The Department of Social Services is required to refer incidents of serious injury to the District Attorney's office. However, DSS can and does make "discretionary" referrals.

In a recent case in the Law Office of Kevin Patrick Seaver, a child with a history of telling lies told her teacher that her mother had kicked her in the face. The school immediately reported the allegation to the Department of Social Services. Although the Department did not treat the matter as an emergency and did not even ask if the child needed first aid, it immediately referred the matter to the District Attorney's office.

DSS investigated the matter and stated in the 51B report that the mark on the child's face could have been a rug burn, as Mother had supposed.

Mother was found not guilty in the criminal court, but lost at the fair hearing. The matter was brought into the Superior Court, where the Judge issued his decision in Mother's favor from the bench. In his written decision, the Judge wrote:

This is not a close case by any stretch of the imagination. It appears to this Court to be a forlorn attempt by the DSS to justify in some way its unjustifiable and premature referral of this case to the District Attorney's office. The finding by the DSS that the report was supported in this case was a tragic error causing great harm to many persons.

Some time after the child made her initial allegation, she revealed to Mother that the reason she had made the allegation in the first place was because her teacher was focusing more attention on another student, and the child wanted to regain the teacher's attention.

The most important thing to keep in mind when the Department of Social Services comes knocking at your door is that anything you say can be used against you in a referral to the District Attorney's office. The social worker who tells you that the Department is "just here to help" or "just here to get to the truth" will NOT tell you that your statements may be repeated to the District Attorney in an attempt to have criminal charges filed against you.

Some social workers ask very probing questions and take very detailed notes, but others ask only cursory questions, do not ask for pertinent details, and take very few notes. It can be helpful to have someone corroborate your version of the interview if there is a disagreement about what was actually said.