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FIELDS v. JOHNSON

January 16, 1990

JAMES NORMAN and PAULETTE PATTERSON, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
v.
GORDON JOHNSON, Director, Illinois Department of Children and Family Services, Defendant


Joan B. Gottschall, United State Magistrate.


The opinion of the court was delivered by: GOTTSCHALL

REPORT AND RECOMMENDATION

JOAN B. GOTTSCHALL, UNITED STATES MAGISTRATE

 TO THE HONORABLE WILLIAM T. HART, one of the Judges of the United States District Court for the Northern District of Illinois.

 RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

 In their complaint in this action, plaintiffs, a putative class composed of "impoverished parents and legal guardians who have lost, are at risk of losing, will lose, or cannot regain custody of their children from the Illinois Department of Children and Family Services ("DCFS") because they are homeless or unable to provide food or shelter for their children," challenge:

 
defendant's policies and practices of (1) taking and retaining custody of children from impoverished parents and legal guardians because of their inability to obtain cash, food, shelter, or other subsistence, while failing to assist the parents and children to meet these needs; (2) failing to assist them to secure cash, food, shelter or other subsistence through the coordination of services to needy families and otherwise; (3) failing to make reasonable efforts to prevent removal of plaintiffs' children and reunite families; and (4) abridging the liberty and property interests of parents in retaining custody of their children and maintaining the means to support themselves and their families.

 Plaintiffs allege that the challenged practices of defendant violate Title IV-B and IV-E of the Social Security Act, as amended by the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 620 et seq. and 670 et seq., and the First and Fourteenth Amendments to the United States Constitution.

 Plaintiffs initially moved for preliminary injunctive relief on behalf of two named plaintiffs, James Norman and Gina Johnson, seeking unspecified emergency relief. Following the hearing in this matter, plaintiff James Norman died, and his action therefore abated. Thereafter, plaintiffs moved for preliminary injunctive relief on behalf of two additional members of the putative plaintiff class, Wanda Hilliard and Joann Mitchell, and an additional hearing was held relating to their claims.

 Based on the evidence presented at these two preliminary injunction hearings, the court finds as follows:

 RECOMMENDED FINDINGS OF FACT

 1. Defendant Gordon Johnson is the Director of the Illinois Department of Children and Family Services ("DCFS") and is charged by law with its administration. DCFS annually receives millions of dollars of federal funding pursuant to the Adoption Assistance and Child Welfare Act of 1980 ("AAA") to implement the programs mandated by that Act. The AAA provides in part that in order for a state to be eligible for federal funding, it must have a plan in effect which provides that "reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home . . . ." 42 U.S.C. § 671(a)(15).

 2. DCFS operates a state-wide Child Abuse Hotline. Calls received, if "accepted," are turned over to the Division of Child Protection ("DCP") which assigns an investigator, who must make an initial investigation within 24 hours of a call reporting abuse or neglect. The investigator makes a determination as to the validity of the report using a standard risk assessment form. (See DXs 8, 12.) If the investigator determines that there has been abuse or neglect, the report is termed "indicated." See generally Ill. Rev. Stat., ch. 23, para. 2057.14.

 3. The DCP investigator may take the children into temporary custody if he determines that the circumstances or conditions of the children are such that continuing in their place of residence or in the care and custody of the person then responsible for the child's welfare presents an imminent danger to the children's life or health, and that there is no time to apply for a court order. Ill. Rev. Stat. ch. 23, para. 2055. Efforts are made to place the children with a relative. The DCP investigator advises the parent[s] of the children in person or through a letter that the children are being taken into temporary custody.

 4. The DCP investigator is required by Illinois law to make "an evaluation as to whether there would be an immediate and urgent necessity to remove the child from the environment if appropriate family preservation services were provided." Ill. Rev. Stat., ch. 23, para. 2057.4(b)(3). In actuality, however, DCP investigators are not trained in what if any services may be available and do not in practice make an assessment of whether there are services available that would avoid the need to remove the children from their parents.

 5. When DCFS takes temporary custody of children, it is required to bring them before a judicial officer within 48 hours, exclusive of Saturdays, Sundays and court holidays, for a temporary custody hearing to determine whether they should continue to be held in custody.

 6. If a report is found "indicated," it is designated to a team of social workers. Within two to three weeks, a follow-up caseworker is assigned. Illinois law provides that at this stage, DCFS "shall assess the family's need for services, and, as necessary, develop, with the family, an appropriate service plan . . . ." Ill. Rev. Stat., ch. 23, para. 2058.2. Illinois law further provides that DCFS "shall promptly notify children and families of the Department's responsibility to offer and provide family preservation services," defined generally as "all services to prevent the placement of children in substitute care, to reunite them with their families if so placed and if reunification is an appropriate goal, or to maintain an adoptive placement." Ill. Rev. Stat., ch. 23, para. 2058.2. (The statute provides that the availability of family preservation services shall be phased in during the 5 fiscal years following 1987.) The court finds that no such notification was provided in the case of any of the movant plaintiffs. According to Teresa Mayberry-Dunn, DCFS Area Administrator, DCFS' primary responsibility at this stage is to deliver the services needed to achieve family reunification.

 7. Among the reasons for which children may be removed from their parents' custody are "environmental neglect" and "inadequate shelter."

 8. Ultimately, a permanent caseworker is assigned to the case. The caseworker is to develop a case or service plan usually with the ultimate goal of reuniting the family or achieving a permanent (non-foster care) placement for the children.

 9. Families whose children are taken from them are ineligible for many welfare programs to which they would be entitled if they had custody of their children. In general, parents who have lost custody of their children are ineligible for aid to families with dependent children ("AFDC"), CHA housing and some programs of the Illinois Department of Public Aid ("IDPA"). Thus, the removal of children from a poor family may have the effect of disqualifying the family from receiving various types of public aid and services for which they would otherwise be eligible, thus seriously worsening their financial condition and disabling them from making the improvements in their material circumstances necessary to enable the family to be reunified. For instance, under normal circumstances, a parent whose income qualified him or her for CHA housing would be deemed ineligible for such housing if his or her children were removed; absent some special arrangement, if the parent were required to obtain housing in order to secure the return home of his or her children, and CHA housing were the only housing the parent could afford, the fact that the children were in DCFS custody would prevent the parent from obtaining CHA housing. Similarly, where a family's primary source of income is AFDC, removal of the children will leave the parent[s] with a drastically reduced income level. If the parent is required to demonstrate the existence of a materially adequate home environment to secure the return of his or her children, his or her ability to do so may be completely destroyed by the removal of the children. For these among other reasons, if families are not to be permanently separated, home environment problems related to lack of money must either be alleviated before the children are removed from the home or dealt with by means of coordination between DCFS and other welfare agencies, with exceptions made to usual eligibility policies. As defense witness Teresa Mayberry-Dunn testified, once DCFS has custody of a family's children, it becomes extremely difficult for the family to obtain assistance from agencies such as CHA, IDPA and DCFS. The result is a classic case of "Catch-22": the removal of the children renders the improvement in material circumstances necessary to secure the return of the children impossible.

 10. In 1988, DCFS established a program called the Families First Initiative ("Families First"). Families First, defendant admits, is a response to the mandates of the AAA and to the Illinois Family Preservation Act. Like the statutes to which it responds, Families First reflects the prevailing view among social work and child care professionals that family preservation rather than foster care should, wherever possible, be the goal of intervention efforts since children do better if not separated from their families, as long as the families receive adequate support. (See PX 15; testimony of Diane Yost.) *fn1" The purpose of Families First is to provide comprehensive services, including homemaker services, counselling services and emergency assistance, including cash assistance, to maintain intact families and to reunify separated families as quickly as possible. Among the services that Families First is set up to provide are caretakers who can come into a home, counselling, and emergency funds to get utilities turned back on and to pay for rent and security deposits on apartments. Cash assistance of up to $ 500 per family may be provided. Intensive services are provided by Families First for 90 days with follow-up services thereafter. Certain CHA housing has been set aside for families served by Families First. (Testimony of Diane Yost.)

 11. At present, by the terms of the Families First program, only 350 families statewide can be served by Families First at any one time. For a family to be eligible for Families First, there must be an indicated finding of abuse or neglect; there must be at least one child in the family under the age of 6; there must be an imminent risk of placement; and there must have been no more than three abuse or neglect reports. (Testimony of Diane Yost.) It has not been suggested that families not meeting these criteria could not equally benefit from this program. The court finds that the Families First program demonstrates DCFS' understanding of the objectives of the AAA and its understanding of and ability to implement the AAA's requirements that the states make reasonable efforts to prevent separation of families and to reunify them and that the states provide for coordinated services to achieve the AAA's objectives.

 12. Apart from Families First, there are in the Cook County area a number of sources of emergency aid for families. IDPA administers a fund called "Special Assistance for Families Threatened with Separation due to Financial Reasons," which can provide allowances for rent, food, clothing and household supplies; a DCFS document states, "Public Aid acknowledges that this fund has not been used readily in the past." (PX 11.) The Harris Foundation established a fund, administered by DCFS, expressly for the purpose of allowing the reunification of children and their families when the children are in foster care "primarily because of the lack of adequate housing or utilities"; grants of up to $ 350 are allowed. (PX 14.) Small grants to assist families in obtaining housing are available through the Chicago Urban League, Catholic Charities and the Salvation Army. (Testimony of Smalley Mike Cook.) The United Way Crusade of Mercy administers a number of programs including rent-mortgage assistance to help people who need one month's rent to obtain an apartment or avoid eviction, utility assistance to help people with past due bills or whose utilities have been disconnected and a shelter voucher program which can provide persons with up to 30 days of emergency housing in a hotel or motel. (Testimony of Margaret Hughes.) There is also a security deposit trust fund, set up by the Jewish Federation, by which homeless people can have their security deposits guaranteed. (Id.)

 13. The practical problem with many of these sources of assistance is that they are rarely available unless family reunification is imminent. Since reunification cannot take place without a court order, since reunification can rarely be achieved without DCFS approval, and since a judge is unlikely to order reunification and DCFS is unlikely to approve it unless the parents have an adequate home to which the children can return, the parents rarely get access to these sources of assistance until they have substantially improved their environmental circumstances. In short, the parents cannot get assistance until it is clear that their children are about to be returned to them, and they cannot show that their children are about to be returned to them until they have improved their financial circumstances. Without a coordinated program to use these resources in conjunction with planning for the return of the children, the services which would permit the return of the children remain out of reach because, due to environmental conditions, the return of the children is not imminent.

 14. The court finds on the basis of the expert social work testimony presented at the hearing that successful reunification of families frequently depends on prompt reunification. The more quickly needed services are provided, the more likely it is that the family will remain intact or be successfully reunited. Good social work practice dictates that case plans be developed and services be provided whenever possible within 48 hours of the children's removal from the family home. The court further finds that removal of children from their parents, especially when prolonged, is likely to cause severe, irreparable emotional damage to the children and to their parents.

 Facts Relating to Gina Johnson and Her Children

 15. Gina Johnson is a 26-year-old single mother. She has five children: Wade Johnson, age 9; Randy Johnson, age 7; Cheryl Brown, age 5; Crystal Phillips, age 4; and Terrica Herron, age 3. (Johnson testimony, pp. 74-75.)

 16. On March 13, 1988, Gina Johnson and her children were living at 5010 South Justine in Chicago. (Johnson testimony, p. 77.) Wade and Randy had three weeks earlier been returned to Ms. Johnson's custody from the custody of their father, who had at that point been incarcerated for murder. Randy had previously lived with Ms. Johnson for only four months, immediately following his birth. There was evidence that the boys had been abused and molested while they were in their father's custody. (Johnson testimony, pp. 76, 80.)

 17. On March 13, 1988, Cheryl Brown woke up crying and told Gina Johnson she was bleeding from the vagina. Gina Johnson called an ambulance and Cheryl was taken to Mercy Hospital. (Johnson testimony, p. 82.)

 18. Walter Henry, an investigator with the Division of Child Protection, Sex Abuse Unit, DCFS, responded to a call to the Child Abuse Hotline that Cheryl Brown had been abused. On March 13, 1988, Henry interviewed Gina Johnson at Mercy Hospital and later at the police station. (Henry testimony; Johnson testimony, pp. 106-107.)

 19. Gina Johnson told Henry that Cheryl received her injuries when her brother Randy injected a stick from a window shade into her vagina. (Johnson testimony, p. 82; Henry testimony; DX 12.)

 20. Henry also interviewed Cheryl's examining physician, Dr. Patterson of Mercy Hospital. (DX 12.) Dr. Patterson informed Henry that Cheryl Brown had been bleeding profusely from the vagina and had passed a blood clot the size of a baseball. It was the doctor's opinion that Cheryl's injury could not have been caused in the manner Gina Johnson described. Dr. Patterson informed Henry that Cheryl had a black eye, numerous bruises and welts on her body, and human bite marks on her body. (DXs 13-17; Henry testimony.)

 21. Henry concluded that Cheryl's injuries evidenced long term sexual abuse. (Henry testimony; DX 12.)

 22. Henry made an "indicated" finding of physical abuse, sexual abuse, and neglect. (Henry testimony; DXs 12, 18.) Gina Johnson's children were taken into temporary custody. (Johnson testimony, p. 84; Henry testimony.) Henry discussed with Gina Johnson the possibility of placing the children with relatives, but there was no suitable relative available. (Henry testimony.)

 23. On March 16, 1988, a hearing on temporary custody of Gina Johnson's children was held in the Circuit Court of Cook County, Juvenile Division. Gina Johnson was represented by the Cook County Public Defender at this hearing. (Johnson testimony, p. 115.) The Cook County Public Guardian represented Gina Johnson's children at this hearing. A petition for temporary custody was filed and presented by the Cook County State's Attorney. (DXs 3, 7.) Johnson, through her public defender, stipulated to awarding temporary custody of her children to DCFS. (Johnson testimony, p. 116.) The court ordered that Gina Johnson's children be placed in the temporary custody of DCFS. (DXs 3, 7; Johnson testimony, pp. 115-116.)

 24. The first service plan in the Johnson case appears to have been established April 1, 1988. Prepared by Betty Jenkins, a DCFS follow-up caseworker, at a meeting between Ms. Jenkins and Ms. Johnson, it provided that Gina Johnson would have at least one supervised visit with her children each week and would participate in counselling and parenting training through DCFS referrals. Ms. Jenkins referred Ms. Johnson to parenting classes at Mt. Sinai Hospital and to an organization called HELP for individual and group psychotherapy. (PX 4; Johnson testimony, pp. 85-87, 111.)

 25. DCFS also arranged for counselling for Cheryl Brown at HELP and for Wade and Randy Johnson at South Central Community Services. (Johnson testimony, pp. 111, 114.)

 26. The next service plan for Gina Johnson bears the date of September 28, 1988. The plan indicated that as of that date, the goals of participation in a psychological evaluation, participation in parenting training and supervised visitation had been met. Service tasks, with a planned achievement date of March 1989, included finding a permanent home and demonstrating stability, furnishing the home adequately, attending counselling, obtaining a G.E.D. and making supervised visits with her children. Ms. Johnson's primary caseworker at this time was John Mukasa-Ssebaana. (PX 7.)

 27. Between March 1988 and December 1988, having lost her children and her eligibility for an AFDC grant, Gina Johnson lived in approximately five different residences. (Johnson testimony, pp. 77-79, 110.)

 28. In December 1988, HELP referred Ms. Johnson to Sarah's Inn, a facility maintained by APAC (Austin People's Action Center). APAC provides apartments and job and home-finding counselling, among other services. (DX 25; Johnson testimony, pp. 111-112.)

 29. Sarah's Inn provides Ms. Johnson with individual counselling and support groups focusing on emotional, physical and sexual abuse. (Ms. Johnson was herself an abused child and a ward of DCFS.) She has been provided with a four room apartment (living room, bedroom, kitchen and bath) in a building with other women, many of whom have their children with them, and is receiving counselling and support services at Sarah's Inn. Sarah's Inn charges Ms. Johnson no rent but reserves $ 123 per month of Ms. Johnson's monthly $ 154 general assistance and food stamp grant for the time when Ms. Johnson is ready to get her own apartment. As of the time of the hearing in this matter, Ms. Johnson had accumulated savings of approximately $ 600. Ms. Johnson's caseworker at Sarah's Inn is Sherry Parker. (PX 9; Johnson testimony, pp. 113-114; testimony of Sherry Parker.)

 30. A December 27, 1988 Service Plan contains goals including: Ms. Johnson is to attempt to obtain her high school diploma, take her asthma medication, get counselling, join a family support group and retain an attorney to attempt to achieve the return of her children. Progress notes entered in her file indicate substantial progress toward these goals. (DX 26.)

 31. A Service Plan of March 31, 1989, indicates:

 
The natural mother continues in counseling and therapy at H.E.L.P. and A.P.A.C. She is reported to be making satisfactory progress. With the help of A.P.A.C., Gina has an apartment. The plan is for her to save enough money to obtain her own apartment. She applied for C.H.A. low income housing. Both her ...

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