A matter of choice: Accept a safety plan or risk having your children taken away

by Erica L. Green and Sandi Villarreal

On Thanksgiving Day 2004, William McCarthy had a hard time finding much to be thankful for. As in years past, he could have reflected on his loving family, his successful company—his happiness.

But on that day, all he thought about was how his daughter’s accidental fall on the back porch two weeks before led to an investigator from the Illinois Department of Children and Family Services telling him that he and his wife had to pack their bags and leave their home.

The next thing he knew, he was having a dinner with his extended family—not because it was a normal Thanksgiving tradition—but because he and his wife weren’t to be left unsupervised with their two children.

“Thanksgiving was depressing,” McCarthy said. “At a time when we were supposed to be thankful for all the blessings that we have in our life, and we had many blessing, it was impossible not to be worried and scared. It was impossible to talk about anything else other than what might happen.”

His daughter’s fall produced an arm fracture that led one doctor at Children’s Memorial Hospital—two days after she had been treated and cleared at the hospital—to believe that she was being abused and that her father was the likely abuser.

A DCFS investigator told the McCarthys she was putting in place a preventive measure to safeguard against any further abuse. The measure was called a “safety plan,” and it would require McCarthy to leave his home for 24 hours.

The suspicious doctor thought 24 hours wasn’t enough. He was so convinced that he called DCFS—weeks after McCarthy returned home—to tell them his opinion. This led to another safety plan that required both McCarthy and his wife to leave the home during a follow-up investigation. The only other option was to place their daughters in foster care.

Ultimately, the DCFS investigation revealed that the allegations against McCarthy and his wife were unfounded, and they returned to their home. A final opinion from a doctor indicated that they had not harmed their daughter.

But, that did not mean the McCarthys went unharmed.

“[During the safety plan] my wife cried herself to sleep every night and I just didn’t go to sleep during the night,” McCarthy said. “There’s this cloud that hangs over you and you worry all the time about what might happen if DCFS shows up at the door and they decide what they say isn’t exactly what they want to see, and take your kids away.”

The McCarthys’ story represents thousands of Illinois families who have argued through state and federal courts that “safety plans” implemented by DCFS strip them of their rights as people and parents.

These families say they are part of the 75 percent of families whose relationship disruptions are based on unfounded reports of abuse. This stark figure found by the Family Defense Center, a Chicago-based legal advocacy group, is one of the driving forces behind a child welfare case that the group took to the U.S. Supreme Court that sought to find safety plans unconstitutional because their implementation denies parents their constitutional due process rights.

A history of “safety plans”

A string of fatal or near-fatal incidents in the early 1990s involving children who were in DCFS care prompted the state to require that the department develop and implement a standardized protocol that would prevent abuse during DCFS investigations.

In 1995, DCFS developed and began implementing a Child Endangerment Risk Assessment Protocol, or “safety plan.” Independent research on CERAP protocol is now submitted annually to the Illinois General Assembly, and DCFS employees are required go through training on the CERAP process.

In a court memorandum, a DCFS official defended safety plans, saying “the CERAP process is the best way to provide workers with a mechanism for quickly assessing the potential for moderate to severe harm immediately or in the near future and for taking quick action to protect children.”

But families and lawyers who have observed the CERAP process contend that it is fatally flawed.  

“The U.S. Supreme Court has been clear that it is to be presumed that a parent is acting in the best interest of his or her children,” Melissa Staas, a Family Defense Center lawyer, said. “So if the state is going to be intervening and interfering with that relationship, the state needs to be able to overcome that presumption.”

Rather, she said, parents face an ultimatum—accept the safety plan or risk losing your children—based upon “mere suspicion.”

The move to file a petition with the U.S. Supreme Court was spurred by a plethora of court battles—the first dating back to 1997—between the Family Defense Center and DCFS. Each of the cases challenged some aspect of the department’s investigation procedures.

In 2005, U.S. District Judge Rebecca Pallmeyer ruled that safety plans lasting more than a few days violated the procedural due process rights of families.

“When an investigator expressly or implicitly conveys that failure to accept a plan will result in the removal of the children for more than a brief or temporary period of time, it constitutes a threat sufficient to deem the family’s agreement coerced, and to implicate due process rights,” Pallmeyer wrote.

A unanimous 7th Circuit Court of Appeals panel saw it differently. In an opinion written by Judge Richard Posner, the court found no constitutional problem with the safety plans, noting that parents could “thumb their nose at the [safety plan] and the agency can do nothing but continue its investigation.” Posner went on to say that safety plans are voluntary, offering this analogy:

“We can’t see how parents are made worse off by being given the option of accepting the offer of a safety plan. It is rare to be disadvantaged by having more rather than fewer options. 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?”

The martini reference was hard to swallow.

“Posner comparing this type of ultimatum that a parent is given—this horrible, horrible ultimatum of either leave your home or we’re taking your children into foster care—comparing that with a contract negotiation and just really reducing the family life down to a commodity was really insulting,” Staas said.

Nonetheless, on June 16, the U.S. Supreme Court decided not to take the case.

Threshold of evidence                                                                              

Mary Broderick holds to this day that she was never afraid back in 2003 when hospital officials—as mandated reporters—told her they were required to call DCFS about the head injury that her son, Ryan, sustained after her husband, Tom, fell off their back porch with the 4-month-old.

She knew she had nothing to hide. But her investigator apparently didn’t think so.

“I think why we got slammed so hard is because we weren’t afraid,” Broderick said. “We were afraid of Ryan being hurt, but not of DCFS.”

Broderick said she and Tom were peppered with questions about the injury. After they recounted the incident word-for-word and numerous times, the Brodericks’ investigator found that, “there [was] reasonable cause to suspect that the caretaker caused moderate-to-severe harm or has made a plausible threat of moderate-to-severe harm to the child.”

This was one of 15 “safety factors” that DCFS uses to assess whether a home is “safe” or “unsafe” for the child.

When a report of abuse is made, DCFS investigators use a CERAP form to assess these factors. The form, which resembles that of a medical questionnaire, leads the investigator through a 4-step analysis during which he or she goes through a checklist of 15 “safety factors.”

The investigator checks a “yes” or “no” box indicating whether he or she observes factors ranging from the parent’s behavior to how the family interacts during the time of the investigation. According to DCFS procedures, the “yes” and “no” decisions are to be based on “clear evidence or other cause for concern that a factor is present.”

But in court testimony, John Goad, former deputy director of the department’s Division of Child Protection, said that while investigators are expected to look for a “reasonably extreme version” of a listed safety factor. He conceded that “investigators need neither a certain level of evidence nor evidence confirming that it is more likely than not that a safety factor is present in order to check the factor ‘yes.’”

This unbridled use of power is what disturbs families.

“Once they become involved in your life—no matter how—if they make the decision, it is up to an individual investigator what happens in your life,” Broderick said.

Court documents indicate that DCFS admitted the safety factor that led to the Brodericks being separated from their children for 43 days was met, “even where there is no evidence that the parent or caretaker is unable to ensure the safety and supervision of his or her children.”

Broderick said she consented to the safety plan, and admitted that looking back she would make the same choice.

“It’s not about the choices they are giving people as much as that there isn’t a threshold of evidence necessary before starting to give the options,” Broderick said.

But some families say it’s not an option to begin with.

"Martini or manhattan"                                                                             

Faith Kumar, whose two children were placed in protective custody, said she didn’t realize a safety plan was even in place until after reading court documents.

DCFS documents read that Kumar was not supposed to allow contact between her daughter and her boyfriend—Cristo Patino—who DCFS had indicated for abuse. Kumar said when a DCFS worker came to her home to investigate a hotline call, Patino was there; her daughter was with a neighbor. The investigator then removed her two children—Kristof, then only a few months old, and Maya, then 5—without speaking to Kumar about the situation.

“[Maya] was really afraid,” Kumar said. “I didn’t know when I would see her again, so I took a picture, and the look in her eyes—she was just so terrified.”

Kumar called her ex-husband’s parents to take the children, which, she agreed was much better than foster care. But she claims she never signed a CERAP form and was never given the opportunity to speak before her children were taken into protective custody.

The signature page of the safety plan form states that “we understand that failure to agree to the plan or to carry out the plan may result in … possible protective custody and or/referral to the State’s Attorney’s Office for a court order to remove my children from my home. I will then have the opportunity to plead my case in court.”

Unlike Kumar, Broderick was given a safety plan that said she and her husband were not to be left unsupervised with her children. She also was told by her investigator that it was voluntary.

“I asked him, ‘if we don’t sign this, what happens?’” Broderick said. “He said very plainly, ‘If you don’t sign this, we’re taking your kids into protective custody and they’ll be placed in foster care.’ So, we did.”

This is a choice that parents said they make when a safety plan is implemented—just not by choice. According to the latest CERAP report to the General Assembly, 7,946 safety plans were implemented between May 2005 and May 2006.

“What we’re arguing is that this situation is coercive just by the nature of being given this ultimatum of either leave your house or we’ll take your children into foster care,” Staas said. “That, by its very nature, is a coercive situation. And therefore no decision that a parent makes in that, under those circumstances, is going to be voluntary.”

The CERAP report shows that a safety plan was implemented in 100 percent of the cases deemed “unsafe” by investigators between 2003 and 2006. The data shows no family refused the plan. Lawyers for the families say that fact shows the plans are not voluntary.

But experts, who in their respective professions find themselves giving the same kinds of options, disagree.

Dr. Carl Bell, a psychiatrist and president of the Community Mental Health Council, intended to testify on DCFS’ behalf in the federal trial but never got the chance because he was removed from Pallmeyer’s courtroom when he—admittedly—made a crass statement in response to a medical witness who testified against safety plans.

Nonetheless, nearly five years later, Bell still thinks that there is a shared responsibility of anyone in the business of welfare, and that DCFS investigators and medical professionals face the same decisions in the interest of saving lives. 

“Working out a safety plan is not coercive,” Bell said. “The argument that I never got to make is when you have a patient and they give you evidence that they are suicidal and homicidal, you can automatically lock them up in a hospital. You have enough evidence, and it’s your responsibility to do that. But though you can lock them up, you can also say, ‘look, I can give you a chance to admit yourself, and it can be a win-win situation.' That’s not coercion.”

Bell continued, “An investigator can go in and say ‘we have evidence that we can take your child because they have five iron cord marks on their arms, but if you can find your auntie or your uncle to come stay with you, we can work something out.' Working out a safety plan is not coercion.”

But Bell admitted that there is a downside to the decisions to implement safety plans.

“Now, I understand the problem with how long they take and when investigators didn’t check up,” Bell said. “I have a problem with that and have said as much, and would have said as much had I not been thrown out of court.”

Facing time                                                                                              

Families and the courts have grappled with the issue of what is worse—families being separated or how long it takes to reunite with them.

According to DCFS, safety plans “must be adequate to assure the child’s safety, but as minimally disruptive to the child and family as is reasonably possible.”

But some parents have a hard time with DCFS’ definition of “reasonable.”

“Every week, [the investigator] came, and would say it would be done within a week,” Broderick said. “And then towards the end [he] said, ‘I can’t tell you that it’s going to be done in a week anymore.’ It ended up being 43 days that we were out of the house.”

According to the Brodericks’ safety plan, the investigator set a zero-to-30-day time frame.

Before 2002, DCFS kept no statistical data indicating the duration of safety plans, according to court documents.  When families alleged that they were held under safety plans for unsubstantiated amounts of time, the courts found that at least 33 percent of the safety plans reviewed were indefinite in length.

In 2002, DCFS was required to develop a standardized and timely duration in which safety plans could be implemented. The amendment set a safety plan of no more than 60 days, and a weekly review of the safety plans to assess whether they are still necessary.  

But even 60 days is too long for those who find out that their cases were unfounded.

Kumar spent an entire year away from her children while DCFS investigated the alleged abuse.

“They continue and they continue and they continue. Every time you think, ‘I’m going to present information’ … no movement,” Kumar said. “They say ‘come back in another month.’ Not another week. Not another three days. Another month.”

The Brodericks said all that they were waiting for was for DCFS to process a second medical opinion that would prove or disprove whether her son had a previous brain injury, which one doctor had alleged was due to abuse by either her or her husband.

The doctor, who had 13 malpractice lawsuits pending against him at the time and later left the state, had made another mistake with the Brodericks’ son. They found out 63 days later that there was no previous brain injury.

Continue in second column

Vallecillo

Erica Green/Medill

Aida and John Vallecillo are pictured outside their home with their children. Their safety plan expired just four months ago, after a child abuse allegation made by hospital officials was ruled unfounded in court.  

“It could have been done in less than a week,” Broderick said. “It could’ve been done in 24 hours. You never wait over two months to get a second opinion from a doctor—ever—under any circumstances.”

DCFS spokesman Kendall Marlow declined comment under departmental restrictions on commenting on pending litigation. The DCFS website indicates no further amendments to the 30-day timeframe for safety plan investigations.

The fallout  

Even when parents are cleared of suspicion, the emotional and financial tolls continue.

Because Kumar was under investigation, she could not continue working with children at her psychology practice or as a substitute teacher, and she spent a year without income. She has been forced to move out of her home, which she can no longer afford, and is living with friends.

But she considers the psychological impacts on her and her children to be worse.

“I couldn’t sleep ever, and I couldn’t eat,” Kumar said. “No one should have to go through that.”

Some families said they have tried to bounce back, but there will always be lasting effects.

The Brodericks said once they were reunited with their children, they became overprotective to the point that they inadvertently were stunting their children’s development. They said that they didn’t allow their son to do basic things like walk up and down stairs, or any basic childhood activities like riding a bike that would welcome the occasional bump or bruise.

“There was no way that we were going to let anything else happen to him and have him go back to the hospital and have to deal with [DCFS] again,” Tom Broderick said. “And there’s always that fear that once you go through it, you never want to go through it again.”

Additionally, they still worry that the misdiagnosis that led to their investigation—and later cleared them of child abuse—has them on edge about Ryan’s childhood development.

“It took away from [Ryan’s] childhood,” Mary Broderick said. “And I still worry about Ryan. Even though they ultimately found that the hemorrhage was a misdiagnosis … I still feel like something could be wrong with him.”

And some families said they don’t know what lasting effects their safety plans will have on their children. For example, McCarthy said he doesn’t know if his daughters will remember their somber Thanksgiving.

“We had dinner at home primarily for the children,” McCarthy said. “[But] they knew something was wrong. Their aunts were showing up unexpectedly. Their mom was crying a lot.”

But ultimately, there is simply the worry of some families that they will never escape the implications of their unfounded allegations.

“My wife worries about the fact that we’re in some system somewhere, and isn’t sure about how they may or may not come up in the future,” McCarthy said. “The lasting impact that this situation has had on me is that it’s forced me to have an unfortunate view about how our government works. It’s my opinion that DCFS is wreaking havoc on innocent people’s lives and it’s the exactly the kind of scary, government abuse that we’re supposed to be protected from. But we’re not.”

Seeking constitutional refuge                                                                        

It has been done before.

In 1996, a family won an appeal against a county child welfare system in Pennsylvania after an investigator, acting on an anonymous tip, removed a child from her home and accused the father of child abuse.

Though the allegation proved unfounded, the parents asserted that their rights had been violated.

In the case, the court found that the lack of evidence used in removing the child constituted “…an arbitrary abuse of government power. Based on [the investigator’s] lack of an opinion regarding whether sexual abuse had occurred, we hold that [investigator] lacked objectively reasonable grounds to believe the child had been sexually abused or was in imminent danger of sexual abuse.”

However, the court opinion did explicitly state that “whatever disruption or disintegration of family life the Crofts may have suffered as a result of the county's child abuse investigation does not, in and of itself, constitute a constitutional deprivation.”  

With the U.S. Supreme Court's decision to pass on the Dupuy case, the core legal issue is resolved for now.

As the case was being appealed to the Supreme Court, experts on both sides said it was an issue worth serious consideration. Richard Epstein, a legal scholar at the University of Chicago who sided with the families on the original Dupuy case, was disturbed by how the appeals court analyzed the issue.

“It is a very hard case, to say the least, but the gist of the problem is the question of what kind of choice is received by parents who are told that they have to move out or to risk loss of custody of their child without any process at all,” Epstein said.

Epstein continued, “I regard it as a due process case, and reject the view that just because there is some choice there is no coercion. Your money or your life is a choice, but if it is a choice between two entitlements you should not be forced to choose between them. The risk of abuse is so great in these situations that some independent and neutral party should pass on the penalty before the sanction is imposed.”

But others disagreed and saw risks in overturning Posner’s decision.

“It would be very unfortunate,” Bell said. “That would be like declaring polio shots unconstitutional. Everyone had to get one, but it protected you.”

Bell also worried about the effect it could have had on the thousands of children DCFS is trying to protect by not placing them into foster care. He believed that there could be a significant impact on the number of foster children in the state.

“I predict if they find it unconstitutional, that number will go up,” Bell said.

DCFS’s numbers bear that out. In Illinois, about 16,000 children were in foster care in 2007, a number that has steadily decreased since CERAPs were implemented. According to the December 2007 report to the General Assembly on CERAPs, the recurrence rate of abuse and maltreatment has consistently declined since the implementation of the CERAP process.  

The overall number of children who were allegedly maltreated, too, steadily declined from CERAP implementation until recently. However, numbers for 2006 show the largest number of reports in 10 years.

Several states employ safety plans or a similar method of investigating child abuse and neglect, but it is found that in many instances, parents and children have more rights.

For example, Karen Freedman, executive director of Lawyers for Children in New York City said that New York’s child welfare system, while flawed, employs a critical opportunity for families.

“If a child is displaced in any way by the state, they have to go to court within 72 hours,” Freedman said. “Whether they are removed voluntarily, the parents have the right to be heard and present the facts to see if that removal is justified.”

This process is what families and the Family Defense Center see as the missing link in Illinois.

“There needs to be an opportunity to go before a judge without the threat of foster care,” Broderick said. “They need to raise the bar above mere suspicion. And they need to have some sort of due process where you can get in front of a judge and tell your side of the story without being held hostage for weeks, months, or years.”

But more than a speedy process, Freedman said that in New York there are fundamental legal processes that need to take place. 

“It’s really critical that there be an open forum and objective fact-finder—which in these cases would be a judge,” Freedman said. “When all of the parties are accurately and aggressively argued, the facts really come out.”

Freedman continued, “I personally have found that when a determination of imminent danger by the city worker or investigator is made, once that witness is in court, they can’t identify what that risk is. Once they are held to a legal standard, it turns out that there are no grounds for family intervention and family disruption. So, the process works better for both families and children.”

Even with the Supreme Court deciding to pass on the case, Staas said the center’s efforts will not stop there.

“We are starting to put the wheels in motion for some legislative advocacy, so we would probably attempt to go that route,” Staas said. “It is in the preliminary stages, but we are being mindful that there is a possibility that the Supreme Court will decide not to hear this case, and we want to keep some other avenues open and not just concede this ground.”

And while the Family Defense Center fights now for legislation and public education, families who have been through safety plans fight to rebuild their lives and hope other families will be spared.

“I spend a fair amount of time thinking about the fact that we were lucky because we had resources,” McCarthy said. “And we were able to retain a lawyer right away. We were educated enough and confident enough that we were willing to argue with the investigators, who said that we had to sign a safety plan. We were willing to say no, and were able to negotiate.”

But, McCarthy added, “There are all too many people in this country who don’t have resources, and those people are being abused by the government on a daily basis. And those people are experiencing abuse that I don’t think too many people ever consider—the government is literally tearing families apart. It’s unconscionable.” 

June 2008

Postscript

At 9 a.m. on June 16, the Supreme Court announced it would not consider the Dupuy case. It was a surprise to staff at the Family Defense Center, and it was heartbreaking for the families involved.

"I'm outraged," Mary Broderick said at a news conference following the decision. "I can't believe that this can happen here in the United States."

But Diane Redleaf, executive director of the Family Defense Center, said her staff will not stop fighting for the families they represent.

"We need to publicize the fact that families are vulnerable and our laws need to be strengthened to protect them," Redleaf read from a prepared statement.

Redleaf said the group plans to regroup and come up with a legislative platform by September.

Click here to read Redleaf's full statement.

Erica Green/Medill

The Family Defense Center is waiting to hear whether the U.S. Supreme Court will hear their case challenging safety plans implemented by the Illinois Department of Children and Family Services. The center contends that safety plans are unconstitutional and strip parents of their due process rights.

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