Yesterday, on December 29, 2011, the Illinois Appellate Court issued an opinion that has the potential to dramatically change the way that the IIllinois Department of Children and Family Services ("DCFS") operates -- see attached
The attached decision holds that the governing statute does not authorize DCFS to "indicate" reports against people based upon allegedly creating an "environment injurious" and, therefore, indicated reports under this category are not authorized by law. The appellate court decision also significantly strengthens evidentiary rules for DCFS administrative proceedings.
In Illinois, the most common category of allegations that DCFS uses to "indicate" (i.e., substantiate) reports of alleged child neglect is "Environment Injurious to Health or Welfare."
This is an amorphous, potentially limitless, and unwieldy category that has been used (and misused) by countless investigative teams to indicate parents and caretakers merely because: they are the victims of domestic violence; they have a mental health diagnosis; their children have been in contact with people who use illegal substances (even without any evidence of substances being used while children are present); they have had verbal disputes with police officers or medical personnel; they have consumed alcohol (even if not in their children's presence and even if not to intoxication); and for many other scenarios that do not warrant State intervention.
Essentially, this allegation -- which is particulary vulnerable to false accusations by ex-spouses, estranged family members, or other persons with their own personal agendas -- has been used as a "catch-all" to penalize any parenting that, for whatever reason, seems less than ideal to State investigators.
The credit for initiating the series of challenges to this unauthorized rule, leading up to yesterday's opinion, began several years ago when attorneys with the Legal Assistance Foundation of Metropolitan Chicago (Sara Block, Steve Pick, and Rich Cozzola) discovered that in 1980, the Illinois legislature had explicitly REMOVED "injurious environment" from the statutory definition of neglect, meaning that DCFS has been indicating thousands upon thousands of people for this allegation without any authority to do so.
(Rich Cozzola's excellent article on this issue is cited twice by the Appellate Court in its decision.) Since that discovery, attorneys with the Family Defense Center have been raising this argument in any case involving the allegation "environment injurious," meeting mixed results in the administrative processes and the circuit court-level reviews.
One excellent case that presented this issue involved Julie Q., who was accused by her ex-husband of having cared for their 9-year-old daughter while intoxicated (thereby creating an "environment injurious") even though a number of witnesses attested to Julie's ongoing sobriety.
A further allegation that had been made was that Julie locked her daughter into her bedroom, but it was quickly conceded that the bedroom had no locks.
This case arose from a report made by Julie's ex-husband in the context of a contested custody battle -- an all-too-common scenario where child protection authorities are called by one parent in an effort gain the upper hand. Through our pro bono program, Julie's interests at the evidentiary administrative hearing were represented by FDC volunteer attorneys Ajay Athavale and Darren Fish, who did an excellent job during a very challenging hearing. Unfortunately, Julie lost her hearing when the administrative law judge decided to admit and then rely upon a variety of questionable evidence, over the repeated objections of Julie's attorneys.
When we decided to seek review of the final administrative decision sustaining the indicated finding, another pro bono lawyer, Liz Butler (now one of our board members), took lead in arguing the case in the state circuit court.
However, the circuit court in turn rejected our argument that DCFS did not have the authority to indicate Julie Q. Because the facts of Julie's case were compelling that she had never put her child at risk, all along we knew Julie had a solid case by which to test in the appellate court the argument that the "environment injurious" allegation is legally void.
For the state court appeal, we reached out to Mike Otto, one of our pro bono lawyers who had previously raised the issue of the allegation being legally invalid in an individual administrative hearing he had won, and our board member Mike Brody, both of whom are attorneys at Jenner & Block's Chicago office.
Oral argument took place this past summer, and in the opinion issued just yesterday, the court unanimously vacated the indicated finding.
The majority of the court held that the allegation of "environment injurious" exceeds the authority granted to DCFS by its enabling statute (in a special concurrence, one justice disagreed with this specific holding). Clearly, the removal of the language from the statute by the legislature made this a particularly strong case for limiting the discretion of the agency to make indicated findings of neglect based upon any alleged "environment injurious."
Additionally, the entire panel agreed that the DCFS administrative law judge relied upon improper evidence (specifically:
(1) multiple hearsay in the form of written case notes authored by a non-testifying investigator purporting to summarize the non-testifying investigator's conversation with the 9-year-old daughter and (2) evidence of other alleged "bad acts," in the form of two additional unrelated incidents that were investigated by DCFS and unfounded, to conclude that Julie had the propensity to abuse alcohol and, therefore, must have placed her daughter in an injurious environment on the date in question).
Based on the appellate court's own review of the properly admitted evidence, the panel unanimously agreed that the indicated finding was contrary to the manifest weight of the (admissible) evidence.
We believe that the evidentiary rulings are just as groundbreaking as the part of the opinion addressing DCFS's authority. The DCFS attorneys (and, often, the DCFS administrative law judges) tend to view the administrative hearing forum as an evidentiary free-for-all where no rules apply and anything under the sun can and should be admitted.
The Julie Q. ruling should go a long ways towards restoring the rule of law to these proceedings and ensuring that DCFS is considering only that evidence which is competent and reliable in making decisions that have the potential to be life-altering for our clients.
Because of the major blow this decision deals to DCFS's standard operating procedure in a very large number of cases, we fully expect the Attorney General's office to seek leave with the IL Supreme Court to file a petition.
We are cautiously optimistic that the Supreme Court will protect the integrity of the appellate court's ruling.
In light of recent efforts to broaden mandatory reporting obligations to "any person," as has been proposed in several bills now pending in Congress, the Julie Q. decision calls into question these efforts in light of the lack of clear parameters as to what "neglect" even means. The discussion of the reporting in this opinion and the need for clarity about what must be reported is helpful to the general discussion of broader reporting mandates, as it provides not just legal guidance but a cautionary tale of the potential sweeping overbreadth of reporting legislation and the discretion used by child protection agencies to make harmful findings against parents who have not harmed their children.
Interestingly, in the Julie Q. case, the Appellate Court unanimously agreed that the indicated finding was against the manifest weight of the evidence.
Yet prior to the case coming for appeal, investigators and two judges had erroneously believed otherwise. This point demonstrates that tighter standards defining neglect are still needed, given that the open-ended discretion to find neglect under a very broad rule had obviously been exercised unfairly against Julie Q. and continues to be a concern in many of our cases involving rules that unlike "environment injurious" have been authorized by the Illinois legislature.
Melissa Staas and Diane Redleaf
*The Family Defense Center*
70 East Lake Street, Suite 1100
Chicago, Illinois 60601
312-251-9800 x12 (t.)
*The Family Defense Center is first winner of the "Excellent Emerging Organization" Award, by the Axelson Center for Non-Profit Management.*