DSS Does Not Follow Own Regulations, Says State House Advisor
System Is 'Rigged' Against Parents

Why Not a Top Priority?

By Ed Oliver
September 25, 2002

A State House legal advisor told a forum at Tufts University last week that the Dept. of Social Services does not follow its own regulations.

The system is "rigged" against parents who try to get their children back from the agency, he said.

Attorney Bernard Fang told how regulations which are supposed to tell the parents what they are required to do, are often not followed by DSS, leaving parents without a clear blueprint about what is required of them. As a result, parents are declared unfit after a year's time and subsequently stripped of their parental rights.

He doesn't think he has ever seen a Service Plan drawn up according to regulations.

There is not a legislative solution, he says, because the regulations as written are good, but not obeyed. He said the only recourse for parents is to have the courts enforce the regulations, either by using a lawyer or doing it themselves or with the help of an advocate.

The rules mandate that parents take part as much as possible in developing the Service Plan along with DSS, and if they disagree with it, there is supposed to be a grievance procedure.

If the rules were obeyed when DSS fashions a Service Plan, according to Fang, people could use a checklist approach to determine how things are progressing in their case, which would make it simple to determine if a person has a chance to have the children returned. The Plan, he said, should be something the parent can point to and say, "I have done A, B, C, D, E, but failed to do F and G, therefore I need to work on it," he said.

With DSS, according to Fang, "It's always, 'We'll get back to you. We'll let you know. We don't have any idea how things are, it will take six months to get your services in place.' Then, after a year they say, 'You haven't completed the services, therefore you are unfit.'

"Well, it's a rigged system because if it takes them six months to get it in place, you only have six more months to prove yourself in the year period. Government doesn't provide the services quickly enough to give a parent a chance."

Fang said that according to regulations, a service plan can be developed as late as fifty-five working days from the start of the case, which works out to about eleven weeks or almost a quarter year after the child is taken by DSS. Then add six months on top of that to get the services in place. "Now nine months of a twelve month period are gone, and yet a parent is unfit because they haven't done anything. It's not that they haven't been unwilling to do anything. It is that nobody has told them to do anything.

"The goal in my opinion is to give the parents a fair chance to get their children back with reasonable tasks, services and goals, and everybody should be able to judge objectively whether or not these are met."

Still Believes in System

Despite his criticisms, Fang believes in the system, but just wants to make it fairer. He did not seem to have a philosophical problem with a government agency that takes children away in large numbers and keeps them if parents are not deemed worthy.

"If they [the goals] are not met, parents over time should lose their children because a child in theory should not live in a home where the parents cannot comply with reasonable demands on helping the children develop into adults," said Fang.

"The Plans aren't adequate, the services are not provided, and nobody knows what is supposed to happen. After a year if nothing happens, the Department will say the parent is unfit because nothing has happened. But the Department hasn't done what it is supposed to do either, so it is in effect a catch-22. You can't win because you didn't know what is supposed to happen, but the agency that was supposed to provide it didn't provide it, therefore you lose. That's a rigged system as far as I'm concerned."

In light of his serious charge that parents are caught in a rigged system, MassNews asked Fang what he is advising politicians at the State House to do about it?

"It's not a question of legislation, it is a question of enforcement of regulations, which is done through the judiciary and the court system. The legislation and the regulations as read are very good, but nobody follows it. But that's a different system than in need of legislation."

Fang worked with Rep. Marie Parente informally on foster care for the last five or six years. He currently works in the State House as a legal advisor to Angelo Scaccia, Chairman of the Rules Committee. He has twenty years experience in the juvenile courts representing parents and children, and worked with DSS when necessary to require them to comply with their own regulations.

Sidebar:
Why Not a Top Priority?

MassNews asked Atty. Fang why the serious problems aren't considered top priority?

"It's a court issue. It's enforcement of a regulation."

MassNews: But children are being torn from their parents.

"It's enforcement of regulations, this is not about the need to create new regulations. The legislature creates law."

MassNews: Who makes DSS follow regulations?

"The court system."

MassNews: Who makes the court system enforce the rules?

"The parties to the case. If a parent's counsel or if a parent wants to wave the rules and say 'make them do it,' that's the way to do it."

MassNews: But public lawyers basically work for the court and are not going to challenge DSS or the judge.

"That's not true, they are independent contractors."

MassNews: In reality, they work for the court and tell their clients to do whatever DSS says to do. So you are basically telling poor people the only answer is to hire an expensive lawyer.

"They are appointed by the court, they do not work for the court."

Fang said the parent can learn how to do it and go into court and have the regulations enforced themselves, or an advocate could go in with them if the parent allows that. Also, he would not comment on public defenders, but there is a group called the Committee for Public Counsel Services that can instruct appointed counsel to see that the regulations are enforced.