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History of the Dupuy Case1996
Illinois Attorney General passed legislation to require the Child Endangerment Risk Assessment Protocol form and annual reports from DCFS on success of CERAPS
1997Diane Redleaf and Robert Lehrer filed case Dupuy v.
Samuels: 150,000 Illinois residents served as class members in a constitutional case challenging due process violations by DCFS: phase one involved childcare workers’ rights
March 2001Judge Pallmeyer ruled in favor of Dupuy’s challenges of
little evidence and unfair blacklisting of childcare workers
History of the Dupuy Case2002
A second claim (Dupuy II) was filed, challenging the constitutionality of safety plans
September 2003DCFS implemented the requirements ordered
by Pallmeyer concerning childcare workersMarch 2005
Pallmeyer ruled that safety plans lasting more than a few days violate substantial and procedural due process rights of families
History of the Dupuy CaseDecember 2005
Court directed process of review of safety plans after 14 days
October 2006Judge Richard Posner (7th Circuit Court of
Appeals) ruled safety plans are voluntaryFebruary 2008
Family Defense Center filed a petition asking the U.S. Supreme Court to review constitutionality of DCFS’s safety plans
The Dupuy Family Story
In 1995, Belinda Dupuy and her husband Jeff "Bear" Dupuy ran a licensed day care center in their home in Carterville, Illinois.
They were accused of child abuse/neglect. Belinda: I thought they were saying was that my husband or I had been abusing kids and I - it just was just gut-wrenching. I mean, I - there's no way. Bear: This came from so far out leftfield, we were just absolutely flabbergasted. That's absolutely the most horrible thing you could ever, you know, think of in a day care.
Source: Dateline NBC "Clearing Names," aired on May 4, 2001
The Dupuy Family Story
A local newspaper printed a story about the alleged sexual abuse at the Dupuys' day care center.
Belinda: I was spit on when I went into the grocery stores...I was out in my yard working on it, and someone threw a torn-up doll at me with all kinds of stuff on it and said - he said, "Here, go play with this." After the investigator talked to more day care families, she
didn't find anything against Belinda, but now 10-year-old Sara was under suspicion.
The Dupuy Family Story Sara's classmates soon heard of the allegations and called
her a child molester. Sara: I came home that night and I held a butcher knife to my neck and I tried to kill myself. In December 1995, Belinda, Bear, and Sara filed appeals
with DCFS to get their cases reviewed. The Dupuys filed for bankruptcy in February 1996. In March 1996, the Dupuys learned that because of a
system-wide backlog, DCFS could not schedule their hearing.
The Dupuy Family Story
In June 1997, there was still no hearing. During this entire time, Belinda, Bear, and Sara remained listed in the central register.
In October 1997, the Dupuys received a notice in the mail saying that Sara would be cleared. DCFS provided no explanation or reason for its action.
In December 1997, 2 years after they requested a hearing, Belinda and Bear got a chance to tell their side of the story.
In May 1998, DCFS finally removed Belinda and Bear from the central register. Their names had been in the register for 2.5 years.
The Dupuy Family Story
Belinda: I don't want any child to ever go through what my daughter went through. I don't want any mother to see their daughter try to kill themselves.
At the time of the Dateline interview in 2001, the Dupuys were still trying to recover financially and emotionally. Bear was no longer the happy-go-lucky person he used to be. Belinda thought her day care center was still under suspicion. Sara, 16 years old then, was very angry with DCFS.
Attorney Inspired
Co-Lead Counsel Diane Redleaf and Robert Lehrer Redleaf had been concerned with how DCFS made its
decisions to "indicate" a person as a child abuser or child molester since the 1980s
Contacted in private practice by an attorney helping her
daughter with an indicated appealo Saw this as an opportunity to change DCFS policieso Started paying attention to calls and claims that came in
to figure out exactly what DCFS was doing
Increased Publicity
Filed complaint on June 11, 1997 with 7-11 initial plaintiffs A class action lawsuit was viewed as the best way for policy
reform
Made the front page of the Chicago Tribune Metro Section o Received over 100 new callso Set the stage to add 100 plaintiffs
Publicity was important to the progression of this case
o Attorneys pursued Dupuy II after increased publicity of Dupuy I
DCFS: Child Protection Services
Best known for its child protection serviceso Goal of child protection program from the Child Abuse
and Neglect Reporting Act: "The Department of Children and Family Services
shall, upon receiving reports made under this Act, protect the best interest of the child, offer protective services in order to prevent any further harm to the child and to other children in the family, stabilize the home environment and preserve family life whenever possible."
DCFS also provides services in foster care, adoption, day
care licensing, and other community services to children and families.
Illinois Department of Children and Family Services (DCFS)
The mission of DCFS is to:
o Protect children who are reported to be abused or neglected and to increase their families' capacity to safely care for them
o Provide for the well-being of children in our careo Provide appropriate, permanent families as quickly as
possible for those children who cannot safely return homeo Support early intervention and child abuse prevention
activitieso Work in partnerships with communities to fulfill this
mission
DCFS: Child Abuse Hotline
The Child Abuse Hotline State law mandates that certain workers must make
reports if they have reasonable cause to suspect abuse or neglect.
Mandated Reporters: physicians dentists, dental hygienist Christian Science practitioners teachers, school personnel child care workers probation officers DCFS field personnel social workers foster parents crisis line or hotline personnel
DCFS: Child Abuse Hotline
"People who report alleged child abuse or neglect in good faith cannot be held liable for damages under criminal or civil law. In addition, their names are not given to the person they name as the abuser or to anyone else unless ordered by a hearing officer or judge. Members of the general public may make reports without giving their names." Should DCFS require callers to disclose their identity?
Would this protect people from false accusations against
them? What effect would it have on callers?
DCFS: Hotline Call Procedure
Division of Child Protection (DCP) operator must determine
whether:
o 1) the alleged victim is under the age of 18;o 2) the person allegedly responsible is an eligible
perpetrator, such as an immediate family member or a person responsible for providing care, or a person residing in the home where care is being provided;
o 3) there are specific incidents of alleged abuse or neglect which cause harm or substantial risk of injury to the child; and
o 4) the alleged victim has been harmed or is in substantial risk of harm.
DCFS: Investigation ProcedureState Central Register (SCR) - maintains a computerized
listing of abuse/neglect allegationsThe Child Abuse and Neglect Tracking System (CANTS) - a
tracking system maintained by SCRChild Endangerment Risk Assessment Protocol (CERAP) -
completed after initial interview with childNotification of a Report of Suspected Child Abuse and/or
Neglect (CANTS 8 form) - given to "subjects" if formal investigation initiated
Formal investigation to be completed within 60 daysFinal Finding Report (CANTS 2 form) - completed by
investigator after DCP supervisor reviewRegistered in SCR as indicated or unfounded
DCFS: Problematic Policies
Notices regarding indicated reportsRetention of indicated reportsAppeals processEmployment and licensure based on indicated reportsSafety and protective plans
These policies affect:
o Day cares, day care employeeso Child welfare agencieso Foster careo Parentso Children
Something is seriously and obviously flawed in a system where 75% of those child care
employees who appeal an indicated finding against them have such a finding overturned or voluntarily expunged by the State months, sometimes even years, later. During the agonizing and frustrating period between accusation and
exoneration, these individuals labeled by the State as perpetrators of child abuse and/or neglect lose not only
their pride and reputation, but often their livelihood as well.
Judge Pallmeyer
Challenges Faced by the Plaintiffs' Attorneys: Dupuy I
Obstacles put out by the Defenseo Objected to class certificationo Tried to moot out every single Plaintiffo Insisted on going to trial
Delays caused by Judge Pallmeyer
o Gave in to Defense's requests for more timeo Took a long time herself
Complaint filed in 1997 Injunction granted in 2003
Challenges Faced by the Plaintiffs' Attorneys: Dupuy II
Real life problemso People were being hurt, threatened and kicked out of
their homes Judge Pallmeyer's order
o Ruled "not voluntary" but didn't address this in the order Found a constitutional violation but didn't remedy the
problemo Didn't enjoin the threatso Created the process of review of safety plans
Policies Challenged as Violations of Plaintiffs' Due Process Rights
1. Indicated Report Decision Making Policies
3. Disclosure and Use Policies
2. Notice and Hearing Policies
4. Special Policies
1. Indicated Report Decision Making Policies
A. The policies do not allow the Plaintiffs a fair determination on the merits at the investigation stage because investigators are not adequately trained or directed to gather and develop exculpatory evidence B. the policies do not provide for impartial investigations because the same investigator charged with gathering the evidence is the final adjudicator in terms of deciding whether to indicate a report
1. Indicated Report Decision Making Policies
C. The "credible evidence" standard allows for "any credible evidence sufficient to indicate a finding of guilt D. The policies incorporate unconstitutional assumptions:
• Some credible evidence is enough to assume an indicated person is a perpetrator of child abuse and/or neglect• Some credible evidence is enough to presume an employee is unfit for employment or licensure• If a child has been touched or injured, it is enough to presume that a named perpetrator committed the child abuse or neglect
"Credible Evidence" Standard
DCFS Regulationso The available facts, when viewed in the light of
surrounding circumstances, would cause a reasonable person to believe that a child was abused or neglected
In Practice
o "Any" credible evidence of abuse or neglect is sufficient to file an indicated report.
o Investigators only gather inculpatory evidenceo Investigators tend to disregard evidence weighing against
an indicated finding
In Practice: A.H.'s StoryP.O.'s injury may have been caused by P.O. catching his foot in the
crib rails during a seizure
Doctor #1 A.H.'s explanation of P.O's injury
is "not plausible."o a treating physician at the
hospital
Doctor #3 P.O.'s injury could have occurred
during a seizure Letter to Acevedo: "it is my
strong opinion that P.O. was not the subject of child abuse from the babysitter."o P.O.'s Pediatrician
Doctor #2 A.H.'s explanation is unlikely But based on the medical history of the
child, the nature of the injury and his interactions with the family "there exists a possibility that the cause of the fracture was accidental"o another treating physician
Doctor #4
o P.O.'s injury was caused by P.O. catching his leg in the bars of the crib during a seizure
S.N.'s father - a retired surgeon
Acevedo Indicated A.H.Family Assessment Factor Worksheet: A.H. is the cause of P.O.'s bone fracture because the two treating
physicians at the hospital thought it unlikely that P.O. was injured by his crib.
Doctor #1 A.H.'s explanation of P.O's injury
is "not plausible."o a treating physician at the
hospital
Doctor #3 P.O.'s injury could have occurred
during a seizure Letter to Acevedo: "it is my
strong opinion that P.O. was not the subject of child abuse from the babysitter."o P.O.'s Pediatrician
Doctor #2 A.H.'s explanation is unlikely But based on the medical history of the
child, the nature of the injury and his interactions with the family "there exists a possibility that the cause of the fracture was accidental"o another treating physician
Doctor #4
o P.O.'s injury was caused by P.O. catching his leg in the bars of the crib during a seizure
S.N.'s father - a retired surgeon
Constitutionality of the "Credible Evidence Standard"
3 Factor Balancing Test Mathews v. Eldridge, 424 U.S. 319, 355 (1967)
1. The nature of the private interest affected by the official action
2. The risk of error and the effect of additional procedural safeguards 3. The governmental interest
Constitutionality of the "Credible Evidence Standard"
3 Factor Balancing Test Mathews v. Eldridge, 424 U.S. 319, 355 (1967)
1. The nature of the private interest affected by the official action Plaintiffs' liberty interest was a "serious and legitimate" private interest.
- McDonald, 141 F. Supp.2d at 1136.
2. The risk of error and the effect of additional procedural safeguards 3. The governmental interest State's interest in protecting children was equally "powerful and
countervailing." - McDonald, 141 F. Supp.2d at 1136.
Risk of Error
74.6% of all indicated findings that are challenged are ultimately reversed on reviewThe court found the error rate was a result of 2 defects:
o The extremely low standard of proof required to indicate a finding
o The delays that allow evidence to become unreliable over time
The court directed DCFS to modify this policyo Gave DCFS two options:
Change the standards if that would be the most effective way to lower the error rate
Train the investigators on the proper way to implement this standard
2. Notice and Hearing Policies
A. Policies do not provide persons who have been indicated with constitutionally adequate notice of the findings against them
B. Policies do not offer meaningful opportunity to contest such a finding
C. SCR Notice does not identify the evidence supporting the indicated finding
D. SCR Notice does not inform the indicated person about the length of time the indicated report will remain in the SCR
Constitutionally Inadequate
1. Indicated persons only have 15 days to appeal an adverse internal review determination 2. A failure to appeal in a timely manner constitutes as a waiver of the appeal 3. Appellants only have access to heavily redacted files 4. An appeal does not stay the inclusion of the indicated report in the SCR 5. The appeals process takes an average of 657 days
DCFS Amendments to SCR Notice Rules1. A specific statement whether the Department has determined the report indicated or unfounded as a result of the investigation 2. The name of the perpetrator 3. The allegations determined indicated 4. The length of time the indicated case shall be retained by the department 5. A statement that a department review of an indicated decision is available 6. A statement that a review must be requested in writing within 60 days after notification of the completion of the investigation 7. The name and address of the individual who must be contacted in order to request a review of the department's decision
Is this enough?
CANTS 8 Form (last revised 1/2009)
CANTS 8 Form (last revised 1/2009)
Court Granted Request for Preliminary Injunction
DCFS notice and hearing policies were unconstitutionalo "A deprivation of life, liberty or property must be preceded
by notice and opportunity for hearing appropriate to the nature of the case" - McDonald, 141 F. Supp. 2d at 1137
Delays were unconstitutional
o Due process requires a hearing at a meaningful time Amended polices classified as "a step in the right direction"
o Court requested evidence that the new rules provided constitutionally adequate notice in practice
Preliminary Injunction Granted: Now What?
Workers at DCFS...o undertrainedo understaffedo overworkedo underpaid
Delays inevitable
Indicated person shouldn't have to pay the price for DCFS'
lack of resourceso "Each day of delay marks another day which a
perpetrator, branded with the scarlet 'I,' is unable to secure any employment in the child care profession." - Judge Pallmeyer
3. Disclosure and Use Policies
Predicated on such a low standard of proof Court held that the first step in addressing these policies is
to strengthen the standard on which indicated reports are found o This ensures only guilty parties are disclosed to licensing
agencies and employers as indicated persons Does it?
4. Special Policies
A. Protective plans are implemented before DCFS decides to indicate or unfound a report
B. Foster care prevent the placement of new foster children in homes based on an indicated finding, even if the parent is deemed "not responsible" for the neglect
C. DCFS neglects to expunge reports from the SCR that have expired or were ordered expunged
Due Process Violations?
District Court's Holding
A. Protective Plans: No violation of due process rights Characterized as "Voluntary"
o Are they?
B. Foster Care Holds: No violation of due process rightsPermissible because they protect children from the possibility
of abuse or neglect while the investigation is pendingo If DCFS policies are appropriately revised
C. Failure to Expunge: Violation of due process rightsDirected DCFS to immediately expunge expired reports, etc.
U.S. Court of Appeals, 7th CircuitJudge Ripple
Because DCFS changed its standard from any credible evidence to considering all evidence, the court of appeals found the standard appropriate at the pre-indication stage.o Why not change standard to preponderance of the
evidence, beyond a reasonable doubt, etc.?Administrator's conference, rather than a full evidentiary
hearing, adequate to ensure individual due process.Administrator's conference also appropriate for career
entrants, not just for current child care workersFoster care holds not appealable and not lifted until the
circumstances that led to the hold are no longer present
Plaintiffs' Stories
Mary Broderick"The fear and injustice that we experienced during that time still
haunts my family today.”Mary Broderick’s Story
Jennifer Evans“”We have no other choice, we have to take her.”
Jennifer Evan's StoryFaith Kumar
“I could no longer do private practice with young people. I could no longer teach”
Faith Kumar's Story
U.S. Court of Appeals, 7th CircuitJudge Posner
The court of appeals found safety plans to be voluntary, and thus no hearing was required before implementing them.
"If you tell a guest that you will mix him either a Martini or a Manhattan, how is he worse off than if you tell him you'll mix him a Martini?"
7th Circuit Oral ArgumentAttorney Robert Lehrer
"What is wrong with settling a dispute?"
Judge Posner: "It is not a forbidden means of 'coercing' a settlement to threaten merely to enforce one's legal rights...If the agency has even a bare suspicion, this may ripen in the course of the investigation into cause to obtain a court order of removal, and this possibility is all that the consent form should and does warn the parents of."
Sense of frustration from the judgesAndy Mathews: "weren't expecting hostility from the 7th
Circuit"
DCFS Position
Number one priority is welfare of the childTendency to be overprecautious
Dr. Ron Davidson: If a case is not clear-cut, the Department must always side with the children involved, for their safety always comes first.We can fix due process, but I don't know how you fix a dead child or a child who's been raped or tortured or beaten. I don't have a fix for that. Source: Dateline NBC "Clearing Names," aired on May 4, 2001
Plaintiffs' Petition for Writ of Certiorari
Croft v. Westmoreland County Children & Health Servs., 103 F.3d 1123 (3d Cir. 1997)o Must have "reasonable and articulable evidence giving
rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse" before State can separate parents from their children
7th Circuit held that DCFS only requires mere suspicion of wrongdoing before they present safety plans that separate parents from their children
Which Circuit do you agree with?
U.S. Supreme CourtDenied cert on June 16, 2008Safety plans are still implemented based on mere suspicion
and with no opportunity for parents to challenge the basis Diane Redleaf:"The decision today does not mean that the Supreme Court has accepted the decision of the Court of Appeals as correct. It simply leaves to another day and another forum the resolution of the issues we present." Theories as to why cert was denied?
o Politics of the Courto Concerns about factual disputeso Not a court to just fix inconsistencies
Positive Impact on the Plaintiffs
Plaintiffs had a positive experience from testifying Felt empowered
Their rights had been violated and they were finally being
vindicated Felt good that they were doing something to help society as
a whole, making things better for other people and for children
Impact on the LawyersDiane Redleaf Regrets 2000: went the entire year without getting paid at all
o Took 12 years to get a fee order Is it too much to ask of attorneys to take something like
this on? Retrospect 7th Circuit Appeal
o Had they known they would have gotten that panel in the 7th Circuit, they would have been reluctant to appeal
o But they weren't getting relief so they wanted to appeal anyway
Another choice of a martini or a Manhattan
Impact on the LawyersRobert Lehrer
o "There's more to be done."o Hard to measure impact with injunctive relief unless
closely monitoredo Would have gone for trial on the merits rather than series
of injunctionsAmy Zimmerman
o "It's disheartening because the process can take so much time, energy, and resources. It makes you consider alternative strategies before doing this."
Andy Mathewso Gained legal experience from this pro bono case that he
couldn't have gotten as a first-year associateCarolyn Shapiro
WelcomeCAROLYN SHAPIRO
Faculty member at Chicago-Kent School of LawMember of the team that drafted and filed Cert
Petition with the Supreme Court__________________________________________ What was your role in the Dupuy case?Why do you believe cert was denied?What was the impact of the case on the public
and yourselfWhere do we stand today?
Where Are We Today?CourtsWorking on drafting a monitoring orderWithout a strong monitoring order, DCFS gets away with
"slippage" Policies People are still indicated with very little evidence
o Trying to get these people eligible for the administrative review process
Safety PlansDCFS still putting up a lot of hurdles in terms of allowing kids
to return to the parentsPursuing safety plans as a legislative initiativeSuing over egregious and coercive use of safety plans
DiscussionAre safety plans too intrusive or is this the best way to
balance the competing interests of state goals, parental rights, due process rights, and child welfare?
Psychological effect on child vs. risk of abuse/neglect?DCFS is understaffed and its employees are overworked.
Will increased funding solve all problems? o Current news: Gov. Pat Quinn plans to cut $16 million from DCFS
budget, but can't violate federal judge order to avoid budget cuts that would "present a certainty of irreparable harm" to the 16,000 children under DCFS care
What is certainty of irreparable harm? Laying off 50 DCFS investigators? Cutting down on training requirements?
Compare/contrast this case with Castle Rocko Governmental agency doing too little vs. too much
