Ashley M. Notice of Proposed Settlement and Fairness Hearing

Notice of Proposed Settlement and Fairness Hearing

To the “Plaintiff Class,” which consists of:

All Persons Located In The State Of Illinois, Who Were

A. Investigated or indicated for neglect under Allegation 60 from July 13, 2012 through December 31, 2013; 

or

B. Were indicated for neglect under Allegation 60 from May 31, 2014 through June 11, 2014. 

A class action lawsuit, entitled Ashley M., et al. v. Ill. Dep’t of Children & Family Servs., et al., No. 2013 CH 20278, was settled in the Circuit Court of Cook County, Chancery Division, Cook County, Illinois on January 8, 2015.

THIS NOTICE IS ISSUED BY THE CIRCUIT COURT OF COOK COUNTY AND RELATES TO A PROPOSED SETTLEMENT OF THIS LAWSUIT.  If you are one of the people described above as a member of the Plaintiff Class, this settlement may affect you.  Please read this notice carefully.

Lawsuit.  This case was filed by Ashley M., Grace R., David and Linda H., and Richard and Carolyn C. (together, the “Named Plaintiffs”), who were appointed by the Court to act as representatives of the Plaintiff Class.  The Plaintiff Class alleges that the Illinois Department of Children and Family Services violated the Illinois Administrative Procedure Act by investigating and indicating persons under a rule known as Allegation 60 after the Illinois Supreme Court’s decision in Julie Q. v. DCFS in March 2013. Allegation 60 is the DCFS neglect allegation    applicable in investigating and indicating persons for subjecting a child to an environment injurious to the child’s health and welfare.  The Illinois Supreme Court in Julie Q. v. DCFS found Allegation 60 to be legally void.

Background Information

The Illinois Department of Children and Family Services was created by the Children and Family Services Act, 20 ILCS 505/1 et seq. and derives its authority to investigate allegations of child abuse and neglect from the Abused and Neglected Child Reporting Act (“ANCRA”), 325 ILCS 5/2.  Pursuant to these statutes, DCFS has promulgated administrative rules regarding child abuse and neglect investigations.  These rules include an allegation system that defines the specific harm to a child and provides guidance to investigators on the evidence that is necessary to be gathered to investigate the specific allegation.  The allegation system is contained in Appendix B to DCFS Rule 300 and Procedure 300, Child Abuse and Neglect Investigations.   The Administrative Procedure Act, 5 ILCS 100/1 et seq., is the state law that governs administrative rulemaking.

DCFS investigates allegations of child abuse and neglect and indicates persons based on the allegation system.  Allegation 60 concerns neglect by subjecting children to an environment injurious to their health, well-being, or welfare.

In 2012, the Illinois legislature amended ANCRA, effective July 13, 2012, by adding to the definition of neglected child subjecting a child to an environment that is injurious to the child’s health and welfare.  The amendments also added a statutory requirement that the environment injurious to the child’s health and welfare must create a likelihood of harm to the child and that the likely harm must be the result of a blatant disregard of parent or caretaker responsibilities.  The 2012 legislation also added a definition of blatant disregard.  P.A. 97-803, eff. July 13, 2012.  The effective date of the amendment to ANCRA was July 13, 2012.  Although ANCRA was amended, DCFS did not amend Allegation 60 at that time.

In March 2013, in Julie Q. v. DCFS, the Illinois Supreme Court held that DCFS Allegation 60 was void.  In response to the Julie Q. decision, DCFS expunged all indicated findings for Allegation 60 from the State Central Register entered prior to July 13, 2012.

This lawsuit was filed on September 3, 2013, seeking to enjoin DCFS from continuing to investigate and indicate persons pursuant to Allegation 60, and from maintaining the names of persons on the State Central Register who were indicated after July 13, 2012 pursuant to Allegation 60.

On January 1, 2014, DCFS filed an emergency rule containing a revised Allegation 60, which incorporated language from ANCRA defining and providing examples of “environment injurious to a child’s health and welfare” and “blatant disregard of parent or caretaker responsibilities.” Simultaneous to posting the emergency rule, DCFS pursued regular rulemaking to re-promulgate a permanent and final rule for Allegation 60 and issued First Notice for Allegation 60 on January 1, 2014.  38 Ill. Reg. 1100 (January 1, 2014).  Because emergency rules expire by operation of law after 150 days, the emergency rule regarding Allegation 60 expired on May 30, 2014.  A final permanent rule regarding Allegation 60 was adopted on June 11, 2014, and has remained in effect since that date.

Settlement.  The parties have reached a settlement of this matter.  Under the settlement:

  • DCFS will expunge indicated findings of Allegation 60 for any and all persons located in the State of Illinois who were investigated or indicated as perpetrators of child neglect for Allegation 60 between July 13, 2012 and December 31, 2013, and any and all persons located in the State of Illinois who were indicated as perpetrators of child neglect for Allegation 60 between May 31, 2014 and June 11, 2014;
  • DCFS will prepare and implement revised procedures which will conform the Allegation 60 in DCFS procedures to the Allegation 60 set forth in Appendix B to DCFS Rule 300 and issue a memorandum to all employees and purchase of service providers notifying them of the revised Allegation 60;
  • DCFS will prepare a training program for DCFS investigative staff explaining the revised Allegation 60 under DCFS Rule 300, Appendix B and Procedure 300; and
  • DCFS will pay Plaintiffs’ counsel $50,000 in resolution of attorneys’ fees and costs.

If you are a member of the Class and the settlement is approved, any indicated finding for Allegation 60 that was investigated or indicated between July 13, 2012 and December 31, 2013, will be removed from the State Central Register.  Additionally, any indicated finding for Allegation 60 entered between May 31, 2104, and June 11, 2014, will be removed from the State Central Register. If you were investigated by DCFS for child abuse and neglect during this time period and indicated for additional allegations, those other allegations will remain indicated.  If your name is being removed completely from the State Central Register pursuant to this settlement, you will receive a letter from DCFS sent to the address DCFS has maintained for you on the State Central Register.  If you are the subject of a petition filed in Juvenile Court, the removal of the indicated finding for Allegation 60 from the State Central Register will not impact the Juvenile Court proceedings in any way.

Hearing.  The Court has scheduled a Fairness Hearing (the “Hearing”) to consider whether to approve the settlement and Plaintiffs’ counsel’s request for fees.  The Court has appointed Michael Brody and Precious Jacobs of Jenner and Block LLP, and Diane Redleaf, Melissa Staas, and Angela Inzano of the Family Defense Center as “Class Counsel.”  The Named Plaintiffs and Class Counsel believe the settlement confers substantial benefits upon the Class, and that it is fair, adequate, reasonable, and in the best interest of the Class.

The Hearing has been scheduled for January 9, 2015, at 11:00 a.m., in the Circuit Court of Cook County, 50 West Washington Street, Courtroom 2102, Chicago, IL  60602.  At the Hearing, the Court will determine whether the proposed settlement should be finally approved as fair, reasonable, and adequate.  The Court will also assess the request for attorneys’ fees.

You do not need to appear at the Hearing, but you may appear if you wish.  You may obtain a copy of the proposed settlement agreement below.

Summary.  The following chart describes the basic terms of the settlement.  You will not be liable for any attorneys’ fees.  This settlement resolves the claims raised in this lawsuit.

If you

Relief

Were the subject of an indicated finding based on Allegation 60 prior to July 13, 2012: You are not affected by this settlement.  Your indicated finding has already been expunged.
Are the subject of an indicated finding based on Allegation 60 that was either investigated or entered after July 13, 2012 and before January 1, 2014: Your indicated finding for Allegation 60 will be removed from the State Central Register if the settlement is approved.  The removal of your name as a perpetrator of child neglect for Allegation 60 will not impact any proceedings in Juvenile Court.  If you were indicated for any other allegations during this time period, those allegations will remain indicated on the State Central Register.
Are the subject of an indicated finding based on Allegation 60 that was investigated on or after January 1, 2014 and entered prior to May 31, 2014: You are not affected by this settlement.
Are the subject of an indicated finding based on Allegation 60 that was entered from May 31, 2014 through June 11, 2014: Your indicated finding for Allegation 60 will be removed from the State Central Register if the settlement is approved.  The removal of your name as a perpetrator of child neglect for Allegation 60 will not impact any proceedings in Juvenile Court.  If you were indicated for any other allegations during this time period, those allegations will remain indicated on the State Central Register.
Are the subject of an indicated finding based on Allegation 60 that was investigated on or after January 1, 2014 and entered on or after June 12, 2014: You are not affected by this settlement.

Additional information about the Court’s rulings in this case is available below.

If you have any further questions, you may email class counsel at fdc@familydefensecenter.net.  In any email you send to the class counsel, please identify your question as concerning “Ashley M. Litigation.” Do not contact the Court.