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May 30, 1989

B.H., C.H., J.E. and C.Z., individually and on behalf of all others similarly situated, Plaintiffs,
GORDON JOHNSON, Director of the Illinois Department of Children and Family Services, Defendant

John F. Grady, United States District Judge.

The opinion of the court was delivered by: GRADY


 This case comes before us on defendant's motion to dismiss. We grant the motion in part.


 For purposes of this motion, we accept all well-pleaded facts as true and draw reasonable inferences in favor of plaintiffs. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Named plaintiffs, B.H., C.H., J.E., C.Z., E.G., O.G., S.G., C.G., P.G., and A.G., represent a class of "all persons who are or will be in the custody of the Illinois Department of Children and Family Services and who have been or will be placed somewhere other than with their parents" (hereinafter collectively referred to as "plaintiffs"). See Order 88 C 5599 (N.D. Ill. Feb. 22, 1989) (certifying plaintiffs as a class pursuant to Rule 23 of the Federal Rules of Civil Procedure).

 Defendant Gordon Johnson ("Johnson") is the director of the Illinois Department of Children and Family Services ("DCFS"). He is sued only in his official capacity. DCFS is an Illinois state agency responsible for the welfare of children whose parents are unwilling or unable to care for them. Amended Complaint at para. 10. As of the date of filing of the complaint, 15,000 children were in the custody of the DCFS. Am. Compl. at para. 9(a). When a child is removed from his or her parents, a "follow-up" caseworker is assigned to take responsibility for the child. Am. Compl. at para. 11. According to DCFS procedures, "the follow-up caseworker is to work with the family, arrange for appropriate services -- for example, homemakers, counselors, therapists, and day care -- and oversee the child's welfare including his or her medical needs, education, and, if the child is not immediately returned home, placement in a foster home, group home, or institutional care facility." Id.

 The facts, as alleged in the complaint, paint a bleak and Dickensian picture of life under the auspices of the DCFS. Plaintiffs assert that there is little hope that children in the custody of the DCFS will receive services to which they are entitled. Id. at para. 12. Of the approximately 15,000 children in defendant's custody, more than 4,000 have been prevented from returning to their parents for two years or more. Am. Compl. at para. 21(a). As of June 30, 1986, more than 4,300 children in DCFS care had been in six or more placements. Id. at 21(b). These placements usually involve extended stays in mental hospitals, detention centers, group homes, shelters, and other institutions. Some children are kept in mental institutions long after professionals responsible for their treatment have declared them ready for discharge. Id. at 21(c). The institutions in which plaintiffs are "warehoused" do not offer adequate educational opportunities or, indeed, activities of any sort. Plaintiffs claim that the behavior of the children who reside in these institutions is controlled by brutal physical discipline. Id. These institutions are incapable of serving the needs of children and often cause serious damage to their physical and emotional well-being. In one DCFS shelter in May 1988, an eight-year-old girl was raped by two twelve-year-old boys. Id. at para. 16.

 The institutional disrepair of DCFS is illustrated by the experience of the named plaintiffs in this case. For convenience, we allow the complaint to tell its own story:

(b) C.H. is a 15 year old male who has been in the DCFS system for less than six months. During that period of time he has had five different placements. As of the date of the original complaint, C.H. had been in a temporary shelter for four months. C.H. was removed from his mother's home after he had a confrontation with her boyfriend. Despite the obvious family tensions, as of the date of his interview with counsel in preparation for filing this lawsuit, C.H. and his mother had received no joint counselling or other support from DCFS seeking safely to reunite the family, and C.H. had not, to the best of his recollection, seen his caseworker for a month.
(c) J.E. is a 13 year old male who has been in the custody of DCFS as long as he can remember. J.E. wants to be reunited with his grandmother or his biological mother, who has told him she wants him back, but he has no recollection of any joint counselling with his mother during the years that he has been in DCFS' custody. J.E. has not had any counseling from DCFS at all for the last several months. Instead, he was warehoused for the three months prior to the filing of this lawsuit at the Henry Horner Children's Center ("Henry Horner"), an overcrowded, understaffed mental health facility which controls his behavior by administering strong doses of psychotropic mediation [sic]. J.E. constantly fears for his physical safety at Henry Horner, where assaults are a frequent occurrence. He has had numerous caseworkers during his time with DCFS and he rarely sees his current caseworker. J.E. has been placed in a series of foster and institutional placements and removed from the one foster family with whom he was able to form a bond. During the time J.E. has been in the custody of DCFS he has threatened suicide.
(d) C.Z. is a 17 year old female honor student who was placed in DCFS' custody approximately one year ago because she alleged she was sexually abused by her stepfather. During her year with DCFS, C.Z. has been in seven different placements. C.Z. has received no meaningful help from DCFS in her efforts to cope with the events giving rise to her allegations of abuse by her stepfather or the deterioration of her relationship with her mother. On information and belief, solely because DCFS had no appropriate placement for her, on two separate occasions C.Z. remained in a locked ward at Henry Horner long after the specific recommendations of mental health officials that she was ready for discharge. Prior to contact with counsel in preparation for filing this lawsuit, C.Z. had not seen her caseworker for two months. On one occasion, C.Z. slit her wrists in order to get the attention of the DCFS worker then in charge of her case.
(e) E.G. and O.G. have been in DCFS's custody since October 9, 1987. DCFS has been involved with their family since October 1986 when O.G. severed his palate with a stick and hospital personnel called the case to DCFS's attention. Subsequent investigation revealed that E.G. and O.G., along with their siblings, A.G., P.G., S.G., and C.G., were kept by their parents locked in a feces and urine infested bedroom, that they were undernourished, that their medical needs were ignored, and that they were otherwise neglected. Between October 1986 and October 1987 DCFS' only effort to provide services to the G. family consisted of sending a homemaker to clean the apartment. The homemaker stopped visiting after being threatened by E.G.'s and O.G.'s heroin addict father. At the time of their removal from their home, E.G. was 3 and O.G. was 6. In the year since they were removed from their home, E.G. and O.G. have been in a total of 8 different placements. In one of the placements, E.G. and O.G. were inadequately fed and clothed. They were removed from another placement because they were both "hit" by the foster mother. In a third placement O.G. was sexually abused. Notwithstanding that he was initially removed from his parents home because of the neglect which caused his severed palate, plaintiffs are informed and believe that E.G. has never received any speech therapy to help him cope with his physical handicap and he has never been evaluated for reconstructive surgery. As of October 28, 1988 DCFS had not made any arrangements to provide O.G. with counselling in order to help him deal with his sexual abuse and, in response to the current foster parents' inquiry on the subject, the DCFS caseworker had threatened to remove E.G. and O.G. from the new foster home if the foster parent continued to "cause trouble" by insisting on such critical services.
(f) S.G., C.G., P.G. and A.G. are the brothers and sisters of E.G. and O.G. They range in age from one year to nine years. All of them have been placed together with the O'C. family, a different foster placement from E.G. and O.G. The separated children have not received scheduled monthly visits and, despite repeated requests from the O'C.s, DCFS has flatly refused to even schedule sibling visits on a weekly basis. Several of the G children have special needs. P.G., for example, was a premature baby who continues to suffer from a weak heart and asthma. C.G. has a variety of behavioral problems. Notwithstanding these needs, DCFS failed to fund for periods of six and eight months legitimate babysitting and other expenses associated with care of the G children, including, for example, funds for participation in various neighborhood and school programs designed to assist C.G. Even after funding has been promised for these expenses, actual payments have not been forthcoming and, at present, the foster parents are able to obtain babysitting they need in order to get P.G. to his various doctors' appointments only through the cooperation of a friend who is owed money for more than six weeks of work. By reason of DCFS' lack of cooperation with the O'C family, DCFS has forced the foster parents to the choice of either advancing literally hundreds of dollars to pay for services the state should provide, ignoring the childrens [sic] needs for such services or abandoning the children to another placement.

 Am. Compl. at para. 22.

 According to plaintiffs, Johnson has ignored the systemic problems that plague the DCFS. He has assigned too many cases to the follow-up workers responsible for working with children. Plaintiffs claim that Johnson typically assigns sixty or more cases to a single caseworker; DCFS studies and national social science surveys indicate that follow-up caseworkers cannot perform their essential duties competently if they are assigned to more than twenty cases at a given time. Am. Compl. at para. 13. Further, defendant has failed to ensure that necessary services to reunite families, such as homemakers, day-care and counseling, are available on a timely basis. Plaintiffs assert on information and belief that, at the time of filing the amended complaint, defendant Johnson had all but ceased to provide essential services to children, their parents and foster parents. Am. Compl. at para. 14. The shortage of services results in thousands of children being separated from parents and siblings for years, causing serious and irreparable harm to their mental health and development. Defendant typically places children not based on their needs, but rather because a foster home or institution will accept the child. This practice results in multiple, unsuitable placements for siblings and drives foster parents out of the system. Am. Compl. at para. 15. The failure of foster parents to participate in the system results in the warehousing of children for months or years in unsuitable and dangerous shelters maintained by DCFS.

 Plaintiffs further allege that defendant is slow to react to reports of child abuse and neglect. According to plaintiffs, approximately twenty-five percent of the reports of abuse and neglect received by the DCFS in the first nine months of 1987 concerned families that had at least three or more prior reports of abuse and neglect which DCFS had failed to investigate. Am. Compl. at para. 18. Over the years, in response to increasing reports of child abuse and neglect, defendant has called for legislative initiatives, more severe criminal penalties, punishment for case workers or study of the issue. He has also announced with "much public fanfare," Am. Compl. at para. 20, "pilot" programs which have been successful, where implemented, but defendant has not made such programs available to all children in need of them. Id. Over the last few years, hundreds of children in DCFS' custody have been subjected to the exact type of abuse that caused the state to assume custody of them in the first place. The children in substitute care experience neglect or abuse at a rate at least twice that experienced by children in the Illinois population as a whole. Am. Compl. at para. 8.


 Plaintiffs allege that defendant "knowingly, intentionally and with deliberate indifference to the rights of plaintiffs maintained the conditions and policies described in this Complaint," Am. Compl. at para. 25, and that, as a "direct and proximate result" of defendant's conduct, plaintiffs have suffered, and continue to suffer, irreparable harm to their mental health and development, emotional distress, humiliation, anxiety, and pain. Am. Compl. at para. 26. Count I states constitutional claims; Count II states federal statutory claims. Under both counts plaintiffs request this court to (a) issue a declaratory judgment that the policies and practices complained of violate the Fourteenth Amendment; (b) grant an injunction requiring defendant to submit a plan assuring legally adequate care and treatment for plaintiffs; (c) appoint a master pursuant to Rule 53 of the Federal Rules of Civil Procedure to determine the adequacy of defendant's plan and to oversee its implementation; *fn1" (d) expressly reserve the right of individual class members to bring individual lawsuits for damages; (e) award costs and reasonable attorney's fees pursuant to 42 U.S.C. § 1988 and (f) grant any such additional relief as the court believes just and proper. Am. Compl. at paras. 28, 30.

 Count I: Constitutional Claims

 The initial inquiry in a § 1983 action is whether the conduct complained of deprived the plaintiffs of a right, privilege, or immunity secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). Plaintiffs contend that defendant violated their constitutional rights "to family privacy and autonomy, freedom of association, safe and humane conditions and treatment, freedom from bodily restraint, due process and equal protection of the law." Am. Compl. at para. 28. Specifically, plaintiffs argue that defendant has failed to place plaintiffs in the least restrictive setting and to "provide those services reasonably necessary to reunite plaintiffs with their parents," id. at para. 28(a), that defendant placed plaintiffs in conditions that "shock the conscience" and put their emotional and physical well-being at serious risk, id. at para. 28(b), that defendant has failed "to provide plaintiffs with minimally adequate shelter, supervision, treatment and services," id. at para. 28(c), and that defendant, without due process of law, "has deprived plaintiffs of their protectible liberty and property interests to an individualized, program-oriented plan for their care; appropriate services to re-unify them with their families; and services necessary to their proper development, health and education, pursuant to Ill. Rev. Stat. ch. 23, paras. 2052, 5005, 5006a and Ill. Rev. Stat. ch. 37, para. 801-2(3)(b)." Id. at 28(d). Defendant seeks to dismiss Count I pursuant to Federal Rule of Civil Procedure 12(b)(6), on the ground that plaintiffs have failed to state a claim upon which relief can be granted.

 Substantive Due Process

 Defendant argues that plaintiffs are seeking to impose upon the state, via the Fourteenth Amendment, a duty to provide its citizens with substantive services. As defendant correctly points out, the Fourteenth Amendment does not obligate the state to provide substantive services for its citizens. The Due Process Clause provides that a state shall not "deprive" residents of life, liberty and property without due process of law. The Seventh Circuit has explained the origin of the Fourteenth Amendment:

[The Due Process Clause] is a charter of negative rather than positive liberties. The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them. The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure them basic governmental services.

 Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983), cert. denied, 465 U.S. 1049, 79 L. Ed. 2d 720, 104 S. Ct. 1325 (1984) (citations omitted). See also Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir. 1984) (Due Process Clause does not require city to rescue victims of fire or to provide firefighting services); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (Due ...

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