State Is Neglectful, not Parents, Class Claims
CHICAGO (CN) - Illinois "indicates" parents as child neglecters under a bogus, catch-all "Allegation 60," which the state supreme court declared void ab initio, but the state continues to enforce, parents say in a class action.
Lead plaintiff Ashley M. sued the Illinois Department of Children and Family Services and its Director Richard Calica in Cook County Chancery Court.
Ashley and five named co-plaintiffs, all of their last names indicated only by initials, claims the state also uses the bogus Allegation 60 to enter their names on a database as child neglecters.
The parents want the defendant DCFS enjoined from using Allegation 60, an administrative regulation that defines child neglect as including "placing a child in an environment that is injurious to the child's health and welfare."
"DCFS adopted Allegation 60 in 2001, but in 2013, the Illinois Supreme Court found that the allegation was void ad initio," the lawsuit states. "Despite this final authoritative decision by the Illinois Supreme Court and despite a 2012 legislative enactment that establishes specific limitations on DCFS's investigative authority that are not included in or consistent with Allegation 60, DCFS continues to use the invalid Allegation 60 regulation to investigate families; to find parents and other caregivers to have neglected children (through so-called 'indicated findings'); and to register these indicated findings in the Illinois State Central Register where the findings can be used to impair the interests of parents and caregivers in employment and family life." (Parentheses in complaint.)
Plaintiffs' attorney Diane Redleaf told Courthouse News: "Anyone who works with children, in most jobs, requires a check through this database, so it's devastation for anyone who works with children. If you're in a facility licensed by DCFS it's pretty much fatal. People often don't know what it means, but they know it's bad, so they're not going to take a chance on someone with a finding of child neglect.
"Adoption is another issue, since you have to be licensed to be an adoptive parent. It can be disclosed to judges in dealing with custody cases as well, and a judge is unlikely to give custody to somebody [found to have neglected their child]."
Redleaf works with the Family Defense Center in Chicago.
The Legislature's 2012 revisions to the law place two limitations on neglect due to an injurious environment. To be defined as neglect, the child's environment must "create a likelihood of harm to the child's health, physical well-being, or welfare," or "the likely harm to the child is the result of blatant disregard of parent or caretaker responsibilities."
Based on these legislative changes, the Illinois Supreme Court found that "Allegation 60 exceeds DCFS's scope of authority under the Act and it is void," the complaint states, citing the ruling.
Nonetheless, "DCFS continues to use Allegation 60 to investigate and indicate families," the parents say, though the state has not incorporated the 2012 limitations on the definition of neglect.
Redleaf told Courthouse News that the DCFS "actually wrote a memo saying that the Illinois Supreme Court said Allegation 60 was authorized by new legislation in July, [but] the court absolutely did not say that. The court was not asked to construe a new rule under the new legislation, but certainly said this rule was void from the very start."
The parents say in the lawsuit that "After July 2012, each plaintiff was investigated, indicated, and registered in the State Central Register as a child neglecter under Allegation 60 pursuant to a call to the DCFS Hotline.
"On information and belief, each DCFS Hotline worker who accepted the respective Hotline calls as to each plaintiff did not apply the requirements of P.A. 97-0803, but instead accepted each call pursuant to Allegation 60's broad language. Accordingly, the DCFS Hotline workers coded the Hotline calls as Allegation 60 calls, and referred them for investigation against plaintiffs."
Without finding evidence of harm to the child or blatant disregard, as required by the new legislation, "Each DCFS investigator recommended the issuance of an 'indicated' finding against each plaintiff, and each decision was approved by each investigator's supervisor," the complaint states.
"Each plaintiff was subsequently notified that he or she was indicated and his or her name was now listed as a child neglecter in the Illinois State Central Register."
Citing the DCFS's appeal to the Illinois Supreme Court this year, plaintiffs claim the DCFS files more than 13,000 indicated findings under Allegation 60 each year, investigating thousands of families under an invalid standard.
The parents seek injunctive relief and remedial measures to ensure Allegation 60 will no longer be enforced in its void form.
"They need to retrain their investigators," Redleaf said. "They're going after people who are not guilty of child neglect."
Michael Brody with Jenner & Block is co-counsel.