Recent Precedent-Setting Cases: Victories for Parents

1. Recent Precedent-Setting Cases:Victories for Parents

2. Hernandez v. Foster (7th Cir.) Background on SAFETY PLANS • DCFS uses safety plans as an end run around Juvenile Court Act • Dupuy v. Samuels: 2006 Seventh Circuit ruling that safety plans are voluntary • Common practice of safety plans after taking protective custody

3. Hernandez v. Foster • Facts of Hernandez case • An especially good vehicle for a test case on the voluntariness of post-protective custody safety plans.

4. Hernandez v. Foster Procedural Posture • Defendants’ motion to dismiss denied by District Court • Defendants’ motion for summary judgment granted by District Court • Plaintiffs appealed the granting of summary judgment

5. Hernandez v. Foster The four main issues decided by the 7th Circuit: • (a) DCFS gets qualified immunity for the removal • (b) DCFS cannot hold children for 48 hours if it is clear within that time probable cause no longer exists

6. Hernandez v. Foster Four main issues cont’d: • (c) DCFS may not gain safety plans after protective custody lapses through the use of threats • (d) prospectively (after October 7, 2011, the date of the ruling) DCFS may no longer remove children from their families without a court order based on probable cause alone; some exigency is also necessary.

7. Hernandez v. Foster • The impact of the three rulings in favor of families (b-d) above; advocacy issues • The role of the Family Defense Center in Hernandez and other cases like it.

8. In re Dar C. (Ill. Sup. Ct.) • Synopsis of Facts • Overview of lower court rulings and Supreme Court opinion

9. In re Dar. C. A statute may be facially constitutional, but unconstitutional as applied • In state court, focus on Illinois jurisprudence • When making constitutional arguments in state court, always cite to Illinois supreme court cases, as well as federal cases

10. In re Dar. C. Take risks in juvenile court • Due process for parents is limited under the Juvenile Court Act; our task is to keep the limitations from collapsing inward • Even mistakes can be exploited to protect the rights of parents • Don't sweat the ridicule: You might end up winning in the supreme court—with a unanimous decision and two special concurrences!

11. In re Dar. C. Working with amici • Invite criticism; adjust your theory • Keep your case theory and argument in focus throughout all working drafts

12. In re A.P. (pending in Ill. Sup. Ct.) • Facts • Appellate Court Opinion • Issues in the Supreme Court

13. Julie Q. v. DCFS (pending in Ill. Sup. Ct.) • Case pursued under ANCRA, not Juvenile Court Act • Facts • Two defeats in a row • Huge victory in Appellate Court • Allegation #60 (environment injurious) void as a matter of law • ALJ relied upon impermissible hearsay

14. Slater v. DCFS (Ill. App. Ct.) • Another DCFS investigation that never resulted in juvenile court involvement • Outstanding young mother was indicated for causing a “wound by neglect” after an undisputed accidental injury • Again—2 defeats in a row • Appellate court held that the mere fact that an injury occurred is not sufficient to prove neglect—there must be identifiable neglectful behavior

15. In re J.C. (Ill. App. Ct. – unreported) • Complicating fact of Mother being Deaf and sign language interpreter needed for all court proceedings • In termination proceedings, trial court found mother unfit, largely due to housing issues that were beyond mother’s control • Appellate Court ruled that the finding of unfitness was contrary to the manifest weight of the evidence

16. Recent cases of interest: Illinois Supreme CourtUS Supreme Court

17. In re C.C. 2011 IL 111795 • 705 ILCS 5/1-5(1): Parties—guardian • Grandparent who was legal guardian of minor not entitled to remain a party when guardianship vacated at disposition • Former guardian may petition under 705 ILCS 5/2-28(4) to have guardianship restored

18. In re C.C. 2011 IL 111795 (cont.) • Notable quotes: • ¶ 38 “We find that the appellate court erred in looking to the children's best interests in deciding that Long would remain a party to the case even after she was dismissed as the children's guardian”

19. In re C.C. 2011 IL 111795 (cont.) • Notable quotes: • ¶ 41 “We apply the statutes of this state as written, and do not carve out exceptions that do not appear in the statute simply because we do not like how the statute applies in a given case.”

20. In re Haley D. 2011 IL 110886 • Termination of parental rights: Relief from default order/default judgment • An order of default by itself is not a final order or judgment when seeking relief under 735 ILCS 5/2-1301 or 2-1401

21. In re Haley D. 2011 IL 110886 (cont.) • Practice point: Even a party in default still has rights to notice, so know them! • 705 ILCS 405/2-15 • 705 ILCS 405/2-16 • 705 ILCS 405/2-29

22. In re Haley D. 2011 IL 110886 (cont.) • 735 ILCS 5/2-604(“In case of default, if relief is sought, whether by amendment, counterclaim, or otherwise, beyond that prayed in the pleading to which the party is in  default, notice shall be given the defaulted party as provided by rule”) • 735 ILCS 5/2-1302 (“Upon the entry of an order of default, the attorney for the moving party shall immediately give notice thereof to each party who has appeared, against whom the order was entered, or such party's attorney of record. However, the failure of the attorney to give the notice does not impair the force, validity or effect of the order”)

23. In re Haley D. 2011 IL 110886 (cont.) • Supreme Court Rule 105 (“If new or additional relief, whether by amendment, counterclaim, or otherwise, is sought against a party not entitled to notice under Rule 104, notice shall be given him as herein provided”)

24. In re Haley D. 2011 IL 110886 (cont.) • Notable quote: • ¶ 90 “While courts must always remain mindful of the best interests of minor children in cases such as this, the focus of the Juvenile Court and Adoption Acts is not solely on the child. A parent's right to raise his or her biological child is a fundamental liberty interest [citations omitted] and Illinois law favors natural parents having custody of their children [citations omitted]”

25. Other cases • In re Jonathan C.B. 2011 IL 107750 : No right to jury trial in delinquency • Williams v. Illinois, 567 U.S. ____ (2012): Expert’s referral to DNA test results as basis for opinion in criminal trial did not violate Confrontation Clause. • n.b. no majority on the law

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