1. Caselaw, Policies, Procedure and Best Practices in the Intersection of Domestic Violence and the Illinois Department of Children and Family Services
Sara B. Block, JD
Flom Incubator Grant Recipient, Skadden Arps LLP
Family Defense Center
Illinois Parent Attorney Network Training
July 18, 2014

2. In the Words of a Child…
As seen in the words of a child whose mother was abused:
“I always knew she stayed for us. She endured the pain and hell to provide for my sister and me. She feared we would end up like her--stuck, dependent I cannot comprehend how the justice system can charge a battered mother with failure to protect and label her a "bad mother." They say a good mother is one who forgets about her needs and desires and puts everyone before herself. Is that not what a battered mother does when she throws herself in the midst of a violent blow, or distracts the batterer's attention by causing a divergence? Or when she lives twenty years in a loveless marriage so the children grow up with a male figure in the house? Or when she's raped just to have health insurance to care for a sick child? These all seem extremely selfless to me.”
Justine A. Dunlap, Sometimes I Feel Like A Motherless Child: The Error of Pursuing Battered Mothers for Failure to Protect, 50 Loy. L. Rev. 565, 565 (2004).

3. Presentation Objectives
Understand why the child welfare system cares about domestic violence
Understand the “best practices” approach for child welfare intervention with families experiencing domestic violence
Become familiar with Illinois Department of Children and Family Services’ new rules regarding “environment injurious” and domestic violence
Become equipped to advocate for families experiencing domestic violence who are involved with DCFS during investigations and Administrative Appeals of indicated findings

4. Presentation Overview
Meet the Jenkins Family
Domestic Violence Defined
Why Child Welfare cares about Domestic Violence
Social Science Research about children living in homes where domestic violence occurs
Model for Child Welfare Intervention: The Greenbook
Landmark case of Nicholson
Introduction to DCFS’ new administrative rules regarding domestic violence
Using the new rules in practice: Advocacy Tips for investigations
Policy issue regarding the lack of coordinated response to children exposed to DV
Scope: Focusing on involvement with DCFS – involvement with juvenile court will be covered by other presenters

5. The Jenkins Family
In the Jenkins family, there are three children, ages four, six and nine. Melissa Jenkins imposed an unbreakable rule in the home: the children were forbidden to remove their shoes at home- even when they went to bed. By making the children keep their shoes on at all times, Melissa was preparing them to escape from home at a moment’s notice –that is the moment her boyfriend, Gary, became violent. Conceived carefully and practiced in much the same way schools practice fire drills, Melissa’s plan called for the children to run next door and alert the neighbors so they could call the police. The nine-year old, Daniel, was to make sure he took his younger siblings out of the house with him. That way, Melissa reasoned, the children would avoid becoming direct or indirect targets of the violence. They would be safe from harm. Every night after the children had gone to bed – and only after Gary had fallen harmlessly asleep - Melissa would go to the children’s room and remove their shoes. Despite these efforts, Melissa continued to be abused. One night, Gary was beating Melissa. The children woke up from Gary’s shouts and Melissa’s pleads for him to stop. With their shoes still on, Daniel gathered his siblings to leave the house to go to the neighbors. On their way past Gary and Melissa, Gary pushed Melissa and she fell into Daniel, causing him to fall to the ground. Gary grabbed Melissa again. Seeing that Daniel was physically unhurt, she instructed Daniel to go with his siblings to the neighbor’s home to call the police. When the police arrived, the children were across the street, and Melissa’s face had already begun to swell. That night, Gary was arrested. The police also called DCFS.

6. What is Domestic Violence?

7. Terminology Although men are abused also by their partners,
Mothers represent a greater percentage of parents involved in the DCFS (CDC, Intimate Partner Violence: Fact Sheet 2006)
2001 study, men commit 95% of all assaults are on female spouses or girlfriends
Women are 85% of victims, and men are 15%
Non-offending parents = Mothers who have experienced domestic violence
and
who are involved in the child welfare system
directly or indirectly because of the domestic violence
DCFS now uses this terminology too
“The adult victim of domestic violence, who is the non-offending parent or caregiver…”
Mothers represent a greater percentage of parents involved in the DCFS (CDC, Intimate Partner Violence: Fact Sheet 2006
2001 study, men commit 95% of all assaults are on female spouses or girlfriends
Women are 85% of victims, and men are 15%
DV also occurs in same sex relationships
No stats in IL about how many families in the DCFS experience DV

8. Domestic Violence is…
…is a pattern of abusive, violent, and/or intimidating behaviors the batterer uses to establish and maintain power and control over his partner.
…the batterer’s choice behavior.
…a crime.

9. DCFS Definition of Domestic Violence (89 Ill.Admin.Code 300.App B)
“The Illinois Domestic Violence Act defines domestic violence as a crime in which physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation [750 ILCS 60/103(1) and (3)] is perpetrated by one family or household member against another. Family or household members include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who shared or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants and caregivers as defined in Section a of the Criminal Code of 2012 [720 ILCS 5/12-4.4a]. [720 ILCS 5/12-0.1]
“Intimate partner violence”

10. Forms of Abuse

11. Parallel Judicial Systems
Child Welfare Services (DCFS)
State/County Administrative
agency that is charged with
protecting the health, safety,
and welfare of children
Investigate abuse/Neglect
Provide services to families
Refer cases to Juvenile Court
Oversee foster care
Goal of IL Department of Children and Family Services:
“…protect the best interest of the child, offer protective services in order to prevent any further harm to the child and to other children in the family, stabilize the home environment and preserve family life whenever possible."
Juvenile Court
Parents fighting for custody against the State and /or DCFS in front of a judge
Civil, yet Quasi-criminal
No right to jury trial in IL
Children may be in foster care
Judge decides if child was abused or neglected
Best Interest of Child
Confidential
Criminal Court
Prosecution and punishment for criminal acts
Prosecuted by State’s Attorney
Police Involvement
Jury or Judge
Guilt or Acquittal
Punishment – probation, prison
Civil Court
Parents fighting between each other for custody
Divorce
Custody
Visitation
Child Support
Orders of Protection
Explain why I use “welfare”
Welfare encompasses the mandate to protect the best interest of the child
Physical safety – protection is a component of the child’s overall welfare
But protection does not encompass the child’s overall well being – psychological, emotional, cognitive, behavioral, relational, developmental, communal

12. Your Task…
Think about a client or family you have worked with who lived in a home with domestic violence
Keep thinking about your client as we discuss the family of Melissa Jenkins, who has experienced domestic violence and DCFS
Does anyone want to share a client story?

13. Why Families Experiencing Domestic Violence Come to the Attention of DCFS
DV as Underlying Cause
Presenting cause is X, yet X is caused or exacerbated by domestic violence
Substance Abuse
Mental Illness (mother carries diagnosis of “Dependent Personality Disorder”)
Medically complex child
Child diagnosed with “failure to thrive” (domestic violence as a stressor for both mother and child)
Physical abuse to child (small child rolls onto radiator and is burned while father abuses mother; battered mother directly abuses child)
Past history of domestic violence, parents separated, DCFS intervention reestablishes contact and provides further access to child and ex-partner
DV as Presenting Cause
Children witness/exposed to DV (all of Melissa’s children)
Children become secondary victims of DV (Melissa’s son Daniel)
Child injured while trying to intervene to protect mother
Targeted recipient of batterer’s abuse (aka direct child abuse) (batterer throws 5 day old son onto couch)
Non-offending parent “fails to protect” (mother hospitalized over 35 times for domestic violence, and abuser then hurts son)

14. How Families Experiencing Domestic Violence Come to the Attention of DCFS
Non-offending parent or neighbor calls police
Anecdotal Trend in IL: If police are called for a “domestic” and children are home/children called police, police will often call DCFS (Melissa)
CHALLENGE non-offending parent may be deterred from calling police in the future
STRATEGY connect client with the domestic violence liaison in police department
Mandated reporter calls DCFS
Medical personnel treating mother or child for DV related injuries or non-related health issues
Counselor or teacher at child’s school calls based on child’s statement or observation of injuries or concerning behavior
Non-offending parent’s DV counselor/service provider/shelter staff calls based on observations, statements
CHALLENGE for non-offending parents to engage fully in therapeutic process
If shelter staff calls, non-offending parent is more likely to leave shelter and return to batterer
STRATEGY counsel clients about risks and benefits of engaging in service so they have realistic expectations and so trust will not be shattered if DCFS is called
Concerned friend/family member/acquaintance calls DCFS
CHALLENGE for non-offending parents who may already feel isolated and ashamed to reach out to support system for help
STRATEGY connect clients with services, especially group counseling, while explaining the risks above
Batterer threatens to and/or calls DCFS
CHALLENGE for non-offending parent to leave under threat that batterer makes to call DCFS
STRATEGY educate client about DCFS so client would know what to expect from and how to respond to DCFS intervention, thus making her less fearful of batterer’s threats and deterred from separating

15. Why the Child Welfare System Cares

16. Why the Child Welfare System is Concerned about Domestic Violence?
Over 5.3 million instances of domestic violence occur every year
3.3 to 10 million children live in homes with this abuse
Co-Occurrence of Domestic Violence and Child Abuse
Studies show that children are being physically abused in approximately half of the homes where the mother is the known victim of domestic violence
≠ child abuse is more likely to occur where there is DV
Domestic Violence is Linked to Fatal Child Abuse
DV was identified in around forty percent of families in which children died as a result of child abuse
≠ fatal child abuse is more likely to occur where there is DV
Children can be injured when trying to intervene to protect the non-offending parent
DV is a Risk Factor for other forms of child abuse, such as “shaken baby syndrome”
DV can co-occur with other problems that may lead to other forms of abuse or neglect (“co-morbidity”)
Children are often used as a tactic in the batterer’s abuse of the non-offending parent
80-90% of children living in homes with domestic violence are aware of the abuse
Center for Disease Control, Intimate Partner Violence: Fact Sheet, (2006),
The Family Violence Prevention Fund, The Family Violence Prevention Fund’s Review of the US Preventative Services Task Force Draft Recommendation and Rationale Statement on Screening for Family Violence, 14 (2005) Evan Stark, The Battered Mother in the Child Protective Services Caseload: Developing an Appropriate Response, 23 Women’s Rts. L. Rep. 107, (2002).
National Network to End Domestic Violence, The Effects of Domestic Violence on Children, Some studies find the correlation to be higher or lower. In thirty studies, forty-one percent was the median co-occurrence of domestic violence and child maltreatment. Abigail Gerwitz and Jeffrey L. Edelson, Young Children’s Exposure to Adult Domestic Violence: Toward a Developmental Risk and Resilience Framework for Research and Intervention, The University of Illinois, 7 (2004),
Correlation is also true: Research reveals that mothers are being battered in approximately half of the families where their children are being physically abused. Jeffrey L. Edelson, In Brief: The Overlap Between Child Maltreatment and Child Abuse, (1999),
Linda Spears, Building Bridges Between Domestic Violence Organizations and Child Protective Services, National Resource Center on Domestic Violence, Child Welfare League of America, Inc., National Council on Juvenile and Family Court Judges, Family Violence Prevention Fund, 11 (2000),
In 1993, the Oregon Department of Health reported that domestic violence was present in 41% of families experiencing child abuse and neglect resulting in critical injuries or death. Id. In addition, the Massachusetts Department of Social Services in 1994 found that in child abuse and neglect fatalities, 43% of the mothers identified themselves as victims of domestic violence. Id. Furthermore, in New York City, between 1990 and 1993, 55.6% of the families with child homicides had a documented history of domestic violence in the four years preceding the homicide. Id

17. DCFS’ View of DV Procedures 300, Appendix J (subject to change with new rules)
Definition of DV:
The Department defines domestic violence as involving the establishment of power and control through a pattern of coercive behaviors that include physical, sexual, verbal, and emotional assaults perpetrated by one intimate partner against another
Distinction between “Inter Partner Violence:
Unlike a person with anger issues, domestic violence perpetrators have the ability to stay in control of their behaviors and behave appropriately in social settings and may not have a trigger. (Domestic Violence Practice Guide).2 Some domestic violence experts, however, include “inter-partner violence” or “situational couple violence” as another form of domestic violence. This form of partner violence does not contain clear power differentials
Witnessing DV:
Child exposure to domestic violence can be defined as hearing the abuse, witnessing the violence, being abused during the event, or being used as a manipulation tool against the adult victim (Faller, 2003).

18. DCFS’ View of DV cont… Harm to Children:
The effect of the children’s experience of violence may vary by type of violence to which they are exposed
The long-term effects on children who have experienced violence in the home are well documented in research.
Child exposure to partner violence is associated with
Behavioral, emotional, and cognitive functioning problems
Adjustment difficulties that continue into young adulthood
Increases the risk of that child using force in future adult intimate relationships or becoming a victim of partner violence
Internalizing negative behaviors, such as depression, withdrawal, suicidal behaviors, fears, phobias, insomnia, bed-wetting, and low self-esteem.
More aggressive and to exhibit behavior problems in their schools and communities ranging from temper tantrums to fights
“Domestic violence impacts children’s sense of their own safety, security, fear and dread that it instills in them” (Report of Office of the Inspector General)
Message: DCFS presume s short term and long term harm

19. “The impact of domestic violence on
children ranges from
none to serious.”
- Linda Spears,
Vice President, Child Welfare League of America
Expert testimony in Nicholson v. Williams, F. Supp.2d 153 (2002).

20. Potential Harms to Children Who Witness Domestic Violence
Low self-esteem
Depression, anger, fear, anxiety, hyper-vigilance
Eating and sleep disorders
Bedwetting, vomiting
Verbally and physically aggressive behaviors
Guilt, when the child believes he or she is the cause of the abuse
Poor academic performance, problems thinking and reasoning
Lack of compliance with authority
Adolescent alcohol and drug abuse, and dating violence
Jeffrey L. Edelson, In Brief: The Overlap Between Child Maltreatment and Child Abuse, (1999).
Research findings adopted into Second Circuit
Jeffrey L. Edleson, Ph.D., is Professor and the Director of Research at the University of Minnesota School of Social Work and Director of the Minnesota Center Against Violence and Abuse.
One of the world's leading authorities on children exposed to domestic violence and has published over 100 articles and 10 books on domestic violence, groupwork, and program evaluation.
Prof. Edleson is the co-author with the late Susan Schechter of Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice (1999, co-authored with Susan Schechter, NCJFCJ). Better known as the "Greenbook", this best-practices guide has been the subject of six federally-funded and numerous other demonstration sites across the country.
He is a founding member of the Sheila Wellstone Institute
Susan Schechter,
Died in 2004
She was a Clinical Professor at the University of Iowa School of Social Work,
Schechter was one of the first in the country to tackle the intersection between child abuse and domestic violence. Her extraordinary vision led to the creation of Advocacy for Women and Kids in Emergencies (AWAKE) at Children's Hospital in Boston; the first domestic violence program to systematically address the issue of child abuse. served on the National Advisory Council on Violence Against Women, and received the University of Iowa Distinguished Achievement Award of the Committee on the Celebration of Excellence Among Women.
In the later years of her remarkable life, Susan's specialty was exploring the ways that domestic violence affects children. She worked to educate others about the ways the public child welfare system is failing battered women and their children. She was a primary architect of the Family Violence Prevention Fund's child welfare programming, building bridges between the domestic violence and child protection fields, and wrote numerous publications that offered guidance to the domestic violence and child abuse communities. Schechter co-authored Effective Intervention in Domestic Violence & Child Maltreatment Cases: Guidelines for Policy and Practice, another groundbreaking initiative popularly known as the "Greenbook," published by the National Council of Juvenile and Family Court Judges (NCJFCJ).

21. Social science research from Edelson and Schechter has shown: The risks associated with exposure to domestic violence do not, however, manifest themselves in the same ways, or at all, in every child.
In Brief: Problems Associated with Children Witnessing Domestic Violence, National Resource Center on Domestic Violence, (1999), Jeffrey L. Edelson, Should Childhood Exposure to Adult Domestic Violence be Defined as Child Maltreatment Under the Law?, (2004), Jeffrey L. Edelson, Problems Associated with Children Witnessing Domestic Violence, National Resource Center on Domestic Violence, 1 (1999), Abigail Gerwitz and Jeffrey L. Edelson, Young Children’s Exposure to Adult Domestic Violence: Toward a Developmental Risk and Resilience Framework for Research and Intervention, The University of Illinois, 7 (2004),

22. Effect, if any, of Domestic Violence on a Child Depends Upon:
Level of violence
Degree to which child is exposed to the violence
Child’s proximity
Other family stressors to which the child may be exposed
Unique coping skills each child has
Protective factors in child’s home
Batterer accountability
Non-offending parent’s support system and resistance to victim-blaming
Non-offending parent’s relationship to the child
Presence of parent/caregiver to mediate the intensity of the event
Jeffrey L. Edelson, Should Childhood Exposure to Adult Domestic Violence be Defined as Child Maltreatment Under the Law?, (2004),
Linda Spears

23. If Exposure to Domestic Violence Negatively Affects a Child, Relationship with Non-Offending Parent is Critical
Children in homes with domestic violence experience increased trauma when removed from the non-offending parent
These harms will be significantly minimized by remaining with the non-offending parent in a safe and stable environment
The quality of the child’s relationship with the non-offending parent is the greatest predictor in his/her recovery from harm (Furstenberg & Cherline, 1991)
Children can overcome these problems within a relative short time of safety with the non-offending parent
Linda Spears, Building Bridges Between Domestic Violence Organizations and Child Protective Services, National Resource Center on Domestic Violence, Child Welfare League of America, Inc., National Council on Juvenile and Family Court Judges, Family Violence Prevention Fund, 11 (2000),
Furstenberg, FF and Cherlin A (1991) Divided Families: What Happens to Children When Parents part. Cambridge, MA: Harvard University Press.

24. Model for Child Welfare Intervention in Families Experiencing Domestic Violence

25. So What Should Be the Goals of Child Welfare Intervention? *
Enable children exposed to domestic violence to live with non-offending parent in safety and stability
Advocacy Premises:
Removal further harms children
Failing to hold offender accountable reduces safety
Indicating NOP creates barriers to stability
Limits employment opportunities
May impact immigration relief
Deterrent for reaching out for help

26. Guidelines for Policy and Practice
Greenbook Model for the Child Welfare System’s Response to Families Experiencing Domestic Violence
In 1999, National Council of Juvenile and Family Court Judges created:
Effective Intervention in Domestic Violence and Child Maltreatment Cases:
Guidelines for Policy and Practice
a.k.a Greenbook
Collaboration of lawyers, social science researches, and policy makers
Judge Leonard P. Edwards, Santa Clara County Superior Court
Linda Spears, Child Welfare League of America
Ann Rosewater, US Department of Health and Human Services
Elizabeth Ann Stoffel, National Council of Junveil and Family Court Judges
Researchers: Jeffrey Edelson and Susan Schechter
Grant: US Department of Health and Human Services, Office for Victims of Crime, US DOJ

27. Core Values of Greenbook
1) Interventions should: create safety, enhance wellbeing and provide stability for children and families
PHYSICAL SAFETY & OVERALL WELFARE are co-equals
3) To ensure stability and permanency, children should remain in the care of the non-offending parent whenever possible
3) Creating safety for children experiencing domestic violence is inseparable from trying to create safety for their mothers and holding batters accountable for their choice to abuse
4) Increase collaboration
5) Treat families with respect and dignity

28. Greenbook Research and Principles Adopted into Landmark Case Nicholson v. Williams
1st civil rights class action lawsuit that successfully challenged New York City’s child welfare agency’s practice of removing children from battered mothers for the sole reason that the children were exposed to the domestic violence
United States District Court, In re Sharwline Nicholson, 2nd Circuit, 2002:
Issued preliminary injunction for systematically and repeatedly removing children from battered mother for the sole reason that the mothers “engaged in” the domestic violence by being victims of domestic violence
US District Court: In re Sharwline Nicholson, Jan 3, 2002 – issued preliminary injunction
Second Circuit: Nicholson v. Williams, 203 F. Supp. 2d 153- upheld preliminary injunction

29. Nicholson continued…
Second Circuit Court of Appeals, Nicholson v. Williams, upheld the district courts preliminary injunction
Expert testimony from authors of Greenbook, including Jeffrey Edelson and Linda Spears and cited Greenbook best practices
Key Findings:
Children can be but are not necessarily negatively affected by witnessing domestic violence
Exposure to domestic violence impacts children differently
Harms minimized by remaining with non-offending parent in safety
Mistake to define witnessing domestic violence as neglect
Blaming battered parent is counterproductive because she cannot control the abusers actions
Saying that the non-offending parent “engaged in” domestic violence mistakes the nature of her role and absolves the batterer of accountability
Desecrates fundamental precepts of justice to blame a crime on a victim
Certified three questions to be answered under NY state law
Dicta????/

30. Nicholson continued…
NY Court of Appeals, Nicholson v. Scoppetta, 3 NY.3d 357
Definition of neglected child does not include instances in which sole allegation is that children have been exposed to DV, but rather the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired
Child exposure to DV is not presumptively neglectful
The harm must be the consequence of the parent to exercise a minimum degree of care based on the standard of a reasonable and prudent person in similar circumstances
Case settled in federal court before constitutional questions could be answered
Constitutional questions?
SDP?

31. Methods for Realizing Greenbook and Nicholson Core Values:
Child Welfare Agencies and Juvenile Court:
Examine the non-offending parent’s actions in light of the domestic violence she has experienced
Conduct individualized assessment of risk and protective factors and engage in differential response to each family based on unique experience and needs
Locate actual harm caused to the child and designate appropriate perpetrator
Build internal capacity and strengthen protective factors to mitigate the risk of removal
Remove batterer before removing children from non-offending parent
Coordinated Response:
Collaboration and consistent message to families experiencing DV throughout all points of intervention, including service providers and court systems

32. Domestic Violence and the Illinois Department of Children and Family Services

33. DV and Illinois Law
No separate abuse or neglect ground of “domestic violence”
In the Illinois Juvenile Court Act and Illinois Administrative Code, domestic violence is covered by:
Abuse - “Substantial risk of physical injury (offender)
Neglect - “Environment injurious” (non-offending parent)

34. “Environment Injurious”
In 2011, DCFS indicated 13,115 cases for “Allegation 60- Injurious Environment,” representing 38% of all indicated findings
Means everything and nothing at all
Based on futuristic, protracted, possible harm
Encompasses domestic violence, substance abuse, mental health, prior harm to a sibling

35. “Environment Injurious” Reform
As of July 2014, on paper, children who have lived in homes experiencing domestic violence now have a better chance of remaining with non-offending parent in safety and stability
Allegation 10/60 has been rewritten!
Better distinguishes “substantial risk” and “environment injurious”
Incorporates clearer standard (“blatant disregard”)
Separately defines dv, substance abuse, mental health and prior harm to a sibling
Creates a presumption against indicating the non-offending parent!

36. Road to Reform Skadden Fellowship in 2007
Focus of fellowship = non-offending parents are not neglectful
First case “broccoli throwing case”
Statutory Argument
Environment injurious was not contained in ANCRA (authorizing statute)
Legislative history revealed that the ground was contained in ANCRA prior to 1975, it was removed in 1975 because it was inherently ambiguous, was not added back in, even when it was added back into the Juvenile Court Act in 1987
Trying to invalidated the most common category of neglect that DCFS uses
Routinely made these arguments in all EI appeals
Circuit court sometimes agreed, sometimes didn’t
LAF had a case that got to the IL Appellate ground but lost
Julie Q v. DCFS (2013 IL )
Shared argument with FDC
A case based on substance abuse and EI
Appellate Court agreed that the EI as a ground was unauthorized because it was not contained in ANCAR
Illinois Supreme Court Granted Cert

37. Road to Reform, cont… Amending ANCRA
In the meantime, DCFS went to the legislature and lobbied to get “environment injurious” added back in with a much clearer definition
Environment injurious means that a child's environment creates a likelihood of harm to the child's health, physical well-being or welfare and that the likely harm to the child is the result of a blatant disregard of parent or caretaker responsibilities [325 ILCS 5/3].
Julie Q. Ruling
In March 2013, IL SC unanimously declared that “injurious environment” was not an authorized ground of neglect and deemed “void” the DCFS rules and procedures allowing for investigations and indicated findings based on this ground

38. Road to Reform, cont… Ashley M. v. Calica
Family Defense Center filed class action filed on behalf of class members who had been indicated for EI in order to compel DCFS to comply with Julie Q.
Relief Requested:
Expungement
New Rules and Procedures regarding EI
Negotiations included presenting DCFS with version of rules and procedures
Emergency Rulemaking in early 2014
Initial emergency rulemaking looked similar to our proposal during negotiations
Two rounds of commenting on emergency rulemaking
JCAR very receptive

39. The Current Law Highlights
Provides clarity in substance and structure to the differences between substantial risk and EI
Defines EI to comply with statute
Real, significant and imminent likelihood of harm is the result of the parent’s blatant disregard of parental responsibilities
Parents did not take reasonable precautionary measures to prevent or mitigate the risk of real, significant and imminent likelihood of harm to the children
Special definitions for SA, MH, prior harm to a child, and DV DV
Non-offending parent is presumed to not be neglectful so long as she took precautionary measures

40. Take a few moments to read through the 89 Ill. Admin. Code 300
Take a few moments to read through the 89 Ill. Admin. Code 300.Appendix B (handout)

41. “Environment Injurious” Now Defined
Environment injurious means that a child's environment creates a likelihood of harm to the child's health, physical well-being or welfare and that the likely harm to the child is the result of a blatant disregard of parent or caretaker responsibilities [325 ILCS 5/3].
Blatant disregard is defined as an incident where the real, significant and imminent risk of harm would be so obvious to a reasonable parent or caretaker that it is unlikely that a reasonable parent or caretaker would have exposed the child to the danger without exercising precautionary measures to protect the child from harm [325 ILCS 5/3].  

42. “Environment Injurious” Now Defined, cont…
This allegation of harm shall also be used when there are conditions that create a real, significant and imminent likelihood of harm to the child's health, well-being or welfare (i.e., domestic violence, intimidation, or a child's participation in a criminal act) and the parent or caretaker blatantly disregarded his/her parental responsibility by failing to exercise reasonable precautionary measures to prevent or mitigate the imminent risk of moderate to severe harm.
Factors to consider in taking a report:
The precautionary measures exercised by a parent or caregiver to protect the child from harm.

43. “Environment Injurious” and DV
Examples of circumstances that may, though not by themselves, create a real, significant and imminent risk of moderate to severe harm include, but are not limited to:
…Defines DV (previously shared on Slide #9)
  An incident of past or current domestic violence may qualify for an allegation of environment injurious if the domestic violence creates a real, significant and imminent risk of moderate to severe harm to the child's health, physical well-being, or welfare, and the parent or caregiver has failed to exercise reasonable precautionary measures to prevent or mitigate the risk of harm to the child.
The adult victim of domestic violence, who is the non-offending parent or caregiver, is presumed to not be neglectful or to have created an environment injurious to the child so long as he or she has exercised precautionary measures to prevent or mitigate the real, significant and imminent risk of moderate to severe harm to the child.

44. Key “Environment Injurious” Words
Harm:
real, significant, and imminent
likelihood/risk of
moderate to severe harm to
child’s health, physical wellbeing or welfare
Precautionary Measures:
Blatant disregard (ie created an environment injurious) if
Failed to exercise
Reasonable
precautionary measures to
prevent or mitigate harm (as defined above)

45. Framework for Advocacy
New procedures are needed
Recommend a two-part framework for assessing “environment injurious” allegations
See Handout entitled “Two-Step Analysis for Assessing “Environment Injurious” Allegations”
Important Elements
Only reach Step 2, Precautionary Measures, if Step 1, Harm is met
Expands examples of precautionary measures
Creates separate two-part frameworks for general allegations and those involving dv (and substance abuse, mental health and prior harm to a sibling)
Domestic violence analysis involves separate framework for non-offending parent and offender

46. Take a few moments to read through the Two-Step Analysis for Assessing “Environment Injurious” Allegations  (handout)

47. Reform Aims to Accomplish
Being a victim of domestic violence to not make the NOP neglectful
Accept that the majority of NOP are trying to do right by their children
Shifting mindsets and bias
Avoid the need to minimize the domestic violence in order to protect NOP and children
Assign accountability where appropriate and constructive to do so

48. Advocating for a DV/DCFS Involved Family

49. Opportunities for Advocacy
Investigation
Relationship between investigator and NOP
Safety /Safety Plan / Removal
Indicated Finding
On Administrative Appeal
All advocacy can be seen within the framework of “harm” and “precautionary measures”
Real, significant, imminent likelihood of moderate to severe harm
Precautionary measures to prevent or mitigate real, significant, imminent likelihood of moderate to severe harms

50. The Child Welfare Investigation
Advising and advocating for a client during the
child welfare investigation can help keep the children with
the non-offending parent in a safe and stable environment and avoid an indicated finding:
Establish trust and sense of collaboration toward common goal between DCFS and non-offending parent
Assist the non-offending parent in finding safety
Ensure an individualized assessment of the family
Advocate that any harm be attributed accordingly
Focus on precautionary measures in past, present, and future
Briefly describe what a child welfare investigation is
For attorneys who are already working with a client
before a child welfare investigation begins – i.e. in a
protective order case, or in a divorce case as the
attorney for the parent or attorney/GAL/child
Representative, or if the client comes to you while
an investigation

51. Useful Resource
Contact DCFS Domestic Violence Specialist, if necessary
DV Specialist can consult with investigator and supervisor, craft safety plans, help refer to services, and explain the significance of the DV dynamics, but is not responsible for ultimate outcome of the investigation

52. Where We Left the Jenkins Family…
Police were called after boyfriend Gary pushed Melissa into her 9 year old son, Daniel, as Daniel was leaving the house with his younger siblings to call the police
Gary was arrested
DCFS began investigating

53. Relationship between NOP and Investigator

54. Advocacy Tip: Determine Degree of Attorney Involvement in the Investigation
Strategize with client about attorney’s role during investigation
Options:
Speak directly with investigator – when? About what? Purpose?
Be present with client when speaking with investigator
Let client do as much talking as possible
Advise client from behind the scenes in preparation for meetings
PERSONAL DYNAMICS between investigator and client significantly impact the outcome!
Some investigators will be threatened and insulted, which will impact client’s outcome
Some will welcome the involvement and understand the client’s need for support
Goal of Attorney Involvement
Ease client’s fears
Ensure the proper protocols are followed
Ensure information is being share
Help develop trust between NOP and DCFS by acknowledging perspectives and increasing empathy
Frame the issue in terms of “harm and “precautionary measures”
Individualized harm assessment
Focus on what she did/is doing, rather than what she did not do (ie leave)

55. Advocacy Tip: Establish Trust so Collaboration is Possible
CHALLENGE: Inherent obstacles between DCFS and NOPs in establishing trust and working together
STRATEGY:
Understand the perspectives and fears of non-offending parents when confronted by the DCFS
Understand the priorities and expectations of DCFS workers when facing families experiencing domestic violence
Engage each side in a mutual dialogue that will protect the overall safety and welfare of the family

56. Advocacy Tip: Understand and Convey the Non-Offending Parent’s Perspective
DCFS involvement is often unwanted and uninvited
The police called DCFS to Melissa’s home
DCFS may require her to confront the abuse before she is ready
Melissa has never spoken to someone face to face about the abuse. She has, however, anonymously called the local domestic violence help line, who connected her with a domestic violence agency’s hotline. Melissa has periodically called that hotline, and through those discussions, she developed the plan that Daniel followed the night Gary was arrested. She has not followed-up on the agency’s invitation for counseling.

57. Advocacy Tip: Understand and Convey the Non-Offending Parent’s Perspective, cont…
The non-offending parent fears that disclosing the abuse will put her family in more danger
Gary told Melissa that if she ever told anyone about the abuse, he would kill her. Believing that he would make good on this threat, Melissa has kept his secret.
The non-offending parent fears that the DCFS worker will refuse to believe that the abuse is occurring
The non-offending parent fears that the DCFS worker will minimize the abuse

58. Advocacy Tip: Understand and Convey the Non-Offending Parent’s Perspective, cont..
The non-offending parent fears that revealing the abuse will make her look like a “bad mother” and that she will be blamed for “staying” – whatever she says will be used against her
For Melissa, the following quote rings true:
Remaining with a batterer is not about being stupid, masochistic, or codependent. It is about not knowing to whom it is safe to disclose the abuse, not knowing what can be done if the shelter is full, not knowing what to do if the judge does not believe me, not knowing what to do if the shelter makes me quit my job so the batterer does not follow me back, not knowing what to do if the prosecutor does not treat my case seriously, not knowing what to do if I have no job skills and cannot pay the rent without him, not knowing what to do if he says he will kill me and my children if I leave him, not knowing what to do if he says he will find me wherever I go, not knowing whether the judge will give him custody of the children, and not knowing how I will stay alive in the process of fleeing.
Sarah M. Buel, Family Violence and the Health Care System: Recommendations for More Effective Intervention, 35 Hous. L. Rev 109, 118 (1998).

59. Advocacy Tip: Understand and Convey the Non-Offending Parent’s Perspective, cont…
NOP Fees Defensive
The very fact that an investigation is occurring implicates a distrust of the non-offending parent and treats her interests as adverse to her children’s
DCFS questions the mother’s ability to care for her children when she knows the sacrifices she has made for her children.
Although Melissa has to deal with her own traumas alone, her children are up to date on immunizations, check-ups, and regularly attend school. Because she works a minimum wage job, she endures punches and rapes so Gary will help provide a roof over her children's heads, and food on their plates.
The non-offending parent fears that the steps she took to her protect her children will be ignored or misinterpreted
Melissa feels that she is in a Catch 22: if she explains the plan she devised to keep the children’s shoes on until Gary falls asleep, the DCFS will imagine how bad the abuse was and this will overshadow the significance of Melissa’s attempts to keep her family safe under the circumstances. By taking steps to protect her children, she acknowledged, rather than disregarded, the reality that Gary may pose a threat to them. Yet, she did not leave.

60. Advocacy Tip: Understand and Convey the Non-Offending Parent’s Perspective, cont… The Non-Offending Parent Feels Powerless and Re-Victimized
DCFS intervention replicates the dynamics of the abuse because DCFS has the power and control
Melissa knows that the DCFS worker can remove the children from her and, therefore, she feels at the worker’s mercy. Gary threatened that one day the children would be taken from her and now she realizes it’s true.
DCFS may impose conditions on the family that further strip her of her decision making ability
Domestic violence service providers aim to return power and control to women who have experienced domestic violence, but for most parents, DCFS intervention is not an empowering experience
EXCEPTION:
Some non-offending parents will be receptive to the help
It may be a way of getting help that the batterer will not view as the non-offending parent’s choice

61. Advocacy Tip: Understand the Investigator’s Perspective
Advocacy Tip: Understand the Investigator’s Perspective Non-Offending Parent’s Implication
Per DCFS, she is responsible because
She did not control her batterer's conduct
She did not protect
She could not prevent the harm
She did not leave
She engaged in domestic violence

62. Advocacy Tip: Understand the Investigator’s Perspective
Mandate to protect children from harm
DCFS investigator’s priority is to ensure that Melissa’s children are safe
Safety is more tangible than children’s overall welfare and a child’s welfare is jeopardized if they are not physically safe
Need assurance from non-offending parent that she will take steps to remove the children from the abusive home
Equate safety with separation, although the most dangerous time for a battered woman is when she separates, as Gary has threatened
Difficult to get clear sense of the abuse
Non-offending parent may reveal more over time and stories may seem inconsistent or incomplete
Batterer may deny the abuse or be absent from intervention
Domestic violence is a pattern and a cycle, which implies that it repeats
Separation is often a progression, so removing children from both parents may be the only way to conclusively eliminate the risk of harm to the children
The more victimized the mother was/is, the greater the risk to the kids
The worse the abuse was → the more risk the children face; the more controlling the batterer is → harder it will be for her to keep children safe
Backward looking to predict future risk
Melissa’s son became a secondary victim of Gary’s abuse. Melissa was not able to prevent this in the past, so she will likely not be able to prevent such harm in the future
Bias
Mistrust non-offending parent’s judgment
Belief that most non-offending parents are not choosing the batterer over their children

63. Advocacy Tip: Bridge the Barriers In Order to Build Trust
With Non-Offending Parent
Utilize Empowerment through Advocacy Model to be a counterweight to the unavoidable coercive nature of investigation

64. With Non-Offending Parent continued…
Reality = prognosis greatly depends on relationship between parent and DCFS worker
Explain that DCFS and parent have a unified goal – safety and welfare of the children
Have honest conversations about the significance of the actions she takes now, such as remaining with the abuser with the children in the home
Educate about the investigative procedure, specifically addressing local child welfare policies on domestic violence
Discuss ways of communicating effectively with the investigator
This involves acknowledging that DCFS may force her to confront issues and take steps before she would have taken them on her own or that make her feel uncomfortable
Be prepared to explain why she stayed
Encourage her to focus her explanations on her view of what was best or necessary for the children
Use details!

65. With DCFS Worker
Explain that DCFS and parent have a unified goal – safety and welfare of the children
Response to “Not Leaving”
Nearly 1/3 of women remained in abusive relationships because of concern for the children
Fear of exposing children to the abuser and not being there to shield them is the single greatest barrier to a survivor mother’s decision to separate
Quote from Greenbook:
A battered woman with children faces two sets of painful circumstances. First she has to calculate how to protect herself and her children from physical dangers created by her partner. However, battered mothers also confront a second set of risks, sometimes more frightening than the first. If, for example, a woman considers separation from her partner to protect herself and her children, where will she find housing and money to feed her family? What will she do if her partner reports her to child protection services? What will happen to her children’s health insurance if she leaves? Who will babysit for the children when she has to go to work and her partner is no longer there. The second set of factors, or life generated risks, enters into each battered woman’s calculation of her children’s safety. Deciding to leave her abusive relationship does not guarantee the elimination of these risks. In fact, it may bring them to the fore.
Response to “engaging in domestic violence”
A battered mother does not allow herself to be beaten
If domestic violence is occurring, by definition, she cannot control or prevent the batterer’s choice to abuse
Ask to be present during interviews to facilitate dialogue
Don’t discourage her from getting help

66. Safety

67. What Does Safety Look Like and Mean…
Non-Offending Parent
Safety has risks
Limited options
She has tried before
Feels that she cannot separate
DCFS Worker
Wants to see a concrete protective step
Separation
Shelter
Order of Protection
Change the locks
Criminal prosecution

68. Tool for Evaluating Safety: CERAP
Child Endangerment Risk Assessment Protocol (CERAP): DCFS’ tool for assessing safety; used at multiple points during an investigation
DCFS Operating Assumption:
“The Department recognizes in Procedures that the best predictor associated with future violence is prior violence.”
DCFS Protocol:
“Therefore, whenever a child protection investigator or specialist learns of violence in the home, they must examine whether the situation presents a risk of future harm. This analysis is reflected in the Child Endangerment Risk Assessment Protocol (CERAP). Under CERAP, if violence is present in the home, the protocol requires either a mitigating factor (e.g., abuser has left the home) or implementation of a safety plan.”

69. Current Harm/Safety: Relevant CERAP Factors
The following CERAP Safety Factors may be relevant when there is violence in the home:
• Any member of the household’s behavior is violent and out of control.
• Any member of the household describes or acts toward child in predominantly negative terms or has extremely unrealistic expectations.
• 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. •Caretaker has not, will not, or is unable to provide sufficient supervision to protect child from potentially moderate to severe harm.
• 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.
• Child is fearful of people living in or frequenting the home.
• The presence of domestic violence which affects caretaker’s ability to care for and/or protect child from immediate, moderate to severe harm.
• Other – serious allegations with significant discrepancies or contradictions by caretaker or between caretaker and collateral contacts.
• Other – caretaker refuses to cooperate or is evasive.
• Other – criminal behavior occurring in the presence of the child, or the child is forced to commit a crime or engage in criminal behavior.
Fill out the CERAP for the Jenkins family or family about whom you are thinking

70. Current Harm/Safety: CERAP Determination
If any of the CERAP Safety Factors are checked “yes,” the worker must determine whether sufficient family strengths mitigate the Safety Factors.
Safety Factor Mitigation/Protective Factors
When domestic violence is present in a home, if the non-offending caretaker takes steps, on his or her initiative to remove the abuser from the home or to move the children to a safe place, the Safety Factor will be considered to have been mitigated

71. Advocacy Tip: Help Find Safety by Engage in Options Planning That Avoids Mandates
With DCFS Worker
Confront any misassumptions
Leaving is a viable solution
Ending the relationship is in the best interest of the children
Leaving will with stop the abuse
Discuss how suggestions could put family in more danger
Separation is the most dangerous time
Protective orders have risk
Explain that the non-offending parent knows her batterer best
Allow non-offending parent to offer suggestions
Support her suggestions and supplement with services
Least Restrictive Alternative
With Non-Offending Parent
Discuss consequences of not making a concrete change
Have her articulate her “ideal” situation as well as a spectrum of possibilities
Discuss challenges to realizing the ideal situation or other possibilities
Life generated challenges
Fear of batterer response
Consider suggestions of DCFS worker
Discuss safety risks
Have a detailed discussion about threats abuser has made and how he has reacted in the past

72. Advocacy Tip: Support Safety Steps with Other Resources
Housing:
Section 8 has a priority program for child welfare involved families
State law allowing victim of domestic violence to change locks or end lease (Illinois Safe Homes Act)
Public aid (TANF, food stamps, medical card) and SSI
Utility assistance programs
Education
McKinney-Vento Act if have to move
Transportation
Bus passes
Communication
HopeLine cellular phone recycling through Verizon Wireless

73. Risk Factors to Safety A child injured due to domestic violence
Batterer has threatened to hurt the child
Batterer has struck the non-offending parent while holding child
Child tried to intervene
Weapons were used in assault
Non-offending parent has history of serious injuries and/or hospitalizations
Significant substance abuse contributes to domestic violence
Suicide threats (lethality indicator)
Batterer stalks the non-offending parent and child
Batterer has committed sexual assault of non-offending parent
Multiple family stressors
Batterer’s whereabouts are unknown
Frequent, chronic, domestic violence assaults
Non-offending parent and children fear the batterer
Non-offending parent and children have no plan for protection from domestic violence
Non-offending parent was injured during pregnancy
Batter has made death threats or threats of serious injury
Risk + Protective Factors = Level of Risk
Look at Protective Factors to Safety Risk Now

74. Advocacy Tip: Provide DCFS investigator with as many protective factors as possible
Batterer
NOP
Children
Community
(Examples from DCFS Review of New Domestic Violence Policy)

75. Protective Factors: Perpetrator’s Resources to Stop the Abuse
Halts the abuse of the victim or children;
Acknowledges abusive behavior as a problem;
Acknowledges responsibility for stopping the abuse;
Cooperates with current efforts to address abusive behavior;
Is aware of the negative consequences of abusive behaviors on the victim, children, and
the batterer’s physical well-being, self-image, legal status, social relationships and
employment;
Cooperates during the interviews;
Is committed to victim safety;
Demonstrates ability to comply with court orders and case plans;
Is respectful of limits set by victim and/or agencies;
Supports parenting efforts of adult victim;
Considers children’s best interests over parental rights.

76. Protective Factors: NOP Resources
Has the ability to plan for children’s safety;
Is willing to seek help;
Has belief in children and self;
Is resistance to the perpetrator’s victim-blaming;
Has work skills;
Use of available money, time and material goods;
Has parenting skills;
Is knowledgeable of the abuser and the situation;
Is healthy and has physical strength;
Uses safety strategies for self and children;
Has a support system

77. Protective Factors: Children Resources
Have the ability to follow safety plans;
Have a positive relationship with the adult victim, siblings, other family members or neighbors;
Are school age;
Do not have developmental issues;
Take appropriate actions during violence;
Seek help during a domestic violence incident;
Follow instructions from the adult victim about what to do during a domestic violence incident.

78. Protective Factors: Community Resources
Victim advocacy/support services
Effective criminal justice response to domestic violence (e.g., police, prosecutors, courts, and corrections)
Effective civil and family court response to domestic violence
Welfare and social services
Health care services
Safe housing
Spiritual services
Family/friends of the victim
DHS approved partner abuse intervention programs
Substance abuse treatment

79. If present harm to children/unsafe….
Safety Plan and/or
Removal

80. Safety Plan: An Alternative to Taking Protecting Custody
If the Safety Factor is not mitigated, a Safety Plan must be put into place OR Protective Custody could be taken
DCFS investigator can “suggest” that certain conditions occur during the investigation, i.e. the parent leaves the house, the child stays with a relative, or parent engages in substance abuse counseling, parent gets an Order of Protection, etc.
Creating the conditions can be “collaborative” because ostensibly the NOP is in the best position to know what the family needs and supportive resources that are available
Safety Plans are “voluntary,” such that the parent must agree
Safety Plans are not made by a judge and therefore, investigator cannot “require” the family to comply, but DCFS has the power to remove children if they have concerns, especially if the Safety Plan is not being followed
Despite being legally voluntary, Safety Plans feel coercive
Often, DCFS threatens to remove the child if the parent does not agree to the safety plan
Safety Plans are intended to be temporary, but can often be long-lasting
Not the same “Safety Plan” that a DV advocate would create with a client

81. Safety Plan: Safety Steps
Investigator will likely want to see a concrete act of separation
Moving out
Going to shelter
Getting an OP
Changing the locks
Ensure that the NOP feels comfortable with these steps
Avoid placement of children with the offender
Alert the investigator to any additional safety concerns associated with one of these steps

82. Safety Plan: Services
Investigator can and should provide NOP with referrals to domestic violence services for her and her children, including domestic violence counseling
NOP willingness to engage in services is likely dependent upon her readiness to confront the abuse
Refusal to comply with services may lead to increase distrust and increase the likelihood of protective custody

83. Protective Custody
Basis: imminent harm to the child by remaining in custody of NOP
Advocacy Tip:
Compel the specification of the imminent harm
Focus on safety steps taken
Explain how the protective steps mitigate the risk factors
Return to the social science research by Edelson and Schecter
Any harm the child has experienced will be significantly mitigated by living with the NOP in safety and stability
Children who are removed from NOPs experienced increased trauma because of the fear of the NOP’s safety

84. When are children unable to remain with NOP in safety and stability, or when is Juvenile Court intervention needed?
Cycle of violence is so severe that the children must be removed in order to avoid imminent harm
If Gary was not arrested, Gary threatened to hurt the children and Melissa would not consider leaving
Non-offending parent’s physical capability to care for children is reduced because of injuries/hospitalizations
Other presenting issues such as substance abuse or mental illness compromises ability to meet minimum parenting standards
If Melissa misused alcohol as a way of coping with the abuse
Non-offending parent has “turned a blind eye” to the welfare of her children

85. Review: Key Advocacy Tips Regarding Safety
Past history of abuse will indicate current safety risk
Safety determination are an “in the moment, as we stand” determination
Blame is not the focus
Be realistic with client that when DCFS says jump, she says, “how high?”
Cooperate
Acknowledge existence of DV while highlighting her commitment to her parental duties
NOP has to take concrete steps, even if she would not otherwise be ready
Go to a shelter
Move in with friends
Change the locks
Get an OP
Participate in criminal prosecution
Children can stay with a relative or friend
If steps would place family in more danger, help client articulate why or speak with investigator directly

86. The Investigative Finding

87. The Investigative Finding 325 ILCS 5/7. 12, 325 ILCS 5/11
The Investigative Finding 325 ILCS 5/7.12, 325 ILCS 5/11.1, 325 ILCS 5/11.2a, 325 ILCS 5/11.3
4 Possible Conclusions at the End of the Investigation:
Indicated/Substantiated: credible evidence of abuse or neglect exits
Unfounded/Unsubstantiated: no credible evidence of abuse or neglect
Person Not Implicated: credible evidence of abuse or neglect exists but committed by someone other than subject of investigation
Undetermined: where it is not possible to initiate or complete an investigation within 60 days despite every effort to a complete the investigation
Subjects of an investigation will receive written notice of the result of the investigation specifying the allegations of abuse or neglect and can appeal the indicated findings
Results are retained in State Central Register = a non-public database of those who have been the subject of CWS investigations
Permissible access to, in part, law enforcement, probation, schools, physician, licensed child care facilities , coroner, subject of report, guardian ad litem
Mandated reporter who reported may be notified of results if notification ensures the safety of the child
Publically disclosing information to parties not granted access to reports is a Class A misdemeanor

88. The Investigative Finding
In layman’s terms…
Should the NOP be indicated?
Was there harm to the child?
If so, did the harm rise to the level of abuse or neglect?
If so, who was responsible for creating that harm?
Advocacy Tip: Determine strategy
No harm occurred
Harm has not risen to level of neglect
Harm has occurred, rose to the level of abuse/neglect at hands of batterer, NOP did not “blatantly disregard parental duties”

89. A Tool for Assessing Whether NOP should be Indicated: The Domestic Violence Screen (handout)
Purpose of the Domestic Violence Screen, CANTS 17A/DV
Gather information about the DV that is occurring, assess harm rise to level of abuse/neglect, assign responsibility
Tool to analyze where Allegation 10/60 has been met
Advocacy Tips:
Provide a copy to NOP
Speak to investigator/supervisor to ensure the DV Screen is completed
Review questions and brainstorm answers with NOP; prepare NOP for investigative interview
Provide NOP with a written list of Mitigating and Protective factors to review before meeting
Ask to present during the interview
IMPORTANT to gauge the investigator’s response to determine if attorney presence would be helpful or hurtful
Request assistance from DV Specialist if necessary

90. The Domestic Violence Screen, cont…
Evidence of Domestic Violence
Significant Indicators of Domestic Violence
Third party reports of domestic violence.
Criminal history of assault or damage to property that has been verified through LEADs
Physical injuries to an adult (e.g., bruises, cuts, black eyes, marks on neck).
One partner seems to control everything (e.g., answers questions for the other partner).
Observed damage to home (e.g., phone ripped from wall, holes in wall, broken doors or furniture)
Self-reported incident or incidents of domestic violence.
One partner uses children to control what the other partner says, does or thinks
Prior or current police involvement for domestic violence.
An existing order of protection
A history of receiving domestic violence services.
Verbal Indicators
Has your partner ever tried to keep you away from your family, friends, work or neighbors?
Has your partner ever threatened you or done something else that frightened you?
Has your partner ever pushed, slapped, punched, kicked or hurt you in other ways?
Has your partner ever threatened to use the children to control you in any way?

91. Domestic Violence Screen, cont…
Assessment and Level of Risk:
Was or is there physical danger posed to the child from the batterer? (harm)
Does the physical, developmental, or emotional impact of the domestic violence on the children rise to the level of suspected abuse or neglect? (harm)
Real, significant, imminent likelihood of severe to moderate home
Are there strategies the adult victim has used in the past that can be supported or strengthened to protect the children? (precautionary measures)
Has the batterer ever used or threatened to use weapons of any kind? …
(Domestic Violence Screen looks back in time; CERAP focuses on the present)
Please fill out the Domestic Violence Screen for the Jenkins or the family about whom you have been thinking

92. Reminder of Legal Standard
An incident of past or current domestic violence may qualify for an allegation of environment injurious if the domestic violence creates a real, significant and imminent risk of moderate to severe harm to the child's health, physical well-being, or welfare, and the parent or caregiver has failed to exercise reasonable precautionary measures to prevent or mitigate the risk of harm to the child.
The adult victim of domestic violence, who is the non-offending parent or caregiver, is presumed to not be neglectful or to have created an environment injurious to the child so long as he or she has exercised precautionary measures to prevent or mitigate the real, significant and imminent risk of moderate to severe harm to the child.
Advocacy Tip: Remind investigators about the presumption against indicating !

93. Step 1: HARM Advocacy Tip: Individualized Assessment of Harm Rather than “One Size Fits All” Approach
Real, significant, imminent likelihood of moderate to severe harm
Child Specific
Past likelihood of harm
Future harm that child could experience
≠ children who witness abuse will become abusers

95. Assessment of Child’s Exposure to the Domestic Violence
Gather information from non-offending parent, batterer, other witnesses, police reports and the child
Discussion with the Child
Does hitting or yelling occur in your family?
Have they been hit or hurt when there is hitting or yelling?
What happens when there is hitting or yelling in their family?
If there is yelling, who does it?
If there is hitting, who does it?
What happens before the hitting starts?
What do you do when there is hitting or yelling?
Has anyone gotten hurt?

96. Child’s Interpretation of the Experience
Is there fighting at home?
Who does the fighting?
What do you do when there is fighting?
What do your siblings do?
What do you think causes the fighting?
How does the fighting make you feel?
Do you feel safe at home?
What do you think causes you to be afraid?
Do you think about the fighting in the family?
Do you think about it while at school or playing?
Do you have trouble sleeping at night?
What would you like to see to make your family better?
Have you talked to anyone about the fighting at home?
What happens when you do something wrong?

97. Manifestation of Potential Harms
External Indications
Physical
Medical problems
Injuries or health issues related to DV
Health changes in recent months
Unexplained pains, injuries, illnesses
Emotional
Emotional changes – withdrawn, sad, irritable, anxiety, nightmares
Bedwetting
Suicidal thoughts or acts
Behavioral
Behavioral problems at home, school or with peer relationships
Used physical force or threats against others
Dealing with anger in concerning ways
Trouble eating, sleeping, running away, alcohol or drug abuse, sexual behavior, cutting, harming animals, or destroying toys
Social
Learning problems
Trouble making friends
Difficulty responding to adult authority

98. Advocacy Tip: Conclusion of Harm Analysis
If no real, significant, imminent likelihood of moderate to severe harm → Unfound
If real, significant, imminent likelihood of moderate to severe harm →
Precautionary Measures analysis

99. Step 2: PRECAUTIONARY MEASURES
The parent exercise reasonable precautionary measures to prevent or mitigate the risk of harm to the child.
The adult victim of domestic violence, who is the non-offending parent or caregiver, is presumed to not be neglectful or to have created an environment injurious to the child so long as he or she has exercised precautionary measures to prevent or mitigate the real, significant and imminent risk of moderate to severe harm to the child.
Look to the Past
Past
Incident
Current response
Advocacy Tips:
The devil is in the details
The VAST majority of NOPs have taken countless steps to protect their children
May not be immediately apparent to NOPs because precautionary measures have been/part of their method of survival

100. Examples of Precautionary Measures (not currently in DCFS rules or procedures)
General
Domestic Violence
Attempts to stop the cause of the likelihood of harm
Takes steps to protect child from the likelihood of harm
Responds to any harm the child has experienced
Reaches out to support system
Utilizes social services to address needs in the family
Possesses and utilizes parenting skills
Maintains a healthy and loving relationship with the child
Attends to the child’s emotional, psychological, physical, educational and medical needs
Meets the child’s medical, psychological and education needs, when appropriate
Maintains a healthy and loving parental relationship with the child
Provides stability – emotional, educational, relational, financial – for the child
Cooperates with current efforts to address stressors or risk factors in the home
Considers child’s best interest
Uses knowledge about the abuser and the situation
Uses safety strategies for herself/himself and the child
Takes preventative measures to keep the child safe in case an incident of domestic violence occurs (ie keeping coats and shoes near the child’s bed in case the non-offending parent and child need to leave)
Attempts to keep the child safe from harm during an incident of domestic violence (ie moving to a room where the child is not; telling the child to leave the area where the domestic violence is occurring; instructing the child to seek outside help that the child can reasonably be expected to do; shielding the child from witnessing the domestic violence)
Discusses with the child a plan to maintain safety during an incident of domestic violence
Develops a domestic violence safety plan individually or with the assistance of an advocate
Physically defends herself/himself in attempt to stop the perpetrator of abuse from harming him/her or the child
Acknowledges the potential impact that domestic violence can have on the child
Utilizes a support system
Attends individual therapy or domestic violence counseling
Seeks guidance from religious leadership
Calls the police
Seeks legal assistance
Obtains or attempts to obtain an Order of Protection or to initiate other legal proceedings
Ceases the relationship with the perpetrator of the domestic violence
Restricts the access of the perpetrator of domestic violence to the non-offending parent/adult victim and child

101. Concrete Ways the Non-Offending Parent Protected Her Children
Fighting back and defying perpetrator
Not fighting back and complying with perpetrator requests
Trying to improve relationship
Sending children away from the home
Remaining silent and not telling anyone for fear of making it worse
Leaving to try to make things better
Returning to try to make things better
Enduring a beating to keep the batterer from attacking the children
Moving to a less dangerous room when being abused or to a room where children are further away
Establishing safety plan with her children
Avoiding the perpetrator
Calling the police, seeking help from family
Getting protective order
Going to shelter
Trying to get help for perpetrator
Dropping the protective order or withdrawing from help
Learning to be devious to survive
Encourage perpetrator to drink so he will pass out and not hurt anyone
Reasoning with the perpetrator and expressing disapproval of his behavior
Having sex to placate the perpetrator
Drinking and using drugs to numb the pain
Lying about the perpetrator’s criminal acts or child abuse so he will not further hurt the victim children
Catch 22 – the need for the these protective steps imply that the dv was really bad

102. Advocacy Tip: Conclusion of Investigative Harm Analysis
Precautionary Measures → Presumption Intact → Unfound
No precautionary measures→
Indicate

103. DCFS Intervention Should Focus on…

104. Intervention for Melissa Jenkins
DCFS Assessment
Risk to children: SAFETY
Ongoing domestic violence as evidenced by Melissa’s approach
No threats to hurt children
No lethality indicators
Children present in home when occurring
Daniel could have been hurt
Other children were young
Harm to Children
No nightmares, no bedwetting, doing appropriately in school
Children demonstrated bond to Melissa
Precautionary Measures/Protective Factors
Meeting needs of children:
Melissa up to date on immunizations and healthcare
Called Hotline for help
Melissa had a safety plan
Shoes
Instructed children to leave and call police
Children able to follow safety plan
Melissa signed police complaint and participated in criminal case
Melissa expressed concern for children
Strong relationship with children
Intervention
Assisted Melissa in changing locks
Referred children and Melissa to domestic violence counseling
Accompanied Melissa to get protective order
“Indicated” Gary but not Melissa

105. On Administrative Appeal of Indicated Findings: Arguments and Evidence
Harm
Cross examination of investigator about the specific manifestations of harms that are not present
Expert witness about the impact of the domestic violence on the children
Precautionary Measures
NOP testimony about protective steps
Testimony from supportive services
Enter into evidence:
Order of Protection
New lease
Change of locks
Cross fingers that new rules lead to better outcomes during investigations and on appeal

106. Policy Issue

107. GOAL: Coordinated Community Response
CHALLENGE: Mixed Message – View same behavior differently depending upon the nature of the case
STRATEGY: which forum is the most appropriate place to try to achieve client’s objectives?
Children exposed to Domestic Violence…
DCFS/JC
NOP is at fault OP
NOP is a victim
Divorce/Custody
DV is not determinative of custody
Criminal
Separate offense or aggravating factor in sentencing

108. DCFS/Juvenile Court: particularized harm should be needed
Message to non-offending parent
You have done something wrong
Interpretation of Roles
Non-offending parent and batterer are co-child abusers/neglecters
Effect on Children
Could be removed from non-offending parent
Non-offending parent has to vow separation and no contact with battering partner
Protective Order Court: no particularized harm needed
You are a victim
You are a victim, Respondent is the perpetrator
IL will not issue mutual protective orders
Victim cannot violate a protective order
Children can be protected by virtue of living in the same home as victim – do not need to prove any actual risk or harm
IL protective order can give a parent temporary custody but unsupervised visitation is still common

109. Divorce/Custody/Visitation
Message to non-offending parent
The abuse to you may not be enough to prevent unsupervised contact with the children
Interpretation of Roles
Neither parent is a great option
Non-offending parent should not have chosen to be with someone who abuses her
Batterer might treat mom badly but that does not mean he is a threat to the children
Effect on Children: particularized harm needed
Many batterers get custody or unsupervised visits
“Ongoing abuse” is a factor in determining custody, but is not determinative
Non-offending parent must show a link between past abuse and harm to the children
Criminal Court
Message to Non-offending parent
DV is a crime
Victims of crime cannot be held responsible for the crime committed against them
Batterer’s actions are a violation against the People of IL, not just the complaining witness
Effect on Children: no articulated harm needed
Enhanced, Modified or Mandatory minimum penalties for committing domestic violence in the presence of children: AK, AZ, CA, FL, HI, ID, IL, OH, Ok, OR, PR, WA
Committing domestic violence in the presence of children is a separate crime: DE, GE, UT

110. With questions, case consultation or to report progress in your cases under the new rule, please contact:
Sara Block
Flom Incubator Grant Fellow
Family Defense Center