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Thursday, Sept. 12, 2013 04:55 pm

Fighting DCFS on how it takes children

Lawsuit challenges ‘catch-all’ allegation against parents

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ILLUSTRATION BY EARL F. LAM III/MCT
The Illinois Department of Children and Family Services still uses a rule that was struck down by the state’s highest court to take children, according to a lawsuit filed last week.

Filed in Cook County Circuit Court, the class action lawsuit aims to stop DCFS from using the invalidated rule to “indicate” parents for neglect or abuse. The Chicago-based Family Defense Center, which filed the lawsuit Sept. 3, says the rule is used disproportionately against parents who are poor, single, a teenager or immigrant, a victim of abuse themselves, or suffer from a treatable mental health condition.

The case revolves around the list of allegations DCFS uses to categorize suspected neglect or abuse of children. The allegation in question, known as “Allegation 60,” applies to cases in which a child is reported to be in an “environment injurious” to his or her welfare. In Illinois’ child welfare system, the “environment injurious” term has a long and contentious history, which includes being struck down by the Illinois Supreme Court.

When the Illinois General Assembly passed the “Abuse and Neglect of Children Reporting Act” in 1975, it defined neglect in part as “subjecting a child to an environment injurious to the child’s welfare.” The lawsuit says as early as 1980, DCFS found that language “problematic” and pushed the legislature for clarification. The legislature removed the “environment injurious” language in 1980. DCFS adopted a new rule that included the term in 2001.

In July 2012, the legislature passed a new version of the “environment injurious” language, which the lawsuit claims put three limitations on using that allegation in an abuse or neglect investigation. The lawsuit claims DCFS never amended its rule to comply with the new limits, and instead continued to use Allegation 60 in its previous form.

“It did not require any proof that the child be exposed to harm, or that the parents be aware of and disregard any particular risk to the child,” the lawsuit claims. “Allegation 60 became a ‘catch-all’ provision that DCFS frequently used to make findings of neglect where no other regulatory violation could be proven.”

A March 2013 Illinois Supreme Court decision struck down Allegation 60 as unauthorized because the legislature had repealed the law on which it was based.

Following the decision, DCFS removed from a statewide database about 13,000 names of people who had previously been “indicated” under Allegation 60. The database is used as a blacklist for adoption, foster care and certain jobs involving children. Despite the court’s decision and the database cleanup, the lawsuit claims DCFS still regularly classifies cases under Allegation 60.

Diane Redleaf, executive director of the Family Defense Center, said the rule is troubling because it can be applied to “any condition that is less than optimal,” including being used to cite victims of domestic abuse, even in cases where the children weren’t present when the domestic abuse occurred.

“Tailoring their resources is, to me, critically important to focus on people who are genuine perpetrators of abuse and neglect,” Redleaf said. “That makes a lot of sense for taxpayers and precious state resources for investigation.”

Dave Clarkin, spokesman for DCFS, could not comment on the lawsuit. An undated notice posted on the DCFS website acknowledges the Illinois Supreme Court’s March 2013 decision. The notice says Allegation 60 cases starting after July 13, 2012, will remain in the state database because of the legislature’s update to the law. The notice makes no mention of the three limitations cited by the Family Defense Center in its lawsuit.

The class action lawsuit seeks an injunction against DCFS using Allegation 60, as well as removal of all Allegation 60 cases from the state database.

Contact Patrick Yeagle at pyeagle@illinoistimes.com.

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