What defines a "CARETAKER" in Mass?

Q.   I have been charged with physical abuse of my nephew by DCF. I have never been held responsible for watching or babysitting him. Why would I have such a false allegation filed against me?

A.    According to 110 CMR 2.00, a caretaker is defined as

"a child's: (a) parent(b) stepparent (c) guardian (d) any household member entrusted with the responsibility for a child's health or welfare (e) any other person entrusted with the responsibility for a child's health or welfare whether in the child's home, a relative's home, a school setting, a day care setting (including babysitting), a foster home, a group care facility, or any other comparable setting. As such "caretaker" includes (but is not limited to) school teachers, babysitters, school bus drivers, camp counselors, etc. The "caretaker" definition is meant to be construed broadly and inclusively to encompass any person who is, at the time in question, entrusted with a degree of responsibility for the child. This specifically includes a caretaker who is him/herself a child (i.e. a babysitter under 18 years of age)."

Abuse is the non-accidental commission of any act by a caretaker upon a child under age eighteen which causes, or creates a substantial risk of physical or emotional injury, or constitutes a sexual offense under the laws of the Commonwealth or any sexual contact between a caretaker and a child under the care of that individual, not dependent upon location. When a caretaker is alleged of physical abuse, the Department of Children and Families (DCF) becomes involved and the matter is a civil case. Many people do not realize that DCF can harm them immensely as far as reputation, family dynamics and even jeopardize your job and therefore income if you are in a licensed profession. DCF has the ability to turn a civil case over to a district attorney referral which thereafter, ignites a criminal case. If a 51A report is supported after an investigation,  DCF must mail the supported 51A report and the completed 51B investigation to the district attorney and local law enforcement authorities, no later than five working days after the supported decision is made, if:

(a) a child has died;
(b) a child has been sexually assaulted;
(c) a child has suffered brain damage, loss or substantial impairment of a bodily function or organ, or substantial disfigurement;
(d) a child has been sexually exploited;
(e) a child has suffered serious physical abuse or injury that includes, but is not limited to:
1. a fracture of any bone, severe bum, impairment of any organ, or any other serious injury; 

2. an injury requiring the child to be placed on life-support systems; 

3. any other disclosure of physical abuse involving physical evidence which may be destroyed;

4. any current disclosure by the child of sexual assault; or

5. the presence of physical evidence of sexual assault.

Everything you say (and do) with/to DCF can be later used against you at the grand jury level and the ensuing criminal case to place you in jail. So, what do you do in this situation? You are stuck in a difficult situation. Many criminal lawyers will tell you to simply "shut up". While this may turn out to be successful in dismissing the case, you will still have a 51A against you on the civil side from DCF. If you do not speak to DCF they will have no choice, but to support the 51A report that has already been filed against you: therefore you have essentially granted DCF the easy decision to support the allegations of abuse and neglect against you and/or your family. In the case that this happens, be sure to file or have your attorney file for, a fair hearing within thirty days of receiving the support letter from DCF so that YOU can have your say.

The Fifth Amendment protects your right against self-incrimination. If you speak to DCF, however, you may end up incriminating yourself without realizing it, especially if DCF fails to inform you regarding the
possibility of a criminal case. DCF's parent pamphlet, however, does suggest that anyone with child abuse and/or neglect charges filed against them SHOULD contact a lawyer. And because every case differs, it is imperative to immediately retain a lawyer experienced with all aspects of DCF.