Lawyers Disagree With Beacon Hill Attorney That Legislature Cannot Control DSS

By Ed Oliver
October 23, 2002

If You Choose to Flee with Your Children Look at N.H.

Two lawyers strongly disagree with statements made by State House legal advisor Bernard Fang at a Tufts University forum on foster care recently.

As previously reported in MassNews, Atty. Fang told the forum that:

The system is rigged against parents because DSS does not follow its own regulations. As a result, they lose their children. But the regulations are fine as written, so there isn't any legislative solution.

If the courts or appointed counsel don't do anything about DSS ignoring the regs, parents can learn the regulations themselves if necessary and insist that they be enforced.

"That's ludicrous," said Atty. Chester Darling to MassNews. "Parents don't have a prayer on their own. As soon as that social worker shows up on your doorstep, you are about to enter a bureaucratic holocaust."

Darling said that in the case of the Howard family, for example, who he represented, the children were ultimately wrested away from social workers only after a titanic battle. "It took two private attorneys months and months of preparation and effort in order to turn it around," he said, adding that it would be a good idea to allow the press into the courtroom in all DSS cases.

Attorney Greg Hession agreed, telling MassNews that judges themselves don't enforce DSS regulations or even their own rules. He said judges simply say "no" to any motion that is filed in an attempt to get them to enforce the regulations.

Hession also disagreed that that the regulations are fine as written and that the legislature has no remedy. "The regulations are under the control of the legislature and they are fatally defective in maybe a hundred ways, one of which is that there is no objective criteria for putting together a service plan."

Hession said that even if a parent does manage to get a timely service plan, those plans often do not reflect a realistic and careful set of goals that are calculated to help the children come home. Instead, service plans contain attempts by social workers to micro-manage the lives of families, often without any tie to alleged parenting problems.

He says that most of what social workers do is according to their own discretion, thanks to an earlier SJC ruling called Jeremy and Isaac. "Judges will not question the DSS discretion," he said.

Also, according to Hession, there is almost a complete disconnect between the law and the regulations. The regs only partially address part of what the law requires, he says. They contain a very incomplete administrative scheme with huge holes and no accountability.

"The law requires that DSS make reasonable efforts to keep the children at home. They never do it. Nothing in the regs requires them to do it. Why?"

He said the law also says children should be removed from parents only in cases of severe, physically abusive situations, which is defined by life threatening injury, broken bones, etc., or where severe emotional abuse occurs so that the child is unable to function normally. But that also is not followed.

Hession said there is no enforcement mechanism in the regulations for a parent to make DSS do what they are supposed to do. DSS can simply argue that they are allowed to use their discretion and the judge will agree. On top of that, he said, you have no right to appeal out of juvenile court, except for a rarely used appeal called a Superintendence of the Supreme Judicial Court, which the SJC refuses to hear most of the time.

Therefore, according to Hession, the bottom line for parents doing it themselves is that the regulations are so arcane and complex in some areas that a parent could study them for months and still not begin to understand them. Even if they got DSS to follow the regs, it would still be abysmal because of the disconnect with the law.

Hession said an attorney friend in another state familiar with these cases says the best thing for a parent to do if they know DSS is coming is to drop everything and drive across state lines, out of Massachusetts, with the kids. They can rent an apartment, have a lawyer sell the house, etc. Either that or stay in Massachusetts and try to fight while the children are being abused in a succession of foster homes.

Sidebar:

If You Choose to Flee with Your Children, Look at N.H.

Nev Moore, of Justice for Families, advises that if a parent chooses to flee the state with their children, one of the best states to go to is New Hampshire.

She has done a lengthy report on all 50 states. She lists the following as the "safest" states in terms of DSS intervention (DSS is called CPS or Child Protective Services in most states). This is based upon the amount of funding (the number of federal dollars are listed in parenthesis after each state), number of investigations per year, number of CPS employees, number of children removed from home, number of children in out-of-home placement, ratio of reunification vs. adoption or long-term placement and number of children adopted out. The lowest-averaging states in all criteria are:

Alabama, $57 million in federal dollars
Arkansas, $40 million
Idaho, $30 million
Vermont, $29 million
New Hampshire, $28 million
North Dakota, $12 million
Montana, $12 million
Wyoming, $12 million.

Federal funding is the most significant factor to consider. In all states, 68% of CPS expenditures go to foster care, therefore indicating the percentage of children removed from home. However, Moore also looked at the way in which the federal dollars were spent by the states - i.e. on out-of-home placement or on family preservation. Therefore, the states at the top of the list, while indicating a fairly large portion of federal dollars, actually have very low figures in the categories of removal/foster-care placement because they are using the money more for family preservation than foster care. Although she has had numerous complaints from Alaska and Maine, statistically, their figures for CPS intervention are also very low.

Justice for Families is at PO Box 1560, Cotuit, MA 02635, Phone: 508.420.0605, Fax: 508.420.2908, www.justiceforfamilies.org

Related:
DSS Does Not Follow Own Regulations, Says State House Advisor

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