Appealing an Indicated Finding of Abuse/Neglect

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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.

What Happens if DCFS Makes an Indicated Finding Against You?

If DCFS makes an indicated finding against you or your spouse, significant other, or household family member, it could have severe consequences for you and your children, including the potential for a juvenile or criminal case against you, as well as the risk you may lose custody of your children.

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.

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.

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.