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.
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.
"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.
SAMPLE INVESTIGATIVE LETTER TO DCYF
DCYF - [Investigative Social Worker] FAX: [xxx-xxxx]
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 the information.
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 information.
Under the provisions of RSA 170G:8-aa, I am entitled to legal fees if the department fails, in bad faith, to comply with this request in a timely manner, and I am required to enforce its provisions via judicial proceeding. See RSA 170:G:8-aa, IV.
If you fail to show this letter to any appropriate legal counsel, and fail to comply with my request under the terms of the statute, I will provide a copy of this letter to the court to prove bad faith on the part of the Division of Children, Youth, and Families.
Contact Paula Werme, Esq. or return to Law Practice home page.
Last updated 2016 Jan 4.