A group of parents barred for months from visiting their children in foster care are suing Governor Charlie Baker, arguing his administration has imposed “excessive” restrictions in its bid to blunt the coronavirus pandemic.
The lawsuit, scheduled for a hearing Friday in Suffolk County Superior Court, charges that the Department of Children and Families “unilaterally” decided in April to end most face-to-face interactions between children in state custody and their biological parents.
Parents have instead been allowed only video conferences or phone calls — a move, the lawsuit contends, that tramples on their constitutional rights and risks traumatizing already at-risk children.
The challenge strikes at another, broader question public officials have struggled with for months: how best to guard public health while balancing individual privileges, many of which have been curtailed in the state’s effort to control the spread of COVID-19.
“The directive of the department goes significantly further than the guidance given by the federal or state governments and is excessive,” the plaintiffs wrote in a memo asking a judge to immediately allow them in-person visits.
The decision, they argue, imposes “more severe restrictions on contact between children and parents, whose bond is protected by the Constitution, than any other relationship.”
With the virus rapidly consuming daily life, DCF Commissioner Linda Spears wrote to state workers on April 3 that for “the time being” the department would move the majority of parent-child visits to video conferences or phone calls, according to the complaint. The goal was to limit in-person interaction “as much as possible" within the state’s 8,300-child foster care system.
The virus was already upending the pillars of the child welfare network, driving down the usual number of reports of child abuse and neglect and undercutting a system built on keeping children safe through face-to-face interactions. DCF also shifted many nonemergency welfare checks to video chats or phone calls.
A DCF spokeswoman declined to comment on the lawsuit Wednesday, but said DCF’s guidance “recognizes the importance of visitation, while protecting the health and safety of children and families” during an unprecedented health crisis.
The department, she said, is planning how to "reintroduce in-person visitation as soon as possible.”
In her e-mail to DCF staff on April 3, Spears said “that all decisions the department has made are out of an abundance of caution” and with guidance from the state Department of Public Health and federal Centers for Disease Control and Prevention in mind.
"As we know, this contact is extremely important to children and their parents,” Spears wrote, "and we must maintain that bond to the greatest extent possible.”
But two months later, a half-dozen parents whose children remain in foster care charge that isn’t happening. The plaintiffs — one of whom was on track to regain custody this spring — have not been permitted to see their children since March outside of weekly video chats, according to the lawsuit.
“Visitation means in-person contact,” according to the complaint filed by Lauren Russell, an attorney with the Committee for Public Counsel Services, the state’s public defender office, which is representing the plaintiffs.
By providing only “video conference visitation," it mounts to a termination of visitation, which requires a court order, according to the complaint, and is “unnecessarily delaying families’ reunification, is unwarranted under prevailing public health guidelines, and violates the law.”
For one Westport father and his 1½-year-old daughter, their twice weekly video chats may only last 10 minutes before the toddler’s attention to the call begins to wane, the complaint states.
A Taunton father, whose 3-year-old daughter is in foster care, had been granted two hours of visitation time a week, and DCF “intended” to return her to his custody this spring, according to the complaint. But he hasn’t since her in person since March 5, and their time together has been reduced to one-hour “virtual contact” each week.
When a Pittsfield father sought to restart visits with his 10-year-old son and 12-year-old daughter, a DCF attorney said the department was not “providing in-person visitation at this time,” according to the lawsuit — suggesting there was a broader prohibition beyond what Spears had initially indicated.
“I do not know when in-person visits will resume,” the attorney wrote, according to the complaint.
As part of their lawsuit, the plaintiffs included a letter that federal health officials released in March. It said the federal Children’s Bureau “discourages the issuance of blanket orders that are not specific to each child and family.”
The lawsuit is only the latest attempt to dislodge the restrictions the Baker administration imposed in fighting the virus. Most have centered on Baker’s emergency orders, from a successful litigation to allow gun shops to reopen to a sweeping challenge of the very legal basis for the governor’s various executive actions.
Judge Anthony M. Campo is expected to hear arguments on the DCF plaintiff’s request for a preliminary injunction Friday.