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We don need no steenkin' CPS.



 
 
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  #1  
Old May 5th 06, 04:57 PM posted to alt.support.child-protective-services,alt.parenting.spanking
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Default We don need no steenkin' CPS.

http://seattletimes.nwsource.com/htm...94_rat04m.html


Rat bites 6-month-old 100-200 times

By The Associated Press

MEDFORD, Ore. — A 6-month-old boy was bitten up to 200 times by a rat
that escaped from a cage after his parents found the rodent and brought
it home, police said.

The parents, Robert Horsfall, 21, and Maegan McCleary, 19, were being
held Wednesday in the Jackson County Jail on criminal-mistreatment
allegations. ...

More at the listed link.

[[[ I guess some here would say they should be let off because of the
trauma to them, and after all, they took the child to the emergency
room. And they couldn't afford a pet Pit Bull. ]]]

PS Just thought I'd cross post this to help those of you confused by the
topic of aps. This was just a way of teaching a child without spanking.

0:-



--
"Democracy is two wolves and a lamb voting on what
to have for lunch. Liberty is a well armed lamb
contesting the vote." - Benjamin Franklin
  #2  
Old May 5th 06, 05:08 PM posted to alt.support.child-protective-services,alt.parenting.spanking
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Posts: n/a
Default We don need no steenkin' CPS.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BELINDA DUPUY, et al,

Plaintiffs,
v.
No. 97 C 4199

BRYAN SAMUELS, Director, Illinois Judge Rebecca R.
Pallmeyer
Department of Children and Family
Services, in his official capacity,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs represent a class of persons who challenge the
constitutionality of certain policies
and procedures of the Department of Children and Family Services
("DCFS" or the "Department")
relating to the investigation of allegations of child abuse or neglect.
In an earlier proceeding,
Plaintiffs focused on the Department's procedures for determining
whether reports of such abuse
or neglect should be "indicated"or "unfounded." On March 30, 2001,
the court granted Plaintiffs'
motion for a preliminary injunction as to certain of these "core"
and "special" DCFS policies.
Specifically, the court found that "the relatively low standard of
proof required to indicate a finding,
combined with the indefensible delays" in the appeal process and the
resulting "staggering
expungement rate" of indicated reports, violated Plaintiffs'
procedural due process rights. Dupuy v.
McDonald, 141 F. Supp. 2d 1090, 1136 (N.D. Ill. 2001), aff'd in part
and rev'd in part by, Dupuy v.
Samuels, 397 F.3d 493 (7th Cir. 2005). The court noted, further, its
suspicion that the agency's
lengthy delays not only victimized persons who are innocent of abuse or
neglect charges, but might
also result in exoneration of persons who are guilty of such charges.
141 F. Supp. 2d at 1130.
In this proceeding, Plaintiffs are challenging DCFS "safety plans,"
which impose restrictions
upon families during the pendency of investigations into allegations of
abuse or neglect. Plaintiffs
claim that the safety plans are unconstitutional and seek further
injunctive relief to prohibit DCFS
from implementing the plans in any form. Resolution of this issue has
been complicated the
parties' contentious dispute as to the appropriate class definition.
The court has now entered an
order defining the class, for purposes of this stage of the litigation,
as consisting generally of
persons under investigation for child abuse or neglect who are the
subject of "safety plans,"
imposed under threat, that prohibit or restrict their contacts with
their children. See Order of
9/30/03 (amending class definition to include families subject to
safety plans involving no contact
requirements or removal from the home); Order of 4/16/04 (amending
class definition to require
a threat of protective custody and to exclude persons without a legal
relationship to the children or
spouse). For the reasons set forth below, Plaintiffs' second motion
for preliminary injunction is
granted in part and denied in part as described herein.
BACKGROUND
The background facts, and a description of the DCFS procedures for
investigating
allegations of abuse and neglect, are more fully presented in this
court's March 30, 2001
Memorandum Opinion and Order. See Dupuy, 141 F. Supp. 2d at 1092-1130.
This opinion
assumes the reader's familiarity with the earlier decision and will
summarize those facts here only
briefly.
I. The Department of Children and Family Services
DCFS is the state agency charged by statute with the duty of
investigating allegations of
child abuse and neglect. Dupuy, 141 F. Supp. 2d at 1092; 325 ILCS 5/2.
The Department is
organized into various operational divisions, including the Division of
Child Protection ("DCP"). The
DCP is responsible for operating a hotline to accept calls regarding
allegations of child abuse and
neglect (the "DCFS Hotline"), and for investigating those
allegations. Id. at 1093. Of the more than
350,000 calls placed to the Hotline each year, 65,000 are investigated.
Approximately 23,000 (or
1/3) of the investigations result in "indicated" findings, meaning
that the investigator has determined
that credible evidence of child abuse or neglect exists. The remaining
charges are deemed
"unfounded," meaning that the investigator has not found credible
evidence of abuse or neglect.
Id.
II. The Abuse and Neglect Investigative Process
Any person may make a report of child abuse or neglect by calling the
toll-free DCFS
Hotline. Certain persons whose employment brings them into frequent
contact with children are
considered "mandated reporters" and, thus, are required by law to
make a Hotline report if they
have a reasonable belief that a child may be abused or neglected. Id.
at 1094; (ILL. ADMIN. CODE
tit. 89, § 300.30). If a Hotline call is deemed to be made in good
faith and to meet the minimum
criteria for further investigation, the Hotline operator completes a
Child Abuse and Neglect Tracking
System form (the "CANTS 1" form) and submits it to a local DCP
office where an investigator is
assigned. The investigator is responsible for conducting the
investigation and for making a final
determination as to whether to "indicate" or "unfound" the
report. Id. at 1095.
The regulations explain that "[w]hen the investigative worker has
completed all required
investigative contacts and has secured appropriate physical evidence .
.. . the investigative worker
shall make a finding of Indicated or Unfounded. This determination
shall be based upon whether
the information gathered during the investigation and from the direct
observations made by the
investigative worker constitutes credible evidence of child abuse or
neglect." (ILL. ADMIN. CODE tit.
89, § 300.110(i)). An investigator's recommended determination is
reviewed by his or her
supervisor who has the actual authority to "indicate" or
"unfound" the investigation. Dupuy, 141 F.
Supp. 2d at 1097. Once the recommended finding has been approved, the
investigator completes
a CANTS 2 Final Finding Report form and forwards it to the State
Central Register ("SCR"), where
it is registered in a computerized listing of information regarding
allegations of abuse or neglect.
Id. at 1093, 1098. DCFS regulations require that an investigation be
completed within 60 days,
though this time period may be extended for periods of up to 30 days
upon a showing of good
cause. (ILL. ADMIN. CODE tit. 89, § 300.110(i)(3)C)). Evidence at the
first preliminary injunction
established, however, that in actual practice, investigations often
took far longer. See Dupuy, 141
F. Supp. 2d at 1106-1130.
III. Safety Plans
In conjunction with investigations into child abuse and neglect, DCFS
utilizes a variety of
plans aimed at protecting children pending the outcome of an
investigation and/or after a report has
been indicated. One such plan is the Child Endangerment Risk Assessment
Protocol ("CERAP")
"safety plan." CERAP was developed in response to several high
profile incidents in the early
1990s where children were seriously injured or killed shortly after
DCFS became involved in their
cases. (Tr. 2243-44.) In 1994, the Illinois legislature enacted Public
Act 88-614, which required
DCFS to develop and implement:
(1) A standardized child endangerment risk assessment protocol.
(2) Related training procedures.
(3) A standardized method for demonstration of proficiency in
application of the protocol.
(4) An evaluation of the reliability and validity of the protocol.
20 ILCS 505/21(e). In response to this legislation, DCFS formed a
multidisciplinary committee of
external experts to oversee the development of the CERAP process, which
is now set forth in
Appendix G to Department Rule and Procedure 300, and in the Safety
Determination Form, the
Safety Plan form, and the Safety Plan Termination Agreement. (See Jt.
Ex. 7, Appendix G; Jt. Ex.
5(c), CFS 1441-A; Jt. Ex. 5(e), CFS 1441; Jt. Ex. 5(f), CFS 1441-B).
A. The Safety Plan Assessment Process
The CERAP process is designed to "provide workers with a mechanism
for quickly
assessing the potential for moderate to severe harm immediately or in
the near future and for
taking quick action to protect children." (Jt. Ex. 7, Appendix G, at
1.) A CERAP form must be
1 The complete list of factors is as follows:
1. Any member of the household's behavior is violent and out of
control.
2. Any member of the household describes or acts toward child in
predominantly
negative terms or has extremely unrealistic expectations.
3. There is reasonable cause to suspect that a member of the household
caused
moderate to severe harm or has made a plausible threat of moderate to
severe
harm to the child.
4. There is reason to believe that the family is about to flee or
refuse access to the
child, and/or the child's whereabouts cannot be ascertained.
5. Caretaker has not, will not, or is unable to provide sufficient
supervision to protect
child from potentially moderate to severe harm.
6. Caretaker has not, or is unable to meet the child's medical care
needs that may
(continued...)
completed for all children in the home of an alleged perpetrator within
48 hours of DCFS's receipt
of a Hotline call, and within 24 hours after a child protection
specialist sees the alleged child
victim(s). (Id. at 3; Jt. Ex. 2, Procedures, § 300.50(c).) The CERAP
process requires the child
protection specialist to assess whether a child is safe or unsafe,
using a four-step analysis: (1)
does the case present any one or more of 15 enumerated "safety
factors"; (2) how does that factor
relate to specific individuals; (3) are there any "family strengths
and mitigating circumstances"; and
(4) would the child be "safe" or "unsafe" absent implementation
of a safety plan. (Jt. Ex. 7,
Appendix G, at 7-15.)
1. The 15 Enumerated Safety Factors
The first step in the CERAP process is for the child protection
specialist to determine
whether one of 15 enumerated safety factors is present. The factors
include: a household
member's behavior is violent and out of control; the caretaker has
not, will not, or is unable to
provide sufficient supervision to protect the child from harm; the
child is fearful of people living in
or frequenting the home; child sexual abuse is suspected and
circumstances suggest that the
child's safety may be an immediate concern; and a paramour is the
alleged or indicated perpetrator
of physical abuse. There is also a general "other" category to
cover safety concerns not expressly
listed.1 The Regulations provide several examples of factors that may
fall under the "other"
1(...continued)
result in moderate to severe health care problems if left unattended.
7. Any member of the household has previously or may have previously
abused or
neglected a child, and the severity of the maltreatment, or the
caretaker's or other
adult's response to the prior incident, suggests that child safety
may be an urgent
and immediate concern.
8. Child is fearful of people living in or frequenting the home.
9. Caretaker has not, or is unable to meet the child's immediate
needs for food,
clothing, and/or shelter; the child's physical living conditions are
hazardous and may
cause moderate to severe harm.
10. Child sexual abuse is suspected and circumstances suggest that the
child['s] safety
may be an immediate concern.
11. Any member of the household's alleged or observed drug or alcohol
abuse may
seriously affect his/her ability to supervise, protect, or care for the
child.
12. Any member of the household's alleged or observed physical/mental
illness or
developmental disability may seriously affect his/her ability to
supervise, protect or
care for the child.
13. The presence of domestic violence which affects caretaker's
ability to care for
and/or protect child from imminent, moderate to severe harm.
14. A paramour is the alleged or indicated perpetrator of physical
abuse.
15. Other (specify).
(Jt. Ex. 5(e), CFS 1441.)
category, including that a child's behavior is likely to provoke the
caretaker to harm the child; that
persons in the household have unexplained injuries; or that the
caretaker refuses to cooperate or
is evasive. (Jt. Ex. 5(e), CFS 1441; Jt. Ex. 7, Appendix G, at 12.) If
the investigator determines
that there is "clear evidence or other cause for concern" that a
factor is present, he must check the
factor "yes" on the CERAP Safety Determination Form (CFS 1441);
otherwise, he must check the
factor "no." (Id.)
DCFS Procedures do not define what constitutes "other cause for
concern." John Goad,
former Deputy Director of the Department's Division of Child
Protection, testified that the
investigator is expected to look for "a reasonably extreme version"
of a listed safety factor, and
must determine a factor's existence using all of the information
available from the initial report and
the person who made it, as well as any additional information that may
be obtained by observing
and talking with the children and the family, and by observing the home
environment. (Tr. 2259,
2263-64.) It appears that in practice, however, investigators do not
always require a "reasonably
extreme" showing and that any amount of evidence may be sufficient
warrant for the investigator
to check a safety factor "yes." Deputy Director Goad conceded, for
example, that investigators
need neither a certain "level of evidence" nor evidence confirming
that it is "more likely than not"
that a safety factor is present in order to check a factor "yes."
(PX L, Goad Dep., at 27-28.)
Plaintiffs find this low standard significant, particularly because
several factors by their terms
require only allegations of wrongdoing and/or minimal evidence of any
risk of harm to the child.
Factors 11, 12, and 14, for example, direct investigators to check
"yes" based solely on an
allegation of abuse or neglect, even if no investigation has yet
occurred or if an investigation
suggests that the allegation may be untrue. (See, e.g., Jt. Ex. 5(e),
CFS 1441, factor 14) ("[a]
paramour is the alleged or indicated perpetrator of physical abuse")
(emphasis added); Tr. 200-01).
Factors 2, 8, and 14 direct investigators to check "yes" even if
there is no or only nominal evidence
that the presence of the factor poses any danger of harm to a child.
(See, e.g., id., factor 8)
("[c]hild is fearful of people living in or frequenting the home";
no requirement of evidence that the
child be in actual danger from those people). In addition, nine of the
factors (1, 2, 3, 7, 8, 10, 11,
12, and 14) do not require any evidence that a parent or caretaker (as
opposed to some other
"member of the household") has engaged in any wrongful conduct.
Factor 3, for example, states
that "[t]here is reasonable cause to suspect that a member of the
household caused moderate to
severe harm or has made a plausible threat of moderate to severe harm
to the child." (Jt. Ex. 5(e),
CFS 1441.) This test is met, presumably, even where there is no
evidence that the parent or
caretaker is unable to ensure the safety and supervision of his or her
children.
For each factor checked "yes," the investigator is expected to
explain what led to that
determination. (Jt. Ex. 7, Appendix G, at 12; Tr. 2265-66.) DCFS
Procedures explain, further, that
"[t]he presence of any one of the listed behaviors and/or injuries
does not in and of itself mean that
a child should be determined to be unsafe." (Id. at 8.) Rather, an
investigator must also consider
(1) the age and developmental status of the child; (2) the mental,
medical, and/or developmental
status of the parent(s) or other person(s) responsible for the
child's safety (i.e., are they capable
of and willing to protect the child's safety?); (3) the type,
severity, location, and/or extent of injury
to a child; and (4) the intent, severity and/or duration of the
behaviors directed toward the child.
(Id.)
If an investigator does not check any safety factors "yes," the
CERAP process is completed
without the need for further action. If, on the other hand, the
investigator determines that any one
of the 15 safety factors is present and checks that box "yes," then
he or she must proceed to the
next step of the process.
2. Family Strengths and Mitigating Circumstances
At the next step of the CERAP process, the investigator is required to
"describe any family
strengths or mitigating circumstances which may serve to manage or
control the safety factors."
(Jt. Ex. 7, Appendix G, at 13.) DCFS Procedures recognize that
"[s]ometimes the presence of a
safety factor can be partially or fully controlled or eliminated by a
family strength or mitigating
circumstance." (Id.) According to Appendix G, "[r]egular contact
with a support person who can
assure the safety of the child" is one example of such a family
strength or mitigating circumstance.
(Id.) Deputy Director Goad offered the additional example of a
husband's "credibl[e]" assurance
that he will remove from the home a "violent and out of control"
mother who is "physically small"
until she "calm[s] down." (Goad Dep., at 55-56.) DCFS Procedures do
not otherwise provide any
guidance for determining either the presence of relevant family
strengths or mitigating
circumstances, or the proper method of balancing them against the cited
safety factor(s).
The August 13, 2002 amendments to Appendix G provide that "[f]or the
purpose of safety
assessment, a protective effort must be made on the family's
initiative and not as the result of the
worker's suggestion in order for it to constitute mitigation." (Jt.
Ex. 7, Appendix G, at 13.) By way
of example, the amendments state that in a domestic violence situation,
"if the worker initiates the
mother's move to [a] shelter, it is the worker's and not the
mother's capacity that has controlled the
safety threat [so] the child is considered unsafe and the move to the
shelter is considered a safety
plan." (Id.) See infra pp. 10-20 for a discussion of safety plans. In
other words, a protective
measure will not constitute a mitigating circumstance unless the
caretaker proposes it without any
prompting from a DCFS representative.
Deputy Director Goad testified that there are "probably" potential
mitigating factors as to
every safety factor, but of the documentation supporting imposition of
a safety plan in the 92
sample cases in this litigation, 64 (or 69%) did not identify any
family strengths or mitigating
circumstances. (Goad Dep., at 56-57; Tr. 2667.)
3. The "Safe" or "Unsafe" Determination
If an investigator determines that a safety factor is present but
controlled by a family
strength or mitigating circumstance, the child must be deemed
"safe," meaning that "[t]here are no
children likely to be in immediate danger of moderate to severe harm at
this time" and no safety
plan is necessary. (Jt. Ex. 5(e), CFS 1441.) If, however, the
investigator determines that a safety
factor is not controlled by a family strength or mitigating
circumstance, the child must be deemed
"unsafe," meaning that "[a] safety plan must be developed and
implemented or one or more
children must be removed from the home because without the plan they
are likely to be in
immediate danger of moderate to severe harm." (Jt. Ex. 5(e), CFS
1441) (emphasis in original).
As noted, a determination of "unsafe" may be made based on the
presence of only one safety
factor, some of which require no or only nominal evidence that a child
is in danger of harm. In
addition, because investigators must complete the CERAP analysis for
all children in the home of
an alleged perpetrator, children who are not alleged victims of abuse
or neglect are nonetheless
commonly subject to safety plans. (Jt. Ex. 7, Appendix G, at 5.)
B. Creation of Safety Plans
Once an investigator finds that a child is "unsafe," the next step
is to develop a "safety plan."
Deputy Director Goad estimated that as many as 10% of investigations
result in safety plans, which
translates into as many as 10,000 plans per year. (Tr. 2300-01.) Safety
plans are intended to be
collaborative efforts between the investigator and the family.
According to Deputy Director Goad,
the investigator generally talks to the family about the problem that
led to the "unsafe"
determination and asks family members to suggest possible steps for
assuring the safety of the
child. (Tr. 2302.) Goad explained that the investigator is then
expected to discuss the family's
ideas for a safety plan in an effort to work out mutually-agreeable
terms. (Tr. 2302-03.) The
evidence offered by Plaintiffs suggests, however, that in practice,
investigators often make little
effort to collaborate with families in implementing safety plans.
Nearly every class member witness
who signed a safety plan testified that the investigator simply
presented a proposed plan for his/her
signature with little or no discussion of the plan terms or
alternatives. (Tr. 346, 470-71, 556, 562,
715, 719, 795-98, 1165-66, 1304, 1379.)
1. Plan Terms
An effective safety plan includes measures designed to control the
safety factors that led
to the need for a safety plan; is as minimally disruptive to the family
as possible; minimizes any
separation issues for family members; and relies on resources that are
"immediately and
realistically available" to the family. (Tr. 2283 (Goad).) The safety
plan must be recorded on the
Safety Plan Form (CFS 1441-A) and must include a written description of
"what will be done or
what actions will be taken to protect the child(ren), who will be
responsible for implementing the
components of the safety plan and how/who will monitor the safety
plan." (Jt. Ex. 7, Appendix G,
at 15.) In addition, "[e]very safety plan must specify the conditions
under which the plan is to be
terminated and an estimated time frame within which this can be
expected to occur." (Id. at 14.)
The plan must "contain a time frame for implementation and continued
monitoring and a
contingency plan if the primary safety plan is no longer needed."
(Id.)
The terms of a safety plan vary depending on the particular case. The
plans signed by
class members in this case either (1) separated children from their
parents, guardians, or other
close relatives by removing one or more such individuals from the home,
or by imposing no-contact
requirements preventing children from having any contact with parents,
guardians, or other close
relatives; or (2) allowed children and family members to have only
supervised contact with each
other. Class members are individuals who signed these plans under
threat that their children would
otherwise be taken into protective custody. See Order of 4/16/04
(setting forth revised class
definition).
Deputy Director Goad issued a directive on March 22, 2002 requiring
that "all safety plans
in which family members (children or adults) are relocated from their
residence must be approved
by the respective Child Protection or Field Service Manager." (DCFS
Inter-Office Correspondence
Regarding Safety Plans dated 3/22/02.) To approve such a plan, the
manager must consider (1)
whether the child is genuinely unsafe; (2) whether the plan will
adequately protect the child(ren) in
a manner that is minimally disruptive to all family members; and (3)
whether there is a reasonable
and timely potential resolution to the plan. (Id.) Upon approving a
safety plan that relocates a
family member, the manager is directed to "track them" (presumably,
the plan itself or family
members subject to it) to ?assure the timely and appropriate resolution
of the safety plan according
to the directions in Appendix G of Procedure 300." (Id.)
2. Agreement to a Safety Plan
DCFS views all safety plans as voluntary agreements between the
Department and the
family. Indeed, the child's primary caregiver and, if different, the
person(s) most responsible for
carrying out the plan must sign the safety plan form, which states that
the person has "discussed
the safety plan with the investigator/worker, . . . understand[s] its
contents and that it is voluntary,
and agree[s] to abide by the terms and conditions of the plan." (Jt.
Ex. 5(c), CFS 1441-A.) The
investigator must also sign the form attesting that he or she has
"discussed the attached Safety
Plan and the consequences of non-compliance with the caretaker and all
those who are
responsible for carrying out the plan" and that he or she has agreed
to "abide by the terms and
conditions of the plan." (Id.) The form provides contact numbers for
both the investigator and his
or her supervisor (who must approve the plan) in case a family member
wants to communicate with
the Department. (Tr. 2287-89.)
August 13, 2002 amendments to Appendix G reinforce the requirement that
an investigator
must inform a family that safety plans are voluntary:
The worker who is responsible for implementing the plan must inform the
family that
their cooperation with the plan is voluntary and - to the extent safely
possible -
must enlist the family's participation in the development of the
plan. When the plan
is developed the worker must explain it to the family and must provide
the family
with information about the potential consequences if the plan is
refused or violated.
If the family refuses to accept the plan or if the plan is violated,
the worker must
reassess the situation, consider protective custody and/or referral to
the State's
Attorney's Office for a court order.
(Jt. Ex. 7, Appendix G, at 14.) The amendments also require
investigators to notify all parents or
caretakers when a safety plan ends. (Id. at 16.)
Notwithstanding these regulatory provisions, Plaintiffs insist that
safety plans are coercive.
They note that a stated consequence of rejecting the plan or failing to
comply with it is the removal
of the children from the home. The signature page of the safety plan
form expressly states that
"[w]e understand that failure to agree to the plan or to carry out
the plan may result in a
reassessment of my home and possible protective custody and/or referral
to the State's Attorney's
Office for a court order to remove my children from my home. I will
then have the opportunity to
plead my case in court." (Jt. Ex. 5(c), CFS 1441-A.) Most class
member witnesses testified that
in addition to this written warning, investigators verbally threatened
them with removal of their
2 Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion
for a Second
Preliminary Injunction is cited as "Def. Resp., at __."
3 Plaintiffs' Post-Trial Memorandum in Support of their Amended
Motion for a Second
Preliminary Injunction is cited as "Pl. Mem., at __."
children if they refused to agree to a safety plan. (Tr. 347-49,
392-93, 470-71, 556, 562, 715, 719,
795-98, 1165-66, 1304, 1379.) Faced with this admittedly "tough
decision," virtually every parent
or caretaker confronted with a safety plan ends up signing it. (Tr.
2311-12 (Goad); Def. Resp., at
12.)2 All families do, however, have the option of rejecting the plan.
DCFS procedures require investigators to give the family a copy of
their safety plan form,
which sets forth the restrictions imposed. There is no requirement,
however, that families receive
a copy of the CERAP Safety Determination Form, which details the
underlying basis for the safety
plan as reflected in the investigator's assessment of the 15 safety
factors. (Tr. 2290 (Goad)
(though giving a CERAP form to families is not prohibited, "there is
no policy that guides workers
to give it to them either").) There is no evidence that investigators
or supervisors have ever given
the CERAP form to family members, and none of the plaintiff witnesses
in this case ever received
one. In Plaintiffs' view, "the resulting [safety plan] agreements
are ones in which one of the parties
(DCFS) has virtually all the information (i.e., about why the child is
considered 'unsafe' and
therefore requires a safety plan), and the other party (the
'agreeing' family member) has none."
(Pl. Mem., at 20.)3
Plaintiffs find this objectionable in part because the safety plan form
does not explain the
legal standards and procedures DCFS must follow in order to remove a
child from the home. See
Abused and Neglected Child Reporting Act, 325 ILCS 5/5; Juvenile Court
Act, 705 ILCS 405/2-7(1),
405/2-8, 405/2-9. Nor is there any explanation as to the type of
evidence required to obtain
protective or temporary custody of a child. See infra pp. 18-20. In
addition, the language of the
safety plan forms implies that DCFS has gathered sufficient information
to take custody of a child
at the time the safety plan is implemented. (See Jt. Ex. 5(c), CFS
1441-A) ("[s]afety plans are to
be developed only where a decision of 'unsafe' has been made and
workers, with supervisory
approval, assess that without the plan the child(ren) must be removed
from the home"). Plaintiffs
claim that, in reality, such evidence is not required in order to find
a child "unsafe" pursuant to the
CERAP process. DCFS Child Protection Manager Anne Gold, moreover,
acknowledged at the trial
that "for the cases that end up getting unfounded in [her] office,
the likelihood that [DCFS] would
have grounds for protective custody on the first day of the
investigation is about zero." (Tr. 2982.)
Plaintiffs also question the voluntariness of safety plans that may be
implemented before
an investigator has spoken with the alleged perpetrator. For example,
though safety plans are
generally implemented within 48 hours of a Hotline call, DCFS
regulations allow for a delay of up
to "7 calendar days of the receipt of the report" before the
investigator is required to contact an
alleged perpetrator who is "different from the parents or
caretakers." (Jt. Ex. 2, Procedures
§ 300.50(c)(6).) In addition, DCFS Procedures require investigators to
notify, and defer to law
enforcement authorities in certain types of cases, such as those
involving allegations of serious
physical or sexual abuse. (Id. § 300.70; Tr. 2218-19.) If the police
ask DCFS investigators not to
speak with an alleged perpetrator, investigators normally honor the
request but, if possible,
construct safety plans even without such contact. (Goad Dep., at 174;
Tr. 2697 (Goad).) In some
cases, moreover, mere action in conformity with a DCFS request may be
deemed an "agreement"
to a safety plan. Deputy Director Goad testified, for example, that if
an allegedly abusive father
leaves the home on his own accord, "it certainly meets the standard
that we would need to meet
in order to consider that an adequate plan for the child's safety."
(Goad Dep., at 163-64.) (See
also Tr. 2692 ("[t]here are circumstances where . . . it may be
impossible . . . for the Department
to obtain . . . express agreement to the plan").)
3. Duration of Safety Plans
Safety plans are intended to be temporary, "usually short-term
measures" to control serious
and immediate threats to a child's safety. (Jt. Ex. 7, Appendix G, at
14; Tr. 2277 (Goad).) The
August 13, 2002 amendments to Appendix G provide that safety plans must
be reassessed "every
five working days following the determination that any child in a
family is unsafe." (Jt. Ex. 7,
Appendix G, at 4) (emphasis in original.) The assessment
must continue until either all children are assessed as being safe or
all unsafe
children are removed from the legal custody of their parent/caretakers.
This
assessment should be conducted considering the child's safety status
as if there
was [sic] no safety plan (i.e., Would the child be safe WITHOUT the
safety plan?).
(Id.) (emphasis in original). The amendments also instruct that safety
plans "must be adequate to
assure the child's safety but as minimally disruptive to the child
and family as is reasonably
possible." (Id. at 13.) In addition, "[e]very safety plan must
specify the conditions under which the
plan is to be terminated and an estimated time frame within which this
can be expected to occur."
(Id.)
DCFS does not keep statistical data showing the actual duration of
safety plans. (Tr. 2324
(Goad).) A review of the 92 safety plans in the representative sample
cases (which were imposed
prior to the 2002 Amendments to DCFS Appendix G) reveals that many
plans have indefinite time
frames, or fail to state any duration at all. By Plaintiffs'
estimation, 31 plans (33.3%) were indefinite
in length. (See, e.g., SAI 8, at 28502 (alleged victim's stepfather
will move out and have "no
contact" with stepdaughter "during the course of this
investigation"); SAI 92, at 36157, 36159
(alleged victim's half-brother will move out of the house and have
"no unsupervised contact" with
his half-sister; plan scheduled to terminate "at the discretion of
treatment professional"); SAU 20,
at 39869 (mother will not allow daughter "to return to father [a
non-household member] until
everything is cleared up as to what happened"); SAU 40, at 41317
(alleged victim is not to share
a bedroom with his alleged perpetrator brother; the two siblings
"must be supervised at all times
by a parent until this investigation is complete"; plan termination
date is "undetermined at this time").
Plaintiffs further estimate that 53 plans (57%) did not set forth any
duration at all. (See,
e.g., SAI 34, at 31134 (mother will not allow son (the alleged
perpetrator) to have "any contact" with
his sister (the alleged victim) and he is not allowed to return home
upon release from police
custody; duration unspecified); SAI 81, at 35384 (alleged victim not
allowed to have "any contact"
with her half-brother "at any time"; duration unspecified); SAI 98,
at 36690 (father of alleged victim
"agreed to leave the residence"; duration unspecified).) In
addition, of the 40 safety plans with
stated durations of definite length, only one (.025%) was shorter than
five days, and six others
(20%) were longer than 20 days. (See, e.g., SAI 49, at 32708 (if
alleged perpetrator not detained
by police, mother will not allow him to return to the house "pending
outcome of this investigation";
estimated plan duration, "2 - 3 months"); SAU 24, at 40137 (father
not allowed visitation rights with
his daughter "until such time as it is determined that it is safe to
have them continue"; plan to be
in effect for "at least 60 days").)
Defendant argues that many of the plans chosen by Plaintiffs as
representative "are not
safety plans at all." (Def. Resp., at 51.) For example, one file
included a safety plan requiring no
contact between the alleged perpetrator and victim (whose relationship
to each other is unclear
though they share a last name), but the plan was implemented after the
alleged perpetrator had
been arrested and taken to jail, and after a court had already imposed
a bond order with the same
restriction. (See SAI 21, at 29793 ("no time frame c[ould] be imposed
as court intervention is
necessary"); Tr. 1769.) In another file, similarly, there was a
safety plan requiring no contact
between the alleged victim, who lived with her aunt, and the alleged
perpetrator, the aunt's
husband, but Defendant says the plan was unnecessary because the
perpetrator was arrested and
in jail. (SAI 62, at 33872; Tr. 1959; Def. Resp., at 53.) (See also
Def. Resp., at 52-54.) In still
other files, DCFS implemented sexually aggressive children and youth
("SACY") plans which are
"used in cases where the child who is the subject of the plan is in
foster care, and the child's
guardian is the DCFS Guardianship Administrator." (Def. Resp., at
51.) (See SAU 2, at 38821.)
Several additional files, moreover, did not involve class members.
(See, e.g., SAI 12, at 28932
(alleged perpetrator is daughter of woman running an unlicenced
day-care service out of her home;
alleged victims are children who attended day-care at the home); SAI
38, at 31618 (alleged
perpetrator is mother's "live in boyfriend"); SAI 70, at 34522
(alleged perpetrator is mother's
paramour).)
Even assuming some of the 92 safety plans are not technically viewed as
such by DCFS,
it is undisputed that at least some plans are in place throughout the
course of an investigation,
regardless how long that may take, and that others fail to specify any
duration. Indeed, Deputy
Director Goad himself testified that many safety plans last at least as
long as the underlying
investigation into the alleged child abuse or neglect, and that even
when a report is "unfounded,"
a safety plan may remain in effect (presumably in accordance with its
stated terms) if there are
"safety issues that would make continuation of a safety plan
appropriate." (Tr. 2754 (Goad).) Prior
to the August 2002 amendments, moreover, DCFS did not have any
procedure requiring that
families be notified when a plan had been lifted. (Jt. Ex. 7, Appendix
G, at 16.)
4. Contesting Safety Plans
Once DCFS has implemented a safety plan, family members subject to the
plan may ask
that it be modified, or an investigator may initiate modification on
his or her own. (Goad Dep., at
253-55, 259-60.) There is no formal procedure for requesting a
modification, however, nor is an
investigator obligated to respond to, or act upon such a request. (Id.
at 259-60.) In addition, DCFS
has no procedure authorizing those subject to a safety plan to contest
it in any way, nor does DCFS
advise family members that agreeing to the plan may result in a waiver
of their right to contest it.
(Id. at 227, 259; Tr. 2722 (Goad).)
5. Alternatives to Safety Plans
As noted, a family's failure to agree to a safety plan may result in
the children being
removed from the home. There are two ways this may occur: (1) DCFS may
take protective
custody of a child pursuant to the Abused and Neglected Child Reporting
Act ("ANCRA"), 325 ILCS
5/5, and the Juvenile Court Act ("JCA"), 705 ILCS 405/2-7(1),
405/2-8, 405/2-9 (discussing
"temporary protective custody"); or (2) DCFS may obtain a court
order granting it "temporary
custody" of a child pursuant to the JCA. To take a child into
protective custody without court
authorization, DCFS must determine that it: "(1) . . . has reason to
believe that the child cannot be
cared for at home or in the custody of the person responsible for the
child's welfare without
endangering the child's health or safety; and (2) there is not time
to apply for a court order under
the Juvenile Court Act of 1987 for temporary custody of the child."
325 ILCS 5/5.
After taking protective custody of a child, DCFS must "promptly
initiate proceedings under
the Juvenile Court Act of 1987 for the continued temporary custody of
the child." Id. Under the
JCA, moreover, "a minor . . . taken into temporary protective custody
must be brought before a
judicial officer within 48 hours, exclusive of Saturdays, Sundays, and
court-designated holidays,
for a temporary custody hearing to determine whether he shall be
further held in custody." 705
ILCS 405/2-9(1). If there is no temporary custody hearing within the
prescribed time limitations,
protective custody lapses and the child must be returned to his or her
home. 705 ILCS 405/2-9(3).
Except in emergencies, DCFS Procedures require prior supervisory or
management authorization
to take a child into protective custody. (Jt. Ex. 2, Procedures §
300.80(f).)
To obtain a temporary custody order, DCFS must file a petition for
adjudication of wardship
with the State's Attorney in the county in which the child lives.
(Tr. 232, 242 (Maganzini).) No such
petition may be filed, however, unless the State's Attorney
"screens" the case into juvenile court
(i.e., accepts the case). (Tr. 232-33.) In Cook County, Illinois, the
State's Attorney will not screen
a case into court absent evidence that would, in the view of the
attorney screening the case,
support a judicial determination that the child should be taken into
temporary custody. (Tr. 224,
241, 244.) Such evidence consists of "probable cause to believe that
[a child] is abused, neglected
or dependent"; that "it is a matter of immediate and urgent
necessity for the safety and protection
of [the child]" that he be removed from his or her parents' care;
and that the state has made
"reasonable efforts . . . to prevent or eliminate the necessity of
removal of [the child] from his or her
home, [unless] no efforts reasonably could be made to prevent or
eliminate the necessity of
removal." 705 ILCS 405/2-10.
If the State's Attorney finds insufficient evidence to screen a case
into court, no petition for
adjudication of wardship will be filed at that time. Instead, the
State's Attorney will issue a form
entitled "Ongoing Investigation," which provides the investigator
with specific due dates for updating
the State's Attorney about the case and/or bringing it back for
further screening review. The
Assistant State's Attorney completing the form may also instruct the
investigator to implement or
maintain a safety plan or a "care plan" while the additional
information is being gathered. (See,
e.g., Ex. E to Defendant's Additional Declarations and Exhibits
("Def. Supp.") Defendant claims
that "care plans" are the same as "safety plans," citing the
declaration of Debra Dyer, DCFS's Chief
Deputy General Counsel in the Office of Legal Services. (Ex. D to Def.
Supp., ¶ 5 (noting that in
approximately 40 investigations between December 2003 and October 2004,
the State's Attorney
decided not to file a petition but requested that DCFS "implement or
continue a safety or care
plan").) Plaintiffs dispute that safety plans are the same as care
plans, but only one of the four
sample Ongoing Investigation forms submitted by Defendant mentions a
care plan as opposed to
a safety plan. That case involved a parent attending a substance abuse
treatment program.
(Plaintiffs' Response to Defendant's Supplementation of the Record,
¶ 3; Ex. E to Def. Supp.) In
any event, neither party disputes that the State's Attorney has an
"open door policy" on rereviewing
cases. (Tr. 250 (Maganzini).)
A third alternative to safety plans is a juvenile court order requiring
cooperation with
conditions, short of removing the child from the home, that the court
deems necessary for the
safety of the child ("§ 2-25 Orders"). 705 ILCS 405/2-25. To
secure a § 2-25 Order, DCFS must
first file a petition for adjudication of wardship with the State's
Attorney to initiate a juvenile court
case. 705 ILCS 405/2-13. The court must find probable cause to believe
that the child is abused
or neglected, at which point the court has broad authority to enter
orders requiring parents or
responsible caregivers to take various steps to protect the child from
harm. 705 ILCS 405/2-10(1),
405/2-25. For example, a § 2-25 Order may require parents to attend
therapy or participate in
other services; or forbid persons who are allegedly endangering the
child, including parents and
caregivers, from having any contact or unrestricted contact with the
child.
Finally, although the parties do not address the matter in their
briefs, the court notes
Plaintiffs' suggestion, at the hearing, that DCFS has an obligation
to provide supportive services,
including counseling or referrals to therapy, for parents and children
in need of such services.
Presumably services such as these might eliminate the need for
restrictive conditions and thus
constitute a fourth alternative to the imposition of safety plans.
IV. Examples of the Safety Plan Process
The court's hearing on Plaintiffs' second motion for preliminary
injunction spanned 22 days
between September 4, 2002 and January 17, 2003, and generated 3,357
pages of transcript. The
following is a summary of several investigations presented at the
hearing which involved the
implementation of safety plans.
A. James and Susan Redlin
On June 21, 2002, DCFS investigator Patrick Homa was assigned to
investigate an
allegation that James Redlin was inappropriately touching his son on a
Chicago Metra Railroad
train. (Tr. 2336.) Specifically, another passenger on the train told
Metra police that James had
touched his son's groin area; that the son had put his head in his
father's lap and rubbed his
father's groin area while the father kissed the back of his neck; and
that the father had stated, "Oh,
I guess you don't want to be tickled." (PX C, at 71003, 71011.)
According to James, he was
following a doctor's advice to engage in interactive touching and
speech with his son, who suffers
from mild autism. (Tr. 688, 690-91, 698-99.)
Homa first contacted the reporter - a Metra police official - for
details about the incident,
and also attempted (unsuccessfully) to contact the passenger who had
witnessed the inappropriate
contact. (Tr. 2337-39, 2375-76.) He then went to the Redlin home to see
the alleged victim. (Tr.
2339.) Upon arriving at the home, Homa introduced himself to James and
his wife Susan, advised
them of the allegations against James, and gave them the Notification
of a Report of Suspected
Child Abuse and/or Neglect (the "CANTS 8 form") explaining the
investigative process. (Tr. 2339-
40, 2342.) Approximately 15 minutes into the interview, James requested
an opportunity to consult
with legal counsel. (Tr. 2341.) At that time, Homa brought up the issue
of a safety plan but, after
the Redlins accused him of being rude, he left the home with the
understanding that he would call
the Redlins later that day after they had had a chance to speak with an
attorney. (Tr. 2343-44,
2368.) Though Homa had observed the Redlins' son during the
interview, he did not speak with
him at that time because he wanted to "set up an interview at the
[Lake County] Children's
Advocacy Center." (Tr. 2342-43.)
Homa called Susan around noon to let her know that he would call back
with a safety plan
that afternoon. (Tr. 795.) At 4:00 p.m., Homa spoke with Susan by
telephone about the safety
plan, which required that James not act as an independent caretaker for
his son or for any other
children until the case was resolved, but which did allow him
supervised contact with his son. (Tr.
2345, 2359, 2372, 2460.) Susan agreed to the plan even though it
effectively left the family
"prisoners" in their own home because Susan, the person responsible
under the terms of the plan
for supervising the son, is confined to a wheelchair. (Tr. 755,
812-13.) Homa delivered a copy
4 The court is uncertain why this recommendation was made, but
speculates that
perhaps the Metra passenger who witnessed the alleged inappropriate
touching did not cooperate
further with the investigation. It is at least curious that the
Redlins' refusal to submit their son for
an interview should militate in favor of dismissal of the charges.
of the safety plan to Susan on June 22, 2000. (Tr. 797, 818-19.) The
same day, the Redlins
retained the law firm of Lehrer & Redleaf (counsel for Plaintiffs in
this case) to represent them
during the investigation. (Tr. 742, 758.)
The investigation proceeded slowly in part because the Redlins were
resistant to their son
being interviewed given his mild autism. (Tr. 733-34.) Between June 21
and August 16, 2000,
DCFS attempted unsuccessfully to obtain permission from the Redlins to
interview their son at the
Lake County Children's Advocacy Center. On at least one occasion,
Homa and his supervisor went
to the Redlin home to discuss the matter accompanied by a Lake County
deputy sheriff, but the
Redlins refused to let their son be interviewed. (Tr. 731-32.) Finally
on August 16, 2000, Homa's
supervisor sent a letter to the Redlins' attorney stating that the
Division of Child Protection was
recommending that the allegation against James be unfounded. (Tr. 2351;
PX C, at 71014
(Worker Activity Summary dated 8/12/00, noting "no credible evidence
to substantiate the alleged
allegation; involved youth due to medical reason unable to be
interviewed as a credible witness as
described by medical professional"); PX C, at 71109.)4 Nevertheless,
the Redlins' attorneys
advised them to continue following the safety plan until they received
official notification that the
plan was unfounded. (Tr. 746-47.) The State Central Register advised
the Redlins on
September 26, 2000 that it had unfounded the report. (PX C, at 71000.)
B. Theresa C.
Theresa C. ran a day care center at her home. On April 3, 2001, Dillon,
a child who
attended the day care center, fell and suffered a depressed skull
fracture while in Theresa's
basement, and was taken for emergency surgery at Carl Hospital in
Champaign, Illinois. On April
5, 2001, DCFS investigator Lee Boedigheimer was assigned to investigate
the incident. (Tr. 591,
2468.) The next day, Boedigheimer spoke with Dr. Powell, the attending
physician who saw Dillon
at the hospital. Dr. Powell told Boedigheimer that Dillon had undergone
surgery to relieve the
pressure on his brain, to remove some blood clots, and to repair the
fracture. (Tr. 2469-70.) Dr.
Powell also stated that the explanation Theresa had given for
Dillon's injury when she brought him
to the hospital - that he had fallen while pulling himself up on a
"Diaper Genie" - was highly
unlikely, though not 100 percent impossible. (Tr. 2470-71.)
Also on April 6, 2001, Boedigheimer went to Dillon's home and
observed that the entire left
side of Dillon's face was swollen and that he had a three-inch
incision on the top of his head
running down behind his ear. (Tr. 2471-72.) Shortly thereafter around
11:50 a.m., Boedigheimer
went to Theresa's home along with Detective Roberts of the Pontiac
Police Department. (Tr.
2472.) Theresa reiterated that Dillon had fallen while trying to climb
up on a Diaper Genie while
she was changing her own daughter's diaper. (Tr. 2473.) As part of
the interview, Boedigheimer
looked at the basement where the injury had occurred and noted a thin
layer of carpeting over a
cement floor. He also observed 13 or 14 children in the home, many of
them under the age of two,
which he believed was a violation of DCFS licensing standards for day
care homes. (Tr. 2473-74.)
Boedigheimer asked Theresa about the possibility of suspending her day
care activities pending
an investigation into Dillon's injury. Theresa stated that she had a
vacation planned in any event
so the hiatus would not be a problem. (Tr. 2472-74.)
Boedigheimer went back to his office and worked with his supervisor to
create some safety
plan options to present to Theresa later that afternoon. When
Boedigheimer returned to Theresa's
home, he gave her a CANTS 8 letter and told her that the reporting
doctor (Dr. Powell) did not
believe Dillon's injury matched her explanation for it. (Tr. 593,
2481.) Boedigheimer expressed
some safety concerns for Theresa's own child, who was Dillon's age,
and discussed implementing
a safety plan that would require Theresa's mother or husband to
supervise her with her daughter
pending the investigation. (Tr. 2482-83, 2485-86.) Theresa did not
suggest any alternatives and
5 The parties do not indicate how Theresa learned this information on
May 17, 2001.
On May 21, 2001, however, Boedigheimer sent Theresa a letter notifying
her of the unfounded
decision. (PX D, at 43400.)
agreed to the plan proposed by Boedigheimer. At the hearing before this
court, Theresa
acknowledged that she had an opportunity to read the safety plan forms
(excluding the CERAP
form), but that she did not in fact review them before signing. (Tr.
560.) She also testified,
however, that Boedigheimer told her that "if he left [without a
safety plan] and I [Theresa] was
alone, they could come back and take [my daughter] S. away from me."
(Tr. 562-63.)
Theresa complied with the safety plan in its entirety for about two
weeks. As of April 27,
2000, the date she and her family went on vacation to Mexico, however,
she no longer adhered to
the requirement that she have only supervised contact with her
daughter. (Tr. 566-67, 595.) Upon
returning home from vacation, moreover, Theresa attempted to resume day
care services in her
home. When a DCFS representative made an unannounced visit and
discovered that Theresa was
caring for children in her home again, Theresa closed the day care and
took a position as a nanny
instead. (Tr. 596-98.) One year later, on May 17, 2001, Theresa learned
that the investigation
against her was unfounded and that the safety plan was no longer in
effect.5 (Tr. 581, 599.) A May
21, 2001 Family Assessment Factor Worksheet Summary noted that of the
three doctors consulted
in the case, all reported some possibility that Theresa's story was
accurate, and one opined that
Dillon's injury was not the result of abuse. The document does not
reflect when the doctors made
these reports. (PX D, at 43301.) Nor is the court certain whether these
reports, or some other
factor, were the basis for the ?unfounded" determination.
C. Stacey and Patrick D.
Patrick D. and his wife Stacey both worked at a day care center. On
January 5, 2001,
Karen Beckelman, an investigative supervisor with DCFS, began
supervising an investigation into
an allegation that Patrick had improperly touched a three-year-old
child's bottom during nap time
6 DCFS referred Patrick to Latino Family Services, P.C. for his
"psychosexual
assessment and follow-up treatment recommendations." (PX B, at
44980.)
at the center. (Tr. 1509, 1518-19.) Beckelman assigned the case to
investigator Andrea Jones
and, during an initial meeting, advised her to find out whether Patrick
had any biological children;
if so, Jones was to look into implementing a safety plan pursuant to
Department practice. (Tr.
1525-26.) DCFS insists that Beckelman "did not direct Jones to
implement a safety plan" but only
to "consider" it. (Def. Resp., at 29-30.) A January 5, 2001
Interview Note signed by Beckelman,
however, states: "See the child at the day care. Put in a protection
plan with the offender. Make
sure he has no children. If he does also put in a plan in his home
pending the interview." (PX B,
at 44854.)
In any event, Jones spoke with Stacey D. by telephone on January 5,
2001 and, according
to Stacey, told her that, due to the Hotline complaint, Patrick had to
leave the home or Jones would
come and take away their children. (Tr. 470.) Without asking any
questions, Stacey denied the
allegations on behalf of her husband and said she planned to contact an
attorney. (Tr. 472, 838-
39.) On January 9, 2001, Forensic Interviewer Kristin Eby conducted a
victim sensitive interview
("VSI") of the 4-year-old alleged victim, who reported that Patrick
D. had touched her in a sexual
manner. (Tr. 1539; PX B, at 45010.) Both Jones, who was present during
the VSI, and
Beckelman, who was not, found the statement to be credible. (There is
no indication whether
DCFS officials consulted with Eby herself regarding the victim's
credibility.) Beckelman notified
Stacey of the DCFS determination during a telephone conversation on
January 10, 2001. (Tr.
1451; PX B, at 45010.) Beckelman also asked Stacey to confirm that
Patrick was out of the house,
and again informed her that if he was not, Beckelman would remove the
children from the home.
(Tr. 478.) Beckelman advised Stacey that Patrick needed to obtain a
sexual "offender
assessment"6 before he could have unsupervised contact with his own
children. (Tr. 1542.)
On January 15, 2001, Beckelman visited the D. apartment and
individually spoke to each
of the D. children and to Stacey and Patrick. (Tr. 484-85, 489-90.)
Before leaving the apartment,
Beckelman advised Stacey that the children could start seeing Patrick
at church on Sunday. (Tr.
491.) Shortly thereafter on February 5, 2001, Stacey and Patrick met
with Jones at a DCFS office.
Jones told them that the investigation against Patrick was going to be
"indicated" for "sexual
molestation" of a four-year-old child and that he needed to have an
offender's assessment in order
to return to the D. home. (Tr. 501-02.)
DCFS did not proceed with an administrative hearing on the charges
against Patrick D. until
August 8 and 15 and September 10, 2001. (PX B, at 70509.) On October
16, 2001, an
administrative law judge found that the Department had failed to meet
its burden of proving that
Patrick had sexually molested a child or that he presented a risk of
sexual harm to his own children.
(Id. at 70520.) The ALJ noted that the victim's statements about the
alleged abuse were
inconsistent (she first said the touching occurred "one time," then
later said it happened "every day"
at naptime and lasted for "a couple hours"), and that the
statements were not corroborated by any
other evidence. (Id. at 70518.) Kristin Eby, who had conducted the VSI
back in January, testified
that the victim's "cheerful affect and volunteering of information
about abuse are not common
among victims of this age." (Id.) In addition, the evidence presented
at the hearing showed that
Patrick "had neither the inclination nor the opportunity to molest"
the victim, given that other adults
were often present in the room during naptime. (Id. at 70513, 70518.)
The ALJ recommended that
the indicated finding be expunged, noting that the investigation
leading to the indicated report was
"at a minimum sloppy, and at worst the result of a pre-ordained
conclusion." (Id. at 70517.)
Plaintiffs suggest that at least some of the exculpatory information on
which the ALJ relied was,
or should have been, available to the investigation at the onset of the
investigation. See
DeLaFont v. Beckelman, 264 F. Supp. 2d 650, 654 (N.D. Ill. 2003)
(noting allegations that during
investigation, Patrick D.'s own children and eight children in the
day care center denied that he
7 See DeLaFont v. Beckelman, 264 F. Supp. 2d 650 (N.D. Ill. 2003)
(dismissing
several individual defendants from the case for lack of personal
involvement in the alleged
deprivations, but denying motion to dismiss claims that remaining three
defendants violated
plaintiffs' constitutional right to family autonomy and that two
defendants deprived Patrick D. of his
job without due process); DeLaFont v. Beckelman, No. 02 C 5448, 2003 WL
21294741 (N.D. Ill.
June 3, 2003) (denying motions to reconsider); DeLaFont v. Beckelman,
No. 02 C 5448, 2003 WL
22239726 (N.D. Ill. Sept. 29, 2003) (denying plaintiffs' motion to
reinstate one of the previouslydismissed
defendants).
8 It does not appear that there is any family relationship between the
Parikhs and the
K.'s.
9 It is not clear from the record who called the family meeting, who
attended it, or
when it took place.
touch them inappropriately; also noting allegation that DCFS failed to
interview Patrick D.'s coteacher
who later proved to have pertinent, exculpatory information).
Patrick was cleared of the indicated report on December 4, 2001, and
the safety plan which
had left him out of his home and unable to have unsupervised contact
with his children was
officially lifted on December 10, 2001. (Id. at 44779.) As a result of
this incident, Stacey D. and
her family, represented by Lehrer & Redleaf, filed a lawsuit against
several DCFS employees
seeking compensatory and punitive damages relating to their actions
during the investigation. (Tr.
845.)7
D. Jimmy and Christine Parikh
On July 12, 2001, DCFS investigator Michelle Abernathy was assigned to
investigate an
allegation that Jimmy Parikh had kissed 11-year-old Deanna K. while she
and her siblings were at
the Parikh home under the care of Jimmy's wife Christine.8 (Tr.
2538.) Abernathy spoke with
Deanna's father, who stated that though Deanna was temporarily living
with him, she had
previously lived with his ex-wife, Delta K. Abernathy next contacted
Delta K., who advised that her
daughter was a liar, that the issue had been resolved at a "family
meeting,"9 and that she did not
understand why DCFS was involved. (Tr. 2358-59.)
10 Presumably this was not the same ?family meeting" at which,
according to Delta K.,
the matter has been resolved.
11 In addition to Justine, the Parikhs had four other children: Emmie
(age 27), Jason
(age 22), Elissa (age 6), and George (age 3). (Tr. 1269.) At the time
of the alleged incident, only
Jason, Elissa, and George were living in the Parikh home. (Tr. 1270,
1272, 1276.)
Nevertheless, Abernathy went to the Parikh home and advised Jimmy,
Christine, and their
older daughter Justine (age 25) about the allegation. The Parikhs
explained that Christine had
been caring for three of the K. children and stated that there had been
a "family meeting" during
which Deanna had not said anything about the alleged incident. (Tr.
1269, 2540.)10After learning
that there were two minor children living in the Parikh home, Abernathy
told the Parikhs that she
"would have to put a safety plan in place." (Tr. 2541 (Abernathy).)
The plan required that Christine
not babysit for any of the K. children and that Jimmy move out of the
home and stay with Justine,
who resided outside the Parikh home, during the course of the
investigation. According to
Christine, who says she was "frantic" at the thought of a safety
plan, Abernathy warned that if
Jimmy did not move out of the house and cease all contact with the
minor children living in his
home,11 the children would be taken into DCFS custody. (Tr. 1304-05,
1309.) Abernathy explained
the safety plan process and told the Parikhs that they could contact
her supervisor to discuss any
concerns they had regarding the plan. (Tr. 2540-42, 2547; PX H, at
44096.) Jimmy, Christine, and
Justine all signed the plan and Jimmy packed a bag of clothes and left
the house. (Tr. 2544.)
At some point prior to the end of July 2001, Abernathy's supervisor
modified the safety plan
to allow Jimmy to have supervised contact with his own children.
Abernathy learned of this
modification during an unannounced visit to the home at the end of
July. (Tr. 2553.) Around the
same time, the Parikhs retained the law firm of Lehrer & Redleaf to
represent them in the
investigation. On July 26, 2001, the firm sent a letter to
Abernathy's supervisor, John Ott,
requesting that the plan be modified or revoked; on August 5, 2001,
Jimmy was allowed to return
12 The parties do not indicate who decided that Jimmy could return home
or how or
when the Parikhs were notified of the decision.
13 It is not clear how Detective Marks became involved in the case.
to the P. home.12 (See PX H, at 44045 ("minor resides with father and
no longer goes to [the
Parikh] home").) The safety plan remained in effect at that time,
however, so Christine could not
leave the children alone with Jimmy. (Tr. 1327; PX H, at 730001.) Two
days later on August 7,
2001, the Parikhs' attorney notified Christine that Abernathy was
recommending that the case be
unfounded. Abernathy made the decision after speaking with Detective
Larry Marks of the Des
Plaines, Illinois police force, who told Abernathy that based on the
alleged victim's psychological
reports, there might be questions regarding the validity of her
statements, and he did not believe
that the police department would proceed with the case.13 The attorney
nevertheless
recommended that the family continue following the safety plan until it
was officially lifted on
September 26, 2001. (Tr. 1331; PX H, at 730000.)
E. A.S.
A.S. is the biological mother of two sons, N. and P., and the
stepmother of an 8-year-old
girl, A. DCFS supervisor Linda Conti became involved with A.S. when the
Hotline received a report
that her older son, N., had sexually abused his younger brother, P.,
who was living with his
maternal grandparents, the H.'s, at the time. (Tr. 1455-56, 1458-60.)
Conti called A.S. on August
23, 2000 and notified her of the pending investigation but did not
disclose any specific allegations
so that A.S. would, in Conti's words, "not to be able to taint the
investigation." (Tr. 1463; PX F, at
42900.) Though there were no allegations against A.S., Conti
recommended that she not have any
contact with P. during the investigation out of concern that A.S. might
encourage her son to recant
or minimize the allegation. (Tr. 1464-65.) A.S. agreed to the
recommendation without mentioning
that she had an order from the Circuit Court of Winnebago County
granting her the right to have
contact with P. following her divorce from P.'s father. Nor did A.S.
mention that she was involved
14 It is not clear what event triggered the Hotline call.
in a custody battle with the H.'s regarding custody of P. (Tr.
1465-66, 1489; PX F, at 43034,
43036.)
On September 29, 2000, DCFS investigator Shalonda Cawthon called A.S.
and told her that
the investigation was going to be unfounded. (Tr. 1469-70; PX F, at
42923.) The investigator's
notes state that the "perp[etrator] seemed more credible than victim
.. . . Something happened to
the victim no proof it was the perp (sib[ling])." (PX F, at 42921.)
Cawthon nevertheless
recommended that A.S. be allowed only supervised visits with P.
"until the Department receives
a completed assessment and recommendations from [a] psychologist."
(PX F, at 42933, Letter
from S. Cawthon to A.S. of 9/29/00.) By letter dated December 18, 2000,
Conti notified A.S. that
she no longer needed to be supervised during her visits with P. but
should resume shared custody
as provided by the court custody orders. (PX F, at 43043.) It is not
clear whether this decision was
in fact based on a psychologist's recommendation.
F. Debra C.
In June 2000, DCFS received a Hotline report alleging that Debra C.'s
minor children were
at risk of harm because two of her children had died years previously
under suspicious
circumstances, and a third child had almost died.14 (Tr. 884-85, 896.)
Debra C. is the mother of
Robert (age 22), Thomas (age 21), Joey (born May 28, 1981, died
September 1981), Jennifer (age
14), Steven (age 12), Jonathan (age 7), Jessica (age 8), and Katie
(born December 20, 1997, died
March 1998). (Tr. 1136-39.) Joey and Katie both died of sudden infant
death syndrome. DCFS
and the police investigated both deaths and determined that they were
unfounded for abuse or
neglect. (Tr. 1139-40.) In addition, Thomas reportedly stopped
breathing and needed to be
resuscitated when he was an infant. (PX G, at 43650, 43651.) In 1995,
Debra suffered a
breakdown and was diagnosed with bipolar disorder and depression. (Tr.
1142.)
15 Deputy Director Goad testified that "[i]n more serious cases we
open in-home
protective services cases, which means that we assign a DCFS worker,
sometimes called an intact
worker, to work with the family." (Tr. 2234.) Kathleen Tate testified
that "once [a] case was opened
for services then the intact family worker would go out [to see the
family] weekly." (Tr. 917.)
DCFS supervisor Kathleen Tate interviewed Debra on June 8, 2000. Debra
disclosed that
she suffers from bipolar disorder, and Tate observed that she kept
various medications together
in a single bottle, which Tate found odd. (Tr. 907-08.) Tate determined
that Debra's four minor
children were unsafe and required that an older sibling come check on
them "every day." (Tr. 916-
17; PX G, at 43670.) One week later on June 15, 2000, DCFS implemented
a new safety plan
which provided that Debra's father and his wife would care for
Debra's four minor children until the
investigation was complete, but that Debra could have supervised visits
with them every day. (Tr.
924-25; PX G, at 16731.) That same day, DCFS investigator Eleanor
Powell called Debra to notify
her of the safety plan. (Tr. 925-26; PX G, at 16593.)
A few days later on June 18, 2000, the children went to visit their
non-custodial father,
Steven, for Father's Day. Steven did not return the children to
Debra's father that night but instead
kept them in his custody. Debra notified Powell of the situation during
a telephone conversation
on June 22, 2000, but Powell indicated that there was nothing she could
do because DCFS had
not placed the children with Steven. (Tr. 960, 1174-79.)
Toward the end of July 2000, Debra retained the law firm of Lehrer &
Redleaf to represent
her in the investigation. (Tr. 1229-30.) On July 26, 2000, the
Department opened the case for
services15 and attempted to convince Debra to accept assistance from
DCFS. (Tr. 946-50.)
Specifically, the Department suggested that Debra get a drug and
alcohol assessment and a
bonding assessment, and that she continue to see her psychiatrist and
to take her medication. (Tr.
1213-15.) Debra, however, did not believe that she needed such services
and stated that she
would only be willing to accept the assistance of a babysitter and a
maid. (Tr. 1241-42.) The next
day, on July 27, 2000, DCFS attempted to "screen" the case with the
State's Attorney's office but
16 Plaintiffs' Reply Memorandum in Support of their Amended Motion
for a Second
Preliminary Injunction is cited as "Pl. Reply, at __."
the State's Attorney needed additional information from the
investigator in order to proceed, such
as Debra's psychiatric records and the medical records regarding the
children who had died. (Tr.
936-37, 981; PX G, at 16606.) Also on July 27, DCFS attempted to take
protective custody of the
C. children, but they were not at the grandfather's home when DCFS
arrived with the police. (Tr.
953-55.) Shortly thereafter on August 1, 2000, Kathleen Tate called
Daniel Romero, a paralegal
with Lehrer & Redleaf working on Debra's case, to inform him that the
C. children would be
returned (presumably, by their father) to Debra's father by August 7,
2000. (PX G, at 72541.)
For reasons not explained in the record, DCFS voluntarily unfounded the
report against
Debra on February 28, 2001. (Tr. 976; PX G, at 100257.) According to
Tate, in the Department's
view, the investigation was not typical because of the nature of the
allegations, the past deaths of
two of Debra's minor children, the family dynamics, the failure of
Debra's psychiatrist to cooperate
with the investigation, and the fact that Powell went on medical leave
in the middle of the
investigation. (Tr. 984-87 (Tate).) Plaintiffs disagree, arguing that
"nothing about the handling of
the C. case runs contrary to the express and acknowledged policies and
practices of DCFS which
permit safety plan directives including the loss of custody of children
without notice, or any
opportunity for a parent to be heard." (Pl. Reply, at 22.)16
G. Drs. S. and M.
On May 12, 2000, DCFS began investigating Dr. S. and his wife Dr. M.
based on a report
from a neighbor that she had observed through the window that Dr. S was
sexually abusing his
eight-year-old adopted daughter. DCFS investigator Martin Acevedo went
to the family's home but
Dr. S. and Dr. M. refused to let him interview the child. (Tr. 331-32,
335-36, PX A, at 70009.)
Instead, Acevedo spoke with Dr. S. and Dr. M. for approximately two
hours, in part explaining that
he and Dr. S. needed to develop a safety plan. Dr. S. ultimately agreed
to a safety plan requiring
17 The name of the person who conducted the interview and the
corresponding notes
are illegible.
18 Dr. S. retained separate counsel to represent him in a criminal
investigation into his
alleged misconduct. That investigation did not result in any criminal
charges being filed. (Tr. 359.)
that he leave the home pending the investigation. Dr. S. understood
from Acevedo that if he
refused to agree to the plan, DCFS would take his daughter away or go
to the police. (Tr. 338,
343, 346-48.)
Dr. S. stayed at a hotel over the weekend and by May 15, 2000 had
retained Diane Redleaf
of the Lehrer & Redleaf law firm to represent him. (Tr. 357, 371.) Ms.
Redleaf wrote a letter to
Hebert Bashir, a DCP Supervisor, on May 15, 2000 requesting in part
that Dr. S. "may return home
and remain home as long as his wife is also present." (PX A, at
70045.) That same day, DCP
investigator Andrea Jones spoke with Ms. Redleaf and agreed to modify
the safety plan to allow
Dr. S. to have supervised visits with his daughter during the day. (Tr.
357, 371; PX A, at 70074.)
As a result, Dr. S. was able to shield his daughter from the
information that he was not sleeping
at home at night; he stayed with her until she went to sleep and then
returned to the house in the
morning before she woke up. (Tr. 358.)
On May 18, 2000, DCFS conducted a victim sensitive interview of the
daughter at the
Children's Advocacy Center.17 (Tr. 418; PX A, at 70022.) The next day
on May 19, 2000, Jones
spoke with Ms. Redleaf and notified her that the case against Dr. S.
was being unfounded. (Tr.
358-59; PX A, at 70055.) Though the official notification did not
arrive until June 15, 2000, Dr. S.
moved back into his home on May 19, with Ms. Redleaf's approval.18
(Tr. 359-60, 376; PX A, at
70071.)
H. E.D.
On January 11, 2001, DCFS received a Hotline call reporting that
sixteen-year-old E.D. had
molested four-year-old Q.M. while babysitting for him approximately two
years earlier. (Tr. 1414-
19 The record does not reflect when E.D.'s case was indicated.
15.) John Howell was assigned to investigate the allegation on behalf
of DCFS. Howell conducted
a victim sensitive interview of Q.M. on January 22, 2001. (PX I, at
44140.) Q.M. reported that E.D.
"did something bad" to him but then, in Howell's words, "shut
down" and refused to continue talking.
(Id.; Tr. 1417.) Howell next interviewed E.D. and E.D.'s mother, Mrs.
D., at the family home on
January 25, 2001. According to Howell, E.D. "began to say something
which very clearly indicated
that he was acknowledging some sort of guilt, some degree of guilt in
the allegation," but his
mother stopped him and spoke with him privately for a minute. (Tr.
1428.) When E.D. and Mrs.
D. returned, they told Howell that they had contacted an attorney; the
attorney never authorized
Howell to speak with E.D. after that time. (Id.)
Before concluding his initial interview, Howell told Mrs. D. that "a
safety plan would have to
be put in effect removing E.D. from the home for the safety of his [two
younger] siblings." (PX I,
at 44148 (interview notes); Tr. 1418.) The original plan required that
E.D. remain outside the home
until he completed a juvenile sex offender evaluation and any treatment
recommended pursuant
to that evaluation. (Tr. 1421.) Howell told Mrs. D. that if she did not
agree to the plan, it was
possible that DCFS would take custody of the two younger children. (Tr.
1419.)
On February 22, 2001, Howell conducted victim sensitive interviews of
E.D.'s siblings,
neither of whom made any significant disclosures. (PX I, at 44154,
44155.) During the interviews,
Mrs. D. approached Howell and asked him to modify the safety plan.
Howell, Mrs. D., and the D.s'
attorney discussed a modification and ultimately agreed that E.D. could
return home but could have
no contact with younger children. In addition, Mrs. D. was required to
remain ?awake at night when
the rest of the family is sleeping, in order to supervise [E.D.] at
night." (Tr. 1422-23; PX I, at 44152,
44171(a).) The modified safety plan remained in effect until July 2002.
(PX I, at 44177.) E.D.'s
case was ultimately indicated for sexual penetration.19 (Tr. 1428.)
20 Plaintiffs do not indicate the actual duration of I.W.'s safety
plan.
21 Plaintiffs also submit the declaration of S.T., who signed a safety
plan requiring that
her paramour leave their home while DCFS investigated allegations that
he was sexually abusing
S.T.'s children from a previous marriage. (Ex. 2 to Plaintiffs'
Motion to Supplement Record in
(continued...)
I. Additional Cases
Plaintiffs rely on the circumstances of two additional cases in support
of their motion for
preliminary injunction, but do not provide a detailed summary of either
case. Plaintiffs first claim
that the March 22, 2002 directive from Deputy Director Goad, requiring
that "all safety plans in
which family members (children or adults) are relocated from their
residence must be approved by
the respective Child Protection or Field Service Manager," was
ignored in two situations. (Pl. Mem.,
at 32-33.) In the first case, five-year-old I.W. lived with her mother,
who had full custody rights, but
visited her father on weekends. (DCFS Inter-Office Correspondence
Regarding Safety Plans dated
3/22/02; Tr. 3168, 3170.) When I.W.'s mother was accused of abusing
her, I.W. went to live with
her father pending a DCFS investigation. DCFS investigator Cassandra
Campbell nevertheless
testified that I.W.'s October 14, 2002 safety plan did not constitute
a "relocat[ion] from [her]
residence" as contemplated by the March 22 directive. It is not clear
from the record whether
Campbell knew that the mother had full custody of I.W. when she
implemented the plan. (Tr. 3170,
3181 (DCFS investigator, Cassandra Campbell).)
Plaintiffs also point to the I.W. case as evidence that DCFS
investigators are not following
the August 13, 2002 amendments to Appendix G requiring that safety
plans be reviewed every five
days. (Pl. Mem., at 33.) Specifically, there is no evidence that DCFS
conducted any five-day
reviews of I.W.'s safety plan even though it was scheduled to last
"up to 60 days."20 (Tr. 2989; PX
T, at 45373-74.) In this second case, Plaintiffs submit the declaration
of J.J., who signed a safety
plan requiring that her husband leave their home pending a DCFS
investigation into allegations that
he had abused J.J.'s children from a previous marriage.21 (Pl. Mem.,
at 23; Pl. Supp., at 2.) It is
21(...continued)
Support of Both their Second Preliminary Injunction Motion and their
Motion to Amend the Class
Definition (hereinafter "Pl. Supp.") S.T. is not a member of the
class, however, because she has
no legal relationship with the man required to leave the home. (See
Order of 4/16/04.)
not clear whether DCFS conducted re-reviews of the plan every five
days, but as of January 2004,
the plan had been in effect for more than 75 days. (Ex. 1 to Pl. Supp.)
DISCUSSION
Plaintiffs raise both substantive and procedural due process challenges
to the safety plan
process, arguing that DCFS, under threat of seizing class members'
children, (1) implements safety
plans on the basis of only nominal or no evidence of actual abuse or
neglect, and (2) fails to
provide any opportunity to contest the plans. Defendant insists that
the plans satisfy the compelling
public interest in controlling threats to a child's safety during the
course of a DCFS investigation,
and that all plans constitute voluntary agreements between the families
and DCFS. With the
limitations described below, the court finds that Plaintiffs are
entitled to injunctive relief.
I. Preliminary Injunction Standard
Plaintiffs seek a preliminary injunction prohibiting Defendant, a state
official, from continuing
to implement safety plans absent sufficient evidence of abuse or
neglect and an appeal process.
To obtain such relief, Plaintiffs must demonstrate (1) a likelihood of
success on the merits; (2)
irreparable harm if the preliminary injunction is denied; and (3) lack
of an adequate remedy at law.
See Reid L. v. Illinois State Bd. of Ed., 289 F.3d 1009, 1020-21 (7th
Cir. 2002). When these
threshold conditions have been met, the court must consider (4) the
harm that Defendant will suffer
if the injunction is granted, balanced against the irreparable harm to
the Plaintiffs if injunctive relief
is denied; and (5) the interest of, and harm to persons not directly
involved in the dispute (the public
interest). Id. at 1021.
II. Likelihood of Success on the Merits
A likelihood of success on the merits of both Plaintiffs' substantive
and procedural due
process claims requires some showing of a liberty interest. The court
thus first considers whether
such an interest exists in this case. The court then addresses in turn
the specific due process
arguments.
A. Protected Liberty Interest
It is well-established that "[c]hoices about marriage, family life,
and the upbringing of
children are among associational rights the [Supreme] [C]ourt has
ranked as 'of basic importance
in our society,' . . . rights sheltered by the Fourteenth Amendment
against the State's unwarranted
usurpation, disregard, or disrespect." M.L.B. v. S.L.J., 519 U.S.
102, 116 (1996) (quoting Boddie
v. Connecticut, 401 U.S. 371, 376 (1971)). As the Seventh Circuit
noted, "the right of a man and
woman to marry, and to bear and raise their children is the most
fundamental of all rights - the
foundation of not just this country, but of all civilization." Doe v.
Heck, 327 F.3d 492, 517-18 (7th
Cir. 2003) (quoting Brokaw v. Mercer County, 235 F.3d 1000, 1018 (7th
Cir. 2000)). Similarly,
children possess a liberty interest in being raised and nurtured by
their parents. See, e.g.,
Santosky v. Kramer, 455 U.S. 745, 760 (1982) ("until the state proves
parental unfitness, the child
and his parents share a vital interest in preventing erroneous
termination of the natural
relationship"); Heck, 327 F.3d at 518; Brokaw, 235 F.3d at 1018.
The constitutional right to familial integrity, however, is not
absolute. Brokaw, 235 F.3d at
1019. To the contrary, this liberty interest "is limited by the
compelling governmental interest in the
protection of children - particularly where the children need to be
protected from their own parents."
Id. (quoting Croft v. Westmoreland County Children and Youth Servs.,
103 F.3d 1123, 1125 (3d
Cir. 1997)). "Thus, a balance must be reached between the fundamental
right to the family unit and
the state's interest in protecting children from abuse, especially in
cases where children are
removed from their homes." Id. With these principles in mind, the
court considers whether safety
plans implicate Plaintiffs' due process rights.
B. Substantive Due Process
Plaintiffs claim that safety plans violate their right to substantive
due process by depriving
them of familial relations without sufficient evidence. In
Plaintiffs' view, DCFS should not be
allowed to implement a safety plan absent "some definite and
articulable evidence giving rise to
a reasonable suspicion that a child has been abused or is in imminent
danger of abuse." Brokaw,
235 F.3d at 1019 (quoting Croft, 103 F.3d at 1126). Defendant insists
that all safety plans are
voluntary agreements designed to further the public interest in
protecting children and, thus, do not
require any specific evidentiary showing. As explained below, the court
finds neither party's
position entirely persuasive.
Plaintiffs cite to several cases which purportedly demonstrate that
safety plans are
unconstitutional absent "definite and articulable evidence" of
abuse or neglect. In Doe v. Heck, 327
F.3d 492 (7th Cir. 2003), child welfare authorities received a report
that a ten-year-old girl had been
bruised during a spanking at a private school. The girl told
investigators that another student, John
Doe, had also been spanked by the school principal. Id. at 500-01.
Based on that report, the
investigators interviewed John at his school without his parents'
consent and "target[ed] the plaintiff
parents [John Doe's parents] as child abusers." Id. at 521. At one
point in the investigation, case
worker Carla Heck left a voice mail message for the Does stating that
"if she did not hear from their
attorney within 24 hours, 'the Bureau will take steps to . . .
protect the children in your home . . .'"
and that she was "'not messing around anymore!'" Id. at 505-06.
The child welfare authorities
never in fact removed any of the Doe children from their home, but the
Does claimed that
"[t]hroughout . . . the Christmas season," they "lived in
constant fear" that the authorities would do
so. Id. at 506 n.10.
The Does and others filed suit, alleging in part that the defendant
child welfare authorities
had violated the Does' right to familial relations and their
Fourteenth Amendment procedural due
process rights. Id. at 508. The district court granted summary judgment
to the defendants, finding
that even if their actions were unconstitutional, they were protected
by qualified immunity. Id. The
Seventh Circuit reversed, however, concluding that the defendants
violated the Does' liberty
interest in familial relations by targeting them as child abusers
without any evidence that the Does
themselves had ever abused their children or that their children had
ever been injured as a result
of a school spanking. Id. at 521-22. Despite the absence of any such
evidence, the defendants
launched an investigation based solely on another child's claim that
John had been spanked (not
injured) by the school principal (not John's parents).
The court concluded, similarly, that the threat to remove John and his
sister from their
parents' custody violated the Does' liberty interest in maintenance
of the family unit. Id. at 524.
The court recognized that "child welfare caseworkers are often called
upon to make difficult
decisions without the benefit of extended deliberation," and that
"there is, perhaps, no more worthy
object of the public's concern than preventing the most vulnerable
members of society, children of
tender years, from being physically abused." Id. at 525. On the facts
presented, however, it was
not "difficult to weigh [the] state's interest in investigating an
allegation of child abuse against [the]
parent or child's right to familial relations" because "the
defendants had no basis to suspect the
plaintiff parents of child abuse, and thus had no reason to interfere
with their familial relationships
in the manner described." Id.
With one exception, the cases presented at the hearing before this
Court are
distinguishable from Heck because they involve allegations of abuse or
neglect on the part of the
parent or child under investigation. Thus, unlike in Heck, the
Plaintiffs' right to familial relations
here does not, in each instance presented above, obviously outweigh the
state's interest in
investigating allegations that Plaintiffs have engaged in child abuse
or neglect. The A.S. case does
involve a mother who was not allowed to see her son for approximately
one month while DCFS
investigated an allegation that the boy had been abused by his older
brother. Unlike the Does,
however, A.S. was aware of the investigation at all times and did not
object to the arrangement.
Plaintiffs dispute that A.S.'s agreement was voluntary - an argument
the court addresses infra pp.
46-54 - but the court notes that she signed the safety plan without
advising the investigator about
the court order granting her the right to have contact with her son, P.
As noted, Plaintiffs view Brokaw as setting forth the requirement of
"definite and articulable
evidence" of abuse or neglect before a safety plan may be
implemented. The plaintiff in Brokaw
alleged that certain relatives and a deputy sheriff conspired to end
his parents' marriage by filing
"baseless and scurrilous" claims of child neglect with DCFS that
they believed "would cause [the
plaintiff] and his sister to be removed from their parents' home, and
in turn prompt [the father] to
divorce his wife and leave his family." 235 F.3d at 1007. At some
point after the relatives made
the allegedly baseless claims of neglect, two police officers walked
into the plaintiff's home,
grabbed him and his three-year-old sister, and carried them crying out
of the home. The men did
not explain what was happening and the six-year-old plaintiff believed
he was being kidnapped and
would be killed. Id. The children remained in foster care for
approximately four months before
being returned home. Id. at 1008. Upon reaching the age of majority,
the plaintiff filed a complaint,
alleging in part that his relatives and others had violated his
substantive due process right to familial
relations. Id. at 1017-18. The district court dismissed the claims for
failure to state a claim or,
alternatively, based on sovereign, absolute, or qualified immunity. Id.
at 1008.
The Seventh Circuit reversed, finding that the plaintiff had
sufficiently alleged a due process
claim covering the four-month period during which he was separated from
his parents. The court
noted that the constitutional right to familial integrity must be
balanced against the state's
compelling interest in protecting children from abuse, "especially in
cases where children are
removed from their homes." Id. at 1019. "In balancing these
interests, courts have recognized that
a state has no interest in protecting children from their parents
unless it has some definite and
articulable evidence giving rise to a reasonable suspicion that a child
has been abused or is in
imminent danger of abuse." Id. On a motion to dismiss, the court
lacked sufficient facts to
determine whether the government was justified in interfering with the
plaintiff's familial relations.
The court also lacked sufficient facts to determine whether any of the
individual defendants were
entitled to qualified immunity. The court noted, however, that in
general, "because the balance
between a child's liberty interest in familial relations and a
state's interest in protecting the child is
nebulous at best, social workers and other state actors who cause a
child's removal are entitled
to qualified immunity because the alleged constitutional violation will
rarely - if ever - be clearly
established." Id. at 1023.
Brokaw is not particularly illuminating to the extent it involved
children who were forcibly
removed from their parents' home by two men who refused to identify
themselves. In this case,
Plaintiffs, all adults capable of communicating with child welfare
authorities, knew that there was
an investigation pending against them and agreed at least in form,
however reluctantly, to
cooperate with the plan by removing themselves or their children from
the home. In addition, the
children in Brokaw were placed in foster care and deemed wards of the
state for four months; they
did not remain with parents or relatives as in this case. The Brokaw
court did note that other courts
have required "definite and articulable evidence giving rise to a
reasonable suspicion" of abuse or
neglect, but did not explain what satisfies this requirement,
particularly with respect to the
imposition of safety plans such as are at issue here.
Plaintiffs also claim that the Supreme Court's decision in Troxel v.
Granville, 530 U.S. 57
(2000) "reinforces the conclusion that safety plans work significant
deprivations, even when the
deprivation is less extreme than removal of the child." (Pl. Mem., at
39.) The plaintiffs in Troxel
sought visitation rights with their grandchildren under a Washington
state statute that allowed "any
person" to petition for forced visitation of a child. The
children's mother wanted to limit the
grandparents' visits to once per month, but a Washington Superior
Court granted the plaintiffs'
request for greater visitation rights as in the best interests of the
children. Id. at 61-62. The
Washington Court of Appeals reversed, however, and the Washington
Supreme Court affirmed that
decision, reasoning that the Washington statute was unconstitutional
because it allowed the State
to interfere with the right of parents to rear their children without
any threshold showing of harm,
and because it allowed ?any person" to seek visitation rights without
recognizing that "[p]arents
have a right to limit visitation of their children with third
persons." Id. at 61-63. See WASH. REV.
CODE § 26.10.160(3) ("[a]ny person may petition the court for
visitation rights at any time . . . The
court may order visitation rights for any person when visitation may
serve the best interest of the
child").
The United States Supreme Court granted certiorari and affirmed that
the Washington
statute, as applied, unconstitutionally infringed on the mother's
fundamental right to make decisions
concerning the care, custody, and control of her children. Id. at
66-67. In reaching this conclusion,
the Court found it significant that "the [plaintiffs] did not allege,
and no court has found, that [the
mother] was an unfit parent. That aspect of the case is important, for
there is a presumption that
fit parents act in the best interests of their children." Id. at 68.
Although some of the language of Troxel is instructive, its rationale
is not directly relevant
here, either. In the Supreme Court's view, the problem "[wa]s not
that the Washington Superior
Court intervened, but that when it did so, it gave no special weight at
all to [the mother's]
determination of her daughters' best interests." Id. at 69. In this
case, conversely, safety plans are
imposed on parents who are under suspicion of being unfit. Nor are
questions regarding visitation
rights directly comparable to investigations into allegations of abuse
or neglect.
In short, none of these cases supports Plaintiffs' assertion that
DCFS violates the
Constitution when it implements safety plans absent "definite and
articulable evidence giving rise
to a reasonable suspicion that a child has been abused or is in
imminent danger of abuse." (Pl.
Mem., at 43) (citing Brokaw, 235 F.3d at 1019). Indeed, none addresses
the situation presented
here where a parent, legal guardian, or child is directly accused of
abuse or neglect, thus calling
into play the state's compelling interest in protecting a child's
safety. The court recognizes that
safety plans impose difficult restrictions upon families and, while
they are in effect, deprive families
of their right to familial relations. To determine whether such
deprivation amounts to a
constitutional violation, however, it must be balanced against the
state's interest in protecting
children. That interest is "extraordinarily weighty." Darryl H. v.
Coler, 801 F.2d 893, 902 (7th Cir.
1986). As the Seventh Circuit explained:
The state has an obligation to prevent loss of life and serious injury
to those
members of the community to whom it has a very special responsibility,
the young.
As the Supreme Court remarked in Wyman v. James, 400 U.S. 309, 318, 91
S.Ct.
381, 386, 27 L.E.2d 408 (1971), "There is no more worthy object of
the public's
concern."
Id. Safety plans are designed for this very purpose: to protect
children from harm during the course
of a DCFS investigation.
Plaintiffs express concern that it is not always clear that a child is
in any danger at all, such
as when a child is merely "afraid" of persons who live in or visit
the home. In addition, safety plans
are often implemented even when only one of the 15 safety factors is
checked "yes." (Pl. Mem.,
at 14 n.8) (arguing that 61 of the 92 safety plans in the
representative cases (66%) went into effect
based on the presence of only one safety factor). Defendant insists
that "many of these so-called
safety plan cases do not involve safety plans at all," noting, for
example, that some plans imposed
no contact requirements only after an alleged perpetrator had been
taken to jail and a court had
imposed the same restriction. (Def. Resp., at 52-54.) Defendant cannot
escape liability, however,
by imposing conditions on Plaintiffs and then claiming that they did
not technically constitute "safety
plans."
The court recognizes that several plans in the sample cases were
directed against nonclass
members, such as paramours of the alleged victims' mothers. The fact
that some of the
persons subject to safety plans are not class members does not speak to
the proper standard
required for implementing such a plan, however. Where an investigator
has found even a single
safety factor, the court finds that it is not improper for DCFS to err
on the side of caution given the
significant state interest in protecting children from harm. Under such
circumstances, the court is
satisfied that the state's interest in protecting children through
brief or temporary safety plans
outweighs Plaintiffs' right to familial relations, even upon a mere
suspicion of abuse or neglect. The
opposite conclusion may result in children being further abused or
neglected during the course of
a DCFS investigation, which is what prompted the CERAP process in the
first place. (Tr. 2243-44);
20 ILCS 505/21(e).
In the court's view, the safety plan imposed upon Drs. S. and M.
represents the type of brief
deprivation that is insufficient to trigger constitutional concerns.
That plan went into effect on
May 12, 2000 and required Dr. S. to leave the home pending an
investigation into a neighbor's
allegation that she had seen him through a window abusing his adopted
daughter. By May 19,
2000, the case against Dr. S. was unfounded and he moved back into his
home. Though it is
regrettable that he had to spend a week away from his family, the court
concludes that he did not
suffer an unconstitutional deprivation of his right to familial
relations as a result. On the other hand,
Patrick D. was required to leave his home on January 5, 2001 due to an
allegation that he had
improperly touched another child during nap time at the day care center
where he worked. His
case was "indicated" for abuse in February 2001 but he did not
receive an administrative hearing
on the charges until August 8 and 15 and September 10, 2001. On October
16, 2001, relying at
least in part on information available to the investigation from the
beginning, an ALJ determined
that the charges were unfounded and based on a "sloppy"
investigation. The safety plan was not
officially lifted, however, and he was not permitted to live with his
children (none of whom were
victims of the alleged abuse) until December 10, 2001 - nearly a year
after it forced him out of his
home.
Even where the initial investigation supports imposition of a safety
plan, the court believes
such a plan may not remain in place indefinitely; to the contrary, at
some point, the deprivation
continues long enough to implicate Plaintiffs' liberty interests and
substantive due process rights.
Neither party has provided useful insight into when this occurs.
Plaintiffs insist that a deprivation
lasting even a single hour is enough to run afoul of the Constitution.
Defendant maintains that
there can never be a constitutional deprivation because families always
sign the safety plan and
thereby agree to its terms. The answer lies somewhere in between, but
absent adequate
development of this issue by the parties, the court is not prepared to
draw the line. The court does
find, however, that safety plans lasting only a few hours or days do
not implicate substantive due
process rights even when coupled with a threat of protective custody.
On the other hand, safety
plans signed under such a threat do implicate substantive due process
rights when they have no
stated duration or an indefinite duration (e.g., they are in effect
"during the course of this
investigation" (SAI 8, at 28502) or until a date "undetermined at
this time" (SAU 40, at 41317)), at
least where such plans continue for several days.
C. Procedural Due Process
Plaintiffs next argue that safety plans violate their procedural due
process rights because
they do not provide any opportunity to contest them. To establish that
their procedural due process
rights have been violated, Plaintiffs must demonstrate that (1) the
Department deprived them of
a constitutionally protected liberty or property interest; and (2) the
deprivation occurred without due
process of law. Heck, 327 F.3d at 526. Plaintiffs note that a
"fundamental requirement of due
process is the opportunity to be heard." (Pl. Mem., at 44) (quoting
Armstrong v. Manzo, 380 U.S.
545, 552 (1965) (internal quotations omitted)). Though Plaintiffs
recognize that pre-deprivation
process may be excused by exigent circumstances, they also stress that
"the only meaningful
opportunity to invoke the discretion of the decision maker is likely to
be before the [deprivation]
takes effect." (Pl. Mem., at 44-45) (quoting Cleveland Bd. of Ed. v.
Loudermill, 470 U.S. 532, 543
(1985).)
The court has already determined that safety plans that separate
children and families do
deprive class members of familial relations. In addition, it is
undisputed that DCFS provides no
opportunity to contest safety plans, nor any notice of such an
opportunity. Defendant once again
argues that no process is due because safety plans are completely
voluntary agreements.
According to Defendant, "[i]ndividual parents are free to make a
choice, albeit a difficult one,
between protective custody of their child and the entry of a safety
plan to keep the child safe."
(Def. Resp., at 45.) While this may be true in a formal sense, for the
reasons explained below, the
court does not agree that Plaintiffs' formal acquiescence in plan
terms extinguishes their procedural
due process rights.
1. Voluntariness
Defendant relies on Terry v. Richardson, 346 F.3d 781 (7th Cir. 2003)
and Doe v. Tullis, No.
01-2044, slip op. (C.D. Ill. Nov. 25, 2003) in support of his assertion
that all safety plans are
voluntary. The plaintiff in Terry was a non-custodial father with
rights to visit his daughter, Jaidah,
pursuant to a divorce decree. 346 F.3d at 782. The plaintiff's
ex-wife suspected that he was
sexually abusing Jaidah and Jaidah confirmed the suspicion, telling her
mother that her father had
?hurt her, kissed her pee-pee,' forced her to swallow a necklace,
tried to make her kiss his
noodle,' and jammed crayons and a pen into her anus." Id.
Jaidah's mother reported the plaintiff
to the DCFS Hotline, and the next day, a DCFS investigator called the
plaintiff and left a message
on his answering machine stating that he was to "cease all visitation
and contact with [Jaidah]."
Id. at 782-83. When the plaintiff returned the investigator's call,
she told him that she could not
explain the allegations over the phone and repeated that he was not to
contact Jaidah. According
to the investigator, the plaintiff responded "okay" or "I
understand." Id. Two weeks later, the
investigator interviewed the plaintiff at his attorney's office. At
that time, she described the
allegations against him and explained the investigation process. She
also reiterated that the
plaintiff was not to have any contact with Jaidah during the
investigation. The plaintiff complied
because "he had learned from 'news reports and things' that
ignoring DCFS instructions could lead
to termination of his parental rights or Jaidah's placement in a
foster home." Id. at 783-84.
After more than a year of proceedings, a court found that Jaidah had
been abused, but not
by the plaintiff, who was cleared of the allegations. The plaintiff
filed suit against the investigator
for violating his and Jaidah's due process rights and a jury found in
favor of the plaintiff and his
daughter. Id. at 784. In reversing that decision, the Seventh Circuit
first determined that the
plaintiff's deprivation, which ultimately amounted to losing just a
single day of visitation, was minor
compared with the state's substantial interest in protecting children
from sexual abuse. Id. at 786.
The court found it significant that the investigator did not try to
sever the plaintiff's parental rights
or remove Jaidah from his custody. Id. In addition, "a reasonable
person with the resources
available to [the plaintiff] would not have left [the investigator's]
authority unquestioned," and could
have refused to comply with the investigator's instruction. Id. at
785, 787. "Given the interests at
stake, the options available to [the plaintiff] were enough to guard
against erroneous interference
with his rights." Id. at 787.
Terry is distinguishable from this case in several respects and does
not, in this court's view,
establish that safety plans are by definition voluntary. First, the
investigator in Terry never
threatened to put Jaidah in protective custody; rather, the plaintiff
merely "heard on television that
disobeying DCFS caseworkers could spell the end of his parental rights
or lead to foster care for
Jaidah." Id. at 785. In this case, conversely, all class members were
threatened that their children
would be placed in protective custody if they refused to accept a
safety plan. In addition, the
plaintiff in Terry lost only a single day of visitation with his
daughter, whereas most of the Plaintiffs
in this case lost physical custody of, or contact with children and
family members for several
months. Significantly, many of the safety plans had indefinite or
unstated durations.
Defendant next points to Doe v. Tullis, in which DCFS investigated
plaintiff John Doe after
receiving a Hotline report that he had sexually abused a child while he
was babysitting for her one
night. Slip op., at 2-3. The investigator interviewed the alleged
victim and her sibling; the victim's
mother; the hospital pediatrician who examined the victim and reported
the abuse; and the pediatric
social worker at the hospital. Id. at 3. The investigator also
interviewed three of the Does' own
children and one of their neighbors. Before speaking with John's
wife, Jane Doe, the investigator
and her supervisor discussed a possible safety plan for the family.
After interviewing Jane, the
investigator drafted a safety plan that required John to live outside
the home and prevented him
from having any unsupervised contact with his children "until we were
further along in our
investigation." Id. at 4. The investigator explained that violating
the safety plan could result in the
children being removed from the home. According to the investigator,
Jane agreed to the plan.
Id. at 4-5.
Five days later, Jane signed a second safety plan with the following
terms: "Jane Doe will
allow [John Doe] no contact whatsoever with any children who are
younger than eighteen; John
Doe will not be in the home without approved supervision at any time
when younger children are
home; and in order for the plan to terminate, John Doe must obtain a
sex offender assessment and
follow any recommendations, and all safety factors must be resolved as
determined by DCFS, with
regard to the sexual abuse." Id. at 6. After the report against John
was indicated, Jane and John
signed (in the presence of their attorney) a third safety plan adding,
in part, that (1) John could not
live in, spend the night in, or be in the home "any time other than
approved visiting time," (2) "CPI
will continue to monitor the plan until the case is complete," and
(3) "violation of the plan will result
in protective custody of the Doe children." Id. at 6-7. The
investigator believed that the plan was
to remain in effect until she completed her investigation approximately
two months later, but she
did not notify the Does or their attorney that the plan was no longer
in effect after that date. Id. at
7. John appealed the indicated finding; there is no indication as to
whether his request for
expungement succeeded. Id. at 21.
The Does filed suit against the investigator and her supervisor
alleging violations of their
constitutional rights. The Does first claimed that the defendants
violated their right to familial
relations by threatening to remove the Doe children from their
parents' custody. Id. at 12. The
court agreed that "threatening to remove children from their
parents' custody violates the right to
familial relations when the state has no reason to suspect that the
parents are abusing the
children." Id. at 13 (citing Heck, 327 F.3d at 524). The court found
no such threat in that case,
however, because the investigator merely "provided an alternative to
removal when she told Jane
Doe that she could take the children to stay with friends or family."
In the court's view, "[r]equiring
Jane Doe and the Doe children to stay with family and friends is not
the equivalent of threatening
to remove the children." Id. In reaching this conclusion, the court
noted that "[a] safety plan is an
optional and less disruptive alternative to either removing a child
from his home based on a court
order or removing a child and then seeking a court order." Id. at 14.
According to the court,
informing parents of the legal alternatives available to the
Department, including removal of the
children prior to a court order in exigent circumstances or pursuant to
a court order, does not
automatically constitute a threat sufficient to deprive parents of
their constitutional rights. Id. The
court denied summary judgment on the claim, however, based on a factual
dispute as to whether
the investigator had "repeatedly threatened to take the children
away." Id.
The Does also claimed that the defendants violated John Doe's
procedural due process
rights by separating him from his children for more than seven months
without an adequate
investigation or a hearing. Id. at 15, 19. The court agreed that
"[h]ad [the investigator] indeed
failed to perform an investigation before instituting the safety plan,
her decision would have failed
to satisfy the 'reasonable suspicion' standard established in
Brokaw." Id. at 17. Before instituting
the first safety plan, however, the investigator "had already
performed substantial investigation,"
including interviewing the alleged victim, her mother and sibling; the
pediatrician who reported the
alleged abuse; a pediatric social worker; Jane Doe and three of her
children; and one of the Does'
neighbors. Id. at 16-17.
As for the hearing, the court first determined that the Does
voluntarily agreed to the
conditions and terms of the safety plan. Id. at 20. The court rejected
the Does' argument that they
were forced to sign the plan, finding that "[k]nowing the possible
legal consequences of failing to
participate in a safety plan [i.e., having your children taken away]
does not render involuntary
one['s] agreement to participate." Id. at 20 n.4. The court
distinguished safety plans from the
forcible removal of children from the home, noting that safety plans
"provide an alternative way,
based on the parents' cooperation, for the state to ensure the
children's safety while allowing them
to remain in their home." Id. at 22. The Does "always had the right
to contact DCFS to determine
when or how the safety plan might be ended . . ., bring a suit in state
court, or simply refuse to
comply with the safety plan, which would have led to judicial
intervention if DCFS intended to
continue to keep John Doe separated from his children." Id. The Does
failed to demonstrate that
the hearing John received in seeking to expunge the indicated finding
was inadequate, leading the
court to conclude that John was not denied procedural due process. Id.
at 21, 23.
The court is not persuaded that Tullis, an unreported decision from
another district court,
conclusively establishes the voluntariness of all safety plans. Though
the Tullis court found no
automatic threat when DCFS notifies parents that their children may be
removed from the home
absent a safety plan, it nonetheless denied summary judgment because
questions of fact existed
as to whether the investigator had "repeatedly threatened to take the
children away." Id. at 14. All
of the class members in this case were in fact threatened explicitly or
implicitly with protective
custody unless they agreed to a safety plan, which arguably adds a
coercive element to the
"agreement" process. In addition, unlike in Tullis, it is not clear
that DCFS "substantially
investigated" the allegations against all Plaintiffs in this case
prior to implementing a safety plan.
In the Stacey and Patrick D. case, for example, the DCFS supervisor
advised the assigned
investigator to "put in a plan" at Patrick's home if he had small
children, before anyone had actually
spoken with the D. family or the alleged victim. (Tr. 1525-26; PX B, at
44854.)
Finally, the plaintiffs in Tullis failed to show that the expungement
hearing provided
inadequate process even though the proceeding did not address the
conditions of the safety plan.
Id. at 21, 23. Not all investigations, however, result in an
"indicated" report or any opportunity for
an expungement hearing. In addition, while the Tullis court noted that
safety plans require the
cooperation of parents and family members, it failed to address how
"repeated[] threat[s] to take
the children away" may affect a family's decision in that regard.
Both parties ask the court to consider the "totality of the
circumstances" in assessing
whether safety plans are voluntary, drawing by analogy from the
criminal law on consent to a police
search. (Pl. Mem., at 49; Def. Resp., at 48) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 227
(1973).) Plaintiffs argue that relevant factors include (1) whether
DCFS makes any
misrepresentations in securing agreement to the plan; (2) whether
agreement to a plan is knowing
and voluntary; (3) whether a class member had access to legal counsel
or other advice; (4) the
circumstances surrounding DCFS' request for agreement, including any
time pressure and the
state of mind of the class member; and (5) the relative power,
authority, knowledge, and
sophistication of the parties. (Pl. Mem., at 53-54.) Defendant insists
that "knowledge of the right
to withhold consent is not a prerequisite to proving that consent to a
search was given." (Def.
Resp., at 48) (citing Schneckloth, 412 U.S. at 227) ("[w]hile
knowledge of the right to refuse
consent is one factor to be taken into account, the government need not
establish such knowledge
as the sine qua non of an effective consent.") Defendant also argues
that
under the current DCFS structure, and after administering the CERAP
protocol, the
"threat" to remove the children unless a safety plan is agreed upon
would not be
baseless or empty, rather it would be analogous to the Constitutionally
permissible
22 Plaintiffs themselves reviewed several cases "in which they
thought it likely that the
class member's agreement to the plan was not coerced because a class
member parent: (1) had
agreed with DCFS that the alleged perpetrator class member was likely
to be guilty of the alleged
abuse; (2) had a concern (independent of any representations by DCFS)
as to the merits of the
allegations against the alleged perpetrator, regarding the safety of
the children in the home if the
perpetrator was not subject to restrictive conditions regarding his
access to the children; and (3)
had already taken the action of removing the perpetrator from the home,
prior to and independently
of any request an investigator had made as part of a proposed safety
plan." (Pl. Mem., at 47 n.22.)
23 Plaintiffs insist that this is irrelevant, at least for purposes of
substantive due process
rights, because "DCFS may not constitutionally effect what would
otherwise be an unconstitutional
deprivation of one parent's rights simply by gaining the agreement
(even the voluntary agreement)
to the deprivation by the other parent." (Pl. Mem., at 42) (citing
Stanley v. Illinois, 405 U.S. 645
(1972) (state denied unwed father equal protection of the law by
declaring his children wards of the
state upon their mother's death and presuming that he was an unfit
parent without first giving him
a hearing on the issue); Wooley v. City of Baton Rouge, 211 F.3d 913,
923-24 (5th Cir. 2000)
("[w]hen a biological parent com[es] forward to participate in the
rearing of [her] child, [her] interest
in personal contact with [her] child acquires substantial protection
under the due process clause")
(internal quotations omitted)). Assuming this is true, as explained
earlier, the court concludes that
where there is evidence of a safety concern, the state's interest in
ensuring the safety of children
by imposing a temporary safety plan outweighs a parent's liberty
interest in caring for and
associating with the child, at least for a brief period.

consent search situation in which the police threaten "in good
faith" to get a warrant
to search.
(Id. at 49.)
As noted earlier, the court agrees that there is clearly an element of
choice to the safety
plan process in that Plaintiffs at all times remain free to reject a
plan. Moreover, some families may
affirmatively welcome a safety plan.22 For example, a mother who learns
that her spouse may be
sexually abusing her child may be relieved that DCFS agrees that her
husband should leave the
home pending an investigation.23 Nevertheless, we are faced here with a
situation where DCFS
investigators threatened to take away Plaintiffs' children if they
refused to accept a safety plan,
without affording any procedure for contesting that plan or its terms.
Plaintiffs claim that the threat
is found in the language of the Safety Plan Form itself, which states
that "failure to agree to the
plan or to carry out the plan may result in a reassessment of my home
and possible protective
custody and/or referral to the State's Attorney's Office for a
court order to remove my children from
my home." (Jt. Ex. 5(c), CFS 1441-A; Pl. Mem., at 50-51.) This
language may not by itself
constitute a threat of actual removal, as it merely notifies Plaintiffs
of what "may" or "possibl[y]" will
happen should a family choose to reject a plan. Indeed, the same
paragraph expressly represents
that agreement to a plan is voluntary. (Id.) See also Tullis, slip.
op., at 20 n.4. ("[k]nowing the
possible legal consequences of failing to participate in a safety plan
[i.e., having your children taken
away] does not render involuntary one['s] agreement to
participate").
More troubling, however, is the fact that most class member witnesses
testified at the
hearing that the investigator assigned to their cases did more than
just notify them of their options;
instead, the investigator affirmatively threatened to take away
Plaintiffs' children unless they agreed
to a safety plan. When an investigator expressly or implicitly conveys
that failure to accept a plan
will result in the removal of the children for more than a brief or
temporary period of time, it
constitutes a threat sufficient to deem the family's agreement
coerced, and to implicate due
process rights. Significantly, Defendant has not identified a single
family that, faced with such an
express or implied threat of protective custody, chose to reject the
plan.
As for Defendant's suggestion that the threat to remove children from
the home is
analogous to a police officer's threat to obtain a search warrant,
the court is unpersuaded. If a
criminal suspect declines to consent to a search, law enforcement
officials may well be able to
conduct a search in any event without consent, but only after obtaining
a warrant from a court. If,
however, a family declines to consent to a safety plan, DCFS can take
protective custody of their
children without first obtaining a court order. The protective custody
would then trigger court
process and a hearing within 48 hours, but the ability to take the
children first and obtain court
approval later distinguishes DCFS procedures from those in the criminal
context. Moreover,
seizure of one's children, even for 48 hours, is arguably more
intrusive than searching one's home.
Plaintiffs devote significant attention to arguing that they did not
knowingly and intelligently
waive their due process rights by signing the safety plans. (Pl. Mem.,
at 55-62.) The court
recognizes that DCFS procedures do not mandate that investigators
explain the actual
requirements for taking a child into protective custody or the
available options for contesting such
action. In addition, families faced with the choice between entering a
safety plan or losing their
children may not be capable of making an informed, rational decision,
or seek the advice of an
attorney. Nevertheless, the court need not decide whether or to what
extent this or the other
factors may also figure into the voluntariness assessment. It is
sufficient that agreement to the
plans at issue here was secured in a coercive manner under the
investigator's express or implied
threat of protective custody lasting more than a brief or temporary
period of time.
2. Process Due
Having determined that safety plans effect a constitutional deprivation
when combined with
an express or implied threat of protective custody that is more than
brief or temporary, the court
next considers what process is due to class members who sign such
plans. The parties agree that
Mathews v. Eldridge, 424 U.S. 319 (1976) guides this analysis:
Our prior decisions indicate that identification of the specific
dictates of due process
generally requires consideration of three distinct factors: first, the
private interest
that will be affected by the official action; second, the risk of an
erroneous
deprivation of such interest through the procedures used, and the
probable value,
if any, of additional or substitute procedural safeguards; and,
finally, the
government's interest, including the function involved and the fiscal
and
administrative burdens that the additional or substitute procedural
requirement
would entail.
Id. at 334-35.
It is undisputed that Plaintiffs have a "fundamental" liberty
interest in familial relations.
Troxel, 530 U.S. at 65 ("the interest of parents in the care,
custody, and control of their children .
.. . is perhaps the oldest of the fundamental liberty interests
recognized by this Court"). It is also
undisputed that child safety is an important state interest. Darryl H.,
801 F.2d at 902 ("[t]he state
has an obligation to prevent loss of life and serious injury to those
members of the community to
whom it has a very special responsibility, the young"). The relevant
inquiry thus turns on the risk
of an erroneous deprivation of Plaintiffs' interest in familial
relations under existing DCFS
procedures, and the probable value of additional or substitute
procedural safeguards. Mathews,
424 U.S. at 334-35. On this issue, the balance weighs decidedly in
Plaintiffs' favor: DCFS has no
procedure whatsoever for families to contest safety plans. Defendant
insists that "each
circumstance is unique," and that "[t]he case law is clear and the
facts are overwhelmingly
illustrative of the singularity and distinctiveness of each case."
(Def. Resp., at 54.) The fact that
individual circumstances are unique does not, however, support the
conclusion that no family
members are entitled to a procedure to contest safety plans.
To be sure, some cases involving safety plans result in "indicated"
reports. Nevertheless,
the liberty interest in familial relations is so great that even a
small risk of erroneous deprivation
must be addressed in some fashion. Indeed, DCFS's own expert, Dr.
Mark Testa, agreed that the
availability of procedures to contest a safety plan would not alter the
effectiveness of the CERAP
process. (Tr. 2829-30.) Defense expert Dr. Carl Bell also opined that
if DCFS is unable to work
out an acceptable safety plan with a family because, for instance, the
investigator failed to consider
family strengths and mitigating circumstances, "there ought to be -
that family should have some
sort of a review[,] something in place so that that could be
corrected." (Tr. 2021-22.) In the court's
view, it would not be difficult for DCFS to develop a simple and
inexpensive procedure for Plaintiffs
to seek review of safety plans. To the extent DCFS is correct that
there is a degree of
voluntariness in all of the plans - and some plans are in fact entirely
voluntary - there presumably
will be no request or need for review in a large proportion of the
cases.
Neither party addresses the nature of the procedures required, and the
court declines to
fashion a remedy unilaterally. Nonetheless, the court offers the
following observations. To the
extent safety plans serve as less intrusive alternatives to protective
custody, it cannot be the case
that class members are entitled to equal or greater remedies than those
provided under the Abused
and Neglected Child Reporting Act and the Juvenile Court Act. Those
statutes require a hearing
24 Plaintiffs' suggestion, in a footnote, that DCFS should be
required to provide a
hearing before implementing a safety plan except in exigent
circumstances, is not consistent with
this opinion. Nor is the court confident that three days is an
appropriate length of time within which
to conduct a hearing. (Pl. Mem., at 87 n.30) (citing Jordan by Jordan
v. Jackson, 15 F.3d 333, 351
(4th Cir. 1994).) The Jordan court merely approved, as an "outer
limit," a 65-hour delay between
protective custody of a child and a hearing before a judicial officer.
before a judicial officer within 48 hours of the child's removal from
the home, a time frame too
restrictive for the safety plan context.24 In addition, it seems to
this court that making families wait
an entire month before giving them an opportunity to contest a plan may
be excessive. Indeed, the
August 2002 amendments (which were not in place during most of the
episodes described above)
recognize the importance of vigilantly monitoring safety plans by
requiring re-review every five
days. It is not clear that investigators are complying with this
directive, or that any such re-review
constitutes a meaningful reconsideration of a plan or its terms. (See,
e.g., I.W. case) (Tr. 2989;
PX T, at 45373-74) (no evidence that DCFS conducted any five-day
reviews of safety plan with a
stated duration of "up to 60 days.") In any event, DCFS itself
concedes that safety plans are
intended to be short-term measures, and that limitation must be
considered in determining what
constitutes a reasonable time to contest a plan. Finally, though this
case addresses only safety
plans secured by threat of protective custody, the parties should not
overlook the importance of
uniformity in the safety plan process, even when a family's agreement
to a plan is entirely
voluntary.
III. Irreparable Harm/Balancing of Harm/Public Interest
Defendant barely addresses the question of irreparable harm, arguing
primarily that
Plaintiffs are wrong to suggest that the liberty interest in familial
relations is "virtually absolute."
(Def. Resp., at 54.) In support of this argument, Defendant cites a
1987 case from the Eighth
Circuit Court of Appeals, which states that
parental liberty interest in keeping the family unit intact is not a
clearly established
right in the context of reasonable suspicion that parents may be
abusing their
children. If law enforcement personnel who have at least arguable
probable cause
to believe that adults have been molesting children are not entitled to
reasonable
belief that the adults may pose a danger to their own children, then
the law was
(and is) not clearly established on this point.
Myers v. Morris, 810 F.2d 1437, 1463 (8th Cir. 1987). The plaintiffs in
Myers had been charged
by the county attorney with criminal sexual activity involving one or
more minor children. They
alleged, among other things, that the county prosecutor, county
sheriff's deputies, and others
caused them to suffer loss of liberty and alienation of affection by
arresting the plaintiffs without
probable cause and then removing minor children from their homes on
"police holds" after the
arrests. Id. at 1444.
The quoted language above appears in the court's discussion of
whether the sheriff's
deputies were entitled to qualified immunity from suit. The plaintiffs
challenged "the summary
removal of children before attempts were made to substantiate
incriminating statements of other
children through normal investigative techniques." Id. at 1462. The
sheriff's deputies were entitled
to qualified immunity on such claims if there was a "legitimate
question" as to the legality of
summarily separating children from parents who had been accused of
criminal acts towards others.
Id. The court found there was such a legitimate question given that
"other children had described
abuse by the arrested persons upon their own children." Id. at 1463.
Thus, the sheriff's deputies
were qualifiedly immune from further litigation. Id.
The court does not see how Myers is instructive in assessing the
balance of hardships
between the parties. Plaintiffs have presented ample evidence that they
suffered emotional and
psychological injury as a result of safety plans lasting for more than
a brief or temporary period of
time. (Pl. Mem., at 62-77.) The court recognizes the importance of the
state's interest in protecting
children from harm, but concludes that this interest does not outweigh
the irreparable harm (1) to
individuals whose lives are disrupted by safety plans which require
family members to live outside
the home or which restrict contact between family members for an
indefinite or unstated duration;
and (2) to individuals who, under an express or implied threat of
protective custody, sign safety
plans lasting more than a brief or temporary period of time, but have
no available means of
contesting those plans.
IV. Mandatory or Prohibitory Injunction
Plaintiffs argue that the court should enter an injunction prohibiting
DCFS from
implementing safety plans that violate their constitutional rights,
"not one that imposes or directs
defendant to erect a new administrative scheme for putting safety plans
into effect, or permitting
class members to contest them." (Pl. Mem., at 85) (citing Association
of Community Organizations
for Reform Now v. Edgar, 56 F.3d 791, 798 (7th Cir. 1995)) (affirming
injunction requiring state to
comply with "motor voter" law, but finding "no occasion for the
entry of a complicated decree that
treats the state as an outlaw and requires it to do even more than the
'motor voter' law requires").
In Plaintiffs' view, "neither DCFS (nor the state courts, for that
matter) need devise or erect any new
remedial structures in order to ensure the provision of such
protections: the protections are already
in the Juvenile Court Act, and class members may avail themselves of
these protections in ordinary
course." (Pl. Mem., at 86.) Defendant makes no response to this
argument.
The court nevertheless disagrees with Plaintiffs' contention that the
appropriate remedy
here is simply to enjoin safety plans and mandate compliance with the
procedures available under
the Juvenile Court Act. The JCA provides for court review only when a
child is taken into protective
custody, not when DCFS implements a safety plan, and as explained
earlier, the court does not
believe that all safety plans trigger constitutional concerns as a
matter of course. Nevertheless,
Plaintiffs are entitled to some opportunity to review restrictions
placed on their contacts with their
children. Further, the court notes its belief that persons subject to
safety plans are entitled to
immediate notice of the basis on which the investigator has determined
such a plan is necessary,
as well as notice of the expected duration of such a plan and an
explanation of the process and
schedule for seeking review of restrictions imposed by the plan. As for
what those procedures
should entail, the court, having found a constitutional violation in
this case, now defers to DCFS to
fashion an appropriate remedy consistent with this opinion. See Massey
v. Helman, 35 F. Supp.
2d 1110, 1115 (C.D. Ill. 1999) (citing Bush v. Lucas, 462 U.S. 367
(1983)) ("the [Supreme] Court
has deferred to the legislature to fashion appropriate remedies for
constitutional violations"). The
court suggests that in developing these procedures, DCFS consider
whether the procedures
adopted for child care workers in Dupuy I may be altered or enhanced to
address the safety plans
at issue here. See Dupuy v. McDonald, No. 97 C 4199, 2003 WL 21557911
(N.D. Ill. July 10,
2003). DCFS is also invited to explain the degree to which the 2002
amendments may address
concerns raised by this opinion.
CONCLUSION
For the reasons stated above, Plaintiffs' motion for a preliminary
injunction (Doc. Nos. 488-
1, 488-2) is granted in part and denied in part. The court agrees that
Plaintiffs are entitled to
injunctive relief, but declines to categorically enjoin safety plans.
DCFS has sixty (60) days to
develop constitutionally adequate procedures consistent with this
opinion.
ENTER: Dated: March 9, 2005 REBECCA R. PALLMEYER United States
District Judge

  #3  
Old May 5th 06, 05:22 PM posted to alt.support.child-protective-services,alt.parenting.spanking
external usenet poster
 
Posts: n/a
Default We don need no steenkin' CPS.

Greegor wrote:

.... without closely reading this case and the judges opinion. And once
again not applying logic to a case and the opinions.

Much of this is a joke. A long rambling political manifesto rather than
a thoughtful ruling.

How many other judges would take this seriously?

You love it, of course, just like you and others here have done in the
past with this and other cases where you THINK this has great meaning
that it indeed does not.

You cherry pick, even leaving out the context that relates to a
statement. Very sad, and very much the tactics of liars.

I presume this is in rebuttal to my subject line, and not the case of
the rat bitten infant.

So please show us where anything in this decision below indicates we do
not need CPS. Thanks.


0:-

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BELINDA DUPUY, et al,

Plaintiffs,
v.
No. 97 C 4199

BRYAN SAMUELS, Director, Illinois Judge Rebecca R.
Pallmeyer
Department of Children and Family
Services, in his official capacity,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs represent a class of persons who challenge the
constitutionality of certain policies
and procedures of the Department of Children and Family Services
("DCFS" or the "Department")
relating to the investigation of allegations of child abuse or neglect.
In an earlier proceeding,
Plaintiffs focused on the Department's procedures for determining
whether reports of such abuse
or neglect should be "indicated"or "unfounded." On March 30, 2001,
the court granted Plaintiffs'
motion for a preliminary injunction as to certain of these "core"
and "special" DCFS policies.
Specifically, the court found that "the relatively low standard of
proof required to indicate a finding,
combined with the indefensible delays" in the appeal process and the
resulting "staggering
expungement rate" of indicated reports, violated Plaintiffs'
procedural due process rights. Dupuy v.
McDonald, 141 F. Supp. 2d 1090, 1136 (N.D. Ill. 2001), aff'd in part
and rev'd in part by, Dupuy v.
Samuels, 397 F.3d 493 (7th Cir. 2005). The court noted, further, its
suspicion that the agency's
lengthy delays not only victimized persons who are innocent of abuse or
neglect charges, but might
also result in exoneration of persons who are guilty of such charges.
141 F. Supp. 2d at 1130.
In this proceeding, Plaintiffs are challenging DCFS "safety plans,"
which impose restrictions
upon families during the pendency of investigations into allegations of
abuse or neglect. Plaintiffs
claim that the safety plans are unconstitutional and seek further
injunctive relief to prohibit DCFS
from implementing the plans in any form. Resolution of this issue has
been complicated the
parties' contentious dispute as to the appropriate class definition.
The court has now entered an
order defining the class, for purposes of this stage of the litigation,
as consisting generally of
persons under investigation for child abuse or neglect who are the
subject of "safety plans,"
imposed under threat, that prohibit or restrict their contacts with
their children. See Order of
9/30/03 (amending class definition to include families subject to
safety plans involving no contact
requirements or removal from the home); Order of 4/16/04 (amending
class definition to require
a threat of protective custody and to exclude persons without a legal
relationship to the children or
spouse). For the reasons set forth below, Plaintiffs' second motion
for preliminary injunction is
granted in part and denied in part as described herein.
BACKGROUND
The background facts, and a description of the DCFS procedures for
investigating
allegations of abuse and neglect, are more fully presented in this
court's March 30, 2001
Memorandum Opinion and Order. See Dupuy, 141 F. Supp. 2d at 1092-1130.
This opinion
assumes the reader's familiarity with the earlier decision and will
summarize those facts here only
briefly.
I. The Department of Children and Family Services
DCFS is the state agency charged by statute with the duty of
investigating allegations of
child abuse and neglect. Dupuy, 141 F. Supp. 2d at 1092; 325 ILCS 5/2.
The Department is
organized into various operational divisions, including the Division of
Child Protection ("DCP"). The
DCP is responsible for operating a hotline to accept calls regarding
allegations of child abuse and
neglect (the "DCFS Hotline"), and for investigating those
allegations. Id. at 1093. Of the more than
350,000 calls placed to the Hotline each year, 65,000 are investigated.
Approximately 23,000 (or
1/3) of the investigations result in "indicated" findings, meaning
that the investigator has determined
that credible evidence of child abuse or neglect exists. The remaining
charges are deemed
"unfounded," meaning that the investigator has not found credible
evidence of abuse or neglect.
Id.
II. The Abuse and Neglect Investigative Process
Any person may make a report of child abuse or neglect by calling the
toll-free DCFS
Hotline. Certain persons whose employment brings them into frequent
contact with children are
considered "mandated reporters" and, thus, are required by law to
make a Hotline report if they
have a reasonable belief that a child may be abused or neglected. Id.
at 1094; (ILL. ADMIN. CODE
tit. 89, § 300.30). If a Hotline call is deemed to be made in good
faith and to meet the minimum
criteria for further investigation, the Hotline operator completes a
Child Abuse and Neglect Tracking
System form (the "CANTS 1" form) and submits it to a local DCP
office where an investigator is
assigned. The investigator is responsible for conducting the
investigation and for making a final
determination as to whether to "indicate" or "unfound" the
report. Id. at 1095.
The regulations explain that "[w]hen the investigative worker has
completed all required
investigative contacts and has secured appropriate physical evidence .
. . the investigative worker
shall make a finding of Indicated or Unfounded. This determination
shall be based upon whether
the information gathered during the investigation and from the direct
observations made by the
investigative worker constitutes credible evidence of child abuse or
neglect." (ILL. ADMIN. CODE tit.
89, § 300.110(i)). An investigator's recommended determination is
reviewed by his or her
supervisor who has the actual authority to "indicate" or
"unfound" the investigation. Dupuy, 141 F.
Supp. 2d at 1097. Once the recommended finding has been approved, the
investigator completes
a CANTS 2 Final Finding Report form and forwards it to the State
Central Register ("SCR"), where
it is registered in a computerized listing of information regarding
allegations of abuse or neglect.
Id. at 1093, 1098. DCFS regulations require that an investigation be
completed within 60 days,
though this time period may be extended for periods of up to 30 days
upon a showing of good
cause. (ILL. ADMIN. CODE tit. 89, § 300.110(i)(3)C)). Evidence at the
first preliminary injunction
established, however, that in actual practice, investigations often
took far longer. See Dupuy, 141
F. Supp. 2d at 1106-1130.
III. Safety Plans
In conjunction with investigations into child abuse and neglect, DCFS
utilizes a variety of
plans aimed at protecting children pending the outcome of an
investigation and/or after a report has
been indicated. One such plan is the Child Endangerment Risk Assessment
Protocol ("CERAP")
"safety plan." CERAP was developed in response to several high
profile incidents in the early
1990s where children were seriously injured or killed shortly after
DCFS became involved in their
cases. (Tr. 2243-44.) In 1994, the Illinois legislature enacted Public
Act 88-614, which required
DCFS to develop and implement:
(1) A standardized child endangerment risk assessment protocol.
(2) Related training procedures.
(3) A standardized method for demonstration of proficiency in
application of the protocol.
(4) An evaluation of the reliability and validity of the protocol.
20 ILCS 505/21(e). In response to this legislation, DCFS formed a
multidisciplinary committee of
external experts to oversee the development of the CERAP process, which
is now set forth in
Appendix G to Department Rule and Procedure 300, and in the Safety
Determination Form, the
Safety Plan form, and the Safety Plan Termination Agreement. (See Jt.
Ex. 7, Appendix G; Jt. Ex.
5(c), CFS 1441-A; Jt. Ex. 5(e), CFS 1441; Jt. Ex. 5(f), CFS 1441-B).
A. The Safety Plan Assessment Process
The CERAP process is designed to "provide workers with a mechanism
for quickly
assessing the potential for moderate to severe harm immediately or in
the near future and for
taking quick action to protect children." (Jt. Ex. 7, Appendix G, at
1.) A CERAP form must be
1 The complete list of factors is as follows:
1. Any member of the household's behavior is violent and out of
control.
2. Any member of the household describes or acts toward child in
predominantly
negative terms or has extremely unrealistic expectations.
3. There is reasonable cause to suspect that a member of the household
caused
moderate to severe harm or has made a plausible threat of moderate to
severe
harm to the child.
4. There is reason to believe that the family is about to flee or
refuse access to the
child, and/or the child's whereabouts cannot be ascertained.
5. Caretaker has not, will not, or is unable to provide sufficient
supervision to protect
child from potentially moderate to severe harm.
6. Caretaker has not, or is unable to meet the child's medical care
needs that may
(continued...)
completed for all children in the home of an alleged perpetrator within
48 hours of DCFS's receipt
of a Hotline call, and within 24 hours after a child protection
specialist sees the alleged child
victim(s). (Id. at 3; Jt. Ex. 2, Procedures, § 300.50(c).) The CERAP
process requires the child
protection specialist to assess whether a child is safe or unsafe,
using a four-step analysis: (1)
does the case present any one or more of 15 enumerated "safety
factors"; (2) how does that factor
relate to specific individuals; (3) are there any "family strengths
and mitigating circumstances"; and
(4) would the child be "safe" or "unsafe" absent implementation
of a safety plan. (Jt. Ex. 7,
Appendix G, at 7-15.)
1. The 15 Enumerated Safety Factors
The first step in the CERAP process is for the child protection
specialist to determine
whether one of 15 enumerated safety factors is present. The factors
include: a household
member's behavior is violent and out of control; the caretaker has
not, will not, or is unable to
provide sufficient supervision to protect the child from harm; the
child is fearful of people living in
or frequenting the home; child sexual abuse is suspected and
circumstances suggest that the
child's safety may be an immediate concern; and a paramour is the
alleged or indicated perpetrator
of physical abuse. There is also a general "other" category to
cover safety concerns not expressly
listed.1 The Regulations provide several examples of factors that may
fall under the "other"
1(...continued)
result in moderate to severe health care problems if left unattended.
7. Any member of the household has previously or may have previously
abused or
neglected a child, and the severity of the maltreatment, or the
caretaker's or other
adult's response to the prior incident, suggests that child safety
may be an urgent
and immediate concern.
8. Child is fearful of people living in or frequenting the home.
9. Caretaker has not, or is unable to meet the child's immediate
needs for food,
clothing, and/or shelter; the child's physical living conditions are
hazardous and may
cause moderate to severe harm.
10. Child sexual abuse is suspected and circumstances suggest that the
child['s] safety
may be an immediate concern.
11. Any member of the household's alleged or observed drug or alcohol
abuse may
seriously affect his/her ability to supervise, protect, or care for the
child.
12. Any member of the household's alleged or observed physical/mental
illness or
developmental disability may seriously affect his/her ability to
supervise, protect or
care for the child.
13. The presence of domestic violence which affects caretaker's
ability to care for
and/or protect child from imminent, moderate to severe harm.
14. A paramour is the alleged or indicated perpetrator of physical
abuse.
15. Other (specify).
(Jt. Ex. 5(e), CFS 1441.)
category, including that a child's behavior is likely to provoke the
caretaker to harm the child; that
persons in the household have unexplained injuries; or that the
caretaker refuses to cooperate or
is evasive. (Jt. Ex. 5(e), CFS 1441; Jt. Ex. 7, Appendix G, at 12.) If
the investigator determines
that there is "clear evidence or other cause for concern" that a
factor is present, he must check the
factor "yes" on the CERAP Safety Determination Form (CFS 1441);
otherwise, he must check the
factor "no." (Id.)
DCFS Procedures do not define what constitutes "other cause for
concern." John Goad,
former Deputy Director of the Department's Division of Child
Protection, testified that the
investigator is expected to look for "a reasonably extreme version"
of a listed safety factor, and
must determine a factor's existence using all of the information
available from the initial report and
the person who made it, as well as any additional information that may
be obtained by observing
and talking with the children and the family, and by observing the home
environment. (Tr. 2259,
2263-64.) It appears that in practice, however, investigators do not
always require a "reasonably
extreme" showing and that any amount of evidence may be sufficient
warrant for the investigator
to check a safety factor "yes." Deputy Director Goad conceded, for
example, that investigators
need neither a certain "level of evidence" nor evidence confirming
that it is "more likely than not"
that a safety factor is present in order to check a factor "yes."
(PX L, Goad Dep., at 27-28.)
Plaintiffs find this low standard significant, particularly because
several factors by their terms
require only allegations of wrongdoing and/or minimal evidence of any
risk of harm to the child.
Factors 11, 12, and 14, for example, direct investigators to check
"yes" based solely on an
allegation of abuse or neglect, even if no investigation has yet
occurred or if an investigation
suggests that the allegation may be untrue. (See, e.g., Jt. Ex. 5(e),
CFS 1441, factor 14) ("[a]
paramour is the alleged or indicated perpetrator of physical abuse")
(emphasis added); Tr. 200-01).
Factors 2, 8, and 14 direct investigators to check "yes" even if
there is no or only nominal evidence
that the presence of the factor poses any danger of harm to a child.
(See, e.g., id., factor 8)
("[c]hild is fearful of people living in or frequenting the home";
no requirement of evidence that the
child be in actual danger from those people). In addition, nine of the
factors (1, 2, 3, 7, 8, 10, 11,
12, and 14) do not require any evidence that a parent or caretaker (as
opposed to some other
"member of the household") has engaged in any wrongful conduct.
Factor 3, for example, states
that "[t]here is reasonable cause to suspect that a member of the
household caused moderate to
severe harm or has made a plausible threat of moderate to severe harm
to the child." (Jt. Ex. 5(e),
CFS 1441.) This test is met, presumably, even where there is no
evidence that the parent or
caretaker is unable to ensure the safety and supervision of his or her
children.
For each factor checked "yes," the investigator is expected to
explain what led to that
determination. (Jt. Ex. 7, Appendix G, at 12; Tr. 2265-66.) DCFS
Procedures explain, further, that
"[t]he presence of any one of the listed behaviors and/or injuries
does not in and of itself mean that
a child should be determined to be unsafe." (Id. at 8.) Rather, an
investigator must also consider
(1) the age and developmental status of the child; (2) the mental,
medical, and/or developmental
status of the parent(s) or other person(s) responsible for the
child's safety (i.e., are they capable
of and willing to protect the child's safety?); (3) the type,
severity, location, and/or extent of injury
to a child; and (4) the intent, severity and/or duration of the
behaviors directed toward the child.
(Id.)
If an investigator does not check any safety factors "yes," the
CERAP process is completed
without the need for further action. If, on the other hand, the
investigator determines that any one
of the 15 safety factors is present and checks that box "yes," then
he or she must proceed to the
next step of the process.
2. Family Strengths and Mitigating Circumstances
At the next step of the CERAP process, the investigator is required to
"describe any family
strengths or mitigating circumstances which may serve to manage or
control the safety factors."
(Jt. Ex. 7, Appendix G, at 13.) DCFS Procedures recognize that
"[s]ometimes the presence of a
safety factor can be partially or fully controlled or eliminated by a
family strength or mitigating
circumstance." (Id.) According to Appendix G, "[r]egular contact
with a support person who can
assure the safety of the child" is one example of such a family
strength or mitigating circumstance.
(Id.) Deputy Director Goad offered the additional example of a
husband's "credibl[e]" assurance
that he will remove from the home a "violent and out of control"
mother who is "physically small"
until she "calm[s] down." (Goad Dep., at 55-56.) DCFS Procedures do
not otherwise provide any
guidance for determining either the presence of relevant family
strengths or mitigating
circumstances, or the proper method of balancing them against the cited
safety factor(s).
The August 13, 2002 amendments to Appendix G provide that "[f]or the
purpose of safety
assessment, a protective effort must be made on the family's
initiative and not as the result of the
worker's suggestion in order for it to constitute mitigation." (Jt.
Ex. 7, Appendix G, at 13.) By way
of example, the amendments state that in a domestic violence situation,
"if the worker initiates the
mother's move to [a] shelter, it is the worker's and not the
mother's capacity that has controlled the
safety threat [so] the child is considered unsafe and the move to the
shelter is considered a safety
plan." (Id.) See infra pp. 10-20 for a discussion of safety plans. In
other words, a protective
measure will not constitute a mitigating circumstance unless the
caretaker proposes it without any
prompting from a DCFS representative.
Deputy Director Goad testified that there are "probably" potential
mitigating factors as to
every safety factor, but of the documentation supporting imposition of
a safety plan in the 92
sample cases in this litigation, 64 (or 69%) did not identify any
family strengths or mitigating
circumstances. (Goad Dep., at 56-57; Tr. 2667.)
3. The "Safe" or "Unsafe" Determination
If an investigator determines that a safety factor is present but
controlled by a family
strength or mitigating circumstance, the child must be deemed
"safe," meaning that "[t]here are no
children likely to be in immediate danger of moderate to severe harm at
this time" and no safety
plan is necessary. (Jt. Ex. 5(e), CFS 1441.) If, however, the
investigator determines that a safety
factor is not controlled by a family strength or mitigating
circumstance, the child must be deemed
"unsafe," meaning that "[a] safety plan must be developed and
implemented or one or more
children must be removed from the home because without the plan they
are likely to be in
immediate danger of moderate to severe harm." (Jt. Ex. 5(e), CFS
1441) (emphasis in original).
As noted, a determination of "unsafe" may be made based on the
presence of only one safety
factor, some of which require no or only nominal evidence that a child
is in danger of harm. In
addition, because investigators must complete the CERAP analysis for
all children in the home of
an alleged perpetrator, children who are not alleged victims of abuse
or neglect are nonetheless
commonly subject to safety plans. (Jt. Ex. 7, Appendix G, at 5.)
B. Creation of Safety Plans
Once an investigator finds that a child is "unsafe," the next step
is to develop a "safety plan."
Deputy Director Goad estimated that as many as 10% of investigations
result in safety plans, which
translates into as many as 10,000 plans per year. (Tr. 2300-01.) Safety
plans are intended to be
collaborative efforts between the investigator and the family.
According to Deputy Director Goad,
the investigator generally talks to the family about the problem that
led to the "unsafe"
determination and asks family members to suggest possible steps for
assuring the safety of the
child. (Tr. 2302.) Goad explained that the investigator is then
expected to discuss the family's
ideas for a safety plan in an effort to work out mutually-agreeable
terms. (Tr. 2302-03.) The
evidence offered by Plaintiffs suggests, however, that in practice,
investigators often make little
effort to collaborate with families in implementing safety plans.
Nearly every class member witness
who signed a safety plan testified that the investigator simply
presented a proposed plan for his/her
signature with little or no discussion of the plan terms or
alternatives. (Tr. 346, 470-71, 556, 562,
715, 719, 795-98, 1165-66, 1304, 1379.)
1. Plan Terms
An effective safety plan includes measures designed to control the
safety factors that led
to the need for a safety plan; is as minimally disruptive to the family
as possible; minimizes any
separation issues for family members; and relies on resources that are
"immediately and
realistically available" to the family. (Tr. 2283 (Goad).) The safety
plan must be recorded on the
Safety Plan Form (CFS 1441-A) and must include a written description of
"what will be done or
what actions will be taken to protect the child(ren), who will be
responsible for implementing the
components of the safety plan and how/who will monitor the safety
plan." (Jt. Ex. 7, Appendix G,
at 15.) In addition, "[e]very safety plan must specify the conditions
under which the plan is to be
terminated and an estimated time frame within which this can be
expected to occur." (Id. at 14.)
The plan must "contain a time frame for implementation and continued
monitoring and a
contingency plan if the primary safety plan is no longer needed."
(Id.)
The terms of a safety plan vary depending on the particular case. The
plans signed by
class members in this case either (1) separated children from their
parents, guardians, or other
close relatives by removing one or more such individuals from the home,
or by imposing no-contact
requirements preventing children from having any contact with parents,
guardians, or other close
relatives; or (2) allowed children and family members to have only
supervised contact with each
other. Class members are individuals who signed these plans under
threat that their children would
otherwise be taken into protective custody. See Order of 4/16/04
(setting forth revised class
definition).
Deputy Director Goad issued a directive on March 22, 2002 requiring
that "all safety plans
in which family members (children or adults) are relocated from their
residence must be approved
by the respective Child Protection or Field Service Manager." (DCFS
Inter-Office Correspondence
Regarding Safety Plans dated 3/22/02.) To approve such a plan, the
manager must consider (1)
whether the child is genuinely unsafe; (2) whether the plan will
adequately protect the child(ren) in
a manner that is minimally disruptive to all family members; and (3)
whether there is a reasonable
and timely potential resolution to the plan. (Id.) Upon approving a
safety plan that relocates a
family member, the manager is directed to "track them" (presumably,
the plan itself or family
members subject to it) to ?assure the timely and appropriate resolution
of the safety plan according
to the directions in Appendix G of Procedure 300." (Id.)
2. Agreement to a Safety Plan
DCFS views all safety plans as voluntary agreements between the
Department and the
family. Indeed, the child's primary caregiver and, if different, the
person(s) most responsible for
carrying out the plan must sign the safety plan form, which states that
the person has "discussed
the safety plan with the investigator/worker, . . . understand[s] its
contents and that it is voluntary,
and agree[s] to abide by the terms and conditions of the plan." (Jt.
Ex. 5(c), CFS 1441-A.) The
investigator must also sign the form attesting that he or she has
"discussed the attached Safety
Plan and the consequences of non-compliance with the caretaker and all
those who are
responsible for carrying out the plan" and that he or she has agreed
to "abide by the terms and
conditions of the plan." (Id.) The form provides contact numbers for
both the investigator and his
or her supervisor (who must approve the plan) in case a family member
wants to communicate with
the Department. (Tr. 2287-89.)
August 13, 2002 amendments to Appendix G reinforce the requirement that
an investigator
must inform a family that safety plans are voluntary:
The worker who is responsible for implementing the plan must inform the
family that
their cooperation with the plan is voluntary and - to the extent safely
possible -
must enlist the family's participation in the development of the
plan. When the plan
is developed the worker must explain it to the family and must provide
the family
with information about the potential consequences if the plan is
refused or violated.
If the family refuses to accept the plan or if the plan is violated,
the worker must
reassess the situation, consider protective custody and/or referral to
the State's
Attorney's Office for a court order.
(Jt. Ex. 7, Appendix G, at 14.) The amendments also require
investigators to notify all parents or
caretakers when a safety plan ends. (Id. at 16.)
Notwithstanding these regulatory provisions, Plaintiffs insist that
safety plans are coercive.
They note that a stated consequence of rejecting the plan or failing to
comply with it is the removal
of the children from the home. The signature page of the safety plan
form expressly states that
"[w]e understand that failure to agree to the plan or to carry out
the plan may result in a
reassessment of my home and possible protective custody and/or referral
to the State's Attorney's
Office for a court order to remove my children from my home. I will
then have the opportunity to
plead my case in court." (Jt. Ex. 5(c), CFS 1441-A.) Most class
member witnesses testified that
in addition to this written warning, investigators verbally threatened
them with removal of their
2 Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion
for a Second
Preliminary Injunction is cited as "Def. Resp., at __."
3 Plaintiffs' Post-Trial Memorandum in Support of their Amended
Motion for a Second
Preliminary Injunction is cited as "Pl. Mem., at __."
children if they refused to agree to a safety plan. (Tr. 347-49,
392-93, 470-71, 556, 562, 715, 719,
795-98, 1165-66, 1304, 1379.) Faced with this admittedly "tough
decision," virtually every parent
or caretaker confronted with a safety plan ends up signing it. (Tr.
2311-12 (Goad); Def. Resp., at
12.)2 All families do, however, have the option of rejecting the plan.
DCFS procedures require investigators to give the family a copy of
their safety plan form,
which sets forth the restrictions imposed. There is no requirement,
however, that families receive
a copy of the CERAP Safety Determination Form, which details the
underlying basis for the safety
plan as reflected in the investigator's assessment of the 15 safety
factors. (Tr. 2290 (Goad)
(though giving a CERAP form to families is not prohibited, "there is
no policy that guides workers
to give it to them either").) There is no evidence that investigators
or supervisors have ever given
the CERAP form to family members, and none of the plaintiff witnesses
in this case ever received
one. In Plaintiffs' view, "the resulting [safety plan] agreements
are ones in which one of the parties
(DCFS) has virtually all the information (i.e., about why the child is
considered 'unsafe' and
therefore requires a safety plan), and the other party (the
'agreeing' family member) has none."
(Pl. Mem., at 20.)3
Plaintiffs find this objectionable in part because the safety plan form
does not explain the
legal standards and procedures DCFS must follow in order to remove a
child from the home. See
Abused and Neglected Child Reporting Act, 325 ILCS 5/5; Juvenile Court
Act, 705 ILCS 405/2-7(1),
405/2-8, 405/2-9. Nor is there any explanation as to the type of
evidence required to obtain
protective or temporary custody of a child. See infra pp. 18-20. In
addition, the language of the
safety plan forms implies that DCFS has gathered sufficient information
to take custody of a child
at the time the safety plan is implemented. (See Jt. Ex. 5(c), CFS
1441-A) ("[s]afety plans are to
be developed only where a decision of 'unsafe' has been made and
workers, with supervisory
approval, assess that without the plan the child(ren) must be removed
from the home"). Plaintiffs
claim that, in reality, such evidence is not required in order to find
a child "unsafe" pursuant to the
CERAP process. DCFS Child Protection Manager Anne Gold, moreover,
acknowledged at the trial
that "for the cases that end up getting unfounded in [her] office,
the likelihood that [DCFS] would
have grounds for protective custody on the first day of the
investigation is about zero." (Tr. 2982.)
Plaintiffs also question the voluntariness of safety plans that may be
implemented before
an investigator has spoken with the alleged perpetrator. For example,
though safety plans are
generally implemented within 48 hours of a Hotline call, DCFS
regulations allow for a delay of up
to "7 calendar days of the receipt of the report" before the
investigator is required to contact an
alleged perpetrator who is "different from the parents or
caretakers." (Jt. Ex. 2, Procedures
§ 300.50(c)(6).) In addition, DCFS Procedures require investigators to
notify, and defer to law
enforcement authorities in certain types of cases, such as those
involving allegations of serious
physical or sexual abuse. (Id. § 300.70; Tr. 2218-19.) If the police
ask DCFS investigators not to
speak with an alleged perpetrator, investigators normally honor the
request but, if possible,
construct safety plans even without such contact. (Goad Dep., at 174;
Tr. 2697 (Goad).) In some
cases, moreover, mere action in conformity with a DCFS request may be
deemed an "agreement"
to a safety plan. Deputy Director Goad testified, for example, that if
an allegedly abusive father
leaves the home on his own accord, "it certainly meets the standard
that we would need to meet
in order to consider that an adequate plan for the child's safety."
(Goad Dep., at 163-64.) (See
also Tr. 2692 ("[t]here are circumstances where . . . it may be
impossible . . . for the Department
to obtain . . . express agreement to the plan").)
3. Duration of Safety Plans
Safety plans are intended to be temporary, "usually short-term
measures" to control serious
and immediate threats to a child's safety. (Jt. Ex. 7, Appendix G, at
14; Tr. 2277 (Goad).) The
August 13, 2002 amendments to Appendix G provide that safety plans must
be reassessed "every
five working days following the determination that any child in a
family is unsafe." (Jt. Ex. 7,
Appendix G, at 4) (emphasis in original.) The assessment
must continue until either all children are assessed as being safe or
all unsafe
children are removed from the legal custody of their parent/caretakers.
This
assessment should be conducted considering the child's safety status
as if there
was [sic] no safety plan (i.e., Would the child be safe WITHOUT the
safety plan?).
(Id.) (emphasis in original). The amendments also instruct that safety
plans "must be adequate to
assure the child's safety but as minimally disruptive to the child
and family as is reasonably
possible." (Id. at 13.) In addition, "[e]very safety plan must
specify the conditions under which the
plan is to be terminated and an estimated time frame within which this
can be expected to occur."
(Id.)
DCFS does not keep statistical data showing the actual duration of
safety plans. (Tr. 2324
(Goad).) A review of the 92 safety plans in the representative sample
cases (which were imposed
prior to the 2002 Amendments to DCFS Appendix G) reveals that many
plans have indefinite time
frames, or fail to state any duration at all. By Plaintiffs'
estimation, 31 plans (33.3%) were indefinite
in length. (See, e.g., SAI 8, at 28502 (alleged victim's stepfather
will move out and have "no
contact" with stepdaughter "during the course of this
investigation"); SAI 92, at 36157, 36159
(alleged victim's half-brother will move out of the house and have
"no unsupervised contact" with
his half-sister; plan scheduled to terminate "at the discretion of
treatment professional"); SAU 20,
at 39869 (mother will not allow daughter "to return to father [a
non-household member] until
everything is cleared up as to what happened"); SAU 40, at 41317
(alleged victim is not to share
a bedroom with his alleged perpetrator brother; the two siblings
"must be supervised at all times
by a parent until this investigation is complete"; plan termination
date is "undetermined at this time").
Plaintiffs further estimate that 53 plans (57%) did not set forth any
duration at all. (See,
e.g., SAI 34, at 31134 (mother will not allow son (the alleged
perpetrator) to have "any contact" with
his sister (the alleged victim) and he is not allowed to return home
upon release from police
custody; duration unspecified); SAI 81, at 35384 (alleged victim not
allowed to have "any contact"
with her half-brother "at any time"; duration unspecified); SAI 98,
at 36690 (father of alleged victim
"agreed to leave the residence"; duration unspecified).) In
addition, of the 40 safety plans with
stated durations of definite length, only one (.025%) was shorter than
five days, and six others
(20%) were longer than 20 days. (See, e.g., SAI 49, at 32708 (if
alleged perpetrator not detained
by police, mother will not allow him to return to the house "pending
outcome of this investigation";
estimated plan duration, "2 - 3 months"); SAU 24, at 40137 (father
not allowed visitation rights with
his daughter "until such time as it is determined that it is safe to
have them continue"; plan to be
in effect for "at least 60 days").)
Defendant argues that many of the plans chosen by Plaintiffs as
representative "are not
safety plans at all." (Def. Resp., at 51.) For example, one file
included a safety plan requiring no
contact between the alleged perpetrator and victim (whose relationship
to each other is unclear
though they share a last name), but the plan was implemented after the
alleged perpetrator had
been arrested and taken to jail, and after a court had already imposed
a bond order with the same
restriction. (See SAI 21, at 29793 ("no time frame c[ould] be imposed
as court intervention is
necessary"); Tr. 1769.) In another file, similarly, there was a
safety plan requiring no contact
between the alleged victim, who lived with her aunt, and the alleged
perpetrator, the aunt's
husband, but Defendant says the plan was unnecessary because the
perpetrator was arrested and
in jail. (SAI 62, at 33872; Tr. 1959; Def. Resp., at 53.) (See also
Def. Resp., at 52-54.) In still
other files, DCFS implemented sexually aggressive children and youth
("SACY") plans which are
"used in cases where the child who is the subject of the plan is in
foster care, and the child's
guardian is the DCFS Guardianship Administrator." (Def. Resp., at
51.) (See SAU 2, at 38821.)
Several additional files, moreover, did not involve class members.
(See, e.g., SAI 12, at 28932
(alleged perpetrator is daughter of woman running an unlicenced
day-care service out of her home;
alleged victims are children who attended day-care at the home); SAI
38, at 31618 (alleged
perpetrator is mother's "live in boyfriend"); SAI 70, at 34522
(alleged perpetrator is mother's
paramour).)
Even assuming some of the 92 safety plans are not technically viewed as
such by DCFS,
it is undisputed that at least some plans are in place throughout the
course of an investigation,
regardless how long that may take, and that others fail to specify any
duration. Indeed, Deputy
Director Goad himself testified that many safety plans last at least as
long as the underlying
investigation into the alleged child abuse or neglect, and that even
when a report is "unfounded,"
a safety plan may remain in effect (presumably in accordance with its
stated terms) if there are
"safety issues that would make continuation of a safety plan
appropriate." (Tr. 2754 (Goad).) Prior
to the August 2002 amendments, moreover, DCFS did not have any
procedure requiring that
families be notified when a plan had been lifted. (Jt. Ex. 7, Appendix
G, at 16.)
4. Contesting Safety Plans
Once DCFS has implemented a safety plan, family members subject to the
plan may ask
that it be modified, or an investigator may initiate modification on
his or her own. (Goad Dep., at
253-55, 259-60.) There is no formal procedure for requesting a
modification, however, nor is an
investigator obligated to respond to, or act upon such a request. (Id.
at 259-60.) In addition, DCFS
has no procedure authorizing those subject to a safety plan to contest
it in any way, nor does DCFS
advise family members that agreeing to the plan may result in a waiver
of their right to contest it.
(Id. at 227, 259; Tr. 2722 (Goad).)
5. Alternatives to Safety Plans
As noted, a family's failure to agree to a safety plan may result in
the children being
removed from the home. There are two ways this may occur: (1) DCFS may
take protective
custody of a child pursuant to the Abused and Neglected Child Reporting
Act ("ANCRA"), 325 ILCS
5/5, and the Juvenile Court Act ("JCA"), 705 ILCS 405/2-7(1),
405/2-8, 405/2-9 (discussing
"temporary protective custody"); or (2) DCFS may obtain a court
order granting it "temporary
custody" of a child pursuant to the JCA. To take a child into
protective custody without court
authorization, DCFS must determine that it: "(1) . . . has reason to
believe that the child cannot be
cared for at home or in the custody of the person responsible for the
child's welfare without
endangering the child's health or safety; and (2) there is not time
to apply for a court order under
the Juvenile Court Act of 1987 for temporary custody of the child."
325 ILCS 5/5.
After taking protective custody of a child, DCFS must "promptly
initiate proceedings under
the Juvenile Court Act of 1987 for the continued temporary custody of
the child." Id. Under the
JCA, moreover, "a minor . . . taken into temporary protective custody
must be brought before a
judicial officer within 48 hours, exclusive of Saturdays, Sundays, and
court-designated holidays,
for a temporary custody hearing to determine whether he shall be
further held in custody." 705
ILCS 405/2-9(1). If there is no temporary custody hearing within the
prescribed time limitations,
protective custody lapses and the child must be returned to his or her
home. 705 ILCS 405/2-9(3).
Except in emergencies, DCFS Procedures require prior supervisory or
management authorization
to take a child into protective custody. (Jt. Ex. 2, Procedures §
300.80(f).)
To obtain a temporary custody order, DCFS must file a petition for
adjudication of wardship
with the State's Attorney in the county in which the child lives.
(Tr. 232, 242 (Maganzini).) No such
petition may be filed, however, unless the State's Attorney
"screens" the case into juvenile court
(i.e., accepts the case). (Tr. 232-33.) In Cook County, Illinois, the
State's Attorney will not screen
a case into court absent evidence that would, in the view of the
attorney screening the case,
support a judicial determination that the child should be taken into
temporary custody. (Tr. 224,
241, 244.) Such evidence consists of "probable cause to believe that
[a child] is abused, neglected
or dependent"; that "it is a matter of immediate and urgent
necessity for the safety and protection
of [the child]" that he be removed from his or her parents' care;
and that the state has made
"reasonable efforts . . . to prevent or eliminate the necessity of
removal of [the child] from his or her
home, [unless] no efforts reasonably could be made to prevent or
eliminate the necessity of
removal." 705 ILCS 405/2-10.
If the State's Attorney finds insufficient evidence to screen a case
into court, no petition for
adjudication of wardship will be filed at that time. Instead, the
State's Attorney will issue a form
entitled "Ongoing Investigation," which provides the investigator
with specific due dates for updating
the State's Attorney about the case and/or bringing it back for
further screening review. The
Assistant State's Attorney completing the form may also instruct the
investigator to implement or
maintain a safety plan or a "care plan" while the additional
information is being gathered. (See,
e.g., Ex. E to Defendant's Additional Declarations and Exhibits
("Def. Supp.") Defendant claims
that "care plans" are the same as "safety plans," citing the
declaration of Debra Dyer, DCFS's Chief
Deputy General Counsel in the Office of Legal Services. (Ex. D to Def.
Supp., ¶ 5 (noting that in
approximately 40 investigations between December 2003 and October 2004,
the State's Attorney
decided not to file a petition but requested that DCFS "implement or
continue a safety or care
plan").) Plaintiffs dispute that safety plans are the same as care
plans, but only one of the four
sample Ongoing Investigation forms submitted by Defendant mentions a
care plan as opposed to
a safety plan. That case involved a parent attending a substance abuse
treatment program.
(Plaintiffs' Response to Defendant's Supplementation of the Record,
¶ 3; Ex. E to Def. Supp.) In
any event, neither party disputes that the State's Attorney has an
"open door policy" on rereviewing
cases. (Tr. 250 (Maganzini).)
A third alternative to safety plans is a juvenile court order requiring
cooperation with
conditions, short of removing the child from the home, that the court
deems necessary for the
safety of the child ("§ 2-25 Orders"). 705 ILCS 405/2-25. To
secure a § 2-25 Order, DCFS must
first file a petition for adjudication of wardship with the State's
Attorney to initiate a juvenile court
case. 705 ILCS 405/2-13. The court must find probable cause to believe
that the child is abused
or neglected, at which point the court has broad authority to enter
orders requiring parents or
responsible caregivers to take various steps to protect the child from
harm. 705 ILCS 405/2-10(1),
405/2-25. For example, a § 2-25 Order may require parents to attend
therapy or participate in
other services; or forbid persons who are allegedly endangering the
child, including parents and
caregivers, from having any contact or unrestricted contact with the
child.
Finally, although the parties do not address the matter in their
briefs, the court notes
Plaintiffs' suggestion, at the hearing, that DCFS has an obligation
to provide supportive services,
including counseling or referrals to therapy, for parents and children
in need of such services.
Presumably services such as these might eliminate the need for
restrictive conditions and thus
constitute a fourth alternative to the imposition of safety plans.
IV. Examples of the Safety Plan Process
The court's hearing on Plaintiffs' second motion for preliminary
injunction spanned 22 days
between September 4, 2002 and January 17, 2003, and generated 3,357
pages of transcript. The
following is a summary of several investigations presented at the
hearing which involved the
implementation of safety plans.
A. James and Susan Redlin
On June 21, 2002, DCFS investigator Patrick Homa was assigned to
investigate an
allegation that James Redlin was inappropriately touching his son on a
Chicago Metra Railroad
train. (Tr. 2336.) Specifically, another passenger on the train told
Metra police that James had
touched his son's groin area; that the son had put his head in his
father's lap and rubbed his
father's groin area while the father kissed the back of his neck; and
that the father had stated, "Oh,
I guess you don't want to be tickled." (PX C, at 71003, 71011.)
According to James, he was
following a doctor's advice to engage in interactive touching and
speech with his son, who suffers
from mild autism. (Tr. 688, 690-91, 698-99.)
Homa first contacted the reporter - a Metra police official - for
details about the incident,
and also attempted (unsuccessfully) to contact the passenger who had
witnessed the inappropriate
contact. (Tr. 2337-39, 2375-76.) He then went to the Redlin home to see
the alleged victim. (Tr.
2339.) Upon arriving at the home, Homa introduced himself to James and
his wife Susan, advised
them of the allegations against James, and gave them the Notification
of a Report of Suspected
Child Abuse and/or Neglect (the "CANTS 8 form") explaining the
investigative process. (Tr. 2339-
40, 2342.) Approximately 15 minutes into the interview, James requested
an opportunity to consult
with legal counsel. (Tr. 2341.) At that time, Homa brought up the issue
of a safety plan but, after
the Redlins accused him of being rude, he left the home with the
understanding that he would call
the Redlins later that day after they had had a chance to speak with an
attorney. (Tr. 2343-44,
2368.) Though Homa had observed the Redlins' son during the
interview, he did not speak with
him at that time because he wanted to "set up an interview at the
[Lake County] Children's
Advocacy Center." (Tr. 2342-43.)
Homa called Susan around noon to let her know that he would call back
with a safety plan
that afternoon. (Tr. 795.) At 4:00 p.m., Homa spoke with Susan by
telephone about the safety
plan, which required that James not act as an independent caretaker for
his son or for any other
children until the case was resolved, but which did allow him
supervised contact with his son. (Tr.
2345, 2359, 2372, 2460.) Susan agreed to the plan even though it
effectively left the family
"prisoners" in their own home because Susan, the person responsible
under the terms of the plan
for supervising the son, is confined to a wheelchair. (Tr. 755,
812-13.) Homa delivered a copy
4 The court is uncertain why this recommendation was made, but
speculates that
perhaps the Metra passenger who witnessed the alleged inappropriate
touching did not cooperate
further with the investigation. It is at least curious that the
Redlins' refusal to submit their son for
an interview should militate in favor of dismissal of the charges.
of the safety plan to Susan on June 22, 2000. (Tr. 797, 818-19.) The
same day, the Redlins
retained the law firm of Lehrer & Redleaf (counsel for Plaintiffs in
this case) to represent them
during the investigation. (Tr. 742, 758.)
The investigation proceeded slowly in part because the Redlins were
resistant to their son
being interviewed given his mild autism. (Tr. 733-34.) Between June 21
and August 16, 2000,
DCFS attempted unsuccessfully to obtain permission from the Redlins to
interview their son at the
Lake County Children's Advocacy Center. On at least one occasion,
Homa and his supervisor went
to the Redlin home to discuss the matter accompanied by a Lake County
deputy sheriff, but the
Redlins refused to let their son be interviewed. (Tr. 731-32.) Finally
on August 16, 2000, Homa's
supervisor sent a letter to the Redlins' attorney stating that the
Division of Child Protection was
recommending that the allegation against James be unfounded. (Tr. 2351;
PX C, at 71014
(Worker Activity Summary dated 8/12/00, noting "no credible evidence
to substantiate the alleged
allegation; involved youth due to medical reason unable to be
interviewed as a credible witness as
described by medical professional"); PX C, at 71109.)4 Nevertheless,
the Redlins' attorneys
advised them to continue following the safety plan until they received
official notification that the
plan was unfounded. (Tr. 746-47.) The State Central Register advised
the Redlins on
September 26, 2000 that it had unfounded the report. (PX C, at 71000.)
B. Theresa C.
Theresa C. ran a day care center at her home. On April 3, 2001, Dillon,
a child who
attended the day care center, fell and suffered a depressed skull
fracture while in Theresa's
basement, and was taken for emergency surgery at Carl Hospital in
Champaign, Illinois. On April
5, 2001, DCFS investigator Lee Boedigheimer was assigned to investigate
the incident. (Tr. 591,
2468.) The next day, Boedigheimer spoke with Dr. Powell, the attending
physician who saw Dillon
at the hospital. Dr. Powell told Boedigheimer that Dillon had undergone
surgery to relieve the
pressure on his brain, to remove some blood clots, and to repair the
fracture. (Tr. 2469-70.) Dr.
Powell also stated that the explanation Theresa had given for
Dillon's injury when she brought him
to the hospital - that he had fallen while pulling himself up on a
"Diaper Genie" - was highly
unlikely, though not 100 percent impossible. (Tr. 2470-71.)
Also on April 6, 2001, Boedigheimer went to Dillon's home and
observed that the entire left
side of Dillon's face was swollen and that he had a three-inch
incision on the top of his head
running down behind his ear. (Tr. 2471-72.) Shortly thereafter around
11:50 a.m., Boedigheimer
went to Theresa's home along with Detective Roberts of the Pontiac
Police Department. (Tr.
2472.) Theresa reiterated that Dillon had fallen while trying to climb
up on a Diaper Genie while
she was changing her own daughter's diaper. (Tr. 2473.) As part of
the interview, Boedigheimer
looked at the basement where the injury had occurred and noted a thin
layer of carpeting over a
cement floor. He also observed 13 or 14 children in the home, many of
them under the age of two,
which he believed was a violation of DCFS licensing standards for day
care homes. (Tr. 2473-74.)
Boedigheimer asked Theresa about the possibility of suspending her day
care activities pending
an investigation into Dillon's injury. Theresa stated that she had a
vacation planned in any event
so the hiatus would not be a problem. (Tr. 2472-74.)
Boedigheimer went back to his office and worked with his supervisor to
create some safety
plan options to present to Theresa later that afternoon. When
Boedigheimer returned to Theresa's
home, he gave her a CANTS 8 letter and told her that the reporting
doctor (Dr. Powell) did not
believe Dillon's injury matched her explanation for it. (Tr. 593,
2481.) Boedigheimer expressed
some safety concerns for Theresa's own child, who was Dillon's age,
and discussed implementing
a safety plan that would require Theresa's mother or husband to
supervise her with her daughter
pending the investigation. (Tr. 2482-83, 2485-86.) Theresa did not
suggest any alternatives and
5 The parties do not indicate how Theresa learned this information on
May 17, 2001.
On May 21, 2001, however, Boedigheimer sent Theresa a letter notifying
her of the unfounded
decision. (PX D, at 43400.)
agreed to the plan proposed by Boedigheimer. At the hearing before this
court, Theresa
acknowledged that she had an opportunity to read the safety plan forms
(excluding the CERAP
form), but that she did not in fact review them before signing. (Tr.
560.) She also testified,
however, that Boedigheimer told her that "if he left [without a
safety plan] and I [Theresa] was
alone, they could come back and take [my daughter] S. away from me."
(Tr. 562-63.)
Theresa complied with the safety plan in its entirety for about two
weeks. As of April 27,
2000, the date she and her family went on vacation to Mexico, however,
she no longer adhered to
the requirement that she have only supervised contact with her
daughter. (Tr. 566-67, 595.) Upon
returning home from vacation, moreover, Theresa attempted to resume day
care services in her
home. When a DCFS representative made an unannounced visit and
discovered that Theresa was
caring for children in her home again, Theresa closed the day care and
took a position as a nanny
instead. (Tr. 596-98.) One year later, on May 17, 2001, Theresa learned
that the investigation
against her was unfounded and that the safety plan was no longer in
effect.5 (Tr. 581, 599.) A May
21, 2001 Family Assessment Factor Worksheet Summary noted that of the
three doctors consulted
in the case, all reported some possibility that Theresa's story was
accurate, and one opined that
Dillon's injury was not the result of abuse. The document does not
reflect when the doctors made
these reports. (PX D, at 43301.) Nor is the court certain whether these
reports, or some other
factor, were the basis for the ?unfounded" determination.
C. Stacey and Patrick D.
Patrick D. and his wife Stacey both worked at a day care center. On
January 5, 2001,
Karen Beckelman, an investigative supervisor with DCFS, began
supervising an investigation into
an allegation that Patrick had improperly touched a three-year-old
child's bottom during nap time
6 DCFS referred Patrick to Latino Family Services, P.C. for his
"psychosexual
assessment and follow-up treatment recommendations." (PX B, at
44980.)
at the center. (Tr. 1509, 1518-19.) Beckelman assigned the case to
investigator Andrea Jones
and, during an initial meeting, advised her to find out whether Patrick
had any biological children;
if so, Jones was to look into implementing a safety plan pursuant to
Department practice. (Tr.
1525-26.) DCFS insists that Beckelman "did not direct Jones to
implement a safety plan" but only
to "consider" it. (Def. Resp., at 29-30.) A January 5, 2001
Interview Note signed by Beckelman,
however, states: "See the child at the day care. Put in a protection
plan with the offender. Make
sure he has no children. If he does also put in a plan in his home
pending the interview." (PX B,
at 44854.)
In any event, Jones spoke with Stacey D. by telephone on January 5,
2001 and, according
to Stacey, told her that, due to the Hotline complaint, Patrick had to
leave the home or Jones would
come and take away their children. (Tr. 470.) Without asking any
questions, Stacey denied the
allegations on behalf of her husband and said she planned to contact an
attorney. (Tr. 472, 838-
39.) On January 9, 2001, Forensic Interviewer Kristin Eby conducted a
victim sensitive interview
("VSI") of the 4-year-old alleged victim, who reported that Patrick
D. had touched her in a sexual
manner. (Tr. 1539; PX B, at 45010.) Both Jones, who was present during
the VSI, and
Beckelman, who was not, found the statement to be credible. (There is
no indication whether
DCFS officials consulted with Eby herself regarding the victim's
credibility.) Beckelman notified
Stacey of the DCFS determination during a telephone conversation on
January 10, 2001. (Tr.
1451; PX B, at 45010.) Beckelman also asked Stacey to confirm that
Patrick was out of the house,
and again informed her that if he was not, Beckelman would remove the
children from the home.
(Tr. 478.) Beckelman advised Stacey that Patrick needed to obtain a
sexual "offender
assessment"6 before he could have unsupervised contact with his own
children. (Tr. 1542.)
On January 15, 2001, Beckelman visited the D. apartment and
individually spoke to each
of the D. children and to Stacey and Patrick. (Tr. 484-85, 489-90.)
Before leaving the apartment,
Beckelman advised Stacey that the children could start seeing Patrick
at church on Sunday. (Tr.
491.) Shortly thereafter on February 5, 2001, Stacey and Patrick met
with Jones at a DCFS office.
Jones told them that the investigation against Patrick was going to be
"indicated" for "sexual
molestation" of a four-year-old child and that he needed to have an
offender's assessment in order
to return to the D. home. (Tr. 501-02.)
DCFS did not proceed with an administrative hearing on the charges
against Patrick D. until
August 8 and 15 and September 10, 2001. (PX B, at 70509.) On October
16, 2001, an
administrative law judge found that the Department had failed to meet
its burden of proving that
Patrick had sexually molested a child or that he presented a risk of
sexual harm to his own children.
(Id. at 70520.) The ALJ noted that the victim's statements about the
alleged abuse were
inconsistent (she first said the touching occurred "one time," then
later said it happened "every day"
at naptime and lasted for "a couple hours"), and that the
statements were not corroborated by any
other evidence. (Id. at 70518.) Kristin Eby, who had conducted the VSI
back in January, testified
that the victim's "cheerful affect and volunteering of information
about abuse are not common
among victims of this age." (Id.) In addition, the evidence presented
at the hearing showed that
Patrick "had neither the inclination nor the opportunity to molest"
the victim, given that other adults
were often present in the room during naptime. (Id. at 70513, 70518.)
The ALJ recommended that
the indicated finding be expunged, noting that the investigation
leading to the indicated report was
"at a minimum sloppy, and at worst the result of a pre-ordained
conclusion." (Id. at 70517.)
Plaintiffs suggest that at least some of the exculpatory information on
which the ALJ relied was,
or should have been, available to the investigation at the onset of the
investigation. See
DeLaFont v. Beckelman, 264 F. Supp. 2d 650, 654 (N.D. Ill. 2003)
(noting allegations that during
investigation, Patrick D.'s own children and eight children in the
day care center denied that he
7 See DeLaFont v. Beckelman, 264 F. Supp. 2d 650 (N.D. Ill. 2003)
(dismissing
several individual defendants from the case for lack of personal
involvement in the alleged
deprivations, but denying motion to dismiss claims that remaining three
defendants violated
plaintiffs' constitutional right to family autonomy and that two
defendants deprived Patrick D. of his
job without due process); DeLaFont v. Beckelman, No. 02 C 5448, 2003 WL
21294741 (N.D. Ill.
June 3, 2003) (denying motions to reconsider); DeLaFont v. Beckelman,
No. 02 C 5448, 2003 WL
22239726 (N.D. Ill. Sept. 29, 2003) (denying plaintiffs' motion to
reinstate one of the previouslydismissed
defendants).
8 It does not appear that there is any family relationship between the
Parikhs and the
K.'s.
9 It is not clear from the record who called the family meeting, who
attended it, or
when it took place.
touch them inappropriately; also noting allegation that DCFS failed to
interview Patrick D.'s coteacher
who later proved to have pertinent, exculpatory information).
Patrick was cleared of the indicated report on December 4, 2001, and
the safety plan which
had left him out of his home and unable to have unsupervised contact
with his children was
officially lifted on December 10, 2001. (Id. at 44779.) As a result of
this incident, Stacey D. and
her family, represented by Lehrer & Redleaf, filed a lawsuit against
several DCFS employees
seeking compensatory and punitive damages relating to their actions
during the investigation. (Tr.
845.)7
D. Jimmy and Christine Parikh
On July 12, 2001, DCFS investigator Michelle Abernathy was assigned to
investigate an
allegation that Jimmy Parikh had kissed 11-year-old Deanna K. while she
and her siblings were at
the Parikh home under the care of Jimmy's wife Christine.8 (Tr.
2538.) Abernathy spoke with
Deanna's father, who stated that though Deanna was temporarily living
with him, she had
previously lived with his ex-wife, Delta K. Abernathy next contacted
Delta K., who advised that her
daughter was a liar, that the issue had been resolved at a "family
meeting,"9 and that she did not
understand why DCFS was involved. (Tr. 2358-59.)
10 Presumably this was not the same ?family meeting" at which,
according to Delta K.,
the matter has been resolved.
11 In addition to Justine, the Parikhs had four other children: Emmie
(age 27), Jason
(age 22), Elissa (age 6), and George (age 3). (Tr. 1269.) At the time
of the alleged incident, only
Jason, Elissa, and George were living in the Parikh home. (Tr. 1270,
1272, 1276.)
Nevertheless, Abernathy went to the Parikh home and advised Jimmy,
Christine, and their
older daughter Justine (age 25) about the allegation. The Parikhs
explained that Christine had
been caring for three of the K. children and stated that there had been
a "family meeting" during
which Deanna had not said anything about the alleged incident. (Tr.
1269, 2540.)10After learning
that there were two minor children living in the Parikh home, Abernathy
told the Parikhs that she
"would have to put a safety plan in place." (Tr. 2541 (Abernathy).)
The plan required that Christine
not babysit for any of the K. children and that Jimmy move out of the
home and stay with Justine,
who resided outside the Parikh home, during the course of the
investigation. According to
Christine, who says she was "frantic" at the thought of a safety
plan, Abernathy warned that if
Jimmy did not move out of the house and cease all contact with the
minor children living in his
home,11 the children would be taken into DCFS custody. (Tr. 1304-05,
1309.) Abernathy explained
the safety plan process and told the Parikhs that they could contact
her supervisor to discuss any
concerns they had regarding the plan. (Tr. 2540-42, 2547; PX H, at
44096.) Jimmy, Christine, and
Justine all signed the plan and Jimmy packed a bag of clothes and left
the house. (Tr. 2544.)
At some point prior to the end of July 2001, Abernathy's supervisor
modified the safety plan
to allow Jimmy to have supervised contact with his own children.
Abernathy learned of this
modification during an unannounced visit to the home at the end of
July. (Tr. 2553.) Around the
same time, the Parikhs retained the law firm of Lehrer & Redleaf to
represent them in the
investigation. On July 26, 2001, the firm sent a letter to
Abernathy's supervisor, John Ott,
requesting that the plan be modified or revoked; on August 5, 2001,
Jimmy was allowed to return
12 The parties do not indicate who decided that Jimmy could return home
or how or
when the Parikhs were notified of the decision.
13 It is not clear how Detective Marks became involved in the case.
to the P. home.12 (See PX H, at 44045 ("minor resides with father and
no longer goes to [the
Parikh] home").) The safety plan remained in effect at that time,
however, so Christine could not
leave the children alone with Jimmy. (Tr. 1327; PX H, at 730001.) Two
days later on August 7,
2001, the Parikhs' attorney notified Christine that Abernathy was
recommending that the case be
unfounded. Abernathy made the decision after speaking with Detective
Larry Marks of the Des
Plaines, Illinois police force, who told Abernathy that based on the
alleged victim's psychological
reports, there might be questions regarding the validity of her
statements, and he did not believe
that the police department would proceed with the case.13 The attorney
nevertheless
recommended that the family continue following the safety plan until it
was officially lifted on
September 26, 2001. (Tr. 1331; PX H, at 730000.)
E. A.S.
A.S. is the biological mother of two sons, N. and P., and the
stepmother of an 8-year-old
girl, A. DCFS supervisor Linda Conti became involved with A.S. when the
Hotline received a report
that her older son, N., had sexually abused his younger brother, P.,
who was living with his
maternal grandparents, the H.'s, at the time. (Tr. 1455-56, 1458-60.)
Conti called A.S. on August
23, 2000 and notified her of the pending investigation but did not
disclose any specific allegations
so that A.S. would, in Conti's words, "not to be able to taint the
investigation." (Tr. 1463; PX F, at
42900.) Though there were no allegations against A.S., Conti
recommended that she not have any
contact with P. during the investigation out of concern that A.S. might
encourage her son to recant
or minimize the allegation. (Tr. 1464-65.) A.S. agreed to the
recommendation without mentioning
that she had an order from the Circuit Court of Winnebago County
granting her the right to have
contact with P. following her divorce from P.'s father. Nor did A.S.
mention that she was involved
14 It is not clear what event triggered the Hotline call.
in a custody battle with the H.'s regarding custody of P. (Tr.
1465-66, 1489; PX F, at 43034,
43036.)
On September 29, 2000, DCFS investigator Shalonda Cawthon called A.S.
and told her that
the investigation was going to be unfounded. (Tr. 1469-70; PX F, at
42923.) The investigator's
notes state that the "perp[etrator] seemed more credible than victim
. . . Something happened to
the victim no proof it was the perp (sib[ling])." (PX F, at 42921.)
Cawthon nevertheless
recommended that A.S. be allowed only supervised visits with P.
"until the Department receives
a completed assessment and recommendations from [a] psychologist."
(PX F, at 42933, Letter
from S. Cawthon to A.S. of 9/29/00.) By letter dated December 18, 2000,
Conti notified A.S. that
she no longer needed to be supervised during her visits with P. but
should resume shared custody
as provided by the court custody orders. (PX F, at 43043.) It is not
clear whether this decision was
in fact based on a psychologist's recommendation.
F. Debra C.
In June 2000, DCFS received a Hotline report alleging that Debra C.'s
minor children were
at risk of harm because two of her children had died years previously
under suspicious
circumstances, and a third child had almost died.14 (Tr. 884-85, 896.)
Debra C. is the mother of
Robert (age 22), Thomas (age 21), Joey (born May 28, 1981, died
September 1981), Jennifer (age
14), Steven (age 12), Jonathan (age 7), Jessica (age 8), and Katie
(born December 20, 1997, died
March 1998). (Tr. 1136-39.) Joey and Katie both died of sudden infant
death syndrome. DCFS
and the police investigated both deaths and determined that they were
unfounded for abuse or
neglect. (Tr. 1139-40.) In addition, Thomas reportedly stopped
breathing and needed to be
resuscitated when he was an infant. (PX G, at 43650, 43651.) In 1995,
Debra suffered a
breakdown and was diagnosed with bipolar disorder and depression. (Tr.
1142.)
15 Deputy Director Goad testified that "[i]n more serious cases we
open in-home
protective services cases, which means that we assign a DCFS worker,
sometimes called an intact
worker, to work with the family." (Tr. 2234.) Kathleen Tate testified
that "once [a] case was opened
for services then the intact family worker would go out [to see the
family] weekly." (Tr. 917.)
DCFS supervisor Kathleen Tate interviewed Debra on June 8, 2000. Debra
disclosed that
she suffers from bipolar disorder, and Tate observed that she kept
various medications together
in a single bottle, which Tate found odd. (Tr. 907-08.) Tate determined
that Debra's four minor
children were unsafe and required that an older sibling come check on
them "every day." (Tr. 916-
17; PX G, at 43670.) One week later on June 15, 2000, DCFS implemented
a new safety plan
which provided that Debra's father and his wife would care for
Debra's four minor children until the
investigation was complete, but that Debra could have supervised visits
with them every day. (Tr.
924-25; PX G, at 16731.) That same day, DCFS investigator Eleanor
Powell called Debra to notify
her of the safety plan. (Tr. 925-26; PX G, at 16593.)
A few days later on June 18, 2000, the children went to visit their
non-custodial father,
Steven, for Father's Day. Steven did not return the children to
Debra's father that night but instead
kept them in his custody. Debra notified Powell of the situation during
a telephone conversation
on June 22, 2000, but Powell indicated that there was nothing she could
do because DCFS had
not placed the children with Steven. (Tr. 960, 1174-79.)
Toward the end of July 2000, Debra retained the law firm of Lehrer &
Redleaf to represent
her in the investigation. (Tr. 1229-30.) On July 26, 2000, the
Department opened the case for
services15 and attempted to convince Debra to accept assistance from
DCFS. (Tr. 946-50.)
Specifically, the Department suggested that Debra get a drug and
alcohol assessment and a
bonding assessment, and that she continue to see her psychiatrist and
to take her medication. (Tr.
1213-15.) Debra, however, did not believe that she needed such services
and stated that she
would only be willing to accept the assistance of a babysitter and a
maid. (Tr. 1241-42.) The next
day, on July 27, 2000, DCFS attempted to "screen" the case with the
State's Attorney's office but
16 Plaintiffs' Reply Memorandum in Support of their Amended Motion
for a Second
Preliminary Injunction is cited as "Pl. Reply, at __."
the State's Attorney needed additional information from the
investigator in order to proceed, such
as Debra's psychiatric records and the medical records regarding the
children who had died. (Tr.
936-37, 981; PX G, at 16606.) Also on July 27, DCFS attempted to take
protective custody of the
C. children, but they were not at the grandfather's home when DCFS
arrived with the police. (Tr.
953-55.) Shortly thereafter on August 1, 2000, Kathleen Tate called
Daniel Romero, a paralegal
with Lehrer & Redleaf working on Debra's case, to inform him that the
C. children would be
returned (presumably, by their father) to Debra's father by August 7,
2000. (PX G, at 72541.)
For reasons not explained in the record, DCFS voluntarily unfounded the
report against
Debra on February 28, 2001. (Tr. 976; PX G, at 100257.) According to
Tate, in the Department's
view, the investigation was not typical because of the nature of the
allegations, the past deaths of
two of Debra's minor children, the family dynamics, the failure of
Debra's psychiatrist to cooperate
with the investigation, and the fact that Powell went on medical leave
in the middle of the
investigation. (Tr. 984-87 (Tate).) Plaintiffs disagree, arguing that
"nothing about the handling of
the C. case runs contrary to the express and acknowledged policies and
practices of DCFS which
permit safety plan directives including the loss of custody of children
without notice, or any
opportunity for a parent to be heard." (Pl. Reply, at 22.)16
G. Drs. S. and M.
On May 12, 2000, DCFS began investigating Dr. S. and his wife Dr. M.
based on a report
from a neighbor that she had observed through the window that Dr. S was
sexually abusing his
eight-year-old adopted daughter. DCFS investigator Martin Acevedo went
to the family's home but
Dr. S. and Dr. M. refused to let him interview the child. (Tr. 331-32,
335-36, PX A, at 70009.)
Instead, Acevedo spoke with Dr. S. and Dr. M. for approximately two
hours, in part explaining that
he and Dr. S. needed to develop a safety plan. Dr. S. ultimately agreed
to a safety plan requiring
17 The name of the person who conducted the interview and the
corresponding notes
are illegible.
18 Dr. S. retained separate counsel to represent him in a criminal
investigation into his
alleged misconduct. That investigation did not result in any criminal
charges being filed. (Tr. 359.)
that he leave the home pending the investigation. Dr. S. understood
from Acevedo that if he
refused to agree to the plan, DCFS would take his daughter away or go
to the police. (Tr. 338,
343, 346-48.)
Dr. S. stayed at a hotel over the weekend and by May 15, 2000 had
retained Diane Redleaf
of the Lehrer & Redleaf law firm to represent him. (Tr. 357, 371.) Ms.
Redleaf wrote a letter to
Hebert Bashir, a DCP Supervisor, on May 15, 2000 requesting in part
that Dr. S. "may return home
and remain home as long as his wife is also present." (PX A, at
70045.) That same day, DCP
investigator Andrea Jones spoke with Ms. Redleaf and agreed to modify
the safety plan to allow
Dr. S. to have supervised visits with his daughter during the day. (Tr.
357, 371; PX A, at 70074.)
As a result, Dr. S. was able to shield his daughter from the
information that he was not sleeping
at home at night; he stayed with her until she went to sleep and then
returned to the house in the
morning before she woke up. (Tr. 358.)
On May 18, 2000, DCFS conducted a victim sensitive interview of the
daughter at the
Children's Advocacy Center.17 (Tr. 418; PX A, at 70022.) The next day
on May 19, 2000, Jones
spoke with Ms. Redleaf and notified her that the case against Dr. S.
was being unfounded. (Tr.
358-59; PX A, at 70055.) Though the official notification did not
arrive until June 15, 2000, Dr. S.
moved back into his home on May 19, with Ms. Redleaf's approval.18
(Tr. 359-60, 376; PX A, at
70071.)
H. E.D.
On January 11, 2001, DCFS received a Hotline call reporting that
sixteen-year-old E.D. had
molested four-year-old Q.M. while babysitting for him approximately two
years earlier. (Tr. 1414-
19 The record does not reflect when E.D.'s case was indicated.
15.) John Howell was assigned to investigate the allegation on behalf
of DCFS. Howell conducted
a victim sensitive interview of Q.M. on January 22, 2001. (PX I, at
44140.) Q.M. reported that E.D.
"did something bad" to him but then, in Howell's words, "shut
down" and refused to continue talking.
(Id.; Tr. 1417.) Howell next interviewed E.D. and E.D.'s mother, Mrs.
D., at the family home on
January 25, 2001. According to Howell, E.D. "began to say something
which very clearly indicated
that he was acknowledging some sort of guilt, some degree of guilt in
the allegation," but his
mother stopped him and spoke with him privately for a minute. (Tr.
1428.) When E.D. and Mrs.
D. returned, they told Howell that they had contacted an attorney; the
attorney never authorized
Howell to speak with E.D. after that time. (Id.)
Before concluding his initial interview, Howell told Mrs. D. that "a
safety plan would have to
be put in effect removing E.D. from the home for the safety of his [two
younger] siblings." (PX I,
at 44148 (interview notes); Tr. 1418.) The original plan required that
E.D. remain outside the home
until he completed a juvenile sex offender evaluation and any treatment
recommended pursuant
to that evaluation. (Tr. 1421.) Howell told Mrs. D. that if she did not
agree to the plan, it was
possible that DCFS would take custody of the two younger children. (Tr.
1419.)
On February 22, 2001, Howell conducted victim sensitive interviews of
E.D.'s siblings,
neither of whom made any significant disclosures. (PX I, at 44154,
44155.) During the interviews,
Mrs. D. approached Howell and asked him to modify the safety plan.
Howell, Mrs. D., and the D.s'
attorney discussed a modification and ultimately agreed that E.D. could
return home but could have
no contact with younger children. In addition, Mrs. D. was required to
remain ?awake at night when
the rest of the family is sleeping, in order to supervise [E.D.] at
night." (Tr. 1422-23; PX I, at 44152,
44171(a).) The modified safety plan remained in effect until July 2002.
(PX I, at 44177.) E.D.'s
case was ultimately indicated for sexual penetration.19 (Tr. 1428.)
20 Plaintiffs do not indicate the actual duration of I.W.'s safety
plan.
21 Plaintiffs also submit the declaration of S.T., who signed a safety
plan requiring that
her paramour leave their home while DCFS investigated allegations that
he was sexually abusing
S.T.'s children from a previous marriage. (Ex. 2 to Plaintiffs'
Motion to Supplement Record in
(continued...)
I. Additional Cases
Plaintiffs rely on the circumstances of two additional cases in support
of their motion for
preliminary injunction, but do not provide a detailed summary of either
case. Plaintiffs first claim
that the March 22, 2002 directive from Deputy Director Goad, requiring
that "all safety plans in
which family members (children or adults) are relocated from their
residence must be approved by
the respective Child Protection or Field Service Manager," was
ignored in two situations. (Pl. Mem.,
at 32-33.) In the first case, five-year-old I.W. lived with her mother,
who had full custody rights, but
visited her father on weekends. (DCFS Inter-Office Correspondence
Regarding Safety Plans dated
3/22/02; Tr. 3168, 3170.) When I.W.'s mother was accused of abusing
her, I.W. went to live with
her father pending a DCFS investigation. DCFS investigator Cassandra
Campbell nevertheless
testified that I.W.'s October 14, 2002 safety plan did not constitute
a "relocat[ion] from [her]
residence" as contemplated by the March 22 directive. It is not clear
from the record whether
Campbell knew that the mother had full custody of I.W. when she
implemented the plan. (Tr. 3170,
3181 (DCFS investigator, Cassandra Campbell).)
Plaintiffs also point to the I.W. case as evidence that DCFS
investigators are not following
the August 13, 2002 amendments to Appendix G requiring that safety
plans be reviewed every five
days. (Pl. Mem., at 33.) Specifically, there is no evidence that DCFS
conducted any five-day
reviews of I.W.'s safety plan even though it was scheduled to last
"up to 60 days."20 (Tr. 2989; PX
T, at 45373-74.) In this second case, Plaintiffs submit the declaration
of J.J., who signed a safety
plan requiring that her husband leave their home pending a DCFS
investigation into allegations that
he had abused J.J.'s children from a previous marriage.21 (Pl. Mem.,
at 23; Pl. Supp., at 2.) It is
21(...continued)
Support of Both their Second Preliminary Injunction Motion and their
Motion to Amend the Class
Definition (hereinafter "Pl. Supp.") S.T. is not a member of the
class, however, because she has
no legal relationship with the man required to leave the home. (See
Order of 4/16/04.)
not clear whether DCFS conducted re-reviews of the plan every five
days, but as of January 2004,
the plan had been in effect for more than 75 days. (Ex. 1 to Pl. Supp.)
DISCUSSION
Plaintiffs raise both substantive and procedural due process challenges
to the safety plan
process, arguing that DCFS, under threat of seizing class members'
children, (1) implements safety
plans on the basis of only nominal or no evidence of actual abuse or
neglect, and (2) fails to
provide any opportunity to contest the plans. Defendant insists that
the plans satisfy the compelling
public interest in controlling threats to a child's safety during the
course of a DCFS investigation,
and that all plans constitute voluntary agreements between the families
and DCFS. With the
limitations described below, the court finds that Plaintiffs are
entitled to injunctive relief.
I. Preliminary Injunction Standard
Plaintiffs seek a preliminary injunction prohibiting Defendant, a state
official, from continuing
to implement safety plans absent sufficient evidence of abuse or
neglect and an appeal process.
To obtain such relief, Plaintiffs must demonstrate (1) a likelihood of
success on the merits; (2)
irreparable harm if the preliminary injunction is denied; and (3) lack
of an adequate remedy at law.
See Reid L. v. Illinois State Bd. of Ed., 289 F.3d 1009, 1020-21 (7th
Cir. 2002). When these
threshold conditions have been met, the court must consider (4) the
harm that Defendant will suffer
if the injunction is granted, balanced against the irreparable harm to
the Plaintiffs if injunctive relief
is denied; and (5) the interest of, and harm to persons not directly
involved in the dispute (the public
interest). Id. at 1021.
II. Likelihood of Success on the Merits
A likelihood of success on the merits of both Plaintiffs' substantive
and procedural due
process claims requires some showing of a liberty interest. The court
thus first considers whether
such an interest exists in this case. The court then addresses in turn
the specific due process
arguments.
A. Protected Liberty Interest
It is well-established that "[c]hoices about marriage, family life,
and the upbringing of
children are among associational rights the [Supreme] [C]ourt has
ranked as 'of basic importance
in our society,' . . . rights sheltered by the Fourteenth Amendment
against the State's unwarranted
usurpation, disregard, or disrespect." M.L.B. v. S.L.J., 519 U.S.
102, 116 (1996) (quoting Boddie
v. Connecticut, 401 U.S. 371, 376 (1971)). As the Seventh Circuit
noted, "the right of a man and
woman to marry, and to bear and raise their children is the most
fundamental of all rights - the
foundation of not just this country, but of all civilization." Doe v.
Heck, 327 F.3d 492, 517-18 (7th
Cir. 2003) (quoting Brokaw v. Mercer County, 235 F.3d 1000, 1018 (7th
Cir. 2000)). Similarly,
children possess a liberty interest in being raised and nurtured by
their parents. See, e.g.,
Santosky v. Kramer, 455 U.S. 745, 760 (1982) ("until the state proves
parental unfitness, the child
and his parents share a vital interest in preventing erroneous
termination of the natural
relationship"); Heck, 327 F.3d at 518; Brokaw, 235 F.3d at 1018.
The constitutional right to familial integrity, however, is not
absolute. Brokaw, 235 F.3d at
1019. To the contrary, this liberty interest "is limited by the
compelling governmental interest in the
protection of children - particularly where the children need to be
protected from their own parents."
Id. (quoting Croft v. Westmoreland County Children and Youth Servs.,
103 F.3d 1123, 1125 (3d
Cir. 1997)). "Thus, a balance must be reached between the fundamental
right to the family unit and
the state's interest in protecting children from abuse, especially in
cases where children are
removed from their homes." Id. With these principles in mind, the
court considers whether safety
plans implicate Plaintiffs' due process rights.
B. Substantive Due Process
Plaintiffs claim that safety plans violate their right to substantive
due process by depriving
them of familial relations without sufficient evidence. In
Plaintiffs' view, DCFS should not be
allowed to implement a safety plan absent "some definite and
articulable evidence giving rise to
a reasonable suspicion that a child has been abused or is in imminent
danger of abuse." Brokaw,
235 F.3d at 1019 (quoting Croft, 103 F.3d at 1126). Defendant insists
that all safety plans are
voluntary agreements designed to further the public interest in
protecting children and, thus, do not
require any specific evidentiary showing. As explained below, the court
finds neither party's
position entirely persuasive.
Plaintiffs cite to several cases which purportedly demonstrate that
safety plans are
unconstitutional absent "definite and articulable evidence" of
abuse or neglect. In Doe v. Heck, 327
F.3d 492 (7th Cir. 2003), child welfare authorities received a report
that a ten-year-old girl had been
bruised during a spanking at a private school. The girl told
investigators that another student, John
Doe, had also been spanked by the school principal. Id. at 500-01.
Based on that report, the
investigators interviewed John at his school without his parents'
consent and "target[ed] the plaintiff
parents [John Doe's parents] as child abusers." Id. at 521. At one
point in the investigation, case
worker Carla Heck left a voice mail message for the Does stating that
"if she did not hear from their
attorney within 24 hours, 'the Bureau will take steps to . . .
protect the children in your home . . .'"
and that she was "'not messing around anymore!'" Id. at 505-06.
The child welfare authorities
never in fact removed any of the Doe children from their home, but the
Does claimed that
"[t]hroughout . . . the Christmas season," they "lived in
constant fear" that the authorities would do
so. Id. at 506 n.10.
The Does and others filed suit, alleging in part that the defendant
child welfare authorities
had violated the Does' right to familial relations and their
Fourteenth Amendment procedural due
process rights. Id. at 508. The district court granted summary judgment
to the defendants, finding
that even if their actions were unconstitutional, they were protected
by qualified immunity. Id. The
Seventh Circuit reversed, however, concluding that the defendants
violated the Does' liberty
interest in familial relations by targeting them as child abusers
without any evidence that the Does
themselves had ever abused their children or that their children had
ever been injured as a result
of a school spanking. Id. at 521-22. Despite the absence of any such
evidence, the defendants
launched an investigation based solely on another child's claim that
John had been spanked (not
injured) by the school principal (not John's parents).
The court concluded, similarly, that the threat to remove John and his
sister from their
parents' custody violated the Does' liberty interest in maintenance
of the family unit. Id. at 524.
The court recognized that "child welfare caseworkers are often called
upon to make difficult
decisions without the benefit of extended deliberation," and that
"there is, perhaps, no more worthy
object of the public's concern than preventing the most vulnerable
members of society, children of
tender years, from being physically abused." Id. at 525. On the facts
presented, however, it was
not "difficult to weigh [the] state's interest in investigating an
allegation of child abuse against [the]
parent or child's right to familial relations" because "the
defendants had no basis to suspect the
plaintiff parents of child abuse, and thus had no reason to interfere
with their familial relationships
in the manner described." Id.
With one exception, the cases presented at the hearing before this
Court are
distinguishable from Heck because they involve allegations of abuse or
neglect on the part of the
parent or child under investigation. Thus, unlike in Heck, the
Plaintiffs' right to familial relations
here does not, in each instance presented above, obviously outweigh the
state's interest in
investigating allegations that Plaintiffs have engaged in child abuse
or neglect. The A.S. case does
involve a mother who was not allowed to see her son for approximately
one month while DCFS
investigated an allegation that the boy had been abused by his older
brother. Unlike the Does,
however, A.S. was aware of the investigation at all times and did not
object to the arrangement.
Plaintiffs dispute that A.S.'s agreement was voluntary - an argument
the court addresses infra pp.
46-54 - but the court notes that she signed the safety plan without
advising the investigator about
the court order granting her the right to have contact with her son, P.
As noted, Plaintiffs view Brokaw as setting forth the requirement of
"definite and articulable
evidence" of abuse or neglect before a safety plan may be
implemented. The plaintiff in Brokaw
alleged that certain relatives and a deputy sheriff conspired to end
his parents' marriage by filing
"baseless and scurrilous" claims of child neglect with DCFS that
they believed "would cause [the
plaintiff] and his sister to be removed from their parents' home, and
in turn prompt [the father] to
divorce his wife and leave his family." 235 F.3d at 1007. At some
point after the relatives made
the allegedly baseless claims of neglect, two police officers walked
into the plaintiff's home,
grabbed him and his three-year-old sister, and carried them crying out
of the home. The men did
not explain what was happening and the six-year-old plaintiff believed
he was being kidnapped and
would be killed. Id. The children remained in foster care for
approximately four months before
being returned home. Id. at 1008. Upon reaching the age of majority,
the plaintiff filed a complaint,
alleging in part that his relatives and others had violated his
substantive due process right to familial
relations. Id. at 1017-18. The district court dismissed the claims for
failure to state a claim or,
alternatively, based on sovereign, absolute, or qualified immunity. Id.
at 1008.
The Seventh Circuit reversed, finding that the plaintiff had
sufficiently alleged a due process
claim covering the four-month period during which he was separated from
his parents. The court
noted that the constitutional right to familial integrity must be
balanced against the state's
compelling interest in protecting children from abuse, "especially in
cases where children are
removed from their homes." Id. at 1019. "In balancing these
interests, courts have recognized that
a state has no interest in protecting children from their parents
unless it has some definite and
articulable evidence giving rise to a reasonable suspicion that a child
has been abused or is in
imminent danger of abuse." Id. On a motion to dismiss, the court
lacked sufficient facts to
determine whether the government was justified in interfering with the
plaintiff's familial relations.
The court also lacked sufficient facts to determine whether any of the
individual defendants were
entitled to qualified immunity. The court noted, however, that in
general, "because the balance
between a child's liberty interest in familial relations and a
state's interest in protecting the child is
nebulous at best, social workers and other state actors who cause a
child's removal are entitled
to qualified immunity because the alleged constitutional violation will
rarely - if ever - be clearly
established." Id. at 1023.
Brokaw is not particularly illuminating to the extent it involved
children who were forcibly
removed from their parents' home by two men who refused to identify
themselves. In this case,
Plaintiffs, all adults capable of communicating with child welfare
authorities, knew that there was
an investigation pending against them and agreed at least in form,
however reluctantly, to
cooperate with the plan by removing themselves or their children from
the home. In addition, the
children in Brokaw were placed in foster care and deemed wards of the
state for four months; they
did not remain with parents or relatives as in this case. The Brokaw
court did note that other courts
have required "definite and articulable evidence giving rise to a
reasonable suspicion" of abuse or
neglect, but did not explain what satisfies this requirement,
particularly with respect to the
imposition of safety plans such as are at issue here.
Plaintiffs also claim that the Supreme Court's decision in Troxel v.
Granville, 530 U.S. 57
(2000) "reinforces the conclusion that safety plans work significant
deprivations, even when the
deprivation is less extreme than removal of the child." (Pl. Mem., at
39.) The plaintiffs in Troxel
sought visitation rights with their grandchildren under a Washington
state statute that allowed "any
person" to petition for forced visitation of a child. The
children's mother wanted to limit the
grandparents' visits to once per month, but a Washington Superior
Court granted the plaintiffs'
request for greater visitation rights as in the best interests of the
children. Id. at 61-62. The
Washington Court of Appeals reversed, however, and the Washington
Supreme Court affirmed that
decision, reasoning that the Washington statute was unconstitutional
because it allowed the State
to interfere with the right of parents to rear their children without
any threshold showing of harm,
and because it allowed ?any person" to seek visitation rights without
recognizing that "[p]arents
have a right to limit visitation of their children with third
persons." Id. at 61-63. See WASH. REV.
CODE § 26.10.160(3) ("[a]ny person may petition the court for
visitation rights at any time . . . The
court may order visitation rights for any person when visitation may
serve the best interest of the
child").
The United States Supreme Court granted certiorari and affirmed that
the Washington
statute, as applied, unconstitutionally infringed on the mother's
fundamental right to make decisions
concerning the care, custody, and control of her children. Id. at
66-67. In reaching this conclusion,
the Court found it significant that "the [plaintiffs] did not allege,
and no court has found, that [the
mother] was an unfit parent. That aspect of the case is important, for
there is a presumption that
fit parents act in the best interests of their children." Id. at 68.
Although some of the language of Troxel is instructive, its rationale
is not directly relevant
here, either. In the Supreme Court's view, the problem "[wa]s not
that the Washington Superior
Court intervened, but that when it did so, it gave no special weight at
all to [the mother's]
determination of her daughters' best interests." Id. at 69. In this
case, conversely, safety plans are
imposed on parents who are under suspicion of being unfit. Nor are
questions regarding visitation
rights directly comparable to investigations into allegations of abuse
or neglect.
In short, none of these cases supports Plaintiffs' assertion that
DCFS violates the
Constitution when it implements safety plans absent "definite and
articulable evidence giving rise
to a reasonable suspicion that a child has been abused or is in
imminent danger of abuse." (Pl.
Mem., at 43) (citing Brokaw, 235 F.3d at 1019). Indeed, none addresses
the situation presented
here where a parent, legal guardian, or child is directly accused of
abuse or neglect, thus calling
into play the state's compelling interest in protecting a child's
safety. The court recognizes that
safety plans impose difficult restrictions upon families and, while
they are in effect, deprive families
of their right to familial relations. To determine whether such
deprivation amounts to a
constitutional violation, however, it must be balanced against the
state's interest in protecting
children. That interest is "extraordinarily weighty." Darryl H. v.
Coler, 801 F.2d 893, 902 (7th Cir.
1986). As the Seventh Circuit explained:
The state has an obligation to prevent loss of life and serious injury
to those
members of the community to whom it has a very special responsibility,
the young.
As the Supreme Court remarked in Wyman v. James, 400 U.S. 309, 318, 91
S.Ct.
381, 386, 27 L.E.2d 408 (1971), "There is no more worthy object of
the public's
concern."
Id. Safety plans are designed for this very purpose: to protect
children from harm during the course
of a DCFS investigation.
Plaintiffs express concern that it is not always clear that a child is
in any danger at all, such
as when a child is merely "afraid" of persons who live in or visit
the home. In addition, safety plans
are often implemented even when only one of the 15 safety factors is
checked "yes." (Pl. Mem.,
at 14 n.8) (arguing that 61 of the 92 safety plans in the
representative cases (66%) went into effect
based on the presence of only one safety factor). Defendant insists
that "many of these so-called
safety plan cases do not involve safety plans at all," noting, for
example, that some plans imposed
no contact requirements only after an alleged perpetrator had been
taken to jail and a court had
imposed the same restriction. (Def. Resp., at 52-54.) Defendant cannot
escape liability, however,
by imposing conditions on Plaintiffs and then claiming that they did
not technically constitute "safety
plans."
The court recognizes that several plans in the sample cases were
directed against nonclass
members, such as paramours of the alleged victims' mothers. The fact
that some of the
persons subject to safety plans are not class members does not speak to
the proper standard
required for implementing such a plan, however. Where an investigator
has found even a single
safety factor, the court finds that it is not improper for DCFS to err
on the side of caution given the
significant state interest in protecting children from harm. Under such
circumstances, the court is
satisfied that the state's interest in protecting children through
brief or temporary safety plans
outweighs Plaintiffs' right to familial relations, even upon a mere
suspicion of abuse or neglect. The
opposite conclusion may result in children being further abused or
neglected during the course of
a DCFS investigation, which is what prompted the CERAP process in the
first place. (Tr. 2243-44);
20 ILCS 505/21(e).
In the court's view, the safety plan imposed upon Drs. S. and M.
represents the type of brief
deprivation that is insufficient to trigger constitutional concerns.
That plan went into effect on
May 12, 2000 and required Dr. S. to leave the home pending an
investigation into a neighbor's
allegation that she had seen him through a window abusing his adopted
daughter. By May 19,
2000, the case against Dr. S. was unfounded and he moved back into his
home. Though it is
regrettable that he had to spend a week away from his family, the court
concludes that he did not
suffer an unconstitutional deprivation of his right to familial
relations as a result. On the other hand,
Patrick D. was required to leave his home on January 5, 2001 due to an
allegation that he had
improperly touched another child during nap time at the day care center
where he worked. His
case was "indicated" for abuse in February 2001 but he did not
receive an administrative hearing
on the charges until August 8 and 15 and September 10, 2001. On October
16, 2001, relying at
least in part on information available to the investigation from the
beginning, an ALJ determined
that the charges were unfounded and based on a "sloppy"
investigation. The safety plan was not
officially lifted, however, and he was not permitted to live with his
children (none of whom were
victims of the alleged abuse) until December 10, 2001 - nearly a year
after it forced him out of his
home.
Even where the initial investigation supports imposition of a safety
plan, the court believes
such a plan may not remain in place indefinitely; to the contrary, at
some point, the deprivation
continues long enough to implicate Plaintiffs' liberty interests and
substantive due process rights.
Neither party has provided useful insight into when this occurs.
Plaintiffs insist that a deprivation
lasting even a single hour is enough to run afoul of the Constitution.
Defendant maintains that
there can never be a constitutional deprivation because families always
sign the safety plan and
thereby agree to its terms. The answer lies somewhere in between, but
absent adequate
development of this issue by the parties, the court is not prepared to
draw the line. The court does
find, however, that safety plans lasting only a few hours or days do
not implicate substantive due
process rights even when coupled with a threat of protective custody.
On the other hand, safety
plans signed under such a threat do implicate substantive due process
rights when they have no
stated duration or an indefinite duration (e.g., they are in effect
"during the course of this
investigation" (SAI 8, at 28502) or until a date "undetermined at
this time" (SAU 40, at 41317)), at
least where such plans continue for several days.
C. Procedural Due Process
Plaintiffs next argue that safety plans violate their procedural due
process rights because
they do not provide any opportunity to contest them. To establish that
their procedural due process
rights have been violated, Plaintiffs must demonstrate that (1) the
Department deprived them of
a constitutionally protected liberty or property interest; and (2) the
deprivation occurred without due
process of law. Heck, 327 F.3d at 526. Plaintiffs note that a
"fundamental requirement of due
process is the opportunity to be heard." (Pl. Mem., at 44) (quoting
Armstrong v. Manzo, 380 U.S.
545, 552 (1965) (internal quotations omitted)). Though Plaintiffs
recognize that pre-deprivation
process may be excused by exigent circumstances, they also stress that
"the only meaningful
opportunity to invoke the discretion of the decision maker is likely to
be before the [deprivation]
takes effect." (Pl. Mem., at 44-45) (quoting Cleveland Bd. of Ed. v.
Loudermill, 470 U.S. 532, 543
(1985).)
The court has already determined that safety plans that separate
children and families do
deprive class members of familial relations. In addition, it is
undisputed that DCFS provides no
opportunity to contest safety plans, nor any notice of such an
opportunity. Defendant once again
argues that no process is due because safety plans are completely
voluntary agreements.
According to Defendant, "[i]ndividual parents are free to make a
choice, albeit a difficult one,
between protective custody of their child and the entry of a safety
plan to keep the child safe."
(Def. Resp., at 45.) While this may be true in a formal sense, for the
reasons explained below, the
court does not agree that Plaintiffs' formal acquiescence in plan
terms extinguishes their procedural
due process rights.
1. Voluntariness
Defendant relies on Terry v. Richardson, 346 F.3d 781 (7th Cir. 2003)
and Doe v. Tullis, No.
01-2044, slip op. (C.D. Ill. Nov. 25, 2003) in support of his assertion
that all safety plans are
voluntary. The plaintiff in Terry was a non-custodial father with
rights to visit his daughter, Jaidah,
pursuant to a divorce decree. 346 F.3d at 782. The plaintiff's
ex-wife suspected that he was
sexually abusing Jaidah and Jaidah confirmed the suspicion, telling her
mother that her father had
?hurt her, kissed her pee-pee,' forced her to swallow a necklace,
tried to make her kiss his
noodle,' and jammed crayons and a pen into her anus." Id.
Jaidah's mother reported the plaintiff
to the DCFS Hotline, and the next day, a DCFS investigator called the
plaintiff and left a message
on his answering machine stating that he was to "cease all visitation
and contact with [Jaidah]."
Id. at 782-83. When the plaintiff returned the investigator's call,
she told him that she could not
explain the allegations over the phone and repeated that he was not to
contact Jaidah. According
to the investigator, the plaintiff responded "okay" or "I
understand." Id. Two weeks later, the
investigator interviewed the plaintiff at his attorney's office. At
that time, she described the
allegations against him and explained the investigation process. She
also reiterated that the
plaintiff was not to have any contact with Jaidah during the
investigation. The plaintiff complied
because "he had learned from 'news reports and things' that
ignoring DCFS instructions could lead
to termination of his parental rights or Jaidah's placement in a
foster home." Id. at 783-84.
After more than a year of proceedings, a court found that Jaidah had
been abused, but not
by the plaintiff, who was cleared of the allegations. The plaintiff
filed suit against the investigator
for violating his and Jaidah's due process rights and a jury found in
favor of the plaintiff and his
daughter. Id. at 784. In reversing that decision, the Seventh Circuit
first determined that the
plaintiff's deprivation, which ultimately amounted to losing just a
single day of visitation, was minor
compared with the state's substantial interest in protecting children
from sexual abuse. Id. at 786.
The court found it significant that the investigator did not try to
sever the plaintiff's parental rights
or remove Jaidah from his custody. Id. In addition, "a reasonable
person with the resources
available to [the plaintiff] would not have left [the investigator's]
authority unquestioned," and could
have refused to comply with the investigator's instruction. Id. at
785, 787. "Given the interests at
stake, the options available to [the plaintiff] were enough to guard
against erroneous interference
with his rights." Id. at 787.
Terry is distinguishable from this case in several respects and does
not, in this court's view,
establish that safety plans are by definition voluntary. First, the
investigator in Terry never
threatened to put Jaidah in protective custody; rather, the plaintiff
merely "heard on television that
disobeying DCFS caseworkers could spell the end of his parental rights
or lead to foster care for
Jaidah." Id. at 785. In this case, conversely, all class members were
threatened that their children
would be placed in protective custody if they refused to accept a
safety plan. In addition, the
plaintiff in Terry lost only a single day of visitation with his
daughter, whereas most of the Plaintiffs
in this case lost physical custody of, or contact with children and
family members for several
months. Significantly, many of the safety plans had indefinite or
unstated durations.
Defendant next points to Doe v. Tullis, in which DCFS investigated
plaintiff John Doe after
receiving a Hotline report that he had sexually abused a child while he
was babysitting for her one
night. Slip op., at 2-3. The investigator interviewed the alleged
victim and her sibling; the victim's
mother; the hospital pediatrician who examined the victim and reported
the abuse; and the pediatric
social worker at the hospital. Id. at 3. The investigator also
interviewed three of the Does' own
children and one of their neighbors. Before speaking with John's
wife, Jane Doe, the investigator
and her supervisor discussed a possible safety plan for the family.
After interviewing Jane, the
investigator drafted a safety plan that required John to live outside
the home and prevented him
from having any unsupervised contact with his children "until we were
further along in our
investigation." Id. at 4. The investigator explained that violating
the safety plan could result in the
children being removed from the home. According to the investigator,
Jane agreed to the plan.
Id. at 4-5.
Five days later, Jane signed a second safety plan with the following
terms: "Jane Doe will
allow [John Doe] no contact whatsoever with any children who are
younger than eighteen; John
Doe will not be in the home without approved supervision at any time
when younger children are
home; and in order for the plan to terminate, John Doe must obtain a
sex offender assessment and
follow any recommendations, and all safety factors must be resolved as
determined by DCFS, with
regard to the sexual abuse." Id. at 6. After the report against John
was indicated, Jane and John
signed (in the presence of their attorney) a third safety plan adding,
in part, that (1) John could not
live in, spend the night in, or be in the home "any time other than
approved visiting time," (2) "CPI
will continue to monitor the plan until the case is complete," and
(3) "violation of the plan will result
in protective custody of the Doe children." Id. at 6-7. The
investigator believed that the plan was
to remain in effect until she completed her investigation approximately
two months later, but she
did not notify the Does or their attorney that the plan was no longer
in effect after that date. Id. at
7. John appealed the indicated finding; there is no indication as to
whether his request for
expungement succeeded. Id. at 21.
The Does filed suit against the investigator and her supervisor
alleging violations of their
constitutional rights. The Does first claimed that the defendants
violated their right to familial
relations by threatening to remove the Doe children from their
parents' custody. Id. at 12. The
court agreed that "threatening to remove children from their
parents' custody violates the right to
familial relations when the state has no reason to suspect that the
parents are abusing the
children." Id. at 13 (citing Heck, 327 F.3d at 524). The court found
no such threat in that case,
however, because the investigator merely "provided an alternative to
removal when she told Jane
Doe that she could take the children to stay with friends or family."
In the court's view, "[r]equiring
Jane Doe and the Doe children to stay with family and friends is not
the equivalent of threatening
to remove the children." Id. In reaching this conclusion, the court
noted that "[a] safety plan is an
optional and less disruptive alternative to either removing a child
from his home based on a court
order or removing a child and then seeking a court order." Id. at 14.
According to the court,
informing parents of the legal alternatives available to the
Department, including removal of the
children prior to a court order in exigent circumstances or pursuant to
a court order, does not
automatically constitute a threat sufficient to deprive parents of
their constitutional rights. Id. The
court denied summary judgment on the claim, however, based on a factual
dispute as to whether
the investigator had "repeatedly threatened to take the children
away." Id.
The Does also claimed that the defendants violated John Doe's
procedural due process
rights by separating him from his children for more than seven months
without an adequate
investigation or a hearing. Id. at 15, 19. The court agreed that
"[h]ad [the investigator] indeed
failed to perform an investigation before instituting the safety plan,
her decision would have failed
to satisfy the 'reasonable suspicion' standard established in
Brokaw." Id. at 17. Before instituting
the first safety plan, however, the investigator "had already
performed substantial investigation,"
including interviewing the alleged victim, her mother and sibling; the
pediatrician who reported the
alleged abuse; a pediatric social worker; Jane Doe and three of her
children; and one of the Does'
neighbors. Id. at 16-17.
As for the hearing, the court first determined that the Does
voluntarily agreed to the
conditions and terms of the safety plan. Id. at 20. The court rejected
the Does' argument that they
were forced to sign the plan, finding that "[k]nowing the possible
legal consequences of failing to
participate in a safety plan [i.e., having your children taken away]
does not render involuntary
one['s] agreement to participate." Id. at 20 n.4. The court
distinguished safety plans from the
forcible removal of children from the home, noting that safety plans
"provide an alternative way,
based on the parents' cooperation, for the state to ensure the
children's safety while allowing them
to remain in their home." Id. at 22. The Does "always had the right
to contact DCFS to determine
when or how the safety plan might be ended . . ., bring a suit in state
court, or simply refuse to
comply with the safety plan, which would have led to judicial
intervention if DCFS intended to
continue to keep John Doe separated from his children." Id. The Does
failed to demonstrate that
the hearing John received in seeking to expunge the indicated finding
was inadequate, leading the
court to conclude that John was not denied procedural due process. Id.
at 21, 23.
The court is not persuaded that Tullis, an unreported decision from
another district court,
conclusively establishes the voluntariness of all safety plans. Though
the Tullis court found no
automatic threat when DCFS notifies parents that their children may be
removed from the home
absent a safety plan, it nonetheless denied summary judgment because
questions of fact existed
as to whether the investigator had "repeatedly threatened to take the
children away." Id. at 14. All
of the class members in this case were in fact threatened explicitly or
implicitly with protective
custody unless they agreed to a safety plan, which arguably adds a
coercive element to the
"agreement" process. In addition, unlike in Tullis, it is not clear
that DCFS "substantially
investigated" the allegations against all Plaintiffs in this case
prior to implementing a safety plan.
In the Stacey and Patrick D. case, for example, the DCFS supervisor
advised the assigned
investigator to "put in a plan" at Patrick's home if he had small
children, before anyone had actually
spoken with the D. family or the alleged victim. (Tr. 1525-26; PX B, at
44854.)
Finally, the plaintiffs in Tullis failed to show that the expungement
hearing provided
inadequate process even though the proceeding did not address the
conditions of the safety plan.
Id. at 21, 23. Not all investigations, however, result in an
"indicated" report or any opportunity for
an expungement hearing. In addition, while the Tullis court noted that
safety plans require the
cooperation of parents and family members, it failed to address how
"repeated[] threat[s] to take
the children away" may affect a family's decision in that regard.
Both parties ask the court to consider the "totality of the
circumstances" in assessing
whether safety plans are voluntary, drawing by analogy from the
criminal law on consent to a police
search. (Pl. Mem., at 49; Def. Resp., at 48) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 227
(1973).) Plaintiffs argue that relevant factors include (1) whether
DCFS makes any
misrepresentations in securing agreement to the plan; (2) whether
agreement to a plan is knowing
and voluntary; (3) whether a class member had access to legal counsel
or other advice; (4) the
circumstances surrounding DCFS' request for agreement, including any
time pressure and the
state of mind of the class member; and (5) the relative power,
authority, knowledge, and
sophistication of the parties. (Pl. Mem., at 53-54.) Defendant insists
that "knowledge of the right
to withhold consent is not a prerequisite to proving that consent to a
search was given." (Def.
Resp., at 48) (citing Schneckloth, 412 U.S. at 227) ("[w]hile
knowledge of the right to refuse
consent is one factor to be taken into account, the government need not
establish such knowledge
as the sine qua non of an effective consent.") Defendant also argues
that
under the current DCFS structure, and after administering the CERAP
protocol, the
"threat" to remove the children unless a safety plan is agreed upon
would not be
baseless or empty, rather it would be analogous to the Constitutionally
permissible
22 Plaintiffs themselves reviewed several cases "in which they
thought it likely that the
class member's agreement to the plan was not coerced because a class
member parent: (1) had
agreed with DCFS that the alleged perpetrator class member was likely
to be guilty of the alleged
abuse; (2) had a concern (independent of any representations by DCFS)
as to the merits of the
allegations against the alleged perpetrator, regarding the safety of
the children in the home if the
perpetrator was not subject to restrictive conditions regarding his
access to the children; and (3)
had already taken the action of removing the perpetrator from the home,
prior to and independently
of any request an investigator had made as part of a proposed safety
plan." (Pl. Mem., at 47 n.22.)
23 Plaintiffs insist that this is irrelevant, at least for purposes of
substantive due process
rights, because "DCFS may not constitutionally effect what would
otherwise be an unconstitutional
deprivation of one parent's rights simply by gaining the agreement
(even the voluntary agreement)
to the deprivation by the other parent." (Pl. Mem., at 42) (citing
Stanley v. Illinois, 405 U.S. 645
(1972) (state denied unwed father equal protection of the law by
declaring his children wards of the
state upon their mother's death and presuming that he was an unfit
parent without first giving him
a hearing on the issue); Wooley v. City of Baton Rouge, 211 F.3d 913,
923-24 (5th Cir. 2000)
("[w]hen a biological parent com[es] forward to participate in the
rearing of [her] child, [her] interest
in personal contact with [her] child acquires substantial protection
under the due process clause")
(internal quotations omitted)). Assuming this is true, as explained
earlier, the court concludes that
where there is evidence of a safety concern, the state's interest in
ensuring the safety of children
by imposing a temporary safety plan outweighs a parent's liberty
interest in caring for and
associating with the child, at least for a brief period.

consent search situation in which the police threaten "in good
faith" to get a warrant
to search.
(Id. at 49.)
As noted earlier, the court agrees that there is clearly an element of
choice to the safety
plan process in that Plaintiffs at all times remain free to reject a
plan. Moreover, some families may
affirmatively welcome a safety plan.22 For example, a mother who learns
that her spouse may be
sexually abusing her child may be relieved that DCFS agrees that her
husband should leave the
home pending an investigation.23 Nevertheless, we are faced here with a
situation where DCFS
investigators threatened to take away Plaintiffs' children if they
refused to accept a safety plan,
without affording any procedure for contesting that plan or its terms.
Plaintiffs claim that the threat
is found in the language of the Safety Plan Form itself, which states
that "failure to agree to the
plan or to carry out the plan may result in a reassessment of my home
and possible protective
custody and/or referral to the State's Attorney's Office for a
court order to remove my children from
my home." (Jt. Ex. 5(c), CFS 1441-A; Pl. Mem., at 50-51.) This
language may not by itself
constitute a threat of actual removal, as it merely notifies Plaintiffs
of what "may" or "possibl[y]" will
happen should a family choose to reject a plan. Indeed, the same
paragraph expressly represents
that agreement to a plan is voluntary. (Id.) See also Tullis, slip.
op., at 20 n.4. ("[k]nowing the
possible legal consequences of failing to participate in a safety plan
[i.e., having your children taken
away] does not render involuntary one['s] agreement to
participate").
More troubling, however, is the fact that most class member witnesses
testified at the
hearing that the investigator assigned to their cases did more than
just notify them of their options;
instead, the investigator affirmatively threatened to take away
Plaintiffs' children unless they agreed
to a safety plan. When an investigator expressly or implicitly conveys
that failure to accept a plan
will result in the removal of the children for more than a brief or
temporary period of time, it
constitutes a threat sufficient to deem the family's agreement
coerced, and to implicate due
process rights. Significantly, Defendant has not identified a single
family that, faced with such an
express or implied threat of protective custody, chose to reject the
plan.
As for Defendant's suggestion that the threat to remove children from
the home is
analogous to a police officer's threat to obtain a search warrant,
the court is unpersuaded. If a
criminal suspect declines to consent to a search, law enforcement
officials may well be able to
conduct a search in any event without consent, but only after obtaining
a warrant from a court. If,
however, a family declines to consent to a safety plan, DCFS can take
protective custody of their
children without first obtaining a court order. The protective custody
would then trigger court
process and a hearing within 48 hours, but the ability to take the
children first and obtain court
approval later distinguishes DCFS procedures from those in the criminal
context. Moreover,
seizure of one's children, even for 48 hours, is arguably more
intrusive than searching one's home.
Plaintiffs devote significant attention to arguing that they did not
knowingly and intelligently
waive their due process rights by signing the safety plans. (Pl. Mem.,
at 55-62.) The court
recognizes that DCFS procedures do not mandate that investigators
explain the actual
requirements for taking a child into protective custody or the
available options for contesting such
action. In addition, families faced with the choice between entering a
safety plan or losing their
children may not be capable of making an informed, rational decision,
or seek the advice of an
attorney. Nevertheless, the court need not decide whether or to what
extent this or the other
factors may also figure into the voluntariness assessment. It is
sufficient that agreement to the
plans at issue here was secured in a coercive manner under the
investigator's express or implied
threat of protective custody lasting more than a brief or temporary
period of time.
2. Process Due
Having determined that safety plans effect a constitutional deprivation
when combined with
an express or implied threat of protective custody that is more than
brief or temporary, the court
next considers what process is due to class members who sign such
plans. The parties agree that
Mathews v. Eldridge, 424 U.S. 319 (1976) guides this analysis:
Our prior decisions indicate that identification of the specific
dictates of due process
generally requires consideration of three distinct factors: first, the
private interest
that will be affected by the official action; second, the risk of an
erroneous
deprivation of such interest through the procedures used, and the
probable value,
if any, of additional or substitute procedural safeguards; and,
finally, the
government's interest, including the function involved and the fiscal
and
administrative burdens that the additional or substitute procedural
requirement
would entail.
Id. at 334-35.
It is undisputed that Plaintiffs have a "fundamental" liberty
interest in familial relations.
Troxel, 530 U.S. at 65 ("the interest of parents in the care,
custody, and control of their children .
. . is perhaps the oldest of the fundamental liberty interests
recognized by this Court"). It is also
undisputed that child safety is an important state interest. Darryl H.,
801 F.2d at 902 ("[t]he state
has an obligation to prevent loss of life and serious injury to those
members of the community to
whom it has a very special responsibility, the young"). The relevant
inquiry thus turns on the risk
of an erroneous deprivation of Plaintiffs' interest in familial
relations under existing DCFS
procedures, and the probable value of additional or substitute
procedural safeguards. Mathews,
424 U.S. at 334-35. On this issue, the balance weighs decidedly in
Plaintiffs' favor: DCFS has no
procedure whatsoever for families to contest safety plans. Defendant
insists that "each
circumstance is unique," and that "[t]he case law is clear and the
facts are overwhelmingly
illustrative of the singularity and distinctiveness of each case."
(Def. Resp., at 54.) The fact that
individual circumstances are unique does not, however, support the
conclusion that no family
members are entitled to a procedure to contest safety plans.
To be sure, some cases involving safety plans result in "indicated"
reports. Nevertheless,
the liberty interest in familial relations is so great that even a
small risk of erroneous deprivation
must be addressed in some fashion. Indeed, DCFS's own expert, Dr.
Mark Testa, agreed that the
availability of procedures to contest a safety plan would not alter the
effectiveness of the CERAP
process. (Tr. 2829-30.) Defense expert Dr. Carl Bell also opined that
if DCFS is unable to work
out an acceptable safety plan with a family because, for instance, the
investigator failed to consider
family strengths and mitigating circumstances, "there ought to be -
that family should have some
sort of a review[,] something in place so that that could be
corrected." (Tr. 2021-22.) In the court's
view, it would not be difficult for DCFS to develop a simple and
inexpensive procedure for Plaintiffs
to seek review of safety plans. To the extent DCFS is correct that
there is a degree of
voluntariness in all of the plans - and some plans are in fact entirely
voluntary - there presumably
will be no request or need for review in a large proportion of the
cases.
Neither party addresses the nature of the procedures required, and the
court declines to
fashion a remedy unilaterally. Nonetheless, the court offers the
following observations. To the
extent safety plans serve as less intrusive alternatives to protective
custody, it cannot be the case
that class members are entitled to equal or greater remedies than those
provided under the Abused
and Neglected Child Reporting Act and the Juvenile Court Act. Those
statutes require a hearing
24 Plaintiffs' suggestion, in a footnote, that DCFS should be
required to provide a
hearing before implementing a safety plan except in exigent
circumstances, is not consistent with
this opinion. Nor is the court confident that three days is an
appropriate length of time within which
to conduct a hearing. (Pl. Mem., at 87 n.30) (citing Jordan by Jordan
v. Jackson, 15 F.3d 333, 351
(4th Cir. 1994).) The Jordan court merely approved, as an "outer
limit," a 65-hour delay between
protective custody of a child and a hearing before a judicial officer.
before a judicial officer within 48 hours of the child's removal from
the home, a time frame too
restrictive for the safety plan context.24 In addition, it seems to
this court that making families wait
an entire month before giving them an opportunity to contest a plan may
be excessive. Indeed, the
August 2002 amendments (which were not in place during most of the
episodes described above)
recognize the importance of vigilantly monitoring safety plans by
requiring re-review every five
days. It is not clear that investigators are complying with this
directive, or that any such re-review
constitutes a meaningful reconsideration of a plan or its terms. (See,
e.g., I.W. case) (Tr. 2989;
PX T, at 45373-74) (no evidence that DCFS conducted any five-day
reviews of safety plan with a
stated duration of "up to 60 days.") In any event, DCFS itself
concedes that safety plans are
intended to be short-term measures, and that limitation must be
considered in determining what
constitutes a reasonable time to contest a plan. Finally, though this
case addresses only safety
plans secured by threat of protective custody, the parties should not
overlook the importance of
uniformity in the safety plan process, even when a family's agreement
to a plan is entirely
voluntary.
III. Irreparable Harm/Balancing of Harm/Public Interest
Defendant barely addresses the question of irreparable harm, arguing
primarily that
Plaintiffs are wrong to suggest that the liberty interest in familial
relations is "virtually absolute."
(Def. Resp., at 54.) In support of this argument, Defendant cites a
1987 case from the Eighth
Circuit Court of Appeals, which states that
parental liberty interest in keeping the family unit intact is not a
clearly established
right in the context of reasonable suspicion that parents may be
abusing their
children. If law enforcement personnel who have at least arguable
probable cause
to believe that adults have been molesting children are not entitled to
reasonable
belief that the adults may pose a danger to their own children, then
the law was
(and is) not clearly established on this point.
Myers v. Morris, 810 F.2d 1437, 1463 (8th Cir. 1987). The plaintiffs in
Myers had been charged
by the county attorney with criminal sexual activity involving one or
more minor children. They
alleged, among other things, that the county prosecutor, county
sheriff's deputies, and others
caused them to suffer loss of liberty and alienation of affection by
arresting the plaintiffs without
probable cause and then removing minor children from their homes on
"police holds" after the
arrests. Id. at 1444.
The quoted language above appears in the court's discussion of
whether the sheriff's
deputies were entitled to qualified immunity from suit. The plaintiffs
challenged "the summary
removal of children before attempts were made to substantiate
incriminating statements of other
children through normal investigative techniques." Id. at 1462. The
sheriff's deputies were entitled
to qualified immunity on such claims if there was a "legitimate
question" as to the legality of
summarily separating children from parents who had been accused of
criminal acts towards others.
Id. The court found there was such a legitimate question given that
"other children had described
abuse by the arrested persons upon their own children." Id. at 1463.
Thus, the sheriff's deputies
were qualifiedly immune from further litigation. Id.
The court does not see how Myers is instructive in assessing the
balance of hardships
between the parties. Plaintiffs have presented ample evidence that they
suffered emotional and
psychological injury as a result of safety plans lasting for more than
a brief or temporary period of
time. (Pl. Mem., at 62-77.) The court recognizes the importance of the
state's interest in protecting
children from harm, but concludes that this interest does not outweigh
the irreparable harm (1) to
individuals whose lives are disrupted by safety plans which require
family members to live outside
the home or which restrict contact between family members for an
indefinite or unstated duration;
and (2) to individuals who, under an express or implied threat of
protective custody, sign safety
plans lasting more than a brief or temporary period of time, but have
no available means of
contesting those plans.
IV. Mandatory or Prohibitory Injunction
Plaintiffs argue that the court should enter an injunction prohibiting
DCFS from
implementing safety plans that violate their constitutional rights,
"not one that imposes or directs
defendant to erect a new administrative scheme for putting safety plans
into effect, or permitting
class members to contest them." (Pl. Mem., at 85) (citing Association
of Community Organizations
for Reform Now v. Edgar, 56 F.3d 791, 798 (7th Cir. 1995)) (affirming
injunction requiring state to
comply with "motor voter" law, but finding "no occasion for the
entry of a complicated decree that
treats the state as an outlaw and requires it to do even more than the
'motor voter' law requires").
In Plaintiffs' view, "neither DCFS (nor the state courts, for that
matter) need devise or erect any new
remedial structures in order to ensure the provision of such
protections: the protections are already
in the Juvenile Court Act, and class members may avail themselves of
these protections in ordinary
course." (Pl. Mem., at 86.) Defendant makes no response to this
argument.
The court nevertheless disagrees with Plaintiffs' contention that the
appropriate remedy
here is simply to enjoin safety plans and mandate compliance with the
procedures available under
the Juvenile Court Act. The JCA provides for court review only when a
child is taken into protective
custody, not when DCFS implements a safety plan, and as explained
earlier, the court does not
believe that all safety plans trigger constitutional concerns as a
matter of course. Nevertheless,
Plaintiffs are entitled to some opportunity to review restrictions
placed on their contacts with their
children. Further, the court notes its belief that persons subject to
safety plans are entitled to
immediate notice of the basis on which the investigator has determined
such a plan is necessary,
as well as notice of the expected duration of such a plan and an
explanation of the process and
schedule for seeking review of restrictions imposed by the plan. As for
what those procedures
should entail, the court, having found a constitutional violation in
this case, now defers to DCFS to
fashion an appropriate remedy consistent with this opinion. See Massey
v. Helman, 35 F. Supp.
2d 1110, 1115 (C.D. Ill. 1999) (citing Bush v. Lucas, 462 U.S. 367
(1983)) ("the [Supreme] Court
has deferred to the legislature to fashion appropriate remedies for
constitutional violations"). The
court suggests that in developing these procedures, DCFS consider
whether the procedures
adopted for child care workers in Dupuy I may be altered or enhanced to
address the safety plans
at issue here. See Dupuy v. McDonald, No. 97 C 4199, 2003 WL 21557911
(N.D. Ill. July 10,
2003). DCFS is also invited to explain the degree to which the 2002
amendments may address
concerns raised by this opinion.
CONCLUSION
For the reasons stated above, Plaintiffs' motion for a preliminary
injunction (Doc. Nos. 488-
1, 488-2) is granted in part and denied in part. The court agrees that
Plaintiffs are entitled to
injunctive relief, but declines to categorically enjoin safety plans.
DCFS has sixty (60) days to
develop constitutionally adequate procedures consistent with this
opinion.
ENTER: Dated: March 9, 2005 REBECCA R. PALLMEYER United States
District Judge



--
"Democracy is two wolves and a lamb voting on what
to have for lunch. Liberty is a well armed lamb
contesting the vote." - Benjamin Franklin
  #4  
Old May 5th 06, 06:08 PM posted to alt.support.child-protective-services,alt.parenting.spanking
external usenet poster
 
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Default We don need no steenkin' CPS.

I love seeing Kane trying to ridicule a Federal Judges ruling!

Please be more specific Kane!

  #5  
Old May 5th 06, 06:32 PM posted to alt.support.child-protective-services,alt.parenting.spanking
external usenet poster
 
Posts: n/a
Default We don need no steenkin' CPS.

In response to a Federal Judges RULING
Kane wrote
... without closely reading this case and the
judges opinion. And once again not applying
logic to a case and the opinions.

Much of this is a joke. A long rambling
political manifesto rather than a thoughtful ruling.

How many other judges would take this seriously?


It's funny you should mention that, because when
this judge went to apply an order for Federal Court
supervision regarding the abuses, she found that
another Federal judge had ALREADY put the agency
under one ten years before, which the agency
basically ignored.

Neither Judge knew about the other's findings
until then.

You love it, of course, just like you and others
here have done in the past with this and
other cases where you THINK this has great
meaning that it indeed does not.


PLEASE keep thinking that!

You cherry pick, even leaving out the context
that relates to a statement. Very sad, and
very much the tactics of liars.


I posted what I got, the only editing I did was
to remove page numbers.

It's a public document, please feel free to
post the entirety!

I presume this is in rebuttal to my subject
line, and not the case of the rat bitten infant.


Can you find a rat bite case newer than 2 years old?

Otherwise I would chalk it up to revealing the
real RATS, who fraud up cases for CPS.

So please show us where anything in this
decision below indicates we do not need
CPS. Thanks.


Busybodies hysterically turning loose their
fertive and perverted imaginations as if they
are professional anythings?

All to enforce prosecution of non-crimes?

Who needs that?

Certainly not the kids.

Did it help the Dupuy kids?
The Wallis kids?
Shelby Duis?
Rilya Wilson?

  #6  
Old May 5th 06, 07:50 PM posted to alt.support.child-protective-services,alt.parenting.spanking
external usenet poster
 
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Default We don need no steenkin' CPS.

Greegor wrote:
In response to a Federal Judges RULING
Kane wrote
... without closely reading this case and the
judges opinion. And once again not applying
logic to a case and the opinions.

Much of this is a joke. A long rambling
political manifesto rather than a thoughtful ruling.

How many other judges would take this seriously?


It's funny you should mention that, because when
this judge went to apply an order for Federal Court
supervision regarding the abuses, she found that
another Federal judge had ALREADY put the agency
under one ten years before, which the agency
basically ignored.

Neither Judge knew about the other's findings
until then.


Which would devastate my argument if it actually answered my question.

You love it, of course, just like you and others
here have done in the past with this and
other cases where you THINK this has great
meaning that it indeed does not.


PLEASE keep thinking that!


No, I'll think what I believe to be the facts. Thanks.

You cherry pick, even leaving out the context
that relates to a statement. Very sad, and
very much the tactics of liars.


I posted what I got, the only editing I did was
to remove page numbers.


Yep. You couldn't figure out I was referring to past instances?

Odd.

It's a public document, please feel free to
post the entirety!


The one you posted is fine.

I presume this is in rebuttal to my subject
line, and not the case of the rat bitten infant.


Can you find a rat bite case newer than 2 years old?


Mmm...that one was.

How much more recent are you looking for?

"Thursday, May 4, 2006 - Page updated at 12:00 AM

E-mail article Print view

Rat bites 6-month-old 100-200 times

By The Associated Press"

Otherwise I would chalk it up to revealing the
real RATS, who fraud up cases for CPS.


Rather than deal with the issue in the article you posted a shot at CPS.

Why is that, greegor?

In fact, why do you do that so often?

It makes it appear as though you don't care about the children, and in
this case, the rat bitten child. Have you any idea how dangerous rat
bites are?

ONE bite is enough. Even having a wild caught rat in proximity to
children (or adults) is dangerous. Heard of the "Hantavirus?" Just read
of yet another death from it recently. Nasty way to die too.

http://tinyurl.com/h57qj

So please show us where anything in this
decision below indicates we do not need
CPS. Thanks.


Busybodies hysterically turning loose their
fertive and perverted imaginations as if they
are professional anythings?


The request was to SHOW, not talk about. Cite a portion of the decision
you posted to SHOW us it indicates we do not have a need for CPS.

Or tell us that is NOT why you posted the decision. Either way would be
a service. Time you started paying your way here for all the indulgence
we give you.

All to enforce prosecution of non-crimes?


What non-crimes would that be?

The ones found only after a court case to not be prosecutable?

If we did not prosecute unless we already KNEW a crime had been
committed we would never investigate a crime.

Would you like that? Just waiting for the day?

Who needs that?

Certainly not the kids.


Certainly you are wrong.

Did it help the Dupuy kids?
The Wallis kids?
Shelby Duis?
Rilya Wilson?


Now give us the list of children that have been helped by CPS and court
intervention.

You cannot of course, because they have privacy that protects their
names, but you know, as well as anyone, that in fact the list is
considerably longer.

Hundreds of thousands per year.

Nice chatting with you.

Now getting back to the article I posted: do you approve of a family
bringing a wild caught rat into the home to sleep in the same room with
the baby and failing to secure it so that it got out and bit the child
over a hundred times?

Should they NOT subject to legal interventions?

If not, why not?

You may wish to discuss these other things instead, and I'd be happy to
in another thread, as I have many times in the past (you ARE a redundant
little puppy aren't you now?) but I posted THIS article and expect THIS
article to be discussed. If you do not wish to, fine.

Others might.

Or you can answer the question above.

You'll note I try to answer every question of yours, yet you, in your
unethical and immoral way refuse to answer so very many of mine. Even
ones that are not the least personal.

0:-
--
"Democracy is two wolves and a lamb voting on what
to have for lunch. Liberty is a well armed lamb
contesting the vote." - Benjamin Franklin
  #7  
Old May 5th 06, 11:11 PM posted to alt.support.child-protective-services,alt.parenting.spanking
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Default We don need no steenkin' CPS.



0:- wrote to Greegor:

Rather than deal with the issue in the article you posted a shot at CPS.

Why is that, greegor?

In fact, why do you do that so often?


I'm hoping Greegor answer this question. I've wondered this so many
times. Whenever a child is hurt or placed in a dangerous situation, it
appears to be Greegor's opportunity to post a shot at CPS.

It makes it appear as though you don't care about the children, and in
this case, the rat bitten child. Have you any idea how dangerous rat
bites are?


Perhaps he really doesn't care about children. I'm coming to this
conclusion. No matter the situation or the surrounding circumstances,
Greegor seems to think that children deserve what they get at the hands
of their parents, regardless of how flawed, inadequate, or dangerous
that parenting may be.

ONE bite is enough. Even having a wild caught rat in proximity to
children (or adults) is dangerous. Heard of the "Hantavirus?" Just read
of yet another death from it recently. Nasty way to die too.


This isn't true only of rats. It's true of all wild animals. Wild
animals are not pets. Wild animals can be dangerous, can carry rabies
and a variety of other potentially fatal diseases. The fact that a
parent would expose a child to potential death by adopting a wild animal
is negligent.

Rats and mice make great pets. Go to a reputable pet store and purchase
one. They are inexpensive. Get a certificate from a vet that proves
the animal is healthy at the time of purchase or adoption.

LaVonne

http://tinyurl.com/h57qj

So please show us where anything in this
decision below indicates we do not need
CPS. Thanks.



Busybodies hysterically turning loose their
fertive and perverted imaginations as if they
are professional anythings?



The request was to SHOW, not talk about. Cite a portion of the decision
you posted to SHOW us it indicates we do not have a need for CPS.

Or tell us that is NOT why you posted the decision. Either way would be
a service. Time you started paying your way here for all the indulgence
we give you.

All to enforce prosecution of non-crimes?



What non-crimes would that be?

The ones found only after a court case to not be prosecutable?

If we did not prosecute unless we already KNEW a crime had been
committed we would never investigate a crime.

Would you like that? Just waiting for the day?

Who needs that?

Certainly not the kids.



Certainly you are wrong.


Did it help the Dupuy kids?
The Wallis kids?
Shelby Duis?
Rilya Wilson?



Now give us the list of children that have been helped by CPS and court
intervention.

You cannot of course, because they have privacy that protects their
names, but you know, as well as anyone, that in fact the list is
considerably longer.

Hundreds of thousands per year.

Nice chatting with you.

Now getting back to the article I posted: do you approve of a family
bringing a wild caught rat into the home to sleep in the same room with
the baby and failing to secure it so that it got out and bit the child
over a hundred times?

Should they NOT subject to legal interventions?

If not, why not?

You may wish to discuss these other things instead, and I'd be happy to
in another thread, as I have many times in the past (you ARE a redundant
little puppy aren't you now?) but I posted THIS article and expect THIS
article to be discussed. If you do not wish to, fine.

Others might.

Or you can answer the question above.

You'll note I try to answer every question of yours, yet you, in your
unethical and immoral way refuse to answer so very many of mine. Even
ones that are not the least personal.

0:-


  #8  
Old May 6th 06, 01:15 AM posted to alt.support.child-protective-services,alt.parenting.spanking
external usenet poster
 
Posts: n/a
Default We don need no steenkin' CPS.

LaVonne, Are you a Socialist?

  #9  
Old May 6th 06, 02:30 AM posted to alt.support.child-protective-services,alt.parenting.spanking
external usenet poster
 
Posts: n/a
Default We don need no steenkin' CPS.

LaVonne said
Whenever a child is hurt or placed in a dangerous
situation, it appears to be Greegor's opportunity
to post a shot at CPS.


As opposed to your posting of something
about abuse which isn't a shot at parents, right?

  #10  
Old May 6th 06, 03:17 AM posted to alt.support.child-protective-services,alt.parenting.spanking
external usenet poster
 
Posts: n/a
Default We don need no steenkin' CPS.

Greegor wrote:
LaVonne, Are you a Socialist?


Greegor, are you a whore?




--
"Democracy is two wolves and a lamb voting on what
to have for lunch. Liberty is a well armed lamb
contesting the vote." - Benjamin Franklin
 




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