What is a Fair Hearing?
Adapted from the AOK Guidebook, It Takes a Village.
The Fair Hearing Unit is housed in the Office of General Counsel, at the DCF Central Office in Boston. They act as an arbiter between DCF and any party who is dissatisfied with certain DCF actions or inactions. Like the Special Investigations Unit, the Fair Hearing Unit is not affiliated with any DCF area office, and they are an impartial entity. Unlike the SIU, the Fair Hearings Unit does not have access to your DCF records. Although the fair hearing is not a formal court process, there is a hearing officer and both sides are able to voice their arguments. The hearing officer hears the case, reviews all relevant materials that both sides present, and makes a determination in a written report. The determination is based on whether pertinent statutes, case law, and Departmental policies were followed appropriately. The Fair Hearing Unit has a robust and informative website, which we encourage you to browse, if you are interested in learning more about the process.
There are numerous grounds on which foster parents can request a fair hearing. But primarily, foster parents request fair hearings on four grounds:
- DCF has revoked a family’s license to foster or adopt
- DCF has removed a child from their home
- A foster family disagrees with a 51-B investigation outcome
- A pre-adoptive family disagrees with a post-adoption subsidy determination
Importantly, you cannot request a fair hearing based on the removal of a child from your home if the child is:
- being reunified with birth family
- moving to a kinship placement from a non-kinship placement
- moving to a home where the child has biological siblings if moving from a home with no biological siblings
- moving to a pre-adoptive or other permanent home (e.g., permanent guardianship) if the home from which they were removed is not pre-adoptive or permanent
- moving to independent living
When DCF makes a determination that a child should be moved from one home to another, foster parents are supposed to receive a mailed letter alerting them of this decision at least 5 days before the removal. However, in practice, this is rarely the case. This is also never the case if a child is removed on an emergency basis. The only mechanism to stay a removal (in other words to prevent the removal from happening) is to request a fair hearing if the situation is not one of those described above. The fair hearing may or may not be granted, however. If it is not granted, the stay will not be issued. If it is granted, the stay may be issued until the resolution of the case, unless the Area Director who oversees the office assigned to the child’s case determines that the foster child’s physical, mental, or emotional well-being would be endangered by remaining in the home while the fair hearing process proceeds. In other words, DCF still has final authority on removal.
A fair hearing can be requested online or in writing, and if you have multiple grounds for which you are requesting a fair hearing, these can be consolidated into a single hearing. For example, 1) a 51-B investigation supported a 51-A allegation, which 2) resulted in a child being removed from your home, and 3) subsequently your license was revoked. All three conditions would be consolidated into a single hearing. Fair hearings are supposed to be scheduled within 65 business days after they are requested, and 45 days if a removal is involved. Whether or not that actually happens depends on how full their calendar is.
A fair hearing outcome either “affirms” or “reverses” the decision of the Department, and can take two to three months to receive (a typical timeline from requesting a fair hearing to getting a decision is six months, but it could take much longer). If a fair hearing affirms the Department’s decision, the case finishes and the decision is filed. At that point, you would have the option to appeal to the Massachusetts Superior Court, and then the Massachusetts Appellate Court. But there is no other recourse within the Department to remedy the situation.
Per the fair hearing unit, decisions are reversed approximately 50% of the time. If a fair hearing outcome reverses the Department’s decision, the report goes to the DCF Commissioner, who has 21 business days to review. The Commissioner can either agree with, or overturn, the decision reported. However, it is rare that the Commissioner overturns the outcome of a fair hearing. As with SIU investigations, you are free to contact the hearing officer or Fair Hearing Unit supervisor to inquire about the status of the decision if it seems to be dragging out.
After a Fair Hearing Reversal
Many foster parents are dismayed when they realize what a fair hearing “win” might mean. An important thing to remember is that fair hearing decisions are purely administrative in nature. The Fair Hearing Unit cannot compel the Department to act a certain way. In other words, even if the fair hearing decision overturns the Department’s decision to remove a child, that decision does not compel the Department to return the child. However, such a “win” can be useful in a courtroom, where a judge has final authority over the child’s placement or any other fair hearing matter.