Appealing an Indicated Finding of Abuse/Neglect
Find Counsel from a Knowledgeable Peoria Family Law Attorney
As a former prosecutor and practitioner with well over a dozen years of
experience, I understand that dealing with social services can be a scary
endeavor. After all, your family unit is at risk and a DCFS investigator
is making a judgment on your parenting skills. You don’t know whether
the investigator has children, grandchildren or understands the struggles
you encounter as they play back seat quarterback to how you parent. What
I mean by backseat quarterback, the investigator has the ability to Judge
whether an incident is an accident, reckless act, accident or not, negligent
or intentional act and request that the State’s Attorney petition
the Court to take your children on a temporary or permanent basis.
The investigator may believe everything your child says, whether it’s
good or bad (some people erroneously believe young children never give
incorrect information or lie), and/or rely on unsubstantiated information.
Often times, I have heard investigators say, “I believe it happened
because the child said it did. The child has no reason to lie, let alone
describe an incident with such detail.” Sometimes caregivers or
parents can convince a child to lie or give inaccurate information.
A Case Example
Recently, had a case where social services indicated a parent because the
parent threw an object at a five-year-old child when the mother was sitting
down. The mother was allegedly angry because the child was throwing objects
at her. Her son said mommy threw something at me because I was angry and
throwing stuff at her. The mother denied the accusation; as a matter of
fact, she took the child to the emergency room. Doctors, dentists, forensic
interviewers and numerous investigators were called to independently investigate
this child abuse case. The forensic interviewer determined (by way of
leading questions) the child credibly testified the mother became upset
and threw an object at the child, causing a significant injury.
What social services neglected to mention was a five-year-old may not know
the term “ricochet,” and obviously may not use such a term
in daily language. I mentioned to the interested parties the object bounced
back and hit the child, just as mom stated numerous times; everyone looked
as if the mother’s theory was as revealing as the glove not fitting
OJ Simpson. Their “investigation” was compromised, even after
300 pages of police reports, dental exam notes, counselor narratives,
emergency room reports and countless hours and finances invested. Because
of what a 5 year old child said consistently, DCFS was certain my client
was lying instead of considering the child did not have the vocabulary
to articulate what actually occurred.
Origination of a Complaint/ Hotline Call
The initiation of an investigation more often than not begins with a hotline
call to the phone number (800-25-ABUSE). The complainer could be any mandated
reporter, such as a teacher, principal, police officer, priest, doctor
or any concerned person. After a Hotline call is accepted, an investigation
is assigned to an investigator in a local field office. In cases of serious
allegations (such as allegations of sexual abuse or severe physical abuse),
police may be involved as well, but they conduct their own investigations
and operate under different legal mandates. But please understand the
police and the investigator often work together and cooperate with another.
The investigator may go through your garbage looking for evidence if there
are accusations you are abusing substances, speak to your children without
your permission, and demand to speak with you. The DCFS investigator is
expected to see any children mentioned in the Hotline call within 24 hours,
and do a safety/risk assessment within 48 hours of the call.
You should cooperate generally but not give incriminating statements.
Some may be confused and ponder why speak at all to a social services agency
representative who works with police to give any information. The answer
is simple. Social services may have the rights to take your children temporarily,
place them with a relative or in non-relative foster care. Make it clear
the children are safe. Stay with a friend, separately from the children
if necessary. Allow DCFS to visit the children and see them for an appropriate
time. You should obviously speak in kind tones at all times to DCFS, and
request an attorney. We are all human. Investigators are more likely to
give kind people the benefit of doubt versus someone who is unnecessarily
contentious. Make it clear you appreciate them double checking to make
sure your children are safe.
You should ask for the investigator’s business card and immediately
contact an attorney who is familiar with DCFS investigations, family law
and criminal law. With a qualified lawyer, parents and care providers
who find themselves subject to a DCFS investigation should provide any
exculpatory information during the investigation to the extent they can.
It is important to hire an attorney familiar with DCFS because unlike
in a criminal case, DCFS characterizes an alleged perpetrator’s
failure to respond to questions and impeding the investigation in any
way a failure to cooperate; a failure to cooperate may lead to the children
being taken into care.
Please note: DCFS will never tell you who contacted their hotline about
you and your conduct. If you receive an unfounded report from DCFS and you have a strong idea
who may have lead up to the false investigation, you may ask DCFS to keep
the details of the complaint on your background with DCFS. That way, if
the same person issues another call, DCFS may conclude it has little to
no merit much easier than if they must start an investigation from scratch
each and every time.
As stated for DCFS investigations, an investigation concludes with a final
determination by an investigator of either “unfounded” or
“indicated” is made. “Unfounded” means DCFS determined
that there was no credible evidence to support a finding of abuse or neglect;
“indicated” means DCFS determined that there was credible
evidence to support a finding of abuse or neglect.
Why Should I Care?
Indicated findings are registered in the State Central Register (the “SCR”),
which can be accessed by police officers, hospitals and some prospective
employers. An indicated finding may mean the loss of custody of children;
restricted visitation with children; strained relationships; an inability
to adopt children; and the inability to possibly work as a day care provider,
teacher, bus driver, or in any other way that one cares or provides services
to children. An indicated finding can last on one’s background for
(5, 20, or 50 years). Assuming one is indicated, he will receive notice
via a written letter from DCFS along with his appeal rights. The parent/care
taker can file the appeal.
After filing the appeal, appellant is given an opportunity to have a neutral
person (in the form of an administrative law Judge) send the appellant
a time and date for a status call. At the status call, the Judge will
make sure the appellant has received the investigation file and set a
trial date and get a list of witnesses from each side and discuss any
preliminary matters. The appeal hearing must be very prompt (35 days for
child care workers entitled to “expedited processes,” and
90 days for everyone else), unless these time limits are waived.
More often than not, the time limits are waived. It is extremely difficult
to get three lawyers in the same room at the same time, let alone getting
all of the witnesses to appear. It is my preference to not usually want
investigators to appear via phone. You don’t know if they are testifying
by reading their notes or if they are being coached. I had a recent case
where the Judge admonished and reminded the forensic examiner to not look
at her notes. My cross examination became lengthy and detailed. The witness
testified she had to look back at her notes; she also admitted she’s
been reading her notes the entire time. The Judge and I became very upset,
but there were no sanctions issued against the witness. Sometimes the
rules may be taken likely when an attorney is not present.
After the status call, the Judge will set a trial date. During the trial,
the Judge will review the evidence and apply the law to determine whether
or not the indicated finding should be expunged from the appellant’s
record/background. I must warn you in advance sometimes the administrative
law Judge may be a former DCFS attorney. I can almost hear the frustration
from cynical readers. Contrary to what one may think this is not always
the preacher talking to the choir. The administrative law judges more
often than not have been fair in my experience. Using another analogy,
similar to the parent coach theory-- a parent coach is sometimes harder
or just as hard on his child in comparison to the other children on the
team a Judge may be almost as frustrated with inadequate investigations
as the victim. If the Judge feels the investigator made too many assumptions,
believes the police officers have less credibility or that the investigation
was overblown, the Judge has no problem granting the appeal.
What Laws Do I Have to Know?
The Abused and Neglected Child Reporting Act (ANCRA), 325 ILCS 5/1 et seq.,
is the enabling legislation granting DCFS the authority to investigate
and indicate allegations of child abuse or neglect. DCFS Rule 336 (codified
at 89 Ill. Admin. Code § 336) governs the administrative hearing
process DCFS uses for expungement hearings.
DCFS Rule 300 and Procedures 300 provide the guidelines for reports of
child abuse and the procedures to be followed by DCFS investigators during
an investigation. See Appendix D for Additional Relevant Rules. All DCFS
rules and procedures (including Appendix B to DCFS Rule and Procedure
300, which sets forth the detailed definitions for each specific Allegation
of Harm) can be located at: http://www.illinois.gov/dcfs/Pages/default.aspx.
How are “Abuse” and “Neglect” Defined?
DCFS Rule 300.20 defines the terms “abuse child” and “neglected
child,” abbreviated somewhat here (325 ILCS 5/3, DCFS Rule 300.20).
Many substantive arguments can be made that certain DCFS definitions are
legally debatable and inapplicable to the specific conduct alleged against
your client. However, often times the statutes are broad on purpose, and
the Judge may rule as such.
An “abused child” means a child whose parent (or immediate
family member, or any person responsible for the child's welfare,
or any individual residing in the same home as the child, or a paramour
of the child's parent): inflicts or allows to be inflicted mental
or physical injury; creates a substantial risk of physical or mental injury;
commits or allows to be committed any sex offense against such child;
commits or allows to be committed an act or acts of torture upon such
child; or inflicts excessive corporal punishment.
A “neglected child” means any child who is not receiving the
proper or necessary nourishment or medically indicated treatment. Note
that DCFS definitions of specific Allegations of Harm alleging neglect
may impermissibly expand on the actual definition of neglect.
To prevail in a case, DCFS must also show that the person being indicated
is a “person responsible” for the care of the child. This
is also referred to as being an “eligible perpetrator.”
Review the Case File and Prepare for the Hearing
Now this aspect will be familiar to the Attorney. You review the discovery
and interview the witnesses where appropriate. The investigator is typically
called to testify, along with a family member or two, a forensic investigator
who probably will suggest he did not give leading answers to the child
who admitted to abuse, if applicable and the arresting officers involved.
Keep in mind hearsay is generally allowed in these hearings although some
Judges will apply the rules of evidence more strictly than others. Some
Judges will sustain objections of “double hearsay” but allow
hearsay into evidence if the probative value outweighs the prejudicial
effect of the evidence and the statement is relevant. Nonetheless make
your good faith objections because at the end of the trial, the DCFS attorney
will move to admit the ENTIRE investigation packet into evidence, which
the Judge will allow.
Should my Client Testify?
Yes more often than not. If your client has been charged criminally then
he should testify only if his testimony will not prejudice his criminal
matter. Similar to an Order of Protection hearing, if the client does
not testify, he will lose. The burden of proof is a preponderance of evidence
and not proof beyond a reasonable doubt like in a criminal trial.
After Closing Arguments, What’s Next?
The Judge makes a written recommendation (with findings of fact, conclusions
of law, and discussion) to the DCFS Director, who then makes a final decision.
Almost always, the Director adopts the recommendation of the judge. For
expedited appeals (in the case of child care workers): 35 days after receipt
of a request for an appeal. For all others: within 90 days after receipt
of a request for an appeal. Note: these time limits only apply where the
client has not “agreed” to a later hearing date or waived
their right to a speedy hearing. A final decision must also issue within
45 days of the hearing.
The attorney will receive a certified letter from the Director stating
the director’s decision and enclosing the ALJ’s written recommendation/opinion.
The Director’s final administrative decision stands, unless and
until successfully appealed through an Administrative Review Action.
The Judge makes a written recommendation (with findings of fact, conclusions
of law, and discussion) to the DCFS Director, who then makes a final decision
in the same packet. Almost always, the Director adopts the recommendation
of the Judge. I had 1 case where the DCFS Director did not concur with
the Judge’s opinion.
The recommendation is issued for expedited appeals (in the case of child
care workers): 35 days after receipt of a request for an appeal. For all
others: within 90 days after receipt of a request for an appeal. Note:
these time limits only apply where the client has not “agreed”
to a later hearing date or waived their right to a speedy hearing. A final
decision must also issue within 45 days of the hearing.
If you lose your hearing, you may choose to appeal it to the circuit court
under the Administrative Review Act (735 ILCS 5/3 et seq.). To be timely,
the “action to review a final administrative decision shall be commenced
by the filing of a complaint and the issuance of summons within 35 days
from the date that a copy of the decision sought to be reviewed was served
upon the party affected by the decision.” (735 ILCS 5/3-103). Per
statute, a decision is determined to be “served” on the date
it was post-marked and not the date it was received. More often than not,
the decision is mailed certified to the Attorney of Record for the appellant,
not the appellant himself. Therefore, make sure your office remains in
communication with the appellant. Once the appellant confirms he wants
to retain you for the appeal, attach a copy of the decision and evidence
to your petition, serve the party and fight for your client.