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NORMAN v. MCDONALD

April 11, 1996

JAMES NORMAN, et al., Plaintiffs,
v.
JESS McDONALD, Director, Illinois Department of Children and Family Services, Defendant.



The opinion of the court was delivered by: HART

 This is a class action that challenged certain practices of the Illinois Department of Children and Family Services ("DCFS") *fn1" as being in violation of relevant federal statutes and the federal Constitution. Plaintiffs are impoverished parents or legal guardians who are or were at risk of losing their children because they were unable to provide adequate food or shelter for the children. *fn2" Plaintiffs alleged that DCFS had policies and practices of failing to assist plaintiffs in securing the resources and services necessary to keep their families intact that were in violation of federal statutory and constitutional requirements.

 In May 1990, this court granted preliminary injunctive relief to two of the named plaintiffs in this case. See Norman v. Johnson, 739 F. Supp. 1182 (N.D. Ill. 1990). Defendant appealed that ruling. Prior to this court resolving the case on its merits or the Seventh Circuit resolving the appeal of the grant of preliminary relief, the parties settled the case. Following notice to the class and a hearing, the parties' proposed consent order was signed on March 28, 1991 (hereinafter the "Consent Order"). The Consent Order required that DCFS implement and develop certain procedures and provide certain services. The Consent Order also contains a requirement that defendant provide certain information and that a monitor (hereinafter the "Monitor") be appointed to receive the reports and make recommendations concerning the implementation of the Consent Order. The term of the Monitor's appointment was to be for approximately four years, expiring July 1, 1995. In February 1995, the parties agreed to move the court to extend that term to February 15, 1997. The basis of this motion was unresolved disputes regarding defendant's compliance with the Consent Order. An extension was granted, but only to February 15, 1996.

 On February 12, 1996, plaintiffs moved to extend the monitoring period to February 15, 1998 on the ground that defendant had not complied with certain provisions of the Consent Order. *fn3" This time defendant opposes the extension. Defendant contends that he has substantially complied with the requirements of the Consent Order and that the additional expense of gathering information and employing the Monitor are no longer necessary. He also contends that changes in the law since March 1991 preclude the Consent Order from being enforced further. For purposes of resolving plaintiffs' pending motion, defendant concedes that the Sixth Monitoring Report dated May 24, 1995 and covering calendar year 1994 (the "Sixth Report") accurately reports defendant's compliance.

 Under the terms of the Consent Order, defendant agreed to implement three general policies. (1) A child is not to be separated from a parent *fn4" because of living conditions or lack of subsistence unless there is reason to believe that the circumstances or conditions of the child present an "imminent danger" to the child's life or health and defendant has made "reasonable efforts" to prevent or eliminate the need for removal, unless reasonable efforts would not eliminate the need for removal. "'Reasonable efforts' includes, for example, provision of hard services such as assistance in locating and securing housing, temporary shelter, cash assistance (directly paid by defendant or otherwise provided), in-kind services including food or clothing, child care, emergency caretakers, or advocacy with public and community agencies providing such services." Consent Order P 4(a). (2) A child shall not be separated from a parent living in a shelter or substandard housing, unless there is reason to believe that the conditions present an "imminent danger" to the child's life or health. Before returning a child to such conditions, defendant shall determine the child will be allowed to reside there and have a bed. Id. P 4(b). (3) Instead of removing a child from a parent because of failure to protect the child from a perpetrator of domestic violence, defendant shall make "reasonable efforts" to keep the child in the parent's custody unless an imminent danger to the child's life or health is presented or reasonable efforts would be to no avail. "In this context, 'reasonable efforts' includes not only the efforts listed in paragraph 4(a) of this order, but also, for example, referring the parent for services to obtain an order of protection, exploring possible alternative housing with, e.g., relatives, and locating and transporting the family to a shelter for battered women." Id. P 4(c).

 The Consent Order also contains more specific provisions. By July 1, 1991, defendant was to establish a cash assistance program providing a family with up to $ 800 per calendar year for rent, security deposits, utility fees, furniture, or other items if the assistance would prevent the separation of parent and child. Certain record keeping is also required. Records of the money disbursed and whether the recipients remained united or were reunited are to be kept. Id. P 5.

 By July 1, 1991, DCFS was to seek to enter into an agreement with the Department of Public Aid ("DPA") and jointly seek federal approval to continue AFDC benefits for up to 90 days during periods of DCFS temporary custody not expected to exceed 90 days. The agreement is also to provide that a parent can apply to DPA for benefits while a child is in DCFS custody and obtain payments prior to return of the child that will aid the parent in regaining custody. Id. P 6.

 By October 1, 1991, DCFS was to establish a housing advocacy program to provide certain housing services that would aid class members in finding suitable housing. DCFS was also to seek agreements with public housing authorities that would aid class members in finding housing. Id. P 7.

 By July 1, 1991, DCFS was to establish a referral service for each office consisting of a localized manual containing an annually updated list of community resources relevant to the needs of the class. DCFS employees are to receive annual instruction regarding use of the manual. Id. P 8.

 It was also agreed that DCFS would implement the following procedures by July 1, 1991: (a) require pertinent personnel to follow the requirements of the Consent Order and ensure timely administrative case reviews; (b) develop with the Monitor a means of documenting specific information regarding imminent danger determinations and the implementation of reasonable efforts; (c) "establish reasonable time guidelines within which DCFS workers should ordinarily return children home or initiate court action to do so for use in cases where problems with living circumstances are preventing family reunification;" (d) establish risk assessment methods based on living conditions; (e) establish a protocol for locating absent parents; and (f) promptly initiate court actions for the return of children. Id. P 9.

 The Consent Order contains a provision for notifying class members of their rights under the Consent Order and a method for appealing certain determinations. This was to be implemented by July 1, 1991. P 10.

 "Defendants shall provide to plaintiffs' counsel drafts of all new policies, procedures, programs, rules, regulations and notices for implementation of the provisions of this Consent Order at least thirty days prior to the relevant effective date specified in this Consent Order. Plaintiffs' counsel shall inform defendant's counsel of any objections they have to any such drafts because of plaintiffs' contention that said draft may violate the terms of this Consent Order, and the parties shall negotiate in good faith regarding any such objections." Id. P 11.

 The Consent Order contains provisions regarding training of DCFS personnel and provides plaintiffs' counsel with the opportunity to monitor that training until July 1, 1995. Initial training was to be completed by December 1, 1991. Id. P 12.

 The Consent Order also contains specific provisions regarding reporting and monitoring. The parties jointly nominated a monitor who was approved by the court. The Monitor was to produce semi-annual reports beginning January 1, 1992 and concluding July 1, 1995. The Monitor and the parties were to jointly develop the procedures for gathering "reliable and valid information necessary to measure compliance with the terms of the Consent Order," including (a) whether defendant is properly determining what persons are class members; (b) whether timely and sufficient cash assistance was provided; (c) whether defendant is making reasonable efforts to unify families; (d) implementation of the time guidelines; (e) the adequacy of training; (f) whether the provisions of this order are properly applied during administrative case reviews; (g) whether class members are afforded full notice and appeal rights; (h) whether DCFS is making good faith efforts to seek interagency agreements; (i) whether DCFS is maximizing DPA payments; (j) the adequacy of risk assessment practices; and (k) whether determinations that a child cannot be returned within 90 days are being made for administrative or fiscal convenience. The Monitor was to submit a report within 60 days after receiving the required semi-annual data from DCFS. She was to report on compliance with the Consent Order and make recommendations regarding any noncompliance. Defendant was required to consider the recommendations and, with the Monitor's assistance, negotiate with plaintiffs' counsel a plan for compliance. Id. PP 14-16.

 The Consent Order also contains the following two provisions:

 
20. This court retains jurisdiction over this case to enforce compliance with this order or the recommendations of the Monitor. Plaintiffs may file a motion with this court at any time to seek compliance with the provisions of this Order or the recommendations of the Monitor, provided that, to the extent such a motion is based upon a report or recommendation of the Monitor under Paragraph 16, no motion shall be filed until plaintiffs have made attempts to negotiate the development and implementation of a compliance plan with defendant, with the assistance of the Monitor as set forth under Paragraph 16.
 
21. Defendant may file a motion with this court at any time seeking modification of the terms of this Consent Order if factual or legal circumstances materially change, experience with the administration of the Consent Order shows the need for modification in order to more effectively accomplish the goals of this Consent Order, it is no longer equitable that the Consent Order should have prospective effect, or such modification is necessary due to the hardship caused defendant by the Consent Order because of new and unforeseen conditions. Any decision by the court allowing or denying such a modification shall be made by weighing the interests of the class members in the ...

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