Dupuy v. Samuels

1. Dupuy v. Samuels Judy Chan Julie Levinson Heather Rosenberg

2. History of the Dupuy Case • 1996 • Illinois Attorney General passed legislation to require the Child Endangerment Risk Assessment Protocol form and annual reports from DCFS on success of CERAPS • 1997 • Diane 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 2001 • Judge Pallmeyer ruled in favor of Dupuy’s challenges of little evidence and unfair blacklisting of childcare workers

3. History of the Dupuy Case • 2002 • A second claim (Dupuy II) was filed, challenging the constitutionality of safety plans • September 2003 • DCFS implemented the requirements ordered by Pallmeyer concerning childcare workers • March 2005 • Pallmeyer ruled that safety plans lasting more than a few days violate substantial and procedural due process rights of families

4. History of the Dupuy Case • December 2005 • Court directed process of review of safety plans after 14 days • October 2006 • Judge Richard Posner (7th Circuit Court of Appeals) ruled safety plans are voluntary • February 2008 • Family Defense Center filed a petition asking the U.S. Supreme Court to review constitutionality of DCFS’s safety plans

5. 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

6. 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.

7. 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.

8. 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. 

9. 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. 

10. I. The Nature of the Controversy from which the Case Arose

11. 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 appeal • Saw this as an opportunity to change DCFS policies • Started paying attention to calls and claims that came in to figure out exactly what DCFS was doing

12. 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  • Received over 100 new calls • Set the stage to add 100 plaintiffs • Publicity was important to the progression of this case • Attorneys pursued Dupuy II after increased publicity of Dupuy I

13. DCFS: Child Protection Services • Best known for its child protection services • 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.

14. Illinois Department of Children and Family Services (DCFS) • The mission of DCFS is to: • Protect children who are reported to be abused or neglected and to increase their families' capacity to safely care for them • Provide for the well-being of children in our care • Provide appropriate, permanent families as quickly as possible for those children who cannot safely return home • Support early intervention and child abuse prevention activities • Work in partnerships with communities to fulfill this mission

15. 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

16. 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?

17. DCFS: Hotline Call Procedure • Division of Child Protection (DCP) operator must determine whether: • 1) the alleged victim is under the age of 18; • 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; • 3) there are specific incidents of alleged abuse or neglect which cause harm or substantial risk of injury to the child; and • 4) the alleged victim has been harmed or is in substantial risk of harm.

18. DCFS: Investigation Procedure • State Central Register (SCR) - maintains a computerized listing of abuse/neglect allegations • The Child Abuse and Neglect Tracking System (CANTS) - a tracking system maintained by SCR • Child Endangerment Risk Assessment Protocol (CERAP) - completed after initial interview with child • Notification 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 days • Final Finding Report (CANTS 2 form) - completed by investigator after DCP supervisor review • Registered in SCR as indicated or unfounded

19. DCFS: Problematic Policies • Notices regarding indicated reports • Retention of indicated reports • Appeals process • Employment and licensure based on indicated reports • Safety and protective plans • These policies affect: • Day cares, day care employees • Child welfare agencies • Foster care • Parents • Children

20. II. The Issues Faced by the Litigants and the Lawyers

21. 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

22. Challenges Faced by the Plaintiffs' Attorneys: Dupuy I • Obstacles put out by the Defense • Objected to class certification • Tried to moot out every single Plaintiff • Insisted on going to trial • Delays caused by Judge Pallmeyer • Gave in to Defense's requests for more time • Took a long time herself • Complaint filed in 1997 • Injunction granted in 2003

23. Challenges Faced by the Plaintiffs' Attorneys: Dupuy II • Real life problems • People were being hurt, threatened and kicked out of their homes • Judge Pallmeyer's order • Ruled "not voluntary" but didn't address this in the order • Found a constitutional violation but didn't remedy the problem • Didn't enjoin the threats • Created the process of review of safety plans

24. 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

25. 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

26. 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

27. "Credible Evidence" Standard • DCFS Regulations • 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 • "Any" credible evidence of abuse or neglect is sufficient to file an indicated report.   • Investigators only gather inculpatory evidence • Investigators tend to disregard evidence weighing against an indicated finding

28. 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." • 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." • 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" • another treating physician Doctor #4 • 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

29. 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." • 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." • 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" • another treating physician Doctor #4 • 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

30. 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

31. 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.

32. Risk of Error • 74.6% of all indicated findings that are challenged       are ultimately reversed on review • The court found the error rate was a result of 2 defects: • The extremely low standard of proof required to indicate a finding • The delays that allow evidence to become unreliable over time • The court directed DCFS to modify this policy • 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

33. 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

34. 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

35. DCFS Amendments to SCR Notice Rules 1. 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?

36. CANTS 8 Form (last revised 1/2009)

37. CANTS 8 Form (last revised 1/2009)

38. Court Granted Request for Preliminary Injunction • DCFS notice and hearing policies were unconstitutional • "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 • Due process requires a hearing at a meaningful time • Amended polices classified as "a step in the right direction" • Court requested evidence that the new rules provided constitutionally adequate notice in practice

39. Preliminary Injunction Granted: Now What? • Workers at DCFS... • undertrained • understaffed • overworked • underpaid • Delays inevitable • Indicated person shouldn't have to pay the price for DCFS' lack of resources • "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

40. 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 • This ensures only guilty parties are disclosed to licensing agencies and employers as indicated persons • Does it?

41. 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?

42. District Court's Holding A. Protective Plans: No violation of due process rights  • Characterized as "Voluntary" • Are they? B. Foster Care Holds: No violation of due process rights • Permissible because they protect children from the possibility of abuse or neglect while the investigation is pending • If DCFS policies are appropriately revised C. Failure to Expunge: Violation of due process rights • Directed DCFS to immediately expunge expired reports, etc.

43. 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. • 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 workers • Foster care holds not appealable and not lifted until the circumstances that led to the hold are no longer present 

44. 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 Story Faith Kumar “I could no longer do private practice with young people. I could no longer teach” Faith Kumar's Story

45. 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?"

46. 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 judges • Andy Mathews: "weren't expecting hostility from the 7th Circuit"

47. DCFS Position • Number one priority is welfare of the child • Tendency 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

48. Plaintiffs' Petition for Writ of Certiorari • Croft v. Westmoreland County Children & Health Servs., 103 F.3d 1123 (3d Cir. 1997) • 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? 

49. U.S. Supreme Court • Denied cert on June 16, 2008 • Safety 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? • Politics of the Court • Concerns about factual disputes • Not a court to just fix inconsistencies

50. III. The Impact of the Case Decision on the Litigants and the Lawyers