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DUPUY v. MCDONALD

March 30, 2001

BELINDA DUPUY, ET AL., PLAINTIFFS,
v.
JESS MCDONALD, DIRECTOR, ILLINOIS DEPARTMENT OF CHILDREN & FAMILY SERVICES, IN HIS OFFICIAL CAPACITY, DEFENDANT.



The opinion of the court was delivered by: Rebecca R. Pallmeyer, Judge

  MEMORANDUM OPINION AND ORDER

Plaintiffs represent a class of persons who have been named as perpetrators of child abuse or neglect in "indicated reports" placed in the State Central Register of the Illinois Department of Children and Family Services ("DCFS"). Defendant Jess McDonald is the Director of DCFS. Seeking injunctive relief, Plaintiffs challenge the constitutionality of certain DCFS policies and procedures for investigating allegations of child abuse and neglect and for issuing "indicated" reports. Specifically, Plaintiffs challenge three "core" policies: the indicated report decision-making policies, including the burden of proof standard; the notice and hearing policies; and the disclosure and use of indicated reports. Plaintiffs also challenge five "special" policies which arguably only affect sub groups of the Plaintiff class: the imposition of protective or safety plans; foster care placement holds; "not responsible" findings; the extended registry of indicated reports; and indicated findings made without a determination that an individual acted intentionally, recklessly or negligently. For the reasons set forth below, the court finds that certain of these current DCFS policies and procedures do in fact deprive class members of constitutionally-protected rights. The court will not, however, dictate a remedy or draft revisions to the regulatory structure. Instead, it directs the parties themselves to develop a workable solution, and present it to the court, within 60 days. Plaintiffs' motion for preliminary injunction is therefore granted in part and denied in part.

FINDINGS OF FACT

I. Overview Of The Department Of Children And Family Services

1. The Department of Children and Family Services ("DCFS" or the "Department") is statutorily required to protect the health, safety and best interests of the child in all situations, including both public and private, in which the child is vulnerable to child abuse or neglect. (325 ILCS 5/2.) DCFS is also responsible for offering protective services in order to prevent further harm to the child and to other children in the same environment or family. (Id.) As such, DCFS is the state agency charged by statute with the duty of investigating allegations of child abuse and neglect. (Id.)

2. Under the Juvenile Court Act, 705 ILCS 405/1 et seq., DCFS may be granted temporary custody of children requiring protective services. Under the same Act, DCFS becomes permanently responsible for children who are adjudicated by a juvenile court to be abused and neglected and become wards of the court. (705 ILCS 405/2-10.)

3. DCFS' Licensing Unit is responsible for issuing child care licenses pursuant to the Illinois Child Care Act, 225 ILCS 10/4, for monitoring licensees, and for enforcing the licensing standards pursuant to the Child Care Act and pursuant to DCFS rules and procedures.

4. DCFS is organized into various operational divisions. The Division of Child Protection ("DCP") is respon sible for operating a hotline to accept calls regarding allegations of child abuse and n eglect (the "DCFS Hotline"). In addition to accepting reports of abuse or neglect, DCP is also responsible for in vestigating the allegations. (325 ILCS 5/7, 5/7.3.) Edward Cotton is currently the DCP's chief administrator. The DCFS Hotline accepts over 350,000 calls per year, of which 65,000 are investigated. (Tr. 1475, 1492.) Approximately 23,000 (or 1/3) of the investigations are "indicated," meaning that the investigator has determined that credible evidence of child abuse or neglect exists. (Tr. 1492-93.) The rest of the investigations result in "unfounded" determinations, meaning that the investigator has not found credible evidence of abuse or neglect. (Tr. 1493.)

5. The State Central Register ("SCR") is a subdivision of the DCP that maintains a computerized listing of information regarding allegations of abuse or neglect, including the determination that an allegation of abuse or neglect has been indicated against a particular named perpetrator. Linda Everette-Williams is the head of the SCR; she reports to Edward Cotton. The Child Abuse and Neglect Tracking System ("CANTS") is a computerized tracking system maintained by the SCR.

6. The DCFS Operations Unit provides follow-up services to children and families and includes both foster care licensing workers and primary case managers for children who are in the guardianship of DCFS and placed in foster homes, group homes and child care institutions.

7. The Administrative Hearings Unit ("AHU") receives, processes, and hears appeals from DCFS actions, including any appeal seeking expungement of an indicated report from the SCR. The AHU also hears licensing denial and revocation appeals, and service appeals which involve, for example, decisions to remove a child from a particular placement.

8. DCFS has promulgated rules and written procedures which specify the manner in which the Department implements its statutory mandates. DCFS has also established standardized form notices concerning, among other things, the conduct of abuse and neglect investigations and determinations, licensing investigations and determinations, and background checks.

II. The Abuse and Neglect Investigative Process

A. In General

1. Assessments of child abuse or neglect can result in criminal prosecutions, civil actions, juvenile court proceedings, adoption actions, domestic relations suits, and administrative determinations.

2. In 1975, Illinois enacted the Abused and Neglected Child Reporting Act ("ANCRA"), 325 ILCS 5/1 et seq. Sometime between 1989 and 1992, DCFS adopted the current centralized state-wide system for investigating, registering and tracking allegations and findings of abuse and neglect.

B. Training of Investigators

1. To become a DCP investigator, an individual must have a bachelor's degree in a social services field and two years of social service or investigative experience. It is unclear from the record what degrees qualify as social service degrees. DCP investigators are not required to have any experience or background in child development.

2. Prior to assuming responsibility for conducting investigations, DCP investigators are required to attend two weeks of specialized training in addition to the five weeks of core training for all DCFS case managers. The five week core training covers, among other subjects, case planning, interviewing, clinical decision making, child development, family dynamics, juvenile court processes, and Child Endangerment Risk Assessment Protocol ("CERAP") forms, rules, and procedures. The specialized two-week training, solely for investigators, includes eight modules: (A) principles of investigation; (B) indicators of child abuse and neglect; (C) interviewing children and families; (D) investigation preparation; (E) investigation, including decision-making and documentation; (F) risk assessment; (G) initial services; and (H) placement services. The total time devoted to the specialized training is 49.45 hours. This specialized training does not include instruction on how to weigh evidence; Edward Cotton testified that the principal goal of the training is to teach investigators what evidence should be gathered. After the specialized training, investigators must pass a certification exam.

3. The DCP requires investigators to have twenty additional hours of training every two years, but investigators are not disciplined if they do not meet this requirement.

4. Once they complete this additional two weeks of specialized training, investigators continue their training by accompanying more experienced workers on investigations. Six months later, DCFS assigns the investigators their own cases. Each investigator is expected to be individually responsible for conducting twelve investigations per month. These investigators gather evidence, conduct investigations, and then weigh the evidence in order to decide whether to "indicate" or "unfound" a report.

5. In addition to their seven total weeks of training, investigators are provided with a comprehensive CPS Handbook, hundreds of pages in length, which details the investigative process. The CPS Handbook explains what the investigator is required to do during the investigation, what evidence he or she is expected to consider, and what facts are to be considered in determining the outcome of the investigation.

C. The Initiation of an Investigation and CANTS 1

1. Any person can make a child abuse or neglect report by calling the toll-free DCFS Hotline. Certain persons whose employment brings them into frequent contact with children are "mandated reporters" and are thus required to make a Hotline report if they have a reasonable belief that a child may be abused or neglected. (ILL. ADMIN. CODE tit. 89, § 300.30.)

2. Upon accepting a call, a DCFS Hotline operator must determine whether the following criteria are met: (1) the alleged victim is under the age of 18; (2) the person allegedly responsible is an "eligible perpetrator," such as an immediate family member, a person responsible for providing care, or a person residing in the home where care is being provided; (3) there are specific incidents of alleged abuse or neglect which cause harm or substantial risk of harm to the child; and (4) the alleged victim has been harmed or is in substantial risk of harm. These are the minimum criteria for further investigation.

3. DCFS maintains an allegation system which assigns a discrete number code to specific allegations of abuse or neglect. All abuse allegations are coded with a one or two digit number under thirty and all neglect allegations are coded with a two digit number greater than fifty. Each allegation of abuse or neglect focuses on harm or the risk of harm to the child.

4. If the Hotline call is deemed to be made in good faith and to meet the minimum criteria for further investigation, the Hotline operator completes a CANTS 1 form and assigns the case an SCR number and letter. *fn1 On the CANTS 1 form, the operator records the names of the alleged victim, the alleged perpetrator and other adults in the alleged victim's home or facility (and the relationship between all such persons), and the name of the person making the report. The alleged victim, the alleged perpetrator and the other adults in the home/facility are considered "subjects" of the investigation. On the second page of the CANTS 1 form, the operator writes a narrative summary of the allegations of abuse and neglect made by the caller.

5. The investigator then checks for prior reports against the "subjects" in the Child Abuse and Neglect Tracking System. If a "subject" has been investigated for a prior incident resulting in an indicated report, the report will be noted on the CANTS 1 form with an "I" next to an allegation number. This is true even for prior indicated reports where the perpetrator was determined to be "unknown" and all suspected perpetrators were notified that they were "not responsible" for abuse and neglect. Where an individual was determined to have been the perpetrator of abuse or neglect in a prior investigation, the prior report is identified on the CANTS 1 form with an "X."

6. The SCR transmits the completed CANTS 1 form to a local DCP office where an investigator is assigned. The assigned investigator is responsible for conducting the investigation and for making a final determination as to whether to "indicate" or "unfound" the report.

D. Investigative Contacts

1. Investigators must attempt to see the alleged victim within 24 hours of the Hotline call. (ILL. ADMIN. CODE tit. 89, § 300.100.) The investigator who makes this initial contact with the alleged victim is not necessarily the investigator assigned to complete the investigation.

2. After this initial interview with the alleged victim, the investigator is required to complete the CERAP which is designed to identify and quantify the risk to the alleged victim.

3. The investigator then continues an initial investigation to determine if there is reasonable cause to believe that child abuse or neglect exists. This initial investigation is to be completed within 14 days after assignment. A preliminary determination that there is reasonable cause triggers a formal investigation of the allegations. Without reasonable cause, a case may be "informally unfounded." About 15% of cases are informally unfounded.

4. DCFS rules provide that, in a formal investigation, an investigator must have in-person contact with the alleged victim, the alleged perpetrator, and the child's caretaker. (ILL. ADMIN. CODE tit. 89, § 300.110(c).) Under DCFS Procedures, required contacts are expanded according to a system of priority of the allegations.

5. The investigator is required to contact the alleged perpetrator within seven days after assignment. (Id.) Cotton testified that during this initial contact, the alleged perpetrator is given a CANTS 8 form and a pamphlet that describes what to expect during the course of the investigation. (Tr. 1516-17.)

6. The CANTS 8 form (also known as, "Notification of a Report of Suspected Child Abuse and/or Neglect") is the only notice required to be given, during the investigation, to any person who is a "subject" of the investigation. All adult "subjects" are to receive a CANTS 8, and an alleged perpetrator must be handed the CANTS 8 in person. Therefore, identical CANTS 8 forms are given to any person who has custody of the child as well as to any person who is or may become a suspected perpetrator. When a report of abuse or neglect arises out of an incident at a child care facility, however, the CANTS 8 may be given to the facility direct or rather than to any identified employee.

(a) The CANTS 8 form merely advises the person who receives the form that an incident involving the child(ren) named was reported to have occurred at an identified site. It also advises the recipient that DCFS is required to conduct an investigation, which must be "indicated" or "unfounded" within 60 days of the report unless good cause is shown. (Jt. Ex. 21, at 22.)

(b) The CANTS 8 does not specify the allegations, name the suspected perpetrator of the abuse or neglect, or explain the investigative process. The CANTS 8 also fails to inform the recipient of any rights afforded to persons being investigated as perpetrators. It does state, however, that if the report is found "indicated," it will remain in the SCR for a minimum of five years. (Id.)

7. DCFS directives do not require that every allegedly abused or neglected child be seen by a doctor or qualified medical examiner before the report may be indicated.

E. Final Determinations — Concluding the Investigation

1. "When the investigative worker has completed all required investigative contacts and has secured appropriate physical evidence . . . the investigative worker shall make a finding of Indicated or Unfounded. This determination shall be based upon whether the information gathered during the investigation and from the direct observations made by the investigative worker constitutes credible evidence of child abuse or neglect." (ILL. ADMIN. CODE tit. 89, § 300.110(i)). In order to indicate a report against a perpetrator under the allegation system, DCP must "secur[e] credible evidence that the child sustained the harm or injury as the result of the action or inaction, of the alleged perpetrator." In determining whether the suspected perpetrator undertook "direct action" to harm a child, it is unclear whether DCP must determine that the suspected perpetrator acted intentionally, recklessly, or negligently. Therefore, except for allegation #74 (inadequate supervision), DCP is authorized to indicate perpetrators even without evidence that the perpetrator acted intentionally, recklessly, or negligently.

2. At all relevant times, DCFS has employed the "credible evidence" standard as the burden of proof for determining that reports be indicated and placed in the SCR. Plaintiffs argue that this, in practice, amounts to an "any credible evidence" or "some credible evidence" standard. Prior to March 1, 1996, administrative law judges ("ALJs") were to apply this "credible evidence" standard in administrative hearing recommendations. The Director of DCFS would then apply the same standard when reviewing the ALJ's recommended decision.

3. Effective March 1, 1996, DCFS promulgated regulations which directed ALJs to apply a "preponderance of the evidence" standard in administrative hearing recommendations. The new regulations direct the Direct or of DCFS to apply this same "preponderance of the evidence" standard when reviewing the ALJ's recommended decision. (ILL. ADMIN. CODE tit. 89, §§ 336.120(h), 336.150(a).)

4. DCFS regulations define an "indicated report" as "any report of child abuse or neglect made to the Department for which it is determined, after an investigation, that credible evidence of the alleged abuse or neglect exists." (Jt. Ex. 1, ILL. ADMIN. CODE tit. 89, § 300.20.) Plaintiffs argue that DCFS directives define an indicated report as "any report of child abuse or neglect made to the Department for which it is determined, after an investigation, that some credible evidence of abuse or neglect exists." (emphasis added.) The court was unable to locate such language anywhere in the record. The regulations define an "unfounded" report as a report in which "it is determined, after an investigation, that no credible evidence of abuse or neglect exists," (emphasis added) and an "undetermined" report as any report in which it was "not possible to complete an investigation within 60 days on the basis of information provided to the Department." (Id.) In some cases, allegations are indicated, but no determination is made as to who is the perpetrator of the abuse or neglect. These cases are referred to as being "indicated to an unknown perpetrator." In some cases, however, this "not responsible" finding on an indicated report is registered in the SCR under the original suspect's name. Therefore, such information can appear on an individual's background check even though the individual was found "not responsible." This finding is also troublesome when a report against a facility is listed under the owner's name as opposed to the facility name. (Pls.' FOF pages 5557.)

5. After completing the investigation, the DCP worker recommends a final determination. As part of this process, the investigator completes a Family Assessment Factor Worksheet ("FAFW") to document his or her determination of whether a report should be "indicated" or "unfounded." The FAFW requires the investigator to determine the extent of long-term risk factors to the health and safety of the child, focusing on the relationship between the alleged perpetrators and the children, environmental factors, and the history of abuse or neglect. (Tr. 1523.) Ultimately, on the FAFW, the investigator explains his or her rationale for "indicating" or "unfounding" a particular report.

6. An investigator's recommended decision regarding the outcome of an investigation is reviewed by the investigator's supervisor who has the actual authority to "indicate" or "unfound" the investigation. Supervisors sign the FAFW to signify their approval of the investigator's recommended finding.

7. Once his or her recommended finding has been approved, the investigator completes a CANTS 2 Final Finding Report form and forwards it to the SCR, where it is registered as indicated or unfounded. (Jt. Ex. 1, ILL. ADMIN. CODE tit. 89, § 300.110(j)(2)). A CANTS 2 form is a computerized summary of the information gathered in an investigation, including a computerized coding of the allegations and a determination of whether the report as to each allegation was indicated or unfounded. The CANTS 2 form also codes a retention schedule for the report, discernible only by persons familiar with such codes.

8. DCFS regulations require that an investigation be completed within 60 days. (ILL. ADMIN. CODE. tit. 89 § 300.110(i)(3)(C)). This time period may be extended for periods of up to 30 days upon a showing of good cause. (Id.) Examples of reasons that would constitute good cause are:

(i) State's attorneys or law enforcement officials have requested that the Department delay making a determination due to a pending criminal investigation; (ii) medical or autopsy reports needed to make a determination are still pending after the initial 60 day period; (iii) the report involves an out-of-state investigation and the delay is beyond the Department's control; and (iv) multiple alleged perpetrators or victims are involved necessitating more time in gathering evidence and conducting interviews.

(ILL. ADMIN. CODE. tit. 89 § 300.110(i)(3)(D).) The regulations do not, however, indicate to whom a showing of good cause must be made.

F. Notices Regarding Indicated Reports

1. After the DCP has forwarded the CANTS 2 form to the SCR, the SCR issues a standardized notice to alleged perpetrators informing them of the results of the investigation (the "SCR Notice"). (Jt. Ex. 20, at 101-105.)

2. At the time of the preliminary injunction hearing, the SCR Notice informed the recipient that the Department determined the report to be indicated and that the recipient was "identified as a person responsible for the child abuse or neglect." (Jt. Ex. 20, at 101.) This notice did not, however, inform the recipient of the facts of the alleged incident; indeed, a recipient was not even informed whether he or she was indicated for abuse as opposed to neglect. The form also did not suggest that the finding was a final decision that would remain in the SCR for any specific period of time.

3. The SCR Notice did explain that the recipient could appeal the indicated finding in writing within 60 days, but it did not explain the consequences of missing the 60-day deadline.

4. In addition, the Notice advised the recipient that the information in the report was confidential, but that access to it was governed by state law. The Notice did not advise a child care professional who was the subject of an indicated finding that the report would be sent to his or her employer and that his or her licensing entity, if any, would also be notified of the report.

5. Special notification letters, including CANTS 1 and 2 forms and a redacted copy of the investigative file, are sent to persons whom DCFS has identified as child care professionals who are likely to appeal. The special notification letter suffers from the same defects as the standard indicated report letter. (Jt. Ex. 20, at 116.)

7. Effective June 1, 2000, DCFS codified new regulations governing the information to be included in the SCR Notice. (ILL. ADMIN. CODE tit. 89, § 336 et seq.) ("Amended Rule 336"). According to Amended Rule 336, the SCR Notice must provide the following information:

(a) a specific statement whether the Department has determined the report indicated or unfounded as a result of an investigation; (b) the name of the perpetrator; (c) the allegations determined indicated; (d) the length of time the indicated case shall be retained by the Department; (e) a statement that a Department review of an indicated decision is available; (f) a statement that . . . a review . . . must be requested in writing within 60 days after notification of the completion of the investigation by the Child Protective Service Unit . . .; and (g) the name and address of the individual who must be contacted in order to request a review of the Department's decision.

(ILL. ADMIN. CODE tit. 89, § 336.30.) DCFS has not provided the court with copies of the new notice or with any additional rules or procedures it may have promulgated since the codification of this new regulation.

G. Retention of Indicated Reports

1. According to Illinois statute, "[i]dentifying information on . . . records shall be removed from the register no later than 5 years after the report is indicated[,]" except that indicated reports "involving the sexual abuse of a child, the death of a child, or serious physical injury to a child . . . may be retained longer than 5 years . . . and may not be removed from the register except as provided by the Department in rules." 325 ILCS 5/7.14.

2. Each abuse and neglect allegation is assigned to one of three retention categories based on the nature of the allegations. Category 1 allegations (death of a child and/or sexual penetration) are retained for fifty (50) years. Category 2 allegations (involving serious physical injury, sexual molestation or sexual exploitation of a child) are retained for twenty (20) years. All other allegations fall in to Category 3 and are retained for five (5) years. Some allegations listed in Category 2 may be retained for five (5) years depending on the seriousness of the injuries as determined by the investigator. (ILL. ADMIN. CODE tit. 89, § 431.30.) To determine the seriousness of the injury, the investigator is instructed to consider: the extent of the injuries (whether limited to one spot, or multiple injuries); the long-term effects of the injuries (whether there will be permanent scars or disabilities); the medical treatment required (whether hospitalization or surgery is required); and, the pattern of injuries (whether there is an ongoing history). (Jt. Ex. 1, Procedure § 300.110(18)-(19).) The rule provides that if "none of the above factors are present, the allegations are to be retained for five years." (Id.) The rule does not, however, state the extent to which any one of the four factors need be present in order to warrant a Category 2 classification.

4. On at least some occasions, DCFS has improperly retained reports beyond the date on which they were to be expunged. (Pls.' Exs. A-D.)

H. Appeals Process

1. Appeals from indicated reports are now are governed by Amended Rule 336. At the time of the hearing before this court, though, the former Rule 336 had established a three-step administrative appeals process: the initial request for review or "exchange of information" step; an internal review of the indicated report; and an administrative hearing conducted by an ALJ from the administrative hearings unit ("AHU").

2. The initial request for an appeal began the appeals process. All requests for appeals had to be made in writing within 60 calendar days of the postmark on the SCR Notice. DCFS dismissed initial requests for appeals made after the 60-day deadline. (ILL. ADMIN. CODE tit. 89, § 336.190(a)(4).) During this stage, the indicated perpetrate or was provided with a redacted copy of the investigative file. (Jt. Ex. 2, Procedure 336.80.) Under Amended Rule 336, this first step of the appeals process is the same. The redacted copy must be provided to the appellant within 20 days of his or her request. (ILL. ADMIN. CODE tit. 89, § 336.40) ("Upon receipt of a timely request for an appeal, the Department shall send the appellant within 20 days after the receipt of the request a copy of the investigative file from which confidential information has been deleted. . . .").

3. At the time of the preliminary injunction hearing, the second stage of the appeals process was a child protection internal review conducted by DCFS regional staff. (Jt. Ex. 2, Procedure 336.80(a).) The internal review team was comprised of individuals who had no prior involvement in indicating the report being reviewed. (Jt. Ex. 2, Procedure 336.90(b).) The internal reviewers considered the material in the appellant's investigative file and written statement, and were instructed to reach an internal review decision within 30 days. (Jt. Ex. 2, Procedure 336.90(e)(3).) Internal review decisions, how ever, offered only a very summary rationale for upholding an indicated report. The appellant then had only 15 days to appeal the internal review decision, a time frame Plaintiffs considered unreasonably short. (Jt. Ex. 2, Procedure 336.110.) According to the record, 46.9% of the indicated findings that were internally reviewed were, upon completion of such review, expunged by DCFS. (Pls.' Ex. UUU, Graph 3.) While this internal review step appears to have been eliminated by the new regulations, the court is not certain of this because DCFS has not provided the court with new procedures or rules implementing the new regulations.

4. The final stage of the administrative appeals process involves a hearing before an ALJ. Under the prior regulations, "the Administrator of the Administrative Hearing Unit shall . . . schedule the hearing at a date within 30 calendar days of the date [of] the appellant's written notice stating that the issue was not resolved to the appellant's satisfaction." (Jt. Ex. 2, Procedure 336.110(d)(1).) The AHU, however, routinely sent appellants a letter informing them that while DCFS had received their hearing request, it could not schedule a hearing promptly due to a backlog of hearing requests. The ALJ was required to issue a written opinion and recommendation to the Direct or within 30 calendar days after the close of the administrative record. (Jt. Ex. 2, Procedure § 336.130(b)(14).)

5. Under Amended Rule 336, the ALJ must provide the appellant a hearing date within 70 days of the date of receipt of the appellant's request for a hearing. (ILL. ADMIN. CODE tit. 89, § 336.110(a)(1)). At this stage of the appeal, as discussed earlier, the Department, which before March 1, 1996 applied a "credible evidence" standard of review, now applies a "preponderance of evidence" standard. (ILL. ADMIN. CODE tit. 89, § 336.100(e)(2)).

6. At the administrative hearing stage, an appellant may secure the issuance of subpoenas, but because the investigative files are so heavily redacted, an appellant is often unable to identify adverse witnesses. Although an ALJ can order the release of an unredacted copy of the investigative file pursuant to 89 ILL. ADMIN. CODE § 431.60(a), Edward Cot ton testified that he knew of no cases in which an ALJ had ordered such a release. (Tr. 1821-22.) Also, children under the age of 14 are not allowed to testify at the hearing unless the ALJ determines that such testimony is essential to the determination of the appeal and there is no likelihood of inflicting emotional harm to the child. (ILL. ADMIN. CODE tit. 89, § 336.110(b)(2)(A)). Therefore, even where a report is indicated principally on the statements of children, those children may not actually testify at the hearing.

7. According to Amended Rule 336, the ALJ shall have authority to "present a written opinion and recommendation to the Direct or within 15 calendar days after the record of the administrative hearing is completed. . . . This report shall include a recommended decision on whether there is a preponderance of the evidence of abuse or neglect based on information in the administrative record. The opinion shall contain findings of fact, conclusions of law and a recommendation." (ILL. ADMIN. CODE tit. 89, § 336.120.) Furthermore, Amended Rule 336 states that "[t]he Direct or of the Department shall receive the [ALJ's] recommended decision 90 days after receipt of a timely and sufficient request for an appeal [and] [w]ith in the same 90 day period, the Director shall receive and accept, reject, amend or return to the [AHU] for further proceedings the [ALJ's] recommendation." (ILL. ADMIN. CODE tit. 89, § 336.220(a).)

8. Appellants, both at the time of the preliminary injunction hearing and currently, cannot, during the appeals process, obtain a stay against the inclusion in the SCR of an indicated report against them or the disclosure of the indicated report to employers or licensing representatives. (Cotton Dep. at 123-25.)

9. Under both the former regulations and current regulations, the following persons receive notice of the final administrative decision:

(Jt. Ex. 2, Procedure § 336.150; ILL. ADMIN. CODE tit. 89, § 336.220(d).) Furthermore, the following persons receive notice of the final administrative decision, if the decision amends, expunges or removes any record made under Section 7.11 of [ANCRA]: "(a) parents or personal guardians of the child victim(s) if they are not the same as the appellant; (b) the mandated reporter who originally made the report of child abuse or neglect; [and,] (c) the juvenile court judge and guardian ad litem (when a State ward is involved)." There is no evidence that DCFS informs persons who were contacted during the investigation about the results of an indicated perpetrator's appeal.

10. According to the record, DCFS expunged 46.9% of the indicated reports appealed to the internal review stage of the appeals process. (Pls.' Ex. UUU, Graph 3.) DCFS expunged 63.3% of indicated report appeals following an administrative hearing. (Id.) Ultimately, 74.6% of appealed indicated reports are expunged throughout the appeals process. (Id.) In fact, of the twenty-four named Plaintiffs who timely appealed indicated reports against them, DCFS expunged 100% of those indicated reports.*fn2

11. The duration of the investigative and appeals processes for these twenty-four named Plaintiffs ranged from 0.4 years to more than three and a half years. (Pls.' Ex. UUU, Graph 2.) The average duration of the investigative process and the appeals process for the seven Plaintiffs who were afforded administrative hearings of their appeals was more than 2.1 years. (Id.) The average duration of the investigative and appeals processes for the seventeen Plaintiffs whose indicated reports DCFS voluntarily expunged prior to an administrative hearing was 1.3 years. (Id.)

III. Employment and Licensure Action Based on Indicated Reports

A. Unsuitability for Employment or Licenses

1. DCFS issues licenses for the following types of facilities: home day cares, group home day cares, emergency shelters foster homes, and child care agencies and institutions. See 225 ILCS 10/3, 10/2.18, 10/2.20, 10/2.21, 10/2.17; 205 ILCS 505/5. DCFS licenses are subject to renewal on a three or four-year schedule.

2. In addition to licensing a home or facility, a DCFS licensing representative monitors licensees for compliance with licensing standards and also conducts licensing complaint investigations upon receiving allegations that a home or facility has violated licensing standards. (Pls.' Ex. NN, Deposition of Virginia Conlee, DCFS' Associate Deputy Director for Licensing, at 12-14.)

3. Any allegation of abuse or neglect accepted by the Hotline that concerns an incident occurring in a licensed facility is subject to investigation by both the DCP and by a DCFS licensing representative. (Id. at 22.) Indeed, a licensing complaint investigation is mandatory in every case in which a DCP investigation is pending and involves a "facility." (Id.) Nevertheless, when a Hotline call is made, the SCR does not automatically issue a notice to the Licensing Unit, but rather the individual DCP investigator contacts the appropriate licensing representative. (Id. at 21.) Indicated reports may also be used against an individual in license revocation actions.*fn3 DCFS revoked or refused to renew 21 child care licenses based on indicated reports during the two-year period from January 1, 1996 through December 31, 1997. (Pls.' Ex. NN, Conlee Dep., Ex. 41.)

4. In order to obtain or renew a license, or to work unsupervised with children in a licensed facility, DCFS must first conduct a background check on the license applicant, the licensee or the employee. The background check determines whether the person at issue has an indicated report against him or her (Id. at 35), and reveals one of the following: that no reports were registered; that a child abuse or neglect investigation is pending; that an indicated report is "possible;" or that one or more reports of indicated findings exist.

5. Pursuant to Rule 385, which was in effect at the time of the hearing before this court and currently remains in effect, DCFS is required to disclose indicated reports to the licensed employers of any person who has an indicated report against him or her and to licensing representatives. (Jt. Ex. 4, ILL. ADMIN. CODE tit. 89, § 385.50(b)(1).)

6. If an individual is indicated based on any one of fourteen allegations,*fn4 or has more than one indicated report based on any one of eighteen other allegations,*fn5 all denominated in Rule 385.50(a), the individual is presumed by DCFS not suitable for work that allows access to children ("presumption cases"). By labeling such individuals as presumptively unsuitable for work, in essence, DCFS requires that the employer or licensing representative take some action with respect to the employee or licensee, including termination.

7. Employers and licensing representatives may request that the Director waive the Presumption of Unsuitability. (ILL. ADMIN. CODE tit. 89, § 385.50(b)(2).) Unless or until the presumption is waived by the Director, the person presumed unsuitable cannot work with children. (Pls.' Ex. NN, Conlee Dep. at 60.) If the employer continues to employ the indicated perpetrator without a waiver, DCFS' Licensing Unit is required to take enforcement action against the employer, including conditional licensing, a corrective plan or license revocation. (Id. at 79-80.)

8. In cases in which a person has been indicated for an allegation that is not enumerated in Rule 385.50(a), DCF still requires employers and licensing representatives to make a licensing or employment "decision" in light of the indicated report, and to advise the Department of the decision ("non-presumption cases"). (Jt. Ex. 4, Rule 385.50(c).) In nonpresumption cases, if the employer wants to retain the employee in a position that permits access to children, he must request a CANTS clearance from the Licensing Unit. (Pls.' Ex. NN, Conlee Dep., Ex. 33.)

9. For both types of cases, Rule 385.50(b)(1) provides that a person with an indicated report "shall not automatically be denied a license or refused license renewal . . . [or] be denied a position which allows access to children in a child care facility licensed by the Department." (ILL. ADMIN. CODE, tit. 89, § 385.50(b).) Instead, an employer or a licensing representative must afford the person with an indicated report an opportunity to present evidence as to why he or she should be retained as an employee or licensee. (Id.) The types of evidence the rule identifies as evidence the Department or employer may consider in making its decision assume that the indicated finding was accurate and that the individual did commit abuse or neglect. (ILL. ADMIN. CODE tit. 89, § 385.50(b)(1)(A-H).)

10. Indicated perpetrators have no right to seek a waiver or a CANTS clearance from DCFS on their own, nor do they have the right to dispute an employer's or licensing representative's failure to seek waivers or clearances. (Pls. Ex. NN, Conlee Dep. at 148-49; Jt. Ex. 4, ILL. ADMIN. CODE tit. 89, § 385.50(c) (an employer's decision is "final, subject to review under the personnel policies of the [employer's] governing body.").)

11. DCFS reviews the employers' and the licensing representatives' requests for waiver, and can deny them. DCFS has not promulgated any directives defining the circumstances under which presumed unsuitability will be waived, and sets forth no time standards within which it must act on a request for waiver. (Pls.'s Ex. NN, Conlee Dep., at 82.) Indeed, sometimes there are significant delays in granting waivers. (Pls.' Ex. A at 4913-4924 (11 months), 4957-4971 (7 months), 5028-5041 (14 months).) DCFS does not issue a notice to the employee or licensee when a request for waiver is denied (Id. at 147), and denials are unappealable. (Id. at 82.)

12. While the "Notice of Presumption of Unsuitability" informs employers that they must afford employees an opportunity to present their case and retain employment, DCFS does not monitor this process. (Pls.' Ex. NN, Conlee Dep., at 67.) Moreover, while employers are supposed to notify the Licensing Unit when they make decisions, they do not always do so, particularly when the employer terminates the employee. (Id. at 73.)

B. Indicated Report Notices to Employers and Licensing Representatives

1. Once notified of indicated reports,*fn6 the Licensing Unit generates notices to send to employers and licensing representatives requesting employment or licensing decisions with respect to the person against whom the report is indicated.*fn7 In the most recent version of these notices, DCFS directs employers to complete their responses and inform DCFS of their employment decision within 30 days. (Pls.' Ex. NN, Conlee Dep., Exs. 32, 33, 35.)

2. In July 1997, the Licensing Unit began to send "Notices of Presumed Unsuitability" to employers whose employees had indicated reports against them and to licensing representatives when individuals with indicated reports applied for licenses or operated licensed facilities. The notices inform employers and licensing representatives that the Department has made a presumption that the individual is not suitable for a position which allows access to children, and that the employee ...


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