Survive Allegations

• Do Deaths Require Investigation?
• Hostile Interviewer: Handling the Hot Seat 
• Responding to DCFS Child Abuse Investigations

Do Deaths Require Investigation?

The authority of the coroner or medical examiner to investigate the deaths of infants/children comes from Minnesota Statutes, Sections 390 and 383B, and applies whether jurisdiction follows the Coroner’s Statutes (390.005-390.26) or the Simplified Death Investigation Statutes for medical examiners (390.31-390.36).

Whichever type of investigative system is used, the death of an infant/child should be considered a sudden, unexpected event, unless it was clearly anticipated, as in the terminal condition which is being followed by a licensed physician in a hospital or hospice setting, and the anticipated death had been registered with the local coroner/medical examiner, the law enforcement officer and the funeral director. As such, sudden, unexpected infant/child deaths fall into the category of "deaths under unusual or mysterious circumstances" (Minnesota Statutes, Section 390.11, Subdivision 1 [2] and Section 390.32, Subdivision 1 [2]), and must be reported to the local coroner or medical examiner for investigation. They require a thorough death investigation by competent authorities from the jurisdiction in question irrespective of the infant/child’s age or circumstance.

In those cases where an infant/child has a diagnosed terminal condition, whose death is anticipated and who has been followed by a licensed physician, the anticipated death should have been registered beforehand with the local coroner/medical examiner, the law enforcement office, and the funeral director. When the death actually occurs, the coroner/medical examiner should be informed and the investigative process may be concluded after he/she interviews the primary caregiver, the hospital personnel present at the time of death, the parents, and so on. In such cases, where the diagnosis can be confirmed and the manner of death is natural, the coroner or medical examiner may refuse jurisdiction of the case and allow the primary physician to sign the death certificate.

Sudden, unexpected deaths of infants/children include but are not limited to:

1. Any death due entirely or in part to any factor other than natural disease. Examples of this type of death include those caused, directly or indirectly, by automobile accidents, industrial or farm accidents, carbon monoxide poisoning, child abuse or neglect. The duration of hospitalization is not important in determining if a death is reportable: the patient may be essentially dead on arrival at the hospital, or may have been hospitalized for an extended period of time.

2. Any death that may be an accident, suicide, homicide, or potential complication of abuse or neglect, or a possible complication of any injury even if the injury is/was remote.

3. Any death in which the cause or circumstances of death are unknown.

4. Any death that is apparently due to natural causes but in which the deceased does not have a personal physician familiar with the medical history, social and environmental situation or the circumstances of the terminal event.

5. Any sudden, unexpected death of an infant/child, even if the infant/child is disabled by a known chronic disease, i.e., cerebral palsy.

6. Any death that occurs during, in association with, or as the result of a diagnostic, therapeutic or anesthetic procedure.

Reprinted from "Foster Focus," May 1995, published by the Olmsted County Foster Care Program

The Hostile Interviewer: "Handling the Hot Seat" 
by August P. Cervini, adapted by Roma Maloy

Foster care providers may be confronted with a hostile social worker, birth parent, psychiatrist, or even a newspaper reporter. Although this happens infrequently, we should develop skills that will give us a positive image. Here are a few tools to keep in mind if it should happen to you.

When faced with a hostile interviewer:

1. Stay calm.
2. Listen carefully
3. Answer only what’s being asked.
4. Lead off with a strong statement.
5. Answer the question as accurately and positively as possible
6. Then bridge to points you want to make.

If the interviewer asks multiple questions: You may be asked, "Is the client’s drug abuse increasing? Does counseling help curb his abuse? What are you doing to help prevent his drug abuse?" Pick out one question and calmly give your answer. Then ask, "What were the other questions?" and let the interviewer ask the unanswered questions again.

If you are interrupted: Pause until the interviewer is finished with the interruption. Then say, "I’ll answer that in a moment. As I was saying . . ." (quickly) finish your original point.

If the interviewer tries to put words in your mouth: Clearly say, "That’s not what I said. What I said was . . ."

If you are introduced with a negative opening statement: Often the client is present at the interview. Don’t allow the negative impression to stand; the client and the interviewer may assume you agree with it. At the first opportunity, calmly state, "There’s something I’d like to correct," and politely correct the initial statement.

If the interviewer introduces a false fact: Most clients pick up on these things quickly. Graciously correct it, and move on to a positive point. If you do not recognize a fact stated by the interviewer, do not assume it’s accurate. Explain that you are unfamiliar with the information, and if the interviewer will share it with you, you will be happy to review it and comment.

If the interviewer uses a "pregnant pause": Do not rush to fill in lulls in the conversation; you may say something you will later regret. Calmly wait out the interviewer, or say, "I believe I’ve answered that question. Do you have additional questions?"

If you are asked an "assumed guilty" question: For example, the interviewer may say to your client, "I understand you were using drugs as recently as last week. What do you plan to do about it?" We are to be advocates for our clients. If you know she has not, immediately correct the false assumption of guilt without restating the charge by saying, "That isn’t true." Then allow the client to describe the situation honestly. You may add, "It’s true that she used in the past, but she is really trying hard, and with counseling she’s doing much better."

If the interviewer presents and A/B dilemma: The interviewer may ask, "Are you not attending John’s counseling sessions because you aren’t interested or because you don’t have time?" You do not have to choose either option! You can say, "Neither. Both the counselor and John feel that John is too shy for me to be present at this early stage of therapy. When either of them invite me to attend, I will do so."

If you are tempted to go "head-on" with the interviewer: Resist the impulse: stay calm, professional, and positive.

August P. Cervini is a public relations specialist. This article is adapted and reprinted with permission from the American Academy of Child and Adolescent Psychiatry (AACAP) News, vol. 24, no. 5, September-October 1993. Roma Maloy a an MFCA board member. She is an adult provider. 

Responding to DCFS child abuse investigations
By Mary Kennedy, MA., JD., LL.M.

As far as the specific allegation which has been made against you or your child the investigator’s task is threefold:

       1. Did the occurrence take place?

       2. If so, who did it?

       3. Was it child abuse or neglect? 

You are in the kitchen, cleaning up spilled apple juice and trying to make sure the macaroni does not boil over when your doorbell rings.  “Mrs. James?  My name is Edie Williams and I'm from DCFS. I’d like to ask you some questions”  As you try to gather your thoughts, your head is filled with visions of your children being forcibly dragged away, and your hopes of fostering or adopting another child begin to evaporate. 

Relax!  You might not even be the subject of the investigation, so this is no time to get defensive and begin making excuses.  In case you are the subject of the investigation, however, there are some things that you should know.  First of all, the majority of reports to the hotline are ‘unfounded,’ which means that DCFS concludes that there is no credible evidence of abuse or neglect, so the odds are on your side.  Now is the time to gather your wits about you, because the way you respond to the investigator may tip the scales in your favor.  Remember, this is the investigator’s job, and the investigator is human.  Making his or her job more difficult will not incline the investigator to be favorably disposed toward you.

Does this mean you should ‘spill your guts?’  No.  It means that you should try to respond in a calm and mature manner.  Remember, if you overreact to the stress of an investigator at your door, it may create the impression that you have a short fuse and may overreact to the stresses of parenting, too.

The investigator is required by law to tell you what accusations have been made against you.  After this question is answered, you will immediately want to know “Who said that?  Who did this to me?” It’s only normal to want to know.  Go ahead and ask if you wish, but understand that under no circumstances will the investigator tell you.  Hotline calls are confidential, so take 'no' for an answer gracefully and move on.  (Before this is over you'll probably have a good idea, anyway.)  Remember, most of the people your children come into contact with (caseworkers, day care providers, medical personnel, school personnel, etc) are mandated by law to report any suspected abuse, and failure to do so may cost them their jobs.  Remember also that there are many stereotypes that attach to foster and adoptive families, and even well-intentioned individuals may be more likely to express concern about foster and adopted children than about biological children.  This may be insulting, but getting angry about it won’t help you here.

The investigator will want to discuss the specific allegation with you (e.g., where were your children at 8 p.m. last night?  Why does your daughter have a bruise on her backside? )  and will also want to go through some family screening questionnaires with you.  The purpose of these questionnaires is to find out generally if there is a drug or alcohol problem in your family, and to find out if your children are safe in your home.  Throughout this part of the interview, the investigator will be sizing you up both in terms of what you say and how you say it. 

If you conclude that you are not comfortable answering the questions, you may wish to tell the investigator that you would like to speak with an attorney first, or just have a friend present for support, before you respond. 

The investigator will probably ask to speak with your children – or may have already interviewed your children elsewhere.  As upsetting as this is, DCFS is allowed by law to do it, and any action you take to thwart the investigation may well backfire. If the allegations involve any type of sexual abuse, the investigator will probably want to schedule a 'VSI' (Victim Sensitive Interview) at a Child Advocacy Center in your county.  If the allegations involve any type of sexual abuse you would be well advised to seek counsel immediately, before anyone is interviewed. In most other cases, however, the investigator will probably just want to speak to your child out of your presence.  In that case, you are absolutely entitled to have someone else, be it your attorney or just a friend, sit in on the interview to observe.  That way, if there's ever a dispute about what was said, you have a potential witness. 

Many times they will find that the occurrence took place, but it did not rise to the level of abuse or neglect. 

Your willingness to learn from the experience may have a big impact on that result. For example, a teacher may have noticed that your child had a bruise and called the hotline.  If the investigator concludes that the bruise was accidental, the first two questions will have been answered in your favor, and there will be no need to ask the third question.  If, however, the investigator concludes that the bruise was as a result of a spanking, she will need to delve further into your use of corporal punishment as a parenting tool.

If alternate discipline techniques, or even parenting classes, are suggested to you, you may wish to accept them gracefully.  This would not, for example, be a good time to suggest that your parents beat you regularly and you turned out OK, or to begin making speeches on your philosophy about your right to be free from governmental intrusion–your attitude and acceptance of the investigator’s professional guidance may make all the difference here.

At the conclusion of the investigation, you will receive a letter with the result.  If the case has been 'unfounded' and you wish to receive a copy of the report (it will have the names of the interviewees blacked out, of course) you must immediately write and request it.  Follow that request up with a phone call if you haven’t received it in two to three weeks. 

Of course, some cases are ‘indicated’ and if you find yourself in this situation, you have a right to appeal that finding.  Instructions for filing your appeal appear on the letter from the Department.  Follow them – especially the time limits – carefully.  An appeal filed even one day late will be dismissed and the indicated report will remain on file. 

If you appeal, a hearing will be set before an Administrative Law Judge.  The hearing is really a trial, although it appears more informal than a courtroom, and the process is full of procedural pitfalls, so, while you have every right to represent yourself, this is the time, if you have not done so already, that you would be well advised to consult an attorney – before you file for your appeal, not the day before the hearing!  At the hearing, DCFS must produce evidence showing that its finding is supported by the 'preponderance' of the evidence, and the appellant is given an opportunity to respond by producing witnesses, documentary evidence, etc.  Remember, just like your first interview with the investigator, the way you conduct yourself before the Administrative Law Judge may have a big impact on the outcome. After the conclusion of the hearing, the Administrative Law Judge prepares a 'recommendation' which goes to the Director of DCFS, who can then uphold, reverse or modify the indicated finding.  The most important evidence at the hearing, however, is often the investigator's report, so remember that what you do when you first answer the door may have a great deal to do with the outcome of any allegation made against you.

Copyright Mary Kennedy 2003   The foregoing is provided as general information only, and not as legal advice in any particular case or situation.  It is not intended to create an attorney-client relationship.  Individuals facing this situation are strongly advised to seek counsel.

Mary Kennedy is the former Chief Administrative Law Judge for the Illinois Department of Children and Family Services, and past chair of the Chicago Bar Association Adoption Laws Committee.  She has served as Guardian ad Litem in thousands of adoptions.  She is co-drafter of the Illinois 'Baby Richard Law' and a frequent speaker on child welfare issues, and is the mother of three children by adoption.  She concentrates her practice in the areas of adoption, child welfare and education law from her office at 906 Bridle Lane, Cary, Illinois.  She can be reached at 847-462-0806.

The Department of Children & Family Services

A DCFS investigator is allowed, for example, to pull your children out of class or childcare without your knowledge or permission. Yes, a child can be a potential abuser.  This is most likely to happen if there has been an allegation that one child has acted out sexually toward another.  A database of individuals 'indicated' for child abuse or neglect.  When you seek to become a foster or adoptive parent, or when you apply for many jobs (teacher, school bus driver, day care provider, etc) a background check will include a check of this database, and an indicated report may prevent your licensure, employment or adoption, or may result in suspension or termination.