The Family Defense Center Coordinator of Illinois parent attorney network

1. The Family Defense CenterCoordinator of Illinois parent attorney network To Protect Children, Defend Families OUR MISSION: WE ADVOCATE JUSTICE FOR FAMILIES IN THE CHILD WELFARE SYSTEM

2. 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

3. 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

4. PART I: DCFS Investigations

5. 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”)?

6. 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

7. 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

8. 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:

9. 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.”

10. 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?

11. 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).

12. 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

13. 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.

14. 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”

15. 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

16. 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!)

17. 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.

18. 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

19. 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: • Abuse ONLY • Neglect ONLY • Abuse OR Neglect For a full list of the different “Allegations of Harm,”see Appendix D of the Training Manual.

20. Abuse ONLY • Examples: • “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

21. 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

22. 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

23. 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?

24. 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

25. New Legislative LanguagePub 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

26. INITIAL NOTICESGiven at the beginning of investigation KEY NOTICE IS CANTS 8 RIGHTS IN 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”

27. 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

28. Required Investigative Contacts • 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

29. Time Limits for the Investigation 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.

30. 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

31. DCFS PROCEDURE ON 2ND 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.

32. 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

33. 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?

34. 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

35. 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

36. 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”

37. 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

38. Investigative Outcomes • 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

39. Minimization DCFS tends to claim that they aren’t assessing guilt or innocence, when that is, in fact, precisely what investigators do!

40. INDICATED: Evidentiary Requirements RULE/STATUTE DUE PROCESS • 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)

41. 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

42. 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.

43. 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

44. Mandatory 50 years Examples: Death Sexual Penetration Mandatory 20 years Examples: Sexual Exploitation Sexual Molestation Failure to Thrive Registry and Retention Schedules

45. 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: Extent of injuries Long-term effects of injuries Medical treatment required Pattern of injuries Registry and Retention Schedules

46. 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

47. Part II: Expungement Hearings

48. 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!

49. 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.

50. 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