The Safety Plan Policies the FDC Seeks to Change

Since 1995, State child protection authorities have compelled over 120,000 Illinois parents (an estimated 10,000 families per year) to move out of their homes or have their children leave their homes on the basis of an uninvestigated allegation or "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 then 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 many other states.  Because the Supreme Court denied review of the Seventh Circuit Court of Appeals decision (462 F.3d 859 (7^th Cir. 2006)) upholding them, the FDC fears these policies will continue unabated, harming potentially tens of thousands more children and parents.

The following case--one of many--illustrates our concerns.

Dr. S. and his wife are the parents of an eight-year-old, who they 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 he next 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. 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.  The Supreme Court's decision to deny review means the likelihood of any major direction from the federal courts is unlikely for the foreseeable future. 

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.) squarely rejected this 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, as the law clearly required it to do, it reached a legal conclusion that safety plans are per se voluntary agreements and concluded that the plaintiffs therefore had no grounds for relief. 465 F. 3d at 760-63.  This across-the-board declaration of voluntariness in the face of extreme threats is unprecedented.

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 determinations:

The Seventh Circuit took its analysis even further. It held not only that safety plans are "voluntary," 465 F. 3d at 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 state deliberately 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, it appears that under DuPuy they can make whatever threats they choose.  While the holding contradicts other Seventh Circuit case law (Doe v. Heck and Michael v. Gresbach), the Seventh Circuit in DuPuy refused to reconcile this conflcting law, saying only that in Doe, no Hotline call had been made against the family.

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In one central respect, the trial court and the Seventh Circuit agree about the law (and disagree 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 at 887 and 465 F. 3d at 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.

The FDC's position is that the State may impose involuntary safety plans when it possesses objectively reasonable evidence of abuse or neglect of the child by the parent. If it does involuntarily impose a safety plan, however, it must give the parent a fair chance to have the safety plan reviewed promptly by a neutral decision-maker (e.g., a judge or hearing officer). Similarly, the plaintiffs do not argue that the State is constrained from taking protective custody of children when the State has objectively reasonable evidence supporting allegations of parents' abuse or neglect.

The FDC also asserts that 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.

In addition to Executive Director Diane Redleaf at the Family Defense Center, Robert E. Lehrer, an adjunct law professor at Loyola and a former Deputy Director of the Legal Assistance Foundation of Chicago, is also co-lead counsel. Other counsel include prominent lawyers and law professors: Jeffrey Gilbert from Johnson Jones Snelling Gilbert and Davis; Andrew Mathews and Marshall Seeder from Reed Smith (formerly Sachnoff and Weaver); Prof. Jeffrey Fisher from Stanford Law School, who has argued numerous cases in the Supreme Court; leading Chicago legal scholar Richard Epstein; and Carolyn Shapiro, a faculty member at Chicago Kent Law School who previously clerked for Judge Posner and Justice Breyer.

On June 16, 2008, the Supreme Court turned down our request for review, despite the support by 21 amicus groups and press attention to the importance of the case.  Supreme Court experts note several things: 1) this decision does not mean the Supreme Court endorses the Seventh Circuit decision or considers it correct; 2) concerns about whether there were factual disputes, as suggested by DCFS in its opposition brief, may explain the denial of review; and 3) the politics of the court--with the conservative wing supporting executive authority and discretion over individual liberty/due process claims in the current debates about Guantanamo Bay, and the liberals concerned about maintaining social safety nets, including child protection systems--may have led to concerns against granting review.

[1] In the challenge to the blacklisting practices of childcare professionals (see Dupuy I: Case History and Issue Overview), the Dupuy plaintiffs had challenged the unreliability of "guilt" findings (so-called "indicated reports") DCFS investigators render at the conclusion of investigations of Hotline calls and register in the State Central Register. The plaintiffs established that DCFS erred in 74.6% of the indicated reports that were challenged (and overturned) on appeal. 141 F. Supp. 2d at 1102, 1137. This fact is relevant to the duration of safety plans: those with very long durations tend to involve safety plans that continue in effect after the conclusion of an investigation and while an appeal is pending from an indicated report. This high error rate for indicated reports, coupled with the fact that over two-thirds of the Hotline calls result in an "unfounded" determination at the close of the investigation, strongly suggests that a very substantial percentage of the parents subjected to safety plans would be able to show a lack of any factual basis for the plans were they given an opportunity to challenge them.