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. 

1. 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.

   Office	Phone	FAX
   Berlin	752-7800	752-2230
   Claremont	524-9544	752-1707
   Concord	271-6202	271-6451
   Conway	447-3841	447-1988
   Keene	357-3510	352-2598
   Laconia	524-4485	524-1088
   Littleton	444-6786	444-0782
   Manchester	668-2330	624-4014
   Nashua	883-7726	883-0528
   Portsmouth	893-9185	431-0731
   Rochester	332-9120	332-8984
   Salem	893-9763	980-3909

2. 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.
3. 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.
4. You do NOT have to:

   1. come to any "appointment" scheduled by the social worker.
   2. Speak to the social worker about the allegations.
   3. allow the DCYF worker into your home without a warrant.
   4. present any of your children for an interview. The initial letters from DCYF frequently state otherwise.
   5. 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! 
   6. 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 attorney.

      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.  

5. Now that you know your rights, depending on the nature of the allegation, the social worker has ways of forcing compliance with her wishes.

   1. They can interview your child in a public place - school.
   2. 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.

6. 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. 
7. 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

Date: [xx/xx/xxxx]
DCYF - [Investigative Social Worker]       FAX: [xxx-xxxx]
DCYF - [Name of Office]
[Address]

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.

Sincerely,

Parent

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.