2023: A Quick Look Back

This past year has been, like every other year, a whirlwind of all kinds of hearings in juvenile and probate court and fair hearings at DCF along with myriad cases of representing parents in their homes during 51B responses and assessments.

Perhaps the most significant development in 2023 was a major change in policy at the Department of Children and Families as relates to Substantiated Concern findings.  As a result of a Superior Court “30A appeal, in which a judge (Hon. Katie C. Rayburn), took DCF to task for violating state and federal due process rights when it created the “substantiated concern” option without going through the legislature to change its regulations and by refusing to allow parents and caregivers the right to appeal such decisions through the fair hearing process. What is very interesting to me about this is that the case (Jane Doe v. Department of Children and Families), because it was decided in Superior Court and was not further appealed by DCF, is not precedent in the way appellate court cases typically are, and yet DCF did not appeal the decision and instead, to their credit, quickly changed its policy as if they had been ordered to by Judge Rayburn, which was not the case.  So now, parents and caregivers who previously could only ask for a virtually meaningless “grievance hearing” which was almost never granted can have a fair hearing to attempt to overturn the substantiated concern finding.

I was not 100% convinced though that the fair hearing process would be “fair” or well-suited to handle “sub concern” appeals.  And that is because when DCF makes a sub concern finding, they do not place the name of the offending parent(s) on their Central Registry, which means the parent still doesn’t have a “record” with the Department that anyone outside of the Department should ever know about.  Instead, what they are basically concluding with such a finding is that a child was neglected but “We’re not going to name names as to who did it.”  So then, how do you challenge the finding at a fair hearing?  In the recent hearing that I had, which has not concluded yet, the hearing officer made it clear right up front how she was looking at the case: she wanted to know how the appellant (my client) supposedly neglected her children, not the other parent or the parents generally.  She was laser focused on what evidence the Department had that demonstrated neglect by my client only.  The Department’s nebulous and vague “concern” that the children were neglected by “the parents” was not good enough.  So I am reasonably confident that “sub concern” appeals will be handled in the same manner as fair hearings challenging “supported” 51A’s—by examining the conduct of the appellant only. 

If DCF did the right thing in response to a blistering decision by a Superior Court judge, they nevertheless engaged in extraordinarily egregious conduct in two of my more challenging cases last year.  The same area office twice refused to provide my respective clients a copy of the DCF reports, something that is routinely done fairly quickly upon a written request.  In fact, I have never been denied access to the reports, even in cases when a fair hearing was stayed by a district attorney’s office, which is what happened in both of my cases.  I don’t know yet if this is the beginning of a very disturbing trend or if this is simply one area office behaving badly. 

In my first case I ultimately received the reports (including a 125+ page 51B report!) on the first day we appeared in court (yes, after about five months of working with the Department they filed a Care & Protection petition claiming parents were not cooperating enough, which was utterly false and a sham excuse).  In the second case, which involves a federal investigation, the clinical team and their attorney are now looking into why it is that their office has not as of yet released the records.  It seems no one knows exactly who made the decision not to release or whether the federal government has ordered them not to release the reports.  I’m expecting an answer shortly.  Still, its pretty outrageous that my clients have not been able to learn in months what exactly they are being accused of and what the results of the Department’s investigation were, especially since they won’t allow one of the parents from residing in the family home. 

            The other perhaps more fantastical case I handled last year that could, like the first case, easily be a Netflix limited series, involved what initially appeared to be a fairly straightforward Abuse Prevention Order case, where both sides filed one against the other.  However, this case was anything but typical.  It involved an extremely complicated fraudulent plot to sabotage my client’s life and reputation reminiscent of the movie “Fatal Attraction.”  It’s not every day you have a four hour restraining order hearing where the names Peter Thiel (the billionaire), Barack and Michelle Obama, George W. Bush, and Bill and Hillary Clinton are mentioned, or that a judge hears an elaborate tail of deception and of a fake $30+ million deal on a startup that Mr. Thiel was supposedly going to invest in involving at least one fake attorney purportedly representing the former Paypal CEO.  And although the judge ruled that the petitioner failed to meet her burden of proof at the close of her evidence, unfortunately this woman couldn’t let things go.  There were multiple court hearings after that, and attempts to get a district attorney’s office to file charges against my client, which it refused to do.  (The woman is now facing a  defamation lawsuit.)  

            So last year was a pretty crazy year.  Looking forward to seeing what 2024 brings…  

            As always, feel free to email, text or call me should you have any questions or would like legal representation in a DCF-related investigation, a fair hearing, CRA or C&P, or at a restraining order hearing or in a divorce or custody case in Probate & Family court…happy to help!  JMI