Presentation on theme: "T HE F AMILY D EFENSE C ENTER C OORDINATOR OF I LLINOIS PARENT ATTORNEY NETWORK OUR MISSION: WE ADVOCATE JUSTICE FOR FAMILIES IN THE CHILD WELFARE SYSTEM."— Presentation transcript:
T HE F AMILY D EFENSE C ENTER C OORDINATOR OF I LLINOIS PARENT ATTORNEY NETWORK OUR MISSION: WE ADVOCATE JUSTICE FOR FAMILIES IN THE CHILD WELFARE SYSTEM To Protect Children, Defend Families
FDC’s Overall Goals Long term program goals—Help families; change policies and practices; prevent unwarranted removals of children and blacklisting of professionals; Limit child protection intervention to children truly endangered by their parents or caregivers and enable good caring parents and professionals to carry on their lives with minimal intrusion by the child welfare system. Conform the system to due process requirements Mothers’ Defense Project: goal of changing gender- biased policies and practices that impair mothers’ ability to raise their children
Goals for Today’s Training Provide background and context to the DCFS child protection/investigations system and the expungement appeal process Enable you to provide adequate to excellent representation for a parent or child care professional in a DCFS expungement hearing Provide legal background (constitutional, statutory and rule/policy) regarding DCFS decisionmaking in protective custody and other investigative actions
OUR FOCUS: CHILD PROTECTION INVESTIGATIONS CHILD PROTECTION INVESTIGATIONS are the “front end” of the child welfare system During investigations, CRITICAL DECISIONS are made: (A) Is the child safe? (a “no” decision leads to safety plans and possible juvenile court) (B) Is the accused person “guilty” (“indicated”)?
It is horrible to be falsely-accused of the worst thing in the world: child abuse The stigma of an accusation doesn’t go away, even with exoneration Parents who go through the child protection system bear irreparable scars—and so do their children Parents who have been falsely-accused lose faith in the legal system if they cannot access a fair hearing
The lawyer’s role: The best remedy for a wrongful accusation and the threats of family dissolution or wrongful blacklisting is effective legal counsel Families often want to hold the State’s child protection system accountable Effective advocacy during an investigation can minimize the impact of a subsequent juvenile court case, or avoid a court case altogether
CHILD PROTECTION INVESTIGATIONS: THE PICTURE NATIONALLY An epidemic of child abuse reporting! 6,000,000 ALLEGED VICTIMS in 2009 BUT, few than 700,000 of those cases were substantiated or indicated under a variety of standards At least 75% of all cases allege neglect, not abuse The public image of the “epidemic” of child abuse is AT ODDS with the REAL STATISTICS:
THE UNTOLD STORY For every 100 children reported to be the victim of maltreatment, only 1-2 are actually the victim of serious physical or sexual abuse. Many children and families are the victims of false reporting and those scars can last permanently too! According to case records compiled in Dupuy v. Samuels: Of the people who appealed the investigators’ “indicated” findings of abuse or neglect, 74.5% were cleared of wrongdoing after a neutral hearing—an expungement rate the federal court called “staggering.”
THE ILLINOIS CHILD WELFARE SYSTEM— HOW IT STARTS Illinois DCFS receives over 250,000 Hotline calls per year (258,000 in 2011); 101,000 children were subjects of these calls. In 2011, 28,000 children were found to be subjects of an “indicated” report of abuse/neglect. HOW MANY CHILDREN ARE REALLY VICTIMS OF ABUSE/NEGLECT, and HOW MANY ARE ACTUALLY VICTIMS OF FALSE REPORTING/FALSE FINDINGS?
THE HOTLINE: OVERUSED, UNDERUSED OR BOTH? In 1974, child abuse reporting became a national requirement under CAPTA/Mondale Act (note the political spin on the reference to the Act). Since 1974, every state has adopted child abuse reporting procedures but the specifics of what is subject to reporting and how determinations of abuse are made differ dramatically from state to state Illinois is at the forefront of procedural reform to insure a fairer system of determination, thanks to Dupuy v. Samuels (FDC case).
WHAT IS THE “HOTLINE” A DATABASE A CHILD ABUSE REGISTER (WHERE INDICATED REPORTS ARE MARKED) AN OFFICE IN SPRINGFIELD A PHONE NUMBER (1- 800-25-ABUSE) AN EMPLOYMENT BLACKLIST (CANTS/LICENSING CHECKS) THE START OF INVESTIGATIONS AND SERVICE CASES THE PRIMARY SCREENING/TRIAGE SYSTEM
DESPITE MAJOR IMPROVEMENTS OVER-REPORTING Mandated reporters are taught to report questionable cases Just about every professional except for attorneys are “mandated reporters” “When in doubt” reporting is one cause of system overload Anonymous and biased reports are allowed Penalties for false reporting don’t work: Cook County reports no prosecutions and getting a prosecution is just about impossible. RESULT: The system still encourages “indicated findings” even in cases where the Hotline caller knows the case to be weak.
SCREENING OF HOTLINE CALLS DCFS RUNS THE HOTLINE FROM SPRINGFIELD MINIMAL SCREENING: Is there a child? Is there something alleged? Does what is alleged fit within one of DCFS’ “Allegations of Harm?” IF SO, CASE IS SENT TO “THE FIELD”
WHO IS “THE FIELD”? MANDATE WORKER— Must see the child (or make a good faith attempt to do so) within 24 hours of the Hotline call ASSIGNED CPI/DCP INVESTIGATOR SUPERVISOR AREA ADMINISTRATOR (New position— combination of Child Protection Manager and Assistant Regional Administrator positions) NOTE: MAY HAVE PARALLEL WORKERS
WHO IS “THE FIELD” DCFS investigators are required to have a B.A. and two years of some social service experience Not trained as judges Given sweeping powers to tear families apart or leave them alone, and to adjudicate guilt or innocence Training is not adequate for the job—about 50 hours to get started (and Illinois is better than many states!)
THE LEGAL FRAMEWORK DCFS OPERATES UNDER ENUMERATED STATUTORY POWERS: 1. The Abused and Neglected Child Reporting Act (ANCRA, 325 ILCS 5/1 et seq.) This is the primary Act governing investigations and “indicated” findings 2. The Children and Family Services Act (20 ILCS 505/1 et seq.) This is the Act that creates DCFS and sets forth the Department’s service delivery and foster care responsibilities. 3. The Juvenile Court Act (705 ILCS 405/1 et seq.) This Act determines custody/parental rights in abuse/neglect cases that actually go to court.
A Tour of DCFS’ Rules and Procedures Primary Rules and Procedures (promulgated pursuant to ANCRA): Rule and Procedure 300 Investigations, generally Rule and Procedure 300, Appendix B Specific “Allegations of Harm” Rule 336 Appeals process How they are organized: Rules are codified in the Illinois Administrative Code. Each Rule has a corresponding Procedure—same numbering! http://www.state.il.us/dcfs/policy/index.shtml
Three Types of ALLEGATIONS DCFS Categorizes each accusation into one of their pre-defined “Allegations of Harm” Each Allegation fits into one of the following general categories: 1. Abuse ONLY 2. Neglect ONLY 3. Abuse OR Neglect For a full list of the different “Allegations of Harm,” see Appendix D of the Training Manual.
Abuse ONLY E xamples: “Tying/Close Confinement” “Sexual Molestation” “Sexual Exploitation” “Substantial Risk of Sexual Injury” “Abuse only” allegations are all coded by a single number under 30. E.g., “Tying/Close Confinement” is Allegation #14
Neglect ONLY Examples: “Inadequate Supervision” “Medical Neglect” “Inadequate Food” “Inadequate Shelter” “Neglect only” allegations are all coded by a single number over 30. E.g., “Inadequate Supervision” is Allegation #74
Either Abuse OR Neglect Examples: “Bone Fractures” “Human Bites” “Cuts, Bruises, Welts, Abrasions and Oral Injuries” “Substantial Risk of Physical Injury / Environment Injurious to Health and Welfare” These allegations will be coded with two numbers: one under 30 AND one over 30 E.g., “Bone Fractures” is Allegation #9/59 If the appellant is accused of causing the bone fracture by ABUSE (i.e., “direct action”), it is Allegation #9 If the appellant is accused of causing the bone fracture by NEGLECT (i.e., “blatant disregard”), it is Allegation #59
A person cannot be accused of both abuse and neglect Occasionally, DCFS will allege that an appellant committed both abuse and neglect in the same incident Logically, both are not possible. Often, there is a real incident that occurred, but is it abuse? Is it neglect? Or is it an excusable accident? A child’s medical condition? Or the fault of someone else?
Special Circumstance: Allegation #60, “Environment Injurious” Julie Q. v. DCFS IL Appellate Court (2d Dist) held that “Environment Injurious” is VOID AS A MATTER OF LAW Now pending with the Illinois Supreme Court! “Environment Injurious” is the “neglect” allegation that corresponds with “substantial risk” Language had been affirmatively removed from ANCRA in 1980 In 2000, DCFS promulgated a Rule purporting to authorize Departmental action based on an “environment injurious”—has since become DCFS’s most ubiquitous allegation. In 2011, Appellate Court ruled the allegation to be LEGALLY VOID
New Legislative Language Pub Act 97-803 (eff. 7-13-12) 2012 legislative session: S.B. 2489 seeks to reinsert “environment injurious” within ANCRA’s definition of “neglected child” Coalition of agencies was successful in ensuring that the final bill included language creating legal thresholds for identifying an “environment injurious” Must be a likelihood of harm Must be due to blatant disregard of caretaking responsibilities DCFS still operating under the old definition as it appeared in the administrative rule prior to Julie Q. and new legislation
INITIAL NOTICES Given at the beginning of investigation Amended after Dupuy litigation—now includes a lengthy notice of rights Explains who is a Child Care Worker Explains right to present evidence Explains the right to appeal an indicated finding Provides the nature of the allegation Ends the misleading idea that it is “confidential” KEY NOTICE IS CANTS 8 RIGHTS IN INVESTIGATION
DUPUY RIGHTS Right to PRE-DEPRIVATION process: Administrator’s Conference The right to Dupuy processes must be made during the investigation, or the pre-deprivation process will NOT be provided FDC has been pressing for “automatic” qualification in which Dupuy status is obvious Clarification points for Dupuy qualification: 15-hour threshold For school teachers, tenure is preclusive (union membership is NOT) Personal capacity cases Career entrant DCFS CLAIMS TO LIBERALLY ALLOW QUALIFICATION
Each “Allegation of Harm” has its own definition within DCFS’ Rules and Procedures 300, Appendix B The definition sets forth all of the required investigative steps—the Procedures are particularly specific At a bare minimum: An investigator “shall have direct, in-person contact with the alleged child victim, the alleged perpetrator, and the child’s caretaker.” DCFS Rule 300.110(c). Commonly missed steps: Collateral contacts Observation of the location where the alleged incident occurred Re-enactment of the alleged incident 28 Required Investigative Contacts
60 days for investigations, from the date of the Hotline call to a final finding. BUT, indefinite 30-day extensions for "good cause" are allowed. Approval for extensions is necessary, but routinely granted. 29 Time Limits for the Investigation
MEDICAL INVESTIGATIONS Circumstances in which medical opinions become central to the case: Injury of unknown origin Child abuse doctor claims the caretaker’s explanation is “inconsistent” or “implausible” DCFS Procedures contain specific requirements that the investigator: Discuss the allegations with the child’s primary pediatrician Credit the doctor with the most relevant specialization Seek an MPEEC opinion (or other second/third opinion) only in limited circumstances
DCFS PROCEDURE ON 2 ND OPINIONS A SECOND OPINION IS NEEDED WHEN: The treating physicians are unwilling or unable to provide an opinion as to causation, OR There is a conflicting opinion among the treating physicians, OR The investigator is unable to make a “well-supported” finding after staffing the case Immediate assignment of MPEEC is not required or contemplated by the investigation procedures.
ISSUES IN MEDICAL INVESTIGATIONS DCFS “goes with MPEEC” to the point of ignoring contrary prevailing medical opinion Child abuse pediatricians and DCFS fault the caretaker for not having an explanation for an unexplained, unobserved, or unwitnessed injury—absence of knowledge is equated with abuse Excellent parents find themselves indicated as perpetrators based solely on conjecture FDC federal lawsuit for Laura Timmel (Timmel v. Griffin et al.) exemplifies DCFS overreliance on MPEEC, to the point that court orders are ignored
SAFETY DECISIONS MADE DURING INVESTIGATIONS: CERAP, Safety Plans, and Protective Custody Child Endangerment Risk Assessment Protocol What is it? When is it required? How does CERAP relate to the final investigative outcome? Answer: IT DOESN’T What is CERAP used for?
LEGAL ISSUES WITH CERAP How valid is a CERAP Safety Decision? It is allegation-based, and NOT evidence-based Allegations (no matter the veracity or credibility) become automatic “Safety Factors” Theoretically, “Safety Factors” can be mitigated, but DCFS often ignores mitigation/strengths Bottom Line: a single allegation without any supporting evidence can be the basis for DCFS demanding a “Safety Plan” RECOMMENDED READING: DUPUY II OPINIONS
SAFETY PLANS—NO DUE PROCESS What is a Safety Plan? Restrictions placed on a parent’s contact with her own children Demanded whenever a CERAP results in a Safety Decision of UNSAFE Mandatory/imposed, but DCFS claims it is “voluntary” When is a Safety Plan legally/actually voluntary? Rights under Safety Plans (according to DCFS’s own policies): “Least Intrusive” as possible Reviewed/updated on a regular basis Definite time limit Strategies for combatting Safety Plans Sign only “under duress” Litigate: Hernandez v. Foster, S.G. v. Corona
PROTECTIVE CUSTODY Our definition is not necessarily the same as DCFS’s definition OUR DEFINITION: Any seizure of the child; any taking without consent of the custodial parent DCFS DEFINITION: Formal legal status implemented when DCFS “ready” to go to court—often, there is no actual removal of the children at the time of DCFS-identified “protective custody”
LEGAL DEFINITIONS OF PC ABUSED AND NEGLECTED CHILD REPORTING ACT, 325 ILCS 5/5: Removing/retaining the child without parental consent when (1) there is reason to believe the child cannot be cared for by the parent without endangering the child’s health or safety AND (2) there is not time to apply for a court order DUE PROCESS CLAUSE: Hernandez v. Foster, 657 F.3d 463 (7th Cir. 2011): in order to take PC, the State needs PROBABLE CAUSE and EXIGENT CIRCUMSTANCES JUVENILE COURT ACT, 705 ILCS 405/2-9: PROCEDURE: If the case is not brought before a judicial officer within 48 hours, the minor must be released from temporary protective custody
INDICATED Credible evidence of abuse or neglect UNFOUNDED No credible evidence exists INDICATED TO UNKNOWN PERPETRATOR Credible evidence exists, but not enough evidence to indicate specific person UNDETERMINED Not possible to complete investigation on the basis of available information 38 Investigative Outcomes
DCFS tends to claim that they aren’t assessing guilt or innocence, when that is, in fact, precisely what investigators do! Minimization
INDICATED: Evidentiary Requirements ANCRA: investigation determines that credible evidence exists Rule 300: credible evidence exists when the available facts, when viewed in light of surrounding circumstances, would cause a reasonable person to believe that a child was abused or neglected. Dupuy : declines imposing a “preponderance of the evidence” standard, BUT imposes a “heightened credible evidence” standard (investigators MUST give consideration to exculpatory evidence) RULE/STATUTE DUE PROCESS
BURDENS OF PROOF VARY Kansas: clear and convincing evidence Michigan: preponderance of the evidence Illinois: heightened credible evidence (as ordered by the federal court in Dupuy) Massachusetts: reason to believe RESULT: there are many fewer indicated findings in Kansas than in Massachusetts
What Does an “Indicated” Finding Mean? The accused person’s name is placed on the State Central Register as a perpetrator of child abuse or neglect The SCR is a semi-private database The registration of the name occurs BEFORE any opportunity to have all of the evidence reviewed by a neutral decision-maker A particularly horrific impact for persons who work in fields that require a clear DCFS background check.
Not So Fast! Dupuy Class Members If flagged as Dupuy, investigation cannot close until: Class member provided with Notice of Intent to Indicate Administrator’s Conference occurs Administrator’s Conference By telephone, not a hearing (i.e., no testimony) Non-involved Area or Regional Administrator Investigative Summary Opportunity to: Provide additional evidence Explain why the available evidence does not sustain an indicated finding
Registry and Retention Schedules Mandatory 50 years Examples: Death Sexual Penetration Mandatory 20 years Examples: Sexual Exploitation Sexual Molestation Failure to Thrive
Registry and Retention Schedules Mandatory 5 years Examples: All neglect-only allegations (Inadequate supervision, food, clothing, shelter, etc.) Either 5 or 20 years (investigator decides) Examples: Bone Fractures Cuts, Bruises, Welts Human Bites Factors to consider: 1. Extent of injuries 2. Long-term effects of injuries 3. Medical treatment required 4. Pattern of injuries
Final Finding Notice By regular mail Dupuy III Current notices still unclear and confusing Six years post-settlement, DCFS has yet to include the rationale for indicating
Governing Statute and Rule Section 7.16 of ANCRA “the subject shall have the right to a hearing within the Department to determine whether the record of the report should be amended or removed on the grounds that it is inaccurate …” 325 ILCS 5/7.16 DCFS Rule 336 Appeal of Child Abuse and Neglect Investigation Findings At the hearing, the Department carries the burden of proof, by a preponderance of the evidence!
Initiating the Appeal Upon receiving the indicated finding notice, a request for an appeal must be filed within 60 days. An attorney acting on behalf of a client files two documents (by fax/mail to DCFS Administrative Hearings Unit in Springfield): Written Request for an Appeal Must include SCR number and the full name of the Appellant. Authorization and Appearance Must include the client’s notarized signature An indicated finding attributed to an unknown perpetrator cannot be appealed.
HEARINGS: TIME LIMITS FOR DCFS 35 DAYS FROM DATE OF APPEAL FOR EXPEDITED CASES (CHILD CARE WORKERS) 90 DAYS FROM THE DATE OF APPEAL FOR EVERYONE ELSE
Response to the Appeal Request What happens after the request is sent to DCFS? DCFS will send two pieces of certified mail: 1. Notice of telephone pre-hearing 2. Investigative File How long will this take? Rule 336 requires the Department to send these documents within 20 days of the request. In practice, the pre-hearing notice arrives within 2-3 weeks, and the file arrives shortly before the date of the pre-hearing.
Pre-hearing Teleconference Administrative Law Judge initiates the call Some variance among ALJs, but pretty quick unless there are unusual issues Verification of the Allegations at issue Inquiry as to other related cases—will trigger a STAY Good idea to have a fair idea of witnesses and exhibits Standard motions: Telephone testimony Interpreters ALJ will likely advise parties to exchange witness/exhibit lists and any exhibits that will be used at hearing Primary purpose is to set the hearing date
When Scheduling the Hearing Date: REMEMBER LYON!!! Lyon requires DCFS to expunge cases if not decided within 90 days of the appeal. This is very strict!!! Some actions will stop the 90-day clock Appellant requests continuance Appellant agrees to continuance Bottom line: When it comes to scheduling the hearing: Don’t offer a hearing date yourself If asked whether you “agree” to a date offered by the ALJ, state you ACCEPT the ALJ’s offered date
Eligible Perpetrator DCFS has the authority to “indicate” a person only if that person has a special relationship to the child. This includes: Parents or other immediate family members Household members Someone who is otherwise responsible for the child
Definition of Person Responsible must be in a Caretaking Role
Children Testifying For children under age 14, the burden is on the requesting party to show: Essential witness No other way to obtain the information No likelihood of emotional harm due to testifying Alternatives: Stipulation Written statement
Preclusion Warranting Dismissal Circuit court finding that an alleged perpetrator abused or neglected a child. Warranting Expungement as a Matter of Law Circuit court judgment that alleged incident did not constitute abuse or neglect (res judicata) e.g., No fault dependency cases Note: If the State filed a petition for no fault dependency in circuit court, you might also be able to argue for expunction based on judicial estoppel.
Where to Start …. Prior to the pre-hearing teleconference, you should: Read through DCFS’ investigative file Snapshot of DCFS’ case Provided after the client has requested an appeal Review DCFS’ definition of the allegation in its Rules and Procedures Meet with the client File appearance Begin putting together Witness-Exhibit List
Preparing a Case The DCFS Investigative File Read carefully Take notes! Components Narrative of the hotline call Rationale for indicating (or unfounding) Safety assessments Contact Notes Supervisory Notes Miscellaneous documents
Witnesses Main examinations you should focus on: Appellant (the client!) DCFS Investigator In preparing the Investigators’ cross-examination, use the DCFS file and DCFS’ own definition of the allegation to look for gaps, mistakes, and inconsistencies. Think about affirmative witnesses: Doctors Occurrence witnesses Character witnesses Subpoenas Send in request that they be issued no later than 15 days prior to the hearing!
Case Example #1: JANET V. FACTS Client works in a youth service agency. Went out with boyfriend (also a youth services worker) for dinner. Her child, age 2 ½, was asleep on their return and put to bed next to mom. Boyfriend slept over. In the morning, child has a tantrum as mom tries to go to bathroom and when she comes back and sees child in light, he has a black eye and some scratches. She asks mom and brother for info—they report nothing. Takes child to hospital. The DCFS Allegation: #11 Cuts, welts, bruises, abrasions, oral injuries (“factored”)
Janet V. continued Hospital called the DCFS Hotline PROBLEMATIC AREA: Hospital role as treater, caller/complainant, investigator, and MPEEC evaluator Pending FDC ethics complaint in another case with similar dynamics DCFS investigation results in an indicated finding for Cuts, Welts, Bruises, Abrasions and Oral Injuries by ABUSE
Janet V. – Issues from the case DCFS ignored client’s assertion of her Dupuy rights Lack of a full and fair investigation Deprived of expedited Dupuy processes despite request Initially, a criminal case (charges eventually dropped) caused the case to be on a STAY OUTCOME? Denial of Dupuy pre-deprivation process, and then a delay in the hearing
Case Example #2: ANTHONY P. FACTS: Client is the Mexican “common law husband” of the mother of the 15-year-old child (though the couple is estranged and living apart). 15-year-old has had ongoing sexual relations with her 18-year-old boyfriend. After the mother kicks her daughter out of the house during the winter, the 15-year-old went to her step-father, Anthony, for shelter. At some point, the 15-year-old is severely beaten by her 18-yr-old boyfriend, triggering a call to the DCFS Hotline. DCFS SEXUAL ABUSE ALLEGATIONS OUTCOME
Anthony P. continued DCFS INDICATES the boyfriend AND ANTHONY! THE CHARGE AGAINST ANTHONY: Allegation #19: Sexual Penetration Procedure allows this allegation when there is: “The failure of the parent, caregiver, immediate family member, other person residing in the home... to make reasonable efforts to stop an action by another person which resulted in sexual penetration.”
Sexual Exploitation (#20) Sexual exploitation is the use of a child for sexual arousal, gratification, advantage, or profit. This includes but is not limited to: Indecent solicitation of a child/explicit verbal enticement; Child pornography; Intentionally exposing a child to sexually explicit material in any form; Exposing sexual organs to a child for the purpose of sexual arousal or gratification; Forcing the child to watch sexual acts; Self-masturbation in the child's presence; Other behavior by an eligible perpetrator that, when considered in the context of the circumstances, would lead a reasonable person to conclude that sexual exploitation of a child has occurred. NOTE: Sexual penetration and molestation are excluded from this allegation. They are listed as separate allegations.
Sexual Molestation (#21) Sexual molestation is sexual conduct with a child when the contact, touching or interaction is used for arousal or gratification of sexual needs or desires. Examples include, but are not limited to: Fondling; The alleged perpetrator inappropriately touching or pinching parts of the child's body generally associated with sexual activity; Encouraging, forcing, or permitting the child to touch parts of the alleged perpetrator's body normally associated with sexual activity; The alleged perpetrator inappropriately touching or pinching parts of the child's body generally associated with sexual activity; Encouraging, forcing, or permitting the child to touch parts of the alleged perpetrator's body normally associated with sexual activity.
Substantial Risk of Sexual Injury (#22) FOUR ALTERNATIVES (Options A-D)— EACH ONE IS CONFUSING OPTION A PERPETRATOR HAS “ACCESS”— USED AGAINST NON- OFFENDING CARETAKERS Substantial risk of sexual injury means that the parent, caregiver, immediate family member, other person residing in the home, or the parent's paramour has created a real and significant danger of sexual abuse as explained in the following options: Option A An indicated, registered, or convicted sex perpetrator has significant access to children, and the extent / quality of supervision during contact is unknown or suspected to be deficient.
#22 Risk of Sexual Injury—Option B OPTION B A CATCH-ALL USED TO INDICATE FINDINGS REGARDING CHILDREN AS TO WHOM THERE IS NO EVIDENCE OF ANY ABUSE Option B There are siblings or other children in the same household as the alleged perpetrator of a current allegation of sexual abuse. There is credible information/evidence of a current or previous incident of child sexual abuse that did not meet Department eligibility requirements for a report to be taken (e.g., an ineligible victim or the victim discloses after attaining the age of 18) and the alleged perpetrator has current access to children.
#22 Risk of Sexual Injury—Option C OPTION C MAYBE THE WORST OF THE LOT—NO LINK NEEDED TO CONDUCT BY ACCUSED Option C Persistent, highly sexualized behavior or knowledge in a very young child (e.g., under the age of 5 chronologically or developmentally) that is grossly age inappropriate, and there is reasonable cause to believe that the most likely manner in which this behavior or knowledge was learned is in having been sexually abused.
#22 Risk of Sexual Injury—Option D OPTION D CHILD PORNOGRAPHY —CAN BE USED AGAINST A PARENT WHO HAS NEVER VIEWED ANY OFFENDING MATERIAL Option D A member of the household is suspected of, or known to possess or engage in, the making and/or distribution of child pornography and has significant access to the children and the extent/quality of the supervision is unknown or suspected to be deficient. A member of the household has engaged in child pornography activities outside and/or inside the residence and has significant access to the child and the extent/quality of the supervision is unknown or suspected to be deficient. NOTE: TRAFFICKING IS A NEW SEXUAL ABUSE ALLEGATION (40/90).
Additional Issues in Anthony’s Case IMMIGRATION! Concern that finding of “Sexual Penetration” would have to be reported or would be revealed in background check for permanent residency WHO WASN’T INVESTIGATED? Mother Doctors who gave 15-year-old birth control Boyfriend’s family
Case Example #3: REBECCA R. FACTS Rebecca sought therapy to address various personal issues, and during her first session disclosed she is not happy with the amount that she drinks. The therapist asked Rebecca several questions relating to drinking, including whether Rebecca has ever operated a vehicle after drinking. Rebecca told the therapist that on Easter Sunday (just 1-2 weeks prior), Rebecca had consumed alcohol earlier in the day and then drove her kids to a family gathering later that evening. The therapist called the DCFS Hotline. DCFS Allegation #60 “Environment Injurious”—Definition Catch-all Allegation: Placing a child in an environment which is injurious to their health and welfare.
Definition of “#10/60 Substantial Risk / Environment Injurious” “Substantial Risk/Environment Injurious” is a very common allegation that DCFS utilizes as a “catch-all” ABUSE (#10): “…the parent, caregiver, immediate family member, other person residing in the home, or the parent’s paramour has created a REAL AND SIGNIFICANT DANGER of physical injury which would likely cause disfigurement, death, or impairment of physical health or impairment of bodily functions.” NEGLECT (#60): “…placing a child in an environment that is injurious to the child's health and welfare.” In either scenario, under DCFS’s own Procedures, two standards must be met: 1. Specific incident, which meets the 2. Real and significant danger criteria 74
Questionable Validity of Allegation #60 Julie Q. v. DCFS: The Appellate Court ruled DCFS was not authorized to use Allegation #60 (“Environment Injurious”); case is being heard now by the Illinois Supreme Court New legislation significantly narrows the scope of “environment injurious” Was not in place at the time of Rebecca’s case DCFS still applying the out-dated Procedures Allegation #60 routinely used to indicate findings against: victims of domestic violence, parents with mental health diagnoses, parents with substance abuse histories
Issues in Rebecca’s Case Grossly inadequate investigation Very fact-based case—presenting witnesses who could create a timeline of the day ALJ concluded that although Rebecca admitted to having consumed some glasses of wine during the day, DCFS had no evidence that she was actually impaired or under the influence at the time she drove her kids to the evening event.
Case Example #4: CHRISTINA & JOSE FACTS When Christina and Jose’s 3-month-old daughter received a scan due to seizures she was having based on a medical cause (low calcium), the doctors incidentally found a small subdural hematoma (bleed in the subdural space of her cranium). DCFS ALLEGATION Allegation #2/52: head Injuries (Abuse AND Neglect) “Head injury means a serious head injury causing skull fracture, brain damage, or bleeding on the brain, such as subdural hematoma.”
Christina & Jose continued Opening Statement and Closing Argument were critical for this case! Fact issues: The only evidence of abuse was the existence of the injury Medical evidence “Child Abuse” pediatrician could not render dispositive opinion; potential medical explanation for the subdural Legal issues: Accused of causing the “Head Injury” by both abuse [direct action] and neglect [blatant disregard] As to neglect—no evidence of parental behavior that could be considered neglectful (see Slater v. DCFS) Both mom and dad accused—directly contrary to DCFS’s own procedures.
Evidence at Christina and Jose’s Hearing Live Testimony DCFS investigator Christina and Jose Child Abuse Pediatrician Written Stipulations Teen-aged son, primary care pediatrician, sister-in-law, therapist Documentary Evidence DCFS Investigative File Photographs of Family Police Report Medical Records
At the Hearing Opening statement Likely Witnesses Investigator Appellant Hotline caller Others Common objections Relevance Hearsay—child’s statements may come in if about abuse (including retractions) Foundation/Lack of direct knowledge Assumes facts not in evidence Leading/argumentative Calls for speculation Beyond the scope of prior exam
Other Issues “At the Hearing” Is DCFS investigative file admissible? (discussion point) Directed Verdicts?? Closing argument
After the Hearing No Immediate Decision ALJ writes a recommended finding and sends to the Director. Director must then approve. This all takes several weeks…. What If We Lose? Potential for further review— Administrative Review Action
Administrative Review Actions Statutory right to seek circuit court review of a final administrative decision of a state agency Governed by the Administrative Review Act 735 ILCS 5/3-101 et seq. Complaint in Administrative Review must be filed with the Chancery Division no later than 35 days following the date on the final decision!
ARA Procedure—a Mini Appeal Once the complaint is filed and the summonses are issued, DCFS files its answer in the form of the record of the proceedings Briefing schedule is set Plaintiff (the client) files opening memo Defendant (DCFS) files responsive memo Plaintiff files reply Oral argument No new evidence is permitted, except under very limited circumstances!
Arguments Made in an ARA Questions of Fact Deference to the agency as to credibility and factual findings Factual finding must be contrary to the manifest weight of the evidence Questions of Law More favorable standard of review—de novo Examples: violation of right to a timely hearing decision (Lyon v. DCFS – 90-day deadline) ALJ applied wrong rule of law (i.e., self-defense)
Most Common ARA Arguments Mixed Question of Law and Fact Historical facts are undisputed Rule of Law is undisputed ALJ misapplied the law to the facts Standard of review: clearly erroneous ARAs (and further appeals therefrom) illustrate that DCFS hearings can result in establishing important precedence: Slater v. DCFS Julie Q. v. DCFS Bates-Bey v. DCFS
IMPORTANCE OF THIS WORK It is important to provide quality legal advocacy during DCFS investigations and appeals By definition, before there is a decision on investigations or juvenile court screening, there is no process for redress Indicated findings can have severe consequences Families need legal help Nationally, it is a scandal that child abuse findings are made without review of the merits in hundreds of thousands of cases
FDC Pro Bono Referral Program! If you are looking for interesting and meaningful pro bono work, we are always looking for new attorney volunteers! Fill-out our Attorney Information Sheet and return to Melissa Staas. See our case description hand-out containing cases for which we are seeking pro bono counsel!