By Rinaldo Del Gallo, III, Esq.

Wednesday, September 26, 2007

Monday, I represented a defendant in a criminal trial, a father that was charged with assault and battery on a child. The father had scooped his child by one arm and placed him in his motor vehicle so he could be brought home after visiting with the mother.  He was not trying to punish his child, but was only doing something that he had done before while playing with his child as he was trying to get the child ready to leave. Fortunately, justice was served and my client was found not guilty. 

This was not the father’s only problems.  Shortly after the incident, the mother first tried to obtain a restraining order on behalf of the child and was denied by a judge. After losing in Probate and Family Court, deciding that the “judge made a mistake,” the mother and her attorney called the Department of Social Services as the father tried to pick up his son. The father was investigated by DSS, wherein I was able to have a substantiated finding of abuse overturned after a fair hearing.  The original investigating DSS personnel did not listen to the tapes of the restraining order hearing, walked out of the restraining order hearing itself even though they were summoned as witnessed (so there were obviously aware of the hearing), and did not speak to any doctors or nurses who examined the child shortly after the incident. 

Though by regulation my client was supposed to get a fair hearing in ninety-days, it took months to obtain a hearing. While the request for a fair hearing was in April 2006, there was no ruling until August 2007.  To the credit of the fair hearing examiner—who is undoubtedly extremely overworked—she was fair, impartial, and was open-minded towards the evidence.   But the situation necessitated an effort to seek a writ of mandamus in Superior Court to obtain the fair hearing before the Department of Social Services that my client was entitled to under regulations.   Thus, this minor incident wherein my client did absolutely nothing wrong resulted in a restraining order case, a DSS fair hearing, a petition for a writ of mandamus in Superior Court, and a criminal trial.  My client has not seen his child in over a year, and there appears to be no statutory authority for DSS taking a child, giving sole custody to the mother, without taking custody of the child themselves and instituting a hearing in juvenile court.

Recently, in a case known as Commonwealth v. Ruben, 64 Mass. Appt. Ct. 396 (2005), a Massachusetts Appellate Court, stated, “No Massachusetts decision or statute grants parents or others a right to use reasonable force in disciplining a child.”   Because of this pronouncement, there has been some commentary from the bench that there is no such right to use even reasonable force in corporal punishment in Massachusetts.  This appellate court case appears to “overturn,” though it is a lower court, a Massachusetts Supreme Judicial Court case known as Cobble v. Department of Social Services, 430 Mass. 384 (1999).  In Cobble, which involved a DSS investigation, it was ruled that using a belt on a child for spanking that left red marks for about ten minutes at most was not “abuse” as defined Mass. Gen. L. c. 119 §51A.    While Cobble was briefly mentioned in Ruben, the irreconcilability of the two cases was not meaningfully addressed, and the fact that one was a Department of Social Services case, and the other a criminal assault case is not going to pass as a meaningful distinction.  Comparing Ruben with Cobble, we have the oddity that some conduct that does constitute the crime of assault and battery in Massachusetts, somehow does not constitute “abuse” for purposes of investigation by the Department of Social Services.  For this reason, I believe the Ruben court did not appreciate the scope and breath of Cobble, and improperly limited its scope and import to  Mass. Gen. L. C. 119 §51A care and protection cases, and that in reality, Ruben is not reconcilable with Cobble.

We at the Berkshire Fatherhood Coalition hereby issue the following advisory:  Given the disposition of the D.A.’s Office and front line examiners of DSS, given recent developments in case law, given the near impossibility of getting a timely fair hearing before DSS, we strongly advise against the use of all corporal punishment of any kind, no matter how reasonable, how appropriate, or how slight.  If a child refuses to move, one may have to continually to calmly speak to the child instead of picking him up, even if it means being late for appointments, events, school, or religious services.  Forcing a crying child to move is simply too pregnant with the possibility of criminal prosecution and an investigation by the Department of Social Services, as my client found out the hard way.

If a parent, teacher, or child caregiver is brought to trial, they will be given an instruction that  (1) if the defendant touched the victim [child], however slight, without having any justification or excuse for doing so, and (2) the touching was done without the alleged victim’s consent [i.e., the child’s consent], that they should be found guilty of assault.  Whether it is merely picking up a recalcitrant child, horseplay, or physically disciplining a child, the trend in the case law is that it is not error for the court to fail to instruct a jury that “reasonable force” is permitted as between parent/child or teacher/child to show that the behavior was either “justified” or “excused.” This failure to provide a reasonable force instruction simply creates too much of a possibility for a miscarriage of justice.  Accordingly, the Berkshire Fatherhood Coalition issues this advisory to desist from such activities.

Rinaldo Del Gallo, III, Esq.

The author is spokesperson for the Berkshire Fatherhood Coalition, and may be called at 413-445-6789 if you have any questions.

Click HERE to contact Attorney Del Gallo.

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