The Fair Hearing

Posted on December 18, 2014 by jimblog

So, you had a 51A supported by the Department of Children and Families for abuse or neglect and you were named the perpetrator.  You are now in DCF’s “Central Registry.” If the investigation concluded that you sexually abused a child or physically assaulted a child causing injury, there is a very good chance that you are also listed in a separate internal registry that the Department uses to flag high-risk individuals. And perhaps you are a teacher, a day care provider, foster parent, pre-adoptive parent, or work for the Department of Youth Services or a vendor or contractor for DCF.  Now your livelihood is on the line because of the supported 51A.  In fact, if you work directly with children under 18, your career could be finished unless that supported 51A is reversed. Therefore, you rightly request a fair hearing within 30 days of receipt of the support letter.  Better yet, you contact an experienced DCF attorney immediately upon learning of the supported 51A because you know that a number of things have to happen quickly and correctly in order for you to have the best chance to get the decision reversed, and in some cases, to prevent your children from being removed from your home or from you being arrested or both.

What you need to know, however, is that the system is literally rigged against you and that you will likely lose the fair hearing unless you have an attorney who is extremely familiar with the administrative appeal process.  In fact, it is hard enough for someone like myself, who has handled numerous fair hearings over the past ten years, to win.  It is nearly impossible for a parent or caregiver to win unrepresented.  I know because I get the calls from these unwitting appellants after the fact, when they are scrambling to file a 30A appeal in Superior Court or when they find out they can’t get another job in their chosen field because the employer ran their CORI and found out about the supported 51A.

I say the system is rigged because you, as the appellant, have to prove at the hearing, by a preponderance of the evidence, that DCF failed to follow its regulations which resulted in substantial prejudice to you, or, if there is no applicable policy or regulation or procedure, that the Department failed to “act with a reasonable basis or in a reasonable manner which resulted in substantial prejudice.”  (Under the new regulations on Fair Hearings, the grounds for appeal have been expanded to include “whether based on the record as a whole, and giving due weight to the clinical judgments of the Department social worker, there is reasonable cause to believe that a child has been abused or neglected.”  Also, for a person to be listed on the registry of alleged perpetrators, substantial evidence that the person is responsible for abuse or neglect is now required.”)  As you can see, (a) the standard–reasonable cause to believe–is extremely low, and in fact the lowest recognized standard in our jurisprudence and (b) you really need to understand the regulations and relevant case law in order to effectively cross-examine the investigator, know what other evidence you will need to present and successfully argue to the hearing officer in your closing statement exactly why he or she needs to reverse the decision.  The hearing is not simply a chance “to tell [your] story.”  If you think it is, you will lose.

Years ago, after trying many cases in various Juvenile, Probate, District and Superior Courts, I viewed Fair Hearings as, well, a joke, not worthy of my time, not unlike small claims court.  I now see that they are extremely important and that they can be won, if I prepare for them just as I would for a trial in court.  And I know that they often are critical to my clients–for professional and personal reasons–and frankly, I find them just as rewarding as any case that I handle when I win.  I now truly enjoy handling these hearings.  I’ve gotten very good at doing them and tend to know and respect most of the hearing officers and I think the feeling is mutual.

Fair Hearings are now conducted by the officers much more professionally than ever and I really do believe that they take their role seriously and do not simple rubber stamp the Department’s decisions to support.  I think the officers also know that I put a lot of effort in to presenting the case and that I expect that they genuinely listen to the evidence and apply the law correctly.

Lastly, it should be said that I have gotten many supported 51As reversed prior to the fair hearing, sometimes just before the hearing starts.  These are generally cases in which I truly believe that the social worker simply didn’t have a legitimate basis to support–either because he or she was biased against my client and ignored or discounted evidence wrongly or because new information has evolved since the investigation exonerating my client, such as information  that came up during the 45 day assessment.  And of course, there are other reasons why I might push for a reversal prior to the hearing.  Every case is different.  But over the past three or so years, I have had at least 15 or so 51As reversed before the fair hearing.

The key to my success often–but not exclusively–is that my client hired me early in the process so that I was able to guide him or her during the assessment and influence the worker or gather the right evidence needed to win at the hearing.  I really like to get involved during the 51B investigation, and if not then, then certainly during the Assessment.  During the very first meeting with the assessment worker I make it clear what it is that I want to see happen: I want the case closed at the end of the assessment and I want the support  decision reversed.  And if he or she isn’t going to recommend a reversal to the supervisor or area clinical manager, I will write a detailed letter that often looks like a legal brief to the Area Director urging DCF to reverse.  Not every case lends itself to this approach, but many do and I have been very successful using this technique.  

The bottom line is Fair Hearings are no longer a “joke”…they are taken seriously by the hearing officers and they should be taken seriously by you.  As too many of you have already found out, supported 51As can have very serious consequences.  The outcome of an investigation and of a fair hearing may very well determine whether you can continue to earn a living working with or raising children or continue being a foster or pre-adoptive parent or not.  And  frankly, I have represented plenty of parents who were not at such risk but simply could not accept being found by the state to have neglected or abused their child.  I understand fully how they must feel and why they believe they need to do whatever they can to have the support decision reversed.  It’s critical, though, that the hearing be done right.

JMI