The newsletter of the ISBA’s Standing Committee on Women and the Law
Dupuy v. Samuels (DCFS Director), re DCFS safety plans case report
Entire families, including mothers, fathers, children, siblings, aunts, uncles, grandparents, male and females of any description are possible persons who can be affected by DCFS safety plans. When attorneys meet with persons affected, they need to consider that it is the entire family, including the extended family, which may be seriously and negatively affected.
What advice do you give to these clients?
1) On May 12, 2000, an anonymous Hotline call to DCFS alleged that Dr. S had engaged in a sexual act with a “flat-chested” female. On the same day, a DCFS investigator came to Dr. S’ and his wife’s (Dr. M) home and led him to “understand that if he refused to agree to the DCFS safety plan, they would take his daughter away or go to the police.” Dr. S stayed in a hotel over the weekend. On May 15, 2000, at a formal forensic interview, Dr. S’ daughter denied any improper sexual contact with her father. The DCFS investigation was unfounded, and Dr. S returned home on May 19, 2000. The threat Dr. S experienced could not have been more severe or consequential, particularly because he had promised his daughter when he adopted her that he would never leave her.
2) Bill M, the vice president of a Chicago corporation, and his wife, a full-time homemaker, have a two-year-old daughter. The little girl fell onto concrete on November 13, 2004, suffered a fracture, was given a case and sent home. When the hospital detected a possible earlier fracture in the same location, DCFS was called to investigate the M’s for alleged physical abuse. On November 15, 2004, DCFS directed Bill to leave his home under a “24-hour safety plan and gave him no choice about signing the safety plan.” On November 24, 2004, DCFS Investigator Hardin insisted on an out-of-home safety plan over the upcoming Thanksgiving weekend. Pursuant to this plan, both parents had to leave their home over Thanksgiving while relatives cared for their children at home. The plan stated it had an “estimated time frame within seven days.” The M’s signed the plan under the threat that, if they did not do so, their two daughters would be taken into foster care. The plan was lifted on November 30, 2004. The safety plan caused “among the very worst days of the M’s lives,” including ruining the entire extended family’s Thanksgiving plans.
3) Christine B lives with her six-year-old daughter, K, and Christine’s fiancé, J.M. Because of a sexual offense conviction by plea-bargain, J.M. was required to register as a sex offender. When he did so and stated that he was living with Christine and K, DCFS initiated an investigation on July 26, 2004. It found that K was comfortable around J.M. and had no signs of abuse, but the investigator insisted that both adults sign a safety plan under which J.M. could not stay in his own apartment (for which he is the leaseholder) nor could he be alone with K. Investigator Lessor threatened removal of K from her mom if Christine did not agree to this safety plan. The plan stated it was to remain in effect for 30 days or until a risk assessment was done, at least eight weeks later. J.M. slept in his car due to the safety plan. On November 11, 2004, Investigator Thomas threatened to remove K from Christine unless she and K moved from J’s apartment, which they did. Christine remained separated from J.M. until April 1, 2005, when DCFS informed her that the case was “closed” on condition that Christine install safety devices and motion detectors in her home. Leaving J.M.’s home caused K serious emotional problems.
Case No. 97 C 4199 (also 141 F.Supp.2d 1090 (N.D., Ill.), 397 F.3d 393 (7th Cir. 2005)), now pending before the Judge Rebecca B. Pallmeyer in the U.S. District Court in Chicago, Illinois, is addressing just what advice we can give to the above persons and those in similar situations. Belinda Dupuy, et al, v. Bryan Samuels, Director of DCFS. The advice for the above “clients” is that they will have new remedies shortly. On March 11, 2005, the court entered an Order addressing the plaintiff’s concerns regarding “safety plans” which impose restrictions on families during the pendency of investigations into allegations of abuse or neglect. The court declined to require DCFS to meet a minimum evidentiary standard to impose a safety plan on a family. It found it was “not improper” to impose a safety plan even when there is only one safety factor present based on a “mere suspicion of abuse or neglect.” It further found that when a safety plan is of “brief duration,” the family members thereby affected suffer no constitutional deprivation, though it is “regrettable that a father had to spend a week away from his family.” At the same time, however, the district court found that safety plans that last longer than a week or even a year did violate family members’ substantive and procedural due process rights. The court held that “at some point, the deprivation continues long enough to implicate plaintiff’s liberty interests.”
Both sides submitted proposed remedial plans. The court largely adopted the proposal from DCFS which was that, after living under a safety plan, the family could request a Safety Plan Team Assessment (SPTA), which would be scheduled within five working days of DCFS’s receipt of the request. The purpose of the SPTA would be to “come to some agreement for the safety of the child until the investigation process is complete.” This is not a hearing per se. The court required that the SPTA be held in fourteen days, not four weeks. The plaintiffs are not satisfied that the court’s remedial order provides them “process due” so they have appealed.
For an historical context, in August, 2002, DCFS amended its protocols to provide that investigators were to state the “anticipated duration of the safety plan,” but DCFS still allows them to state such duration in conditional terms, such as “until the conclusion of the investigation,” or “until the child is found to be safe by a psychotherapist.” While DCFS provides that safety plans are “intended to be temporary, usually short-term measures,” a very substantial percentage of safety plans had no durational limits or had conditional limits that were open-ended such as “complete counseling.” Even if an investigation is determined to be “unfounded,” a safety plan may remain in place if an investigator determines that there are “safety issues that would make continuation of the safety plan appropriate.” There has never been a process by which anyone required by DCFS to adhere to a safety plan could contest the plan. On September 3, 2002, the district court commenced a 22-day evidentiary hearing on plaintiff’s Amended Motion for Class Relief which sought a preliminary injunction. The safety plan of the case is “Part II” of the case. “Part I” was concerned with the rights of people who care for children professionally, and the reported decisions regarding that care are at 141 F.Supp.2d 1090 and 397 F.3d 493 (7th Cir. 2003). The pending appeal of the court’s injunction is the third appeal in this case. The matter has continued its way through the court.
Attorneys Robert E. Lehrer, Diane L. Redleaf, Jeffrey B. Gilbert, and Jack L. Block have pursuedDuPuy v. Samuels, seeking an adequate and proper resolution for the plaintiffs, including the persons affected by DCFS safety plans. They have filed an appeal of Judge Pallmeyer’s December 7, 2005, Order, which objects to DCFS’s proposal for appropriate remedies as not sufficient. We hope that, when this appeal is decided, we can give the “clients” some better advice. Stay tuned, we will report on the continuing state of this process.