In 1997, a class of parents and child-serving professionals filed a lawsuit against the Department of Children and Family Services, seeking extensive reform of DCFS investigations, based on violations of due process. Over 150,000 Illinois families and professionals are members of the certified class. The case has resulted in sweeping changes in the investigations of child-service professions, Dupuy v. McDonald, 141 F. Supp.2d 1090 (N.D. Ill. 2001), implementing injunction of July 2003 affirmed in part and reversed in part sub nom Dupuy v. Samuels, 397 F.3d 493 (7th Cir. 2005). This aspect of the litigation was finally settled on March 9, 2007, with the terms of the settlement subject to a two-year monitoring period. At the same time, in a separate second phase of the Dupuy litigation, terrifying practices involving a basic question of family liberty and state authority to intervene in family life have not yet been remedied. The issues in the case involve a basis of due process and the rule of law. This gave rise to a petition for certiorari in the United States Supreme Court which was supported by 21 groups including the Illinois State Bar Association. Unfortunately, on June 16, 2008, the Court denied the petition despite significant media speculation that the Court might well accept it (including from Linda Greenhouse, New York Times, June 17, 2008, who referred to it as a “closely watched” case).
Since 1995, State child protection authorities have compelled an estimated 10,000 Illinois parents to move out of their homes or have their children leave their homes at the outset of investigations on the basis of an uninvestigated Hotline call reporting “mere suspicion” only. The State forces this action upon families by threatening to take children into foster care if parents do not leave their homes or relocate the children to a relative’s home. If they do comply (as all reasonable parents do), the State labels their decision a “voluntary choice” and denies the parents any opportunity to challenge the basis for imposing this “choice” upon them. Similar policies and practices are in place in other states, as the ISBA’s counsel Jenner and Block has learned. In fact, the Third Circuit Court of Appeals outlawed similar practices in Croft v. Westmoreland County Serv., 462 F.3d 859 (7th Cir. 2006), creating a split between Third and Seventh Circuits on exactly the issues the Dupuy case presents. This split, however, apparently was not sufficient grounds for the Supreme Court to accept review in Dupuy, leaving intact in Illinois the same policies and practices that the Third Circuit outlawed.
While Dupuy II has a huge trial record (based on a 22 day trial in 2002), the essential facts can be easily summarized. One example from the record demonstrates the basic fact pattern.
Dr. S. and his wife are the parents of an eight-year-old who they had adopted when she was three years old. On Friday, May 12, an anonymous call was made to the Illinois Department of Children and Family Services (“DCFS”) Child Protective Services Hotline alleging a sexual act between Dr. S. and a “small female.” The same day, a DCFS investigator came to the family’s home and demanded that Dr. S. leave immediately or, the investigator threatened, his daughter would be taken into foster care. Terrified, Dr. S. complied and left his home over the weekend, uncertain when next he would be allowed to see his wife and daughter. On Monday, May 15, a DCFS investigator decided to allow him to be “supervised” by his wife during the day until the investigation was complete. One week later, after vigorous legal advocacy (which most parents subjected to these practices do not have), the case against Dr. S. was declared “unfounded,” following an interview with Dr. S.’s daughter, in which she denied her father had ever inappropriately touched her. Only then did the State drop its demand that the family live under the restrictions it had imposed.
The forced “agreement” Dr. S. made to leave the home is termed a “safety plan” in Illinois. Dr. S. is one of dozens of identified parents (among the thousands of members of the certified class in Dupuy) who are challenging the DCFS safety plan policy as depriving them of their family liberty interests without due process of law. All parties acknowledge that DCFS policy authorizes safety plans based solely on “mere suspicion” and provides no opportunity for parents to challenge the basis on which safety plans are imposed. Dupuy II, 462 F. Supp.2d at 865, 871, 887. The majority of the safety plans at issue in this case last much longer than Dr. S.’s: most common are 30- to 60- day plans, which are in effect during the initial investigation period, but some plans last 12 to 18 months.1 See 465 F. Supp. 2d at 869, 881-82 (citing examples of 11- and 18-month plans, respectively).
While the Supreme Court has repeatedly declared that “familial association” is a fundamental liberty interest that cannot be abridged without a “compelling state interest,” the Supreme Court has never decided a case concerning the standards a state investigator must apply to remove a child or parent from his or her own home in a non-criminal child protection case. DCFS does not dispute that the plaintiff parents have a liberty interest in remaining together as a family, but claims instead that its safety plans do not deprive families of that interest, because all safety plans are voluntary, and therefore, no “process” is “due.”
The federal trial court (Pallmeyer, R. J.) squarely rejected DCFS’s position argument, finding that safety plans were routinely coerced from parents by the State’s threats to take children into protective custody, 462 F. Supp. 2d at 891. The trial court also found that the State demanded safety plans on the basis of “mere suspicion” and prior to gathering any evidence of parental wrongdoing. Id. at 887. During the lengthy trial, DCFS acknowledged that it never secures credible evidence of abuse or neglect against the majority of parents who are subject to safety plans (making its threat of taking protective custody a bluff). The trial court found that oral threats had been made to every plaintiff parent who testified; each of them confirmed that they had been told that if they did not agree to a safety plan, their children would be taken into foster care. Id. at 893. The trial court found that parents are not told the basis for the safety plan demand, and once they entered into a safety plan, the State provides no available means for parents to challenge it. Id. at 869. Because of the presence of threats in the safety plan process, the trial court concluded that safety plans are not voluntary, and therefore they constitute a “deprivation” of family liberty interests. Id. at 893.
The Seventh Circuit (Posner, J.) disagreed with the trial court’s conclusion that the circumstances under which DCFS requires safety plans make them involuntary. It held that the plaintiffs had no constitutional grounds for complaint, because voluntary agreements do not deprive families of any protected liberty interest in familial association. While it did not dispute any of the trial court’s findings of fact or declare them to be clearly erroneous, it reached a legal conclusion that safety plans are voluntary agreements and concluded that the plaintiffs therefore had no grounds for relief. 465 F. 3d at 760-63.
The Seventh Circuit’s legal conclusions and analysis, as well as the language it uses to describe safety plans, contrast sharply with the trial court’s findings of fact:
1. The court of appeals repeatedly labeled safety plans “choices” or “options,” 465 F. 3d 760, 761, 762, or even a “boon” to families, Id. at 763. In contrast, the trial court found that the threats of protective custody DCFS routinely makes are threats “sufficient to deem the family’s agreement coerced and to implicate due process rights.” 462 F. Supp. 2d at 893.
2. The court of appeals assumed parents would reject safety plans if they thought the State had no case against them. The trial court found, however, that DCFS does not tell parents either why it has concluded a safety plan is necessary, nor what evidence it has gathered against them. Id. at 869. Moreover, DCFS does not require that any evidence be secured before it tells parents they must have a safety plan or face their children’s removal to foster care. 462 F. Supp. 2d at 865. For these reasons, parents have no basis for reason to believe it is safe for them to reject a safety plan.
3. The court of appeals declared that parents “have only to thumb their nose” at a safety plan offer or “reject” it. 465 F. 3d at 761. Yet, the trial court pointed out that DCFS had not “identified a single family that, faced with such an express or implied threat of protective custody, chose to reject the plan,” and the trial court relied on this fact in concluding the safety plans were coerced, not voluntary. 462 F. Supp. 2d at 893.
4. The court of appeals treated the parents’ alternatives of having their child removed to foster care or leaving the home as an innocuous choice, akin to being offered a “Martini v. Manhattan” (commenting that it is surprising that people complain about having “more rather than fewer options”), 465 F.3d at 762. In contrast, the trial court found that the “option” of a safety plan separating children and parents or restricting their contact with each other irreparably injures families by disrupting family life for an indefinite period of time., 462 F. Supp. 2d at 896.
The Seventh Circuit took its analysis even further. It held not only that safety plans are “voluntary,” 465 F.3d 761, so that no parent subject to a plan suffers any deprivation of their liberty interests in familial association, Id. at 761-62, but it also declared that threatening a parent with their child’s removal into state protective custody is not unconstitutional unless the statedeliberately misrepresents the evidence it has against the parent. Id. at 762-63. In practice, this aspect of the Seventh Circuit opinion authorizes State authorities to threaten parents at the outset of any investigation. As long as the investigators do not lie about the evidence they have gathered, they can make whatever threats they choose.
In one central respect, the trial court and the Seventh Circuit agreed about the law (and disagreed with the plaintiffs’ position throughout this case): both courts have declared that “mere suspicion” is an adequate basis for requiring parents to abide by a safety plan. See 462 F. Supp. 2d 887 and 465 F.3d 761. But, DCFS always has “mere suspicion” when it investigates Hotline calls; it commonly forces safety plans upon families even before it has done any investigation into the merit of those calls. The plaintiffs’ contention throughout this case is that “mere suspicion” cannot be a constitutional basis for a severe intrusion into family life. Rather, evidence giving rise to an objectively reasonable basis for the State’s intrusion into the family in order to protect a child from his or her parent is constitutionally required before any intrusive “choice” can be required of a parent, just as such evidence is required in order to take a child into State protective custody. In the plaintiffs’ appeal seeking to impose on the State this constitutional burden of proof, the Seventh Circuit voiced no reservations concerning the “mere suspicion” standard. It said that even an “inarticulable hunch” sufficed as a basis for foisting the “choice” of a safety plan on a parent, because it is possible such a hunch may “ripen” into real suspicion during the Hotline call investigation, 465 F. 3d at 761.
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The petition for certioriari to the Supreme Court asked it to determine that families have the right to remain together, free of coercive threats and directives, unless the State has objectively reasonable evidence of abuse or neglect and provides the parents with the right to a meaningful hearing to challenge the State’s basis for separating families. This position encompasses several corollaries:
(1) it is constitutionally unacceptable for a State official (that is, a DCFS investigator) to threaten any parent with the removal of their children into state custody unless the State has objectively reasonable suspicion of abuse or neglect;
(2) if the State does have objectively reasonable suspicion and requires the parent to leave the home temporarily under a safety plan, it must provide the parent a “meaningful opportunity to be heard” to contest the safety plan. This opportunity can be provided after a safety plan is imposed, but the opportunity must be provided very soon after the involuntary imposition of a safety plan on a family; and
(3) the meaningful opportunity to be heard must include a hearing before a neutral decision-maker and access to information as to the basis for the safety plan.
The plaintiffs also asserted that the threats of taking a child into protective custody (which DCFS routinely makes even when it lacks any evidence against the parents), are so coercive as to compromise the voluntariness of any safety plan. In addition, many other factors, such as the parent’s intelligence, education level, access to and availability of information and counsel, and relative bargaining power, render suspect the voluntariness of any safety plan agreement with a State investigator. Therefore, the State’s declaration that a plan is “voluntary” itself requires a process of neutral factual review.
Five amicus briefs were filed in support of the plaintiffs position in an effort to highlight the “exceptional importance” of the issues in the case. The plaintiffs are represented by a team of very experienced civil rights litigators and several prominent law professors. In 2007, the new not-for-profit Family Defense Center, founded and directed by Diane L. Redleaf, took over co-lead counsel responsibilities in the case, along with Robert E. Lehrer. Lehrer and Redleaf, both of whom spent many years of their careers involved in major litigation against DCFS while at the Legal Assistance Foundation of Chicago, had filed the Dupuy suit in 1997 as private practitioners in their public interest law firm. Jeffrey Gilbert of Johnson Jones Snelling Gilbert and Davis and attorneys associated with the Chicago Lawyers’ Committee for Civil Rights Under Law have been long-term co-counsel in the case. Reed Smith joined as co-counsel in the case in 2004. In the Supreme Court, professors Jeffrey Fisher (Stanford, California) Richard Epstein (Chicago) and Carolyn Shapiro (Chicago) joined the plaintiffs’ effort. Amicus briefs were filed on behalf of a wide range of organizations by Jenner and Block, Sidley and Austin, Baker and McKenzie, O’Melveny and Myers, and McDermott Will & Emery.
With the denial of certiori, the Family Defense Center plans to make legislative efforts to curtail some of the abuses challenged in the lawsuit a priority for its work in the next few years. Major law firms are assisting the FDC in developing a legislative policy agenda, and ISBA support for FDC’s proposals is likely to be requested in the near future.