Two major bill proposals limit family separations under safety plans and reduce harm from unfair abuse or neglect labels.
In the 2014 legislative session, the Family Defense Center achieved four major successes: we secured passage of three pieces of legislation and we defeated an effort of the Cook County State’s Attorney that would have legislatively overturned our appellate victory in the Yohan. K case (which held that a constellation of injuries does not by itself constitute abuse – see Family Defender Issue 15). The first of the affirmative bills we drafted requires safety plans to be in writing and signed, stating the responsibilities of the parties. The second allows juvenile court to appoint parents to be the educational advocates for their children even if DCFS has temporary custody. The third creates a task force to make recommendations for restoration of the differential response program, which deflects cases from investigations and into services, but was abruptly ended in 2012 due to budget cuts.
The Center is now gearing up for an ambitious 2015 session. The Family Defense Center plans to work with the legislature this year to secure passage of two proposals: the Child Abuse Registry Accuracy and Fairness Act of 2015 (CARAF) and the Family Protection Act of 2015 (FPA). Each bill’s provisions, if passed and implemented, could substantially improve the child welfare system for parents and families across Illinois.
CARAF has three main provisions which, together, would limit the impact of indicated findings to serious abuse or neglect cases, providing some relief to wrongly indicated persons, persons who have completed services, and persons who have been exonerated by courts of law. First, CARAF directs DCFS to create an option, for certain types of indicated findings, including those based on living conditions related to poverty, for findings to be maintained on the State Central Register (SCR) for two years instead of the minimum of five years. For many of the most commonly indicated neglect cases, especially those related to poverty and resource issues, five years is too long a period for a person to be registered as a child neglector. An indicated finding can simply continue the cycle of poverty by blacklisting the affected parent or caregiver, preventing them from securing employment. The types of cases which would be included in the reduced time periods are: inadequate food, inadequate shelter, inadequate supervision, inadequate clothing, environmental neglect, and lockout. The Center’s proposal will allow these categories to be expanded by DCFS if it chooses to do so. In addition, the proposal allows that current five-year period can be trained if there are aggravated circumstances involved. One benefit from the legislation, if passed, is that it would reduce the number of DCFS indicated finding appeals that the system processes currently.
Second, CARAF directs DCFS to create a process by which indicated findings, if appealed, can be expunged if the parent or caretaker completes appropriate social services. This process would create an incentive for families to participate in services, such as substance abuse treatment, in order to correct issue DCFS considers to have caused the indicated finding. Currently, just because a family is indicated does not mean that they are offered any services. An indicated finding that is registered on the SCR may do nothing to assist families to address the root causes for neglect or risk to children. Nor do families, once indicated, have any clear incentive to address the genuine risk factors that may impair their parenting; allowing them to have conditional expungement will provide an incentive to address these needs.
Third, CARAF directs DCFS to expunge any indicated finding where a court of law ruled a child was not abused or neglected or that the indicated person was not responsible for the alleged abuse or neglect. To secure expungement under this proposed law, the indicated finding must be based on the same set of facts, and the court must have determined that the responsibility, or the abuse or neglect, was not established by either a probable cause standard or a preponderance of the evidence standard. This provision would be especially important for Illinois parents or caregivers who might be on the State Central Register blacklist for 20 or 50 years despite a juvenile court order in their favor. Without this legislation, there is currently no vehicle for an individual to get off the Register if the individual did not file or win an appeal filed within 60 days of notice of an indicated finding.
The second bill the Center is proposing this year, the Family Protection Act of 2015, is sponsored by Senator Julie Morrison. This bill builds on the success of Senator Morrison’s bill last year which required safety plans to be in writing, signed, and provided to those participating along with a rights and responsibilities document.
The bill proposes provisions that define a safety plan and brings the Children and Family Services Act and the Abused and Neglected Children Reporting Act into compliance with the constitutional requirements and the seventh Circuit caselaw regarding safety plans and protective custody in Illinois.
In addition to updating the statutory standards, the Family Protection Act will require DCFS to track safety plan information internally. Currently, there is no standardized tracking system. As a result, Illinois lacks accurate reporting numbers as to the number of safety plans implemented each year or any information about what those plans require and how they affect families.
Under the proposal, safety plans would only be available options when the standard for protective custody is met. This means that there is an imminent danger to the child, there is no time for a court order, and there is objective reasonable evidence that a child is being abused or neglected. The legislation will also ensure that protective custody and safety plans are not used if and when these requirements are no longer met.
The FPA also requires that safety plans specify the exact limitations imposed on the parent or guardian, have limited duration and be reviewed every five business days, certify that a background check has been done on any caretakers or supervisors under the plan, and be the least restrictive option possible to maintain the safety of the child. These protections would have prevented a number of the FDC’s most egregious cases of safety plans, including those that have lasted months despite the family’s protests and those safety plans where children were placed with an alleged kidnapper or convicted felons.
The proposal requires that, when a safety plan is terminated, all individuals participating in the plan be notified of the termination and that DCFS make reasonable efforts to reinstate the family to the status quo. In other words, unlike current practice, if DCFS puts a child with an adverse family member under a safety plan, they cannot bury their head in the sand and leave it up to the parent or guardian to figure out how to get their child back. The Center has handled a number of cases in which parents have had to get the police or the courts involved in order to undo what DCFS has done while the investigator has washed their hands completely after the termination of a safety plan.
Lastly, the proposed gives parents and guardians the clearer right to request that a safety plan be modified or terminated. It directs DCFS to set up a process in which the basis for, or conditions of, a safety plan is reviewed by a neutral decision-maker at the parent or guardian’s request. This basic due process requirement would give families and advocates alike an avenue to challenge unlawful and baseless safety plans. If passed into law, the protections outlined in the bill will create a better and fairer safety plan system in Illinois.