Family Defense Center Continues to Fight for Parents’ Right to Let Kids Play
New Rule and New Class Action Lawsuit Aim to Stop “Inadequate Supervision” Charges for Those who Make Reasonable Parenting Choices
On September 29, 2016, at its annual benefit, the Family Defense Center celebrated its work on behalf of families who have faced child welfare interventions as a result of reasonable parenting decisions, including the decision to “Let Kids Play.” The focus of the benefit was on the Illinois Department of Children and Family Services’ (DCFS) Allegation 74, the rule that the agency uses to find parents or caregivers guilty of child neglect for “inadequate supervision,” which is often used as a catch-all to condemn parenting choices. The theme of this year’s benefit was especially timely, as September also brought two major developments in this work: a newly proposed rule and a class action lawsuit filed by the Center.
First, on September 16, DCFS issued a proposed new rule on “inadequate supervision,” in an effort to make the rule better conform to the state law governing child abuse and neglect investigations. Under the current, overbroad “inadequate supervision” or Allegation 74 rule, DCFS has been punishing parents for actions that Illinois law would not consider to be child neglect. This new rule is the culmination of nearly a year of negotiations between the Center and DCFS following Natasha Felix’s well-publicized appellate case challenging her child neglect indication for letting her children play in the park next door to her apartment. After a 2 year-long battle and a significant amount of publicity, DCFS finally agreed to clear Natasha’s name.
Since Natasha’s case, DCFS has continued to use the overbroad version of Allegation 74 against other parents and caregivers, keeping as many as 30,000 individuals on the child abuse and neglect register for it. While DCFS has sometimes dropped neglect findings for other clients of the Center, it has refused to stop its overuse of the current Allegation 74 and has even expanded that use for some categories of cases, such as cases involving children left in cars for very brief periods of time.
Therefore, on September 28, the Center joined with a team of pro bono attorneys from Jones Day to file a class action lawsuit, Nicole P. et al v. DCFS and Director George Sheldon. The lawsuit asks the court to order DCFS to stop using the current, unlawful Allegation 74 rule and to remove from the register the names of those people currently listed as child neglectors under that rule, and to only resume Allegation 74 investigations when the new lawful rule that was posted for public comment in September is formally adopted and implemented.
The class includes as many as 30,000 people, including everyone registered as a child neglector under Allegation 74 for the past five years, as well as anyone currently being investigated under the unlawful rule. This lawsuit comes from the Center representing dozens of individuals facing “inadequate supervision” claims over the last few years, including parents, foster parents, and residential care workers; now, we have the opportunity to focus attention on the unlawful policy and practice that authorized these investigations in the first place.
The stories of the named plaintiffs demonstrate how the current, unlawful Allegation 74 allows DCFS investigators to cast almost anything as child neglect. Nicole P. has been labeled neglectful under Allegation 74 for failing to stop her 5, 7, and 9 year old sons from fighting with each other. Deona W. is accused of failing to stop a child, who is not hers, from walking out of a home where she was staying as a temporary guest, while she was getting dressed upstairs.
The third named plaintiff, Brittaney S., has had two recent encounters with DCFS investigators under the guise of Allegation 74. The first of these encounters occurred when Brittaney left her children in a locked, air conditioned car for five minutes while she ran into a Jewel to pick up her son’s birthday cake. She had called in advance to make sure the cake was ready at the register and she was able to see the children the entire time. Despite this, Brittaney was investigated and labeled neglectful under Allegation 74. After she appealed this first DCFS decision against her, DCFS counsel agreed to unfound it. But that didn’t stop DCFS from opening a new investigation when she gave birth to another child a few weeks earlier than expected. When Brittaney’s son was ready for discharge from the NICU, Brittaney, still recovering from the birth, hadn’t been able to purchase a new car seat for the infant. She told the hospital that she would have to pick up her son after her grandfather was able to buy the seat. The hospital called DCFS, which began a new Allegation 74 investigation into Brittaney. At the time she joined in filing the class action suit, the second investigation was still ongoing. However, since filing the lawsuit, Brittany S.’s investigation and Nicole P.’s finding were both unfounded.
DCFS rules must comply with the state statute that gives DCFS the authority to investigate child abuse and neglect, the Abused and Neglected Child Reporting Act (ANCRA). When DCFS adopted the current Allegation 74 rule in 2001, ANCRA defined neglect as the “lack of necessary care,” meaning that a parent or caregiver who failed to provide a child with food, shelter, or medical care could be found to be neglectful. In 2012 – in the wake of an appellate court decision striking down a different DCFS rule in a case brought by the Center (Julie Q. v. DCFS) – the legislature revised ANCRA’s definition of neglected child to also include a child “who is subjected to an environment which is injurious insofar as (i) the child’s environment creates a likelihood of harm to the child’s health, physical well-being, or welfare and (ii) the likely harm to the child is the result of a blatant disregard” of parent or caretaker responsibilities. The current Allegation 74, however, reads that inadequate supervision occurs when “the child has been placed in a situation or circumstances that are likely to require judgment or actions greater than the child’s level of maturity, physical condition, and/or mental abilities would reasonably dictate.” This definition in rule is much broader than the statute’s definition of neglect, allowing DCFS to create its own standard that has not been authorized by the legislature or subject to public debate. In fact, the rule is so overbroad that one could argue that it includes the process of “growing up” as neglect; engaging in activities that are beyond children’s abilities is exactly how they learn and grow.
This recent class action lawsuit is not the first time that the Center has argued that Allegation 74 is unlawful. In fact, Cook County Circuit Court Judge Sophia Hall ruled in August of 2015, in the Center’s case Manier v. DCFS, that Allegation 74 is unlawful because it is beyond the scope of ANCRA. Manier also involved children who were playing outside, allegedly outside the line of sight of their parent. In both Felix and Manier, the parents could see their children in fact, but the evidence had not been properly considered by DCFS investigators and administrative law judges. Despite this previous ruling, DCFS has insisted it does not have to stop using the current Allegation 74.
Proceedings in the Nicole P. class action are now underway. Briefing on whether the plaintiffs can bring the case as a class action is occurring first, to be followed by briefing as to the plaintiffs’ entitlement to a preliminary injunction. It is anticipated that this briefing will conclude before the end of 2016.
In the meantime, the Center will continue to coordinate the representation of individuals facing Allegation 74 investigations and findings. Unfortunately, due to the sheer volume of cases involving the current Allegation 74, the Center cannot individually represent each person; however, sample letters and motions are being made available for the many potential class members who seek the Center’s help.
Final Lawsuit to Challenge Old, Overbroad “Environment Injurious” Rule Settled and an Additional 1,000 Individuals Expunged
After seven years, the Center is pleased to conclude its third and final legal challenge to the former Allegation 60 rule called “environment injurious.” On November 16, Judge Neil Cohen of the Illinois Circuit Court of Cook County gave final approval of a Settlement Agreement in the class action lawsuit Jessica R. et al v. DCFS, finding the terms of that agreement to be fair. The court’s final order will be entered next week and will result in the expungement from the State Central Register everyone who was “indicated” by the Illinois Department of Children and Family Services (DCFS) for this allegation between January 1, 2014, and May 31, 2014. It is estimated that 1,000 individuals will be expunged, which will bring the total number of expunged individuals from this group of lawsuits to more than 27,000.
Like Allegation 74, DCFS’s original Allegation 60 rule, which defined parents as neglectful when they created or allowed an “environment injurious” to their children, was a broad and vaguely defined rule that enabled DCFS to take actions that were not authorized by the state statute defining child neglect. Under the old Allegation 60, thousands of domestic violence victims and parents with mental health issues were labeled neglectful even when their children were never at risk of harm.
In Julie Q. v. DCFS, the Illinois Supreme Court ruled that the original Allegation 60 rule was not authorized by law. Following this clear ruling by the Supreme Court, DCFS expunged from the State Central Register indicated findings for Allegation 60 that were entered against anyone prior to July 13, 2012. After Julie Q., the Illinois legislature amended the Abused and Neglected Children Reporting Act (ANCRA) to change the definition of neglect to include circumstances where a child was at harm due to an “environment injurious.” The amended law also included important restrictions, however. In order to be guilty of neglect, a parent must “blatantly disregard” their duty of care to their child, resulting in a “real, significant, and imminent risk of harm” to the child.
Despite these changes to the statute, DCFS did not change its Allegation 60 rule to comply.
In the Ashley M. class action lawsuit, the Center challenged DCFS’ continued use of Allegation 60 despite the Illinois Supreme Court ruling that it was unlawful. In January 2015, DCFS agreed to settle Ashley M. by expunging the names of anyone listed on the State Central Register under Allegation 60 prior to December 31, 2013. The Ashley M. agreement expunged the names of over 7,000 parents and caregivers.
After the Center brought the Ashley M. class action, DCFS finally changed its unlawful rule. On January 1, 2014, DCFS introduced a new Allegation 60 rule which went into effect on June 11, 2014. However, while DCFS was waiting for its proposed new Allegation 60 rule to make its way through the rulemaking process, it also issued a so-called “emergency rule” that allowed investigations and neglect findings to proceed under an unlawful version of Allegation 60.
As an administrative agency, DCFS doesn’t have the power to unilaterally create new rules. Proposed rules must go through a rulemaking process that includes drafts and the opportunity for public feedback. Ultimately, any rule DCFS proposes has to be approved by the Joint Commission on Administrative Rules (JCAR), which takes into consideration any public comments or opinions on the proposed new rule. According to the Center and pro bono attorneys at Barnes & Thornburg LLP, the supposed authority under which DCFS implemented this emergency rulemaking was not authorized by law. And, at the heart of the claims in the now-settled Jessica R. case, is the contention that DCFS cannot claim an emergency when officials waited nine months after the Illinois Supreme Court ruling, and nearly two years after an Illinois Appellate Court ruling, to take any corrective action.
There remains a small group of people whose cases will require individual attention. Under Jessica R., everyone indicated for the old Allegation 60 between January 1, 2014 and May 31, 2014 will have their names expunged; however, persons investigated during that time period, but indicated afterwards, are entitled to benefit from the class action, but must take individual action to have their case histories reviewed. (Please see the notice here.)
DCFS will be issuing letters notifying the Jessica R. class members of their expungement within 90 days.
Thank you to Steven Pick of LAF for representing Jessica and coordinating with the Center to make her a named plaintiff in Jessica R. Also, the Center wishes to thank all of the lawyers — who by now number over two dozen — and the many named clients who have stepped forward over the past seven years, helping us to achieve justice for over 27,000 people wrongly accused of child neglect whose cases will be expunged by 2017.
First Ever Toolkit for Domestic Violence Advocates
The Family Defense Center proudly released a first ever toolkit for domestic violence service providers in October. This Toolkit was written by Domestic Violence Project Attorney Sara Block and funded by a Flom Incubator Grant from Skadden, Arps, Slate, Meagher & Flom LLP. This resource equips domestic violence service providers with the knowledge and strategies to effectively advocate on behalf of clients during child welfare investigations related to domestic violence. Armed with this toolkit, domestic violence service providers can help ensure that the child welfare intervention strengthens, rather than weakens, the non-offending caretaker’s ability to parent in safety and stability. We’re pleased to have published this important resource to further our mission to defend families.
Let Kids Play Celebration Success
We had another great benefit this year! Our Let Kids Play Celebration was on September 29. Thank you to our supporters for a wonderful evening recognizing the Center’s important work defending families against unfair charges of child neglect. Congratulations to our honorees: Kent Dean, Brian Beck, Natasha Felix, and our pro bono attorneys from Winston & Strawn LLP. Thank you to our event chairs, Kimball R. Anderson and Karen Gatsis Anderson, as well as our sponsors, donors, and volunteers. We look forward to another year of fighting for a fairer child welfare system.
Join Us for #GivingTuesday
In order to help more families in the upcoming year, the Center will be joining over 45,000 organizations worldwide on #GivingTuesday, November 29. #GivingTuesday is an annual international day of giving following Black Friday and Cyber Monday. This kicks off for our holiday fundraising campaign which raises necessary funds so we may continue to tirelessly defend innocent families in 2017. Follow us on Facebook and Twitter for updates throughout the day on November 29!