If You're the Subject of a DCYF Investigation
DISCLAIMER: This page is not intended to convey the
state of the law for any state but New Hampshire. If you live in another
state, it is CRITICAL that you investigate your
own state's law on child abuse investigations. Consult a lawyer in particular
if the allegations are serious.
One of the recent developments in this are of
the law is that there is new federal
legislation (42 USC 5106, a (1) (F), that requires DCYF to inform
parents of their rights at the outset of an invesitgation, including the
right to refuse entry to a DCYF worker knocking on your door. DCYF
has come up with a brochure that they are required to give parents on your
rights. I haven't heard from anyone who has actually received the
brochure when DCYF knocked on his or her door, but that might well mean
that there are fewer problems with investigations. I have asked one
client if she got it at the request of a NH legislator. She didn't,
so there's room for improvement. I've scanned the latest copy I have
of the brochure. I'll post it shortly.
One of the most common reasons I receive e-mail or telephone calls is
because the caller has just been contacted by DCYF concerning a report
of abuse or neglect. This is the stage of the investigation where I usually
can do a parent a lot of good. DCYF has been getting more aggressive
in obtaining warrants if I get involved in the investigative phase of a
case, however, so it's not necessarily a good idea to drop my name. (On
the plus side, even when DCYF has obtained a warrant, all of the cases
where I was consulted beforehand have so far been closed without findings.)
Call or Email me if you have any questions.
There are some "Do's and Don'ts" involved in a DCYF investigation, and
parents who know their rights are much better off than parents who have
no idea. First of all, DO NOT PANIC. More than 85% of the investigations
are unfounded. It's somewhat easier if you know your rights, although
by no means does it mean they will be respected. The federal law
now requires the state to train the social workers on your rights, and
social workers are required to protect your rights. I would
expect that this means DCYF will continue to impove in this area.
- Unless the allegation is sexual abuse by a family member,
in which case none of the suggestions will likely work, get a copy of
the allegations. Request them in writing, and refuse to speak with
the social worker until you get the allegations. You could have an
allegation that your child repeatedly appears at school dirty, and the
social worker may well write a letter or tell you face to face that she
is required to interview your child at home. Once there, she may be checking
out every corner for dirt. The problem may be poor housekeeping, or the
problem could be that you have the real-life version of "Pigpen" for a child
(from the Peanuts cartoon - he has a cloud of dust follow him everywhere,
and gets dirty even in situations where other kids don't.) A sample letter
is below. I suggest faxing it to the social worker
as soon as possible after the first contact. DCYF phone and FAX numbers
are below: CALL THE LOCAL OFFICE AND GET THE FAX NUMBER.
- Keep in mind, that just because the allegations may not concern behavior
on your part, that DCYF still officially has the statutory obligation to
investigate under RSA 169-C:34.
So, if your child has been abused by a third party, DCYF will still want
to investigate. Here's the kicker. They can still file an abuse or neglect
petition against you in New Hampshire, even if you are not the alleged perpetrator.
New Hampshire is one of only a handful of states that doesn't require parental
culpability (fault) for the filing of a petition. If a Petition is filed
against you or your child's other parent, YOUR PARENTAL RIGHTS are at stake!
So, you may think you have every reason to cooperate with DCYF, when in
reality, you're rights are just as much at risk as those of a parent who
is abusing the child. If you are the other parent, and you believe that
the child is being abused by the parent with physical custody or someone in
the household, IMMEDIATELY file in the Superior Court or the Family Court
for a change of custody. Ex Parte, emergency. Do not pass "GO." Do not
collect $200. Get to court, NOW. Tell the court that there may be a Petition
for Neglect or Abuse coming, and you need at least temporary custody to protect
your child. Don't mention your own rights, even though it's the only possible
way of avoiding a court ruling taking them away. And consult a lawyer
before speaking with DCYF anyway.
- As an accused, or a parent, you technically have all of your constitutional
rights, including the right to an attorney represent you, your Fourth
Amendment Rights against search of your home, and your First Amendment
Right to speak with them or not speak with them as you wish. RSA
169-C:34 outlines the situations where DCYF may go to "any public
place" and interview your children without your permission.
This means school or hospital, usually. They may interview the ONLY
the child who is the subject of the investigation. I've
personally known of several instances where they've violate this portion
of the statute, either by entering a private place, such as a day care,
or private school. Many private school principals believe that
they have a legal obligation to allow DCYF into their building in the
course of an investigation. They do not. Most public schools will likewise
allow DCYF in to interview ANY child, whether or not the child is the
actual subject of the investigation. DCYF social workers have violated
the statute by interviewing another child who is not the subject of
the investigation, as young as four years old. If you have
day care paid for by the Department of Health and Human Services, they
can find the information on their computers and just go see the kid. Ditto
concerning enrollment in public school Interviewing kids without parental
permission who are NOT the subject of the investigation is against the
law. School officials can help a parent if they have a "heads-up" on the
situation, but so frequently the school is the reporter. it's not usually
practical to expect them to assist the parent. Home schoolers have the
biggest advantage here, because a parent has much more control over whether
or not DCYF can have access to the child.
- You do NOT have to:
- come to any "appointment" scheduled by the social worker.
- Speak to the social worker about the allegations.
- allow the DCYF worker into your home without a warrant.
- present any of your children for an interview. The initial
letters from DCYF frequently state otherwise.
- Leave your injured child in a hospital overnight unless there
is a medical reason for keeping the child. A simple broken bone is not
a reason to be hospitalized, even if the injury is suspicious. Do not allow
a doctor to tell you must leave a child because the injury is suspicious.
Do not allow the doctor to tell you that you must remain at the hospital
or doctor's office to speak with someone from DCYF. Tell them that you
can speak to DCYF just as easily at home, and that they can turn the information
over to DCYF as they wish. Tell them that you're extremely upset by the
idea that someone could have harmed your child, and you need to go home
to calm down. Then CALL A LAWYER IMMEDIATELY - AS SOON AS YOU GET HOME!
- You do NOT have to sign medical releases for yourself or your
children, psychological or psychiatric releases for either yourself or
your children, or releases for DCYF to investigate school records. In
fact, if they ask for such a release, this is a good time to consult an
I once stopped DCYF from getting a hold of an old psychiatrist
admission record just because the mother happened to call me over the
weekend. She mentioned that she had signed a release for her her psychological
records Friday afternoon. I arranged to meet her at 10:00 Monday morning,
AFTER she physically went to the hospital to rescind her release. By 3:00,
the social worker knew she had done so. She asked me if there was any chance
the woman would reconsider. I said, "No." It was that much more unrelated-to-abuse
information DCYF couldn't use to trash the woman in court.
- Now that you know your rights, depending on the nature of the allegation,
the social worker has ways of forcing compliance with her wishes.
- They can interview your child in a public place - school.
- If DCYF cannot obtain access to your child for an interview,
there are limited circumstances where they may obtain a
WARRANT to enter your home. RSA 169-C:34, IV states:
"Upon notification by the department that the immediate safety
or well-being of a child may be endangered, the court may,
in its discretion, order a police officer, juvenile service officer, or
child protection service worker to enter the place where the child is
located, in furtherance of such investigation."
Even if they have a warrant, if the child is not in the home,
show the nice policeman a copy of the statute, and tell them that the
child is not there, so please go away. The wording is clear enough, but
the social workers frequently don't mention the "immediate safety endangered"
part to the court, and some courts have been known to give warrants because
the parent refused to cooperate with a ridiculous allegation. I had
a client once with a report of neglect of one child. DCYF filed
16 petitions - 2 for each child - because the parents refused them entry
to the home to talk to the children. It was dismissed.
There is absolutely nothing about not cooperating with an investigation
that increases the risk level, but judges in New Hampshire have been known
to hand them out anyway for non-cooperation. I recently litigated
the issue of the validity of a warrant for an alleged dirty home inspection
to the NH Supreme Court, and the Court denied the appeal. In that instance,
the statute didn't even authorize a warrant to inspect a home, (only to
interview the child) and the NH Supreme Court denied the parent's appeal
anyway. DCYF promptly (sic) executed the warrant almost a year later. That
in itself showed that the risk level was probably low, so there were no grounds
for the warrant in the first place, had it even been authorized by statute.
Clearly, the NH Courts are not protecting parental rights. In one case
the judge granted the warrant despite the fact that the parents told DCYF
that the "child" was eighteen. DCYF worker Wendy Keith put it in the warrant
application on the second page, but indicated that "the parents said their
child is 18." She listed the child's age as 17 on the first page of
the warrant affidavit.
- Note: if the allegations are serious, this is an emergency! I've
seen kids unceremoniously taken from home because of threat of spanking.
If it involves spanking or physical abuse, the threat of immediate
action on the part of DCYF is very serious. RSA 627.6 clearly gives
parents the right to physically discipline their children, but it's been
known to be ignored by the Division. Negotiate from a position of strength
- find out what the allegation are before you speak to anyone.
- If, after you receive a copy of the allegations, they really don't
amount to a hill of beans, go ahead and speak to DCYF, but GET IT ON TAPE.
If you home looks like it could be in a "House Beautiful" magazine spread,
go ahead and invite them in. Don't do it in a less than squeaky clean home,
however. If you have a psychologist or physician involved in the report
to DCYF, go ahead and tape conversations with him or her as well. I've
seen over and over again where the physician or psychologist will tell
the parent one thing, and DCYF or the court another. When it involves
questions of how likely an injury was to be caused by intentional abuse
or whether or not there has been "psychological harm" from spanking, it's
critical to tape them. You are entitled to all PROOFS in your
defense! (Article 15, NH Constitution.) If the DCYF worker
won't let you tape, show them the constitutional provision. If
the social worker doesn't want you to tape it, feel free to contact your state representative,
your state senator, and the head of the Department of Health and Human
Service, John Stevens. 271-4331, FAX 271-4912.. Or of course, you
can call me.
SAMPLE INVESTIGATIVE LETTER TO DCYF
DCYF - [Investigative Social Worker]
DCYF - [Name of Office]
Re: Investigation into DCYF Report on [Parent]'s Children
Dear Ms. Social Worker,
Please consider this letter as a request, pursuant
to RSA 170-G:8a, information
to which I am entitled and is available on the above-described case, including
ALL information available to the Division through the NH BRIDGES interface,
whether or not it automatically printed out on the "Intake snapshot,"
and specifically all exculpatory information available that would
be required to be produced in any criminal proceeding in this matter, from
whatever source available. Under the statute, you have 30 days in an open
investigation, and 60 days in a closed investigation to provide me with
I understand that there is a preliminary investigation into [state
the allegation if you know it, if not, state "concerns for my children."]
My attorney has advised me not to speak with anyone regarding this matter
unless and until we receive information concerning the nature of the report.
While I understand that you have statutory duties under RSA 169-C:34, concerning investigation
into the matter, please be advised that your statutory duty imposes no
legal obligations on me, in particular the obligation to waive any constitutional
rights. That said, I have no reason not to cooperate with any investigation.
I simply wish to clarify the nature of the allegation before providing
Contact Paula Werme, Esq. or return to Law Practice home page.
Last updated 2002 March 19.