In OneLaw’s December newsletter, Attorney Peter Hahn explains how families get involved with the Department of Children and Families, and Attorney Chris Connolly reviews the law regarding students being questioned about misbehavior at school.
Read the full December 2023 newsletter HERE.
The text version is below.
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Hopefully you are able to get some rest as the year wraps up.
In this newsletter, I explain what to consider when you become involved with the Department of Children and Families, and Attorney Chris Connolly reviews the law regarding students getting questioned about misbehavior at school.
Our seminar series will continue in January with Attorney Chiara LaPlume presenting on buying and selling residential real estate. First timers welcome as well as those who have gone through the process before.
As always, OneLaw is dedicated to serving the personal legal needs of families and individuals across a variety of practice areas. Let us know how we can help you. Visit our website (https://www.one-law.us) or give us a call at 617-831-4355.
Peter A. Hahn, Esq.
Founder & Owner of OneLaw
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What to Know About the Department of Children and Families
by Peter A. Hahn, Esq.
The Department of Children and Families (DCF) is the child welfare agency in Massachusetts tasked with investigating allegations of child abuse and neglect and caring for children who can not live with their caretakers, either temporarily or permanently.
A DCF investigation begins with a 51A report of an allegation of child abuse or neglect. Mandated reporters are those people legally required to file a 51A. DCF either screens in or screens out the report for further investigation. A 51B investigation is conducted by a social worker. She typically will want to visit the home and interview the child (or children), the accused, and the parents or guardians (if different). She will speak to the original reporter and collaterals, including the child’s doctor and school. She will see if there is a criminal record or related police reports. Any prior DCF history will be considered. The result of the 51B investigation can be to support the allegation, unsupport the allegation, or substantiate a concern about the family. DCF may require an assessment of the family or offer voluntary services.
In the most extreme scenario, DCF can petition the Juvenile Court for custody of the child, including on an emergency basis if deemed necessary. A care and protection petition begins what is typically a long, arduous court battle involving DCF. Ultimately, a parent’s rights can be terminated and the child placed for adoption.
OneLaw represents clients in all types of matters involving DCF. We counsel clients through the process. We can be present during a home visit during the initial investigation. We may advocate for you during a Fair Hearing appeal if an allegation is supported or substantiated against you. We can represent you if DCF files a case in Juvenile Court or Probate and Family Court. In general, be cautious but cooperative with DCF. However, every situation is different, and you are best to consult with an attorney before deciding how to proceed.
Attorney Peter Hahn represents clients in a range of practice areas, including education, civil rights, juvenile and child welfare, criminal, and related matters.
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GUARDIANSHIPS
Adults with disabilities may need a court-appointed guardian if they are not able to make basic legal decisions for themselves, including financial, medical, and educational decisions. OneLaw works with parents and other caretakers interested in seeking guardianship over any adult who qualifies. This includes planning in advance for children who are about to turn 18. Contact us if you need assistance.
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The Law About School Interrogation
by Chris Connolly, Esq.
Can school teachers and administrators question students about alleged misbehavior? It depends.
Adult defendants have a right not to incriminate themselves. If a police officer has someone in custodial interrogation, the police are required to read them Miranda warnings such as the right to remain silent, the right to an attorney, the right to consult with counsel, and to have counsel present during the interrogation, and the right to have an attorney provided if he cannot afford one. Custodial interrogation is a legal term of art that asks the court to determine whether a defendant would’ve felt free to terminate the interrogation among other factors of compulsion to speak with police. The greater the circumstances are for the defendant to feel compelled to speak with the police, the greater chance there’s custodial interrogation. Frequently in criminal cases, the big issue regarding whether the government can use the defendant’s statements at trial is whether there’s custodial interrogation. For example, a person who goes on his or her own volition to a police station to talk about an event, who is free to leave without any notable factors compelling him or her to stay, the situation probably wouldn’t be custodial. If, however, one changes a few of the details, like the door to the conference room locks keeping the person there while police continue questioning, then custodial interrogation and Miranda warnings could become issues. Questioning by police can become custodial at later points of the interaction even if at the beginning wasn’t custodial.
Separate and apart from the issue of Miranda warnings is whether the statements are made voluntarily. A statement to be used against a defendant can’t be a product of physical or psychological coercion. Many things can factor into whether statements are voluntary including the age and experience of the person questioned. Examples of a statement being involuntary can include in some contexts promising leniency or false assurances that parts of the Miranda warnings don’t apply after the police provided the warnings.
Children have the same rights as adults during police interrogations. Children also have an additional protection during custodial interrogations called the interested adult rule which generally requires the police to have present an adult who has a concern for the child’s welfare and allows the child the opportunity to meaningfully consult with the adult about his or her Miranda rights.
What if a school official is doing the questioning? Courts are reluctant to find custodial interrogation in school situations even though school officials are also government actors like police with great control over students. Whether there is custodial interrogation comes down to whether the school official is acting as an agent of the police during questioning and the involvement of the police in controlling the questioning, including school resource officers. In other words, if the police aren’t controlling, initiating, or influencing a school investigation, then there’s no custodial interrogation.
Separate from that, there is no broad legal requirement that a school official contact a parent or have a parent present before questioning a student. It doesn’t even matter if the school official later turns over the student’s statements to police. Also, no case law at the moment has supported a student’s claim that his or her statements to school officials in the absence of police officer participation is involuntary. However, the argument can still be made.
This isn’t to say that students in public schools have no rights in a school investigation or a disciplinary hearing if police aren’t involved. Students do not have to answer questions. Students also have a right to privacy from unreasonable search and seizures. Numerous state and federal statutes and regulations control procedural due process rights of students. In student discipline hearings, the student has a right to have parents and an attorney participate. If you’re a student being questioned by a school official of something that could be criminal in nature like a fight or the school found an illegal substance in your possession, or there’s any potential violation of school rules, it’s recommended that you ask to have an attorney present before answering any questions and be allowed to contact your parent. Kids often lack the capacity to appreciate the consequences of their actions or words. It helps to have an adult present to make sure they understand what could happen if they speak.
Attorney Chris Connolly represents clients in criminal and juvenile delinquency cases, as well as a variety of education law matters.
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COMING SOON: Attorney Chiara LaPlume will present a seminar in the common area at 55 Chapel Street in Newton on buying and selling residential real estate. First timers are encouraged to attend, but everyone with questions about the process are invited. More details to follow in the new year!
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OneLaw represents clients in education, estate planning, residential real estate, civil rights, Juvenile Court, criminal and victim rights, discrimination, special needs planning, guardianship, civil litigation, child welfare, probate administration, Title IX, HPO/RO, and related matters.