, Judiciary Committee). Thankfully, we defeated it again; but I fully expect it to arise for all time to come.
This is like saying that if a doctor butchers you, you can collect nothing, because the doctor was paid by the State.
There would be exceptions, such as in cases of reckless or malicious behavior. In actual fact, that is almost impossible to prove.
Everyone understandably wants free legal aid. But sometimes it comes with a high price.
NOTE ON DCF AND FOSTER PARENT
IMMUNITY
At present, it is almost impossible to sue DCF for civil
rights violations. In time, that may change.
Sadly, it is also next to impossible to sue foster parents approved by DCF. In a 2008 Superior Court case, two children had been placed with foster parents temporarily. The foster parents were grossly negligent, and allowed their own eight-year-old child to operate an ATV. The 8-year-old struck one foster child, causing severe injuries. Another foster child witnessed the injuries, and suffered emotional distress.
The foster parents were clearly negligent, but they escaped unscathed. Connecticut law specifically applies the doctrine of parental immunity to foster parents! Driving a motor vehicle is an exception, but the ATV did not qualify as a motor vehicle. In addition, since the foster parents were considered “state employees” for this purpose, they were also exempt from suit, without the permission of the State Claims Commissioner.
Foster parenting is not easy. I have done it. The natural parents or guardians must be extremely vigilant, as the State protects itself. Your own common law rights are virtually out the window.
FURTHER NOTE ON LAWYER INVOLVEMENT
I said above that the days of a CSO skipping over the
child’s lawyer were ended. But some people have not gotten the
word regarding parents’ lawyers.
In October of 2008, I attended a DCF Administrative Case Review, or ACR. These are sometimes also called Treatment Planning Conferences, or TPC’s.
The DCF facilitator was an excellent and well-meaning person. After she spoke a few words, and we all introduced ourselves, she asked me, “Have you met your client yet?” She actually believed that a lawyer could represent a client, even at an informal gathering, without having met the client or having reviewed the file.
Such is life in the world of DCF defense lawyers. The happy result: the facilitator turned out to be excellent, and the ACR was extremely productive.
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8. “It’s just a
communication problem.”
If a parent fails to show up for a visit with a child in a DCF case, then that
fact is noted and is often used against the parent for years to come.
If the parent shows up, but a DCF worker or volunteer fails to bring the child
for any reason, and fails to call the parent ahead of time, then it’s often
excused as a “communication problem.”
The term “communication problem” is one of the most Orwellian phrases in
American usage today. It means everything and nothing. If someone uses it on
you, beware. If you have a lawyer who uses that phrase on you, I would find
someone else.
There are, in my view, no communication problems. There are: unintentional
errors; semi-intentional errors; and intentional errors. I make unintentional
errors every day. I admit them, and when called for, I make a refund to the
client. DCF, for some reason, is very reluctant to admit errors. This is
probably more a reflection on bureaucratic imperatives than on individual
workers. Organizations have a life of their own.
There is only one known cure for communication problems: put it in writing!
Further, if you have a problem: TELL YOUR LAWYER IMMEDIATELY. The lawyer should
be able to do something to solve the problem. If the lawyer doesn’t know, then
he cannot help. Please, do not assume that the lawyer will automatically get
wind of a problem.
Another reason for putting things in writing is that social workers on a case
frequently change, for a variety of reasons. Everyone has experienced calling an
organization and hearing, “He doesn’t work here any more, and I don’t know about
that.” Verbal deals are meaningless even with honest persons, if the person is
no longer there. Tell the lawyer, who will put it in writing.
Errors can and should be corrected. And “communication problems” are simply a
myth.
Here are three actual examples of DCF
“communication problems” that occurred in 2009:
1. If you receive a substantiation letter, it states in the
letter that you may get a postponement only by writing to the
Hearing Officer. DCF changed that procedure in March, 2009, by
requiring you to instead file a form with the Admin Hearing Unit
in Hartford. However, the Admin Hearing Unit did not change the
instructions in its own substantiation letter. The letter still
told people to write to the Hearing Officer! When this office
pointed out the discrepancy, the person in charge was kind
enough to write, “It would be a good idea to change our letter.”
Hopefully, they have done so. It would be a shame if persons
were denied the opportunity to postpone their hearing after
having been misled by DCF’s own form.
2. DCF management put out a directive saying that social workers
should interact personally with clients and lawyers whenever
possible. This is commendable, but at least one social worker
misinterpreted the directive as meaning that she was forbidden
to use e-mail when dealing with lawyers! This would have been a
disaster, as e-mail is many times faster, cheaper, and more
accurate than telephone tag. Fortunately, it was straightened
out; but one wonders how many persons have had delayed
communications due to similar misunderstandings. This is one
reason, of course, that you need a lawyer when dealing with a
huge organization.
3. I received a form for a substantiation/registry appeal,
asking me to fill it out and mail it back to a secretary at DCF.
I did so, and requested in a cover letter to be notified that it
was received and docketed. I got no reply and sent a follow-up.
I still got no reply, and then wrote to the Commissioner. This
time I got back a letter from the secretary saying that it was
not her job to reply, and that I should have known to contact
someone else. Needless to say, I was not pleased. The matter was
straightened out, but it is incredible that DCF thinks in terms
of “whose job is it” rather than “how should we respond to a
legitimate inquiry.”
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9. “We’re just protecting the
kids.”
One subtle argument of DCF is that it requires special rules, and hearsay
evidence, because it is protecting children; and children are often helpless and
invisible victims. Everyone knows of the truly horrendous stories of child
abuse, and every decent person wants to prevent child abuse and neglect. DCF, in
its important battle against child abuse, often implies that parents’ rights
must be skirted in order to get at the truth. In fact, one Judge actually
lectured me recently from the Bench, saying, “You know, DCF must get at the
truth, and parents and guardians don’t always tell the truth.”
DCF also uses this argument at State Legislative hearings whenever its power is
threatened.
What DCF neglects to mention is that children at risk can always be protected
under existing laws.
If DCF convinces a Judge, in a sworn affidavit, that a child is in imminent
danger of serious harm, then the Judge will sign an OTC (Order of Temporary
Custody), which empowers DCF and the Police to remove the child immediately, by
force if necessary. The parents then get a hearing after the fact to plead their
case, and are entitled to a full trial if agreement cannot be reached.
Also, if there is no time for an OTC, DCF can seize the child for 4 days (called
a “96-hour-hold”). At the end of the 4 days, DCF must return the child, unless
it has secured an OTC. In other words, children are not left unprotected simply
because the rights of parents and guardians are protected.
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10. “Don’t complain;
it’s a free country.”
Freedom is a relative thing. In this country, you can say almost anything that
you want, provided that you don’t actually do anything. People who buck the
system are not quite as free as the glad-handers would have you believe.
One Judge who knocked heads with prosecutors was removed from hearing cases
after the prosecutors caused a very negative editorial to be published in a
local newspaper. The resulting outcry by a public which did not fully understand
the issues proved too much for the judge.
Another Judge who knocked heads with DCF and other authorities was suddenly the
victim of a campaign to have her removed from the Bench. All sorts of
allegations against her also surfaced; allegations which likely would have been
ignored for more compliant judges. Fortunately, the judge survived.
Members of Congress who buck the leadership may find their district out of pork
that year, and their re-election in jeopardy. The point is that no matter who
you are, or how exalted a position you have, you are vulnerable if you don’t
play the game.
Court-appointed lawyers who complained that the system was stacked against them
have been subjected to audits, slow reimbursement, and even cancellation of
their contracts.
In ordinary life, people who assert their rights too much may find themselves
out of friends, out of a job, or even worse.
There is actually a legion of psychologists who make a lot of money, working for
organizations, telling them how to deal with “attitude problems”, and diagnosing
individualists as persons with “personality disorders”, “oppositional/defiant
disorders”, and the like. The old Russian practice was to declare political
prisoners insane, so that they could justify imprisoning dissidents, not for
free speech, but for insanity. Today we justify stifling dissent by labeling
dissenters as mentally disordered in one way or another.
Side Note: All this was identified over half a century ago by Marshall McLuhan.
His classic book, “The Mechanical Bride”, is available through the internet. It
is worth it, to understand modern life.
Yes, this is a free country, as the history of individual rights goes. But
thinking that you can say or do what you want, so long as you don’t break the
law, is a mistake. There are consequences for asserting yourself. Liberals as
well as Conservatives do not like people who make waves.
I am always saddened when people come to my office, look at me, and say, “But
I’m a law-abiding American citizen. Don’t I have rights?” And I have to respond,
“Not as many as you think.”
The bottom line: When faced with a new adversary, you do best to call a lawyer
as soon as possible.
