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U. S. Department of Justice

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U.S. Department of Justice

Civil Rights Division

U.S. Department of Health and

Human Services

Office for Civil Rights

Via Email and Overnight Mail
January 29, 2015
Erin Deveney

Interim Commissioner

Department of Children and Families

Executive Office of Health and Human Services

Commonwealth of Massachusetts

600 Washington Street

Boston, Massachusetts 02111
Re: Investigation of the Massachusetts Department of Children and Families by the United States Departments of Justice and Health and Human Services Pursuant to the Americans with Disabilities Act and the Rehabilitation Act (DJ No. 204-36-216 and HHS No. 14-182176)
Dear Commissioner Deveney:

We write concerning the investigation of the Massachusetts Department of Children and Families (DCF) by the United States Departments of Justice and Health and Human Services (collectively, Departments) pursuant to Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794.

Title II and Section 504 prohibit disability-based discrimination by DCF, including the denial of opportunities to benefit from services, the failure to reasonably modify policies and procedures, and imposing methods of administration that have the effect of discriminating on the basis of disability.1 The Departments’ investigation has revealed that DCF has committed extensive, ongoing violations of Title II and Section 504 by discriminating against Sara Gordon2 on the basis of her disability, and denying her opportunities to benefit from supports and services numerous times over the past two years, including her existing family supports.

Sara Gordon is a 21-year-old woman who has a developmental disability. In November 2012, Ms. Gordon gave birth to Dana Gordon. Two days later, DCF removed the baby from Ms. Gordon’s custody while she was recovering from childbirth in the hospital. Ms. Gordon lives with her parents, who do not have developmental disabilities. Her parents have continually intended to provide her support in parenting her child. Ms. Gordon’s mother quit her job to provide full-time support for Ms. Gordon and her baby.

In this letter, pursuant to 28 C.F.R. § 35.172(c) and 45 C.F.R. § 80.7(d) (incorporated by reference in the Section 504 implementing regulation at 45 C.F.R. § 84.61), we identify our findings of fact, conclusions of law, and minimum steps DCF needs to take to remedy the violations.3

The Departments find that DCF acted based on Ms. Gordon’s disability as well as on DCF’s discriminatory assumptions and stereotypes about her disability, without consideration of implementing appropriate family-based support services. DCF has continued to deny Ms. Gordon access to appropriate family-based support services it makes available to parents to successfully achieve reunification and has failed to reasonably modify its policies, practices, and procedures to accommodate Ms. Gordon’s disability. DCF staff assumed that Ms. Gordon was unable to learn how to safely care for her daughter because of her disability, and, therefore, denied her the opportunity to receive meaningful assistance from her mother and other service providers during visits. Finally, DCF changed the permanency goal to adoption and has sought to terminate Ms. Gordon’s parental rights on the basis of her disability.

During the past two years, multiple community-based service providers, two experts who have completed parenting assessments, Dana’s court-appointed attorney, and even a majority of DCF’s most recent Foster Care Review panel all have agreed that a family-supported parenting plan would be appropriate. In this matter, a family-supported parenting plan means that Dana would be placed with Ms. Gordon and her parents in their home and Ms. Gordon’s mother (Dana’s grandmother) would maintain guardianship of Dana. In particular, Dr. Nicole Brisson, Ph.D., LCMHC, a nationally-recognized expert in assessing parents with developmental and intellectual disabilities to ascertain appropriate parenting supports, evaluated Ms. Gordon in October 2014 and found Ms. Gordon “is a loving, caring, and conscientious mother who is willing to do whatever it takes to have her daughter in her life.” Dr. Brisson also found there was “no discernible reason revealed [by her] assessment that [Ms. Gordon] and her parents do not have the ability to care for [Dana] safely.” Brisson, Competence-Based Family Assessment at 23-24 (Oct. 24, 2014).

In this letter of findings, the Departments do not seek a remedy under Title II and Section 504 that requires DCF to immediately transfer custody of Dana to Ms. Gordon and her family. Instead, the Departments identify as a remedial measure that DCF immediately implement services and supports for an appropriate amount of time to provide Ms. Gordon a full and equal opportunity to pursue reunification with Dana, in consideration of the denials over the past two years and the evaluations of the professionals that have opined on this case.

The Departments recognize and respect the important responsibility placed on DCF and its social workers to investigate, protect, and care for infants and children involved with the child welfare system. However, the violations in this letter highlight systemic failures by DCF to ensure social workers follow appropriate policies and procedures and have necessary training to perform their duties without discriminating on the basis of disability.

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