BOSTON, June 15, 2023 – Brown Rudnick and the Massachusetts Law Reform Institute (MLRI) obtained a favorable ruling for children and families in a lawsuit filed against the Massachusetts Department of Children and Families (DCF).

In this case, a Superior Court justice found that DCF had violated the due process rights of a mother when it denied her the right to an agency hearing to challenge DCF’s finding of a “substantiated concern” that she had neglected her child.

Until 2015, DCF policy required that reports of children allegedly being abused or neglected by a caretaker be initially determined by DCF to be either “supported” or “unsupported.” Under that prior process, if DCF determined that there was sufficient evidence to “support” the report, the caretaker could appeal through a quasi-judicial process called a fair hearing, in which alleged perpetrators of abuse or neglect could challenge the evidence presented by DCF, present their own witnesses, and have the case adjudicated by a neutral party. If DCF determined that the report was “unsupported,” DCF had no further involvement with the family.

In June of 2015, DCF revised its policy to provide for a third type of determination it called “substantiated concern,” permitting DCF to intrude in family affairs in the same way as a supported finding, but without the safeguards of a fair hearing.

In 2022, a mother contacted MLRI after DCF denied her a fair hearing to challenge DCF’s finding of “substantiated concern” after its investigation of a report of alleged neglect. Notably, DCF had not found sufficient grounds to “support” a finding of neglect.

Brown Rudnick and MLRI filed a lawsuit against DCF and its commissioner, appealing the denial of a fair hearing and seeking a judgment declaring that DCF’s “substantiated concern” policy violated due process under both the Massachusetts Declaration of Rights and the U.S. Constitution.

The Suffolk Superior Court agreed; Justice Katie Rayburn issued an opinion on May 30 holding that DCF’s policy, which did not allow for a fair hearing to challenge the agency’s findings, violated state and federal due process.

“DCF violated plaintiff’s right to due process when it only provided her with a grievance appeal of its ‘substantiated concern’ determination,” Justice Rayburn held. “[A]s more than half of DCF’s ‘supported’ determinations were overturned on appeal as recently as 2020, there can be little doubt that there was a substantial risk of erroneous deprivation to plaintiff when DCF made its ‘substantiated concern’ determination.”

In her opinion, Justice Rayburn recognized that the mother had a “protected liberty interest in the care, custody, and management of her child” and that “there is a substantial risk of erroneous deprivation of parents’ rights absent the ability to meaningfully challenge unfavorable [determinations].”

“This decision has the potential to have a profound effect on the future of how DCF interacts with families of Massachusetts,” said Shari Dwoskin, who led the Brown Rudnick team. “DCF’s policy stills allows it to make a ‘substantiated concern finding’ and intrude on the life and liberties of families without the protection afforded by a fair hearing. We hope that DCF will update its regulations to provide a fair hearing in cases of ‘substantiated concern’ in order to comply with the Court’s holding that allowing only a ‘grievance appeal’ violates due process.”

In addition to Dwoskin, the Brown Rudnick team included Luis Vargas Rivera, Kyle Dorso, Liz Ritvo, Camille Loftin, Sue Oldham and Meredith Joseph.

“Thousands of families have been deprived of fair hearings every year to challenge substantiated concern findings. We are heartened that the Superior Court has recognized just how serious a deprivation of parents’ rights this is,” said Susan Elsen, lead counsel for the Massachusetts Law Reform Institute on the case. “We deeply admire our client’s courage in challenging this practice, greatly appreciate Brown Rudnick for leading this litigation, and also appreciate the work of attorney Jessica Berry and the students at the Juvenile Rights Advocacy Program at Boston College Law School for laying the groundwork for this challenge.”

The Massachusetts Law Reform Institute encourages parents who have requested and denied a fair hearing to challenge substantiated concern findings to contact Susan Elsen at the Massachusetts Law Reform Institute (selsen@mlri.org) and Jessica Berry at the Children’s Law Center (J.Berry@clcm.org).

About Brown Rudnick LLP

Brown Rudnick is an international law firm that serves clients around the world from offices in key financial centers in the United States and the United Kingdom. Brown Rudnick is deeply committed to public service, with its lawyers, paralegals, and business professionals dedicating their time and talents to help individuals and organizations pursue civil rights and racial justice and in other matters.

About Massachusetts Law Reform Institute

Founded in 1968, Massachusetts Law Reform Institute (MLRI) is a nonprofit poverty law and policy program that provides statewide advocacy and leadership in advancing laws, policies, and practices that secure economic, racial, and social justice for low-income people and communities. To learn more, visit MLRI.org.