|Recent due process victory for families|
by Diane L. Redleaf
The Redleaf Law Firm won a case in which a mother had been "indicated" for "ack of supervision"and "risk of harm," the Redleaf Law Firm won a significant ruling on due process grounds. S. F. v. Illinois Department of Children and Family Services, No. 05 CH 14532 (Cir. Ct. Cook. Cty. Jan. 20, 2006) (attached hereto). The facts in Ms. F.'s favor were quite strong; she was found to have suffered an "accidental"injury, but at the same time DCFS ruled that her own unconsciousness for a period of time put her daughter at risk. The ruling in her case, however, had nothing to do with the merits because Ms. F. prevailed on a preliminary motion raising an important due process issue. That ruling has widespread ramifications for other families who might be pursuing appeals of DCFS findings against them.
To our knowledge, the S.F. decision is the first decision applying to a parent (who is not a child care worker) the mandate by the Illinois Supreme Court that DCFS final administrative decisions must be issued in a timely manner as long as DCFS continues to use the low "credible evidence standard" to indicate findings in the first place. Lyon v. DCFS, 209 Ill. 2d 264 (2004). Pursuant to DCFS rules, final administrative decisions are to be rendered within 90 days of the filing of an expungement appeal request. Delays in rendering decisions on expungement appeals beyond the strict 90-day time frame have been held by Lyon to violate the constitutional guarantee of due process. 209 Ill. 2d at 266-268. Further, DCFS must issue its final administrative decision on expungement appeals within 45 days of the administrative hearing itself. Lyon, 209 Ill. 2d at 276; see 325 ILCS 5/7.16. In Lyon, the Supreme Court ordered expungement of the indicated report against the alleged perpetrator because DCFS did not comply with its timing requirements.
On April 21, 2005, Ms. F. made an formal written request to appeal the indicated report against her. Her hearing took place on June 2, 2005. On August 1, 2005, DCFS issued its final administrative decision denying Ms. F.'s request for expungement. This decision was issued 98 days after DCFS received Ms. F.'s request for expungement, and thus was issued eight days beyond the 90-day regulatory time limit. The final administrative decision was issued 59 days after the June 2, 2005 hearing, in violation of the 45-day regulatory time limit as well. Given this record, Judge Henry of the Circuit Court of Cook County ordered that the indicated report against Ms. F. must be expunged. DCFS did not file a motion to reconsider this decision nor did it appeal this decision.
Judge Henry did not reach an additional issue that was raised during this litigation. DCFS argued that time should toll between the pre-hearing conference and the hearing, treating such time as a continuance agreed to by the parties by virtue of the fact that the parties typically discuss and decide on dates for the hearing. Judge Henry did not need to resolve this dispute because tolling the time between the pre-hearing and hearing would not have remedied DCFS's violation of the 45-day time limit between the hearing and the final decision. See Jan. 20, 2006 Order at 8. It is our position that the time should not automatically toll between the pre-hearing and the hearing and that such a tolling was not contemplated by the Illinois Supreme Court in Lyon. See Lyon, 209 Ill. 2d at 266-268. Further, DCFS rules make clear that the "pre-hearing conference" is part of the normal administrative process outlined in the DCFS Rules. See 89 Ill. Admin. Code 336.100; 89 Ill. Admin. Code 336.110 (pre-hearing conference [is] at least 15 days before the first hearing date). Moreover, if the time was tolled during this period, an appellant would have to either waive her right to a timely hearing or waive her right to subpoena witnesses. See 89 Ill. Admin. Code 336.160 (providing for 14 days to subpoena witnesses). DCFS rules and Lyon recognize it is inevitable that there will be a lapse of time between the pre-hearing and the hearing, and this time is "built into" the 90-day time frame for the issuance of a final administrative decision.
It is important to note that Ms. F. was not a teacher, child care worker, or "child care entrant." See Lyon; Dupuy v. Samuels, 397 F.3d 493 (7th Cir. 2005). Judge Henry, relying on Montalbano v. DCFS, 343 Ill. App. 3d 471 (4th Dist. 2003), held that an untimely final administrative decision violates the due process rights of a presently unemployed homemaker. In Montalbano, the court focused on the issue of her future employability, not current employment. The court rejected DCFS's argument that the plaintiff, a police dispatcher, should not be entitled to the same
Possibly most significant of all is the fact that DCFS chose not to appeal the extension of Lyon to the context of family liberty interests. In other words, DCFS did not wish to argue that the liberty interests of families deserves less protection than the interests of child care professionals. Therefore, we believe that the issue has been resolved in favor of our client community, at least for now.
Dupuy, Lyon, and now S.F., have an extremely significant impact on the representation of families seeking expungement of indicated reports against them. Of course, each family member who appeals a DCFS finding should present their claim to a "liberty interest" at their hearing so as to preserve this issue if an appeal is necessary (by saying, for example, that the indicated report could impair their custodial relationships or cause them to be unable to adopt children in the future).
A further advocacy suggestion is that "continuances by agreement" should be avoided to the extent possible as these continuances limit available due process arguments. DCFS will attempt to argue "waiver" of the strict time frame for deciding expungement appeals, even when there is little affirmative evidence to support such a claim. Silence may be interpreted as acquiescence and then used as a basis for a waiver argument if the case goes up on appeal. While such waiver arguments may not prevail, it is helpful to have a strong record of objection to continuances and demand for timely hearing in order to prevail in an Administrative Review Action. Therefore, when appealing an indicated report, an individual and/or his counsel should only "agree" to continuances that are absolutely essential to their ability to pursue a fair administrative appeal.
One last point is worth making about the context of this case. While the Redleaf Law Firm won a "technical" due process victory, the victory is extremely important in the particular setting in which the indicated report was made. The client is a very dedicated mother whose sole fault, according to her own therapist, is "overprotectiveness." The indicated report--finding her guilty of lack of supervision--was extremely counterproductive for her and her family. Moreover, she is involved in a somewhat abusive relationship with her husband, who was in no way targeted in the incident but who in fact precipitated DCFS's involvement. Thus, the dynamics of the case--where DCFS exonerated an abusive husband and blamed an overprotective mother--are ones that the indicated report only made worse for the child, not better. By overturning such reports, we at least can hope to restore some modicum of reasonable family life to people whose care of children DCFS disrupts in many unfortunate and counterproductive ways.
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