Dupuy v. Samuels

1
Dupuy v. Samuels 

• Judy Chan
• Julie Levinson
• Heather Rosenberg
•  
•  

2
History of the Dupuy Case

• 1996
• Illinois Attorney General passed legislation to
  require the Child Endangerment Risk Assessment
  Protocol form and annual reports from DCFS on
  success of CERAPS
• 1997
• Diane Redleaf and Robert Lehrer filed case Dupuy
  v. Samuels 150,000 Illinois residents served as
  class members in a constitutional case
  challenging due process violations by DCFS phase
  one involved childcare workers rights
• March 2001
• Judge Pallmeyer ruled in favor of Dupuys
  challenges of little evidence and unfair
  blacklisting of childcare workers

3
History of the Dupuy Case

• 2002
• A second claim (Dupuy II) was filed, challenging
  the constitutionality of safety plans
• September 2003
• DCFS implemented the requirements ordered by
  Pallmeyer concerning childcare workers
• March 2005
• Pallmeyer ruled that safety plans lasting more
  than a few days violate substantial and
  procedural due process rights of families

4
History of the Dupuy Case

• December 2005
• Court directed process of review of safety plans
  after 14 days
• October 2006
• Judge Richard Posner (7th Circuit Court of
  Appeals) ruled safety plans are voluntary
• February 2008
• Family Defense Center filed a petition asking the
  U.S. Supreme Court to review constitutionality of
  DCFSs safety plans

5
The Dupuy Family Story

• In 1995, Belinda Dupuy and her husband Jeff
  "Bear" Dupuy ran a licensed day care center in
  their home in Carterville, Illinois.
• They were accused of child abuse/neglect.
•  
• Belinda I thought they were saying was that my
  husband or I had been abusing kids and I - it
  just was just gut-wrenching. I mean, I - there's
  no way.
•  
• Bear This came from so far out leftfield, we
  were just absolutely flabbergasted. That's
  absolutely the most horrible thing you could
  ever, you know, think of in a day care.

Source Dateline NBC "Clearing Names," aired on
May 4, 2001
6
The Dupuy Family Story

• A local newspaper printed a story about the
  alleged sexual abuse at the Dupuys' day care
  center.
•  
• Belinda I was spit on when I went into the
  grocery stores...I was out in my yard working on
  it, and someone threw a torn-up doll at me with
  all kinds of stuff on it and said - he said,
  "Here, go play with this."
•  
• After the investigator talked to more day care
  families, she didn't find anything against
  Belinda, but now 10-year-old Sara was under
  suspicion.

7
The Dupuy Family Story

•  
• Sara's classmates soon heard of the allegations
  and called her a child molester.
•  
• Sara I came home that night and I held a butcher
  knife to my neck and I tried to kill myself.
•  
• In December 1995, Belinda, Bear, and Sara filed
  appeals with DCFS to get their cases reviewed. 
• The Dupuys filed for bankruptcy in February 1996.
•  In March 1996, the Dupuys learned that because
  of a system-wide backlog, DCFS could not schedule
  their hearing.

8
The Dupuy Family Story

• In June 1997, there was still no hearing. During
  this entire time, Belinda, Bear, and Sara
  remained listed in the central register.
• In October 1997, the Dupuys received a notice in
  the mail saying that Sara would be cleared. DCFS
  provided no explanation or reason for its action.
• In December 1997, 2 years after they requested a
  hearing, Belinda and Bear got a chance to tell
  their side of the story.
• In May 1998, DCFS finally removed Belinda and
  Bear from the central register. Their names had
  been in the register for 2.5 years. 

9
The Dupuy Family Story

• Belinda I don't want any child to ever go
  through what my daughter went through. I don't
  want any mother to see their daughter try to kill
  themselves.
• At the time of the Dateline interview in 2001,
  the Dupuys were still trying to recover
  financially and emotionally. Bear was no longer
  the happy-go-lucky person he used to be. Belinda
  thought her day care center was still under
  suspicion. Sara, 16 years old then, was very
  angry with DCFS. 

10
I. The Nature of the Controversy from which the
Case Arose
11
Attorney Inspired

• Co-Lead Counsel Diane Redleaf and Robert Lehrer
•  
• Redleaf had been concerned with how DCFS made its
  decisions to "indicate" a person as a child
  abuser or child molester since the 1980s
•  
• Contacted in private practice by an attorney
  helping her daughter with an indicated appeal
• Saw this as an opportunity to change DCFS
  policies
• Started paying attention to calls and claims that
  came in to figure out exactly what DCFS was doing

12
Increased Publicity

• Filed complaint on June 11, 1997 with 7-11
  initial plaintiffs
•  
• A class action lawsuit was viewed as the best way
  for policy reform
• Made the front page of the Chicago Tribune Metro
  Section 
• Received over 100 new calls
• Set the stage to add 100 plaintiffs
•  
• Publicity was important to the progression of
  this case
• Attorneys pursued Dupuy II after increased
  publicity of Dupuy I

13
DCFS Child Protection Services

• Best known for its child protection services
• Goal of child protection program from the Child
  Abuse and Neglect Reporting Act
• "The Department of Children and Family Services
  shall, upon receiving reports made under this
  Act, protect the best interest of the child,
  offer protective services in order to prevent any
  further harm to the child and to other children
  in the family, stabilize the home environment and
  preserve family life whenever possible."
•  
• DCFS also provides services in foster care,
  adoption, day care licensing, and other community
  services to children and families.

14
Illinois Department of Children and Family
Services (DCFS)

• The mission of DCFS is to
• Protect children who are reported to be abused or
  neglected and to increase their families'
  capacity to safely care for them
• Provide for the well-being of children in our
  care
• Provide appropriate, permanent families as
  quickly as possible for those children who cannot
  safely return home
• Support early intervention and child abuse
  prevention activities
• Work in partnerships with communities to fulfill
  this mission

15
DCFS Child Abuse Hotline

• The Child Abuse Hotline
• State law mandates that certain workers must make
  reports if they have reasonable cause to suspect
  abuse or neglect.
• Mandated Reporters
• physicians
• dentists, dental hygienist
• Christian Science practitioners
• teachers, school personnel
• child care workers
• probation officers
• DCFS field personnel
• social workers
• foster parents
• crisis line or hotline personnel

16
DCFS Child Abuse Hotline

• "People who report alleged child abuse or neglect
  in good faith cannot be held liable for damages
  under criminal or civil law. In addition, their
  names are not given to the person they name as
  the abuser or to anyone else unless ordered by a
  hearing officer or judge. Members of the general
  public may make reports without giving their
  names."
•  
• Should DCFS require callers to disclose their
  identity?
•  
• Would this protect people from false accusations
  against them?
•  
• What effect would it have on callers?

17
DCFS Hotline Call Procedure

•  
• Division of Child Protection (DCP) operator must
  determine whether
•  
• 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 or 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 injury to the child and
• 4) the alleged victim has been harmed or is in
  substantial risk of harm.

18
DCFS Investigation Procedure

• State Central Register (SCR) - maintains a
  computerized listing of abuse/neglect allegations
• The Child Abuse and Neglect Tracking System
  (CANTS) - a tracking system maintained by SCR
• Child Endangerment Risk Assessment Protocol
  (CERAP) - completed after initial interview with
  child
• Notification of a Report of Suspected Child Abuse
  and/or Neglect (CANTS 8 form) - given to
  "subjects" if formal investigation initiated
• Formal investigation to be completed within 60
  days
• Final Finding Report (CANTS 2 form) - completed
  by investigator after DCP supervisor review
• Registered in SCR as indicated or unfounded

19
DCFS Problematic Policies

• Notices regarding indicated reports
• Retention of indicated reports
• Appeals process
• Employment and licensure based on indicated
  reports
• Safety and protective plans
•  
•  
• These policies affect
• Day cares, day care employees
• Child welfare agencies
• Foster care
• Parents
• Children

20
II. The Issues Faced by the Litigants and the
Lawyers
21
Something is seriously and obviously flawed in a
system where 75 of those child care employees
who appeal an indicated finding against them have
such a finding overturned or voluntarily expunged
by the State months, sometimes even years,
later.  During the agonizing and frustrating
period between accusation and exoneration, these
individuals labeled by the State as perpetrators
of child abuse and/or neglect lose not only
their pride and reputation, but often their
livelihood as well.
Judge Pallmeyer
22
Challenges Faced by the Plaintiffs' Attorneys
Dupuy I

• Obstacles put out by the Defense
• Objected to class certification
• Tried to moot out every single Plaintiff
• Insisted on going to trial
•  
• Delays caused by Judge Pallmeyer
• Gave in to Defense's requests for more time
• Took a long time herself
• Complaint filed in 1997
• Injunction granted in 2003

23
Challenges Faced by the Plaintiffs' Attorneys
Dupuy II

• Real life problems
• People were being hurt, threatened and kicked out
  of their homes
•  
• Judge Pallmeyer's order
• Ruled "not voluntary" but didn't address this in
  the order
•  
• Found a constitutional violation but didn't
  remedy the problem
• Didn't enjoin the threats
• Created the process of review of safety plans

24
Policies Challenged as Violations of Plaintiffs'
Due Process Rights

•  
•  
•  
• 1. Indicated Report Decision Making Policies
• 3. Disclosure and Use Policies

•  
•  
•  
• 2. Notice and Hearing Policies
•  
• 4. Special Policies

25
1. Indicated Report Decision Making Policies
  A. The policies do not allow the Plaintiffs a
fair determination on the merits at the
investigation stage because investigators are not
adequately trained or directed to gather and
develop exculpatory evidence   B. the policies do
not provide for impartial investigations because
the same investigator charged with gathering the
evidence is the final adjudicator in terms of
deciding whether to indicate a report
26
1. Indicated Report Decision Making Policies

• C. The "credible evidence" standard allows for
  "any credible evidence sufficient to indicate a
  finding of guilt
•  
• D. The policies incorporate unconstitutional
  assumptions
• Some credible evidence is enough to assume an
  indicated person
• is a perpetrator of child abuse and/or
  neglect
• Some credible evidence is enough to presume
  an employee is
• unfit for employment or licensure
• If a child has been touched or injured, it
  is enough to presume
• that a named perpetrator committed the
  child abuse or neglect
•  

27
"Credible Evidence" Standard

• DCFS Regulations
• The available facts, when viewed in the light of
  surrounding circumstances, would cause a
  reasonable person to believe that a child was
  abused or neglected
•  
• In Practice
• "Any" credible evidence of abuse or neglect is
  sufficient to file an indicated report.  
• Investigators only gather inculpatory evidence
• Investigators tend to disregard evidence weighing
  against an indicated finding
•      
•     

28
In Practice A.H.'s StoryP.O.'s injury may have
been caused by P.O. catching his foot in the
crib rails during a seizure

• Doctor 1
• A.H.'s explanation of P.O's injury is "not
  plausible."
• a treating physician at the hospital
•  
•  
• Doctor 3
• P.O.'s injury could have occurred during a
  seizure
• Letter to Acevedo "it is my strong opinion that
  P.O. was not the subject of child abuse from the
  babysitter."
• P.O.'s Pediatrician

• Doctor 2
• A.H.'s explanation is unlikely
• But based on the medical history of the child,
  the nature of the injury and his interactions
  with the family "there exists
• a possibility that the cause of the
• fracture was accidental"
• another treating physician
•  
• Doctor 4
• P.O.'s injury was caused by P.O. catching his leg
  in the bars of the
• crib during a seizure
• S.N.'s father - a retired surgeon

29
Acevedo Indicated A.H.Family Assessment Factor
Worksheet A.H. is the cause of P.O.'s bone
fracture because the two treating physicians at
the hospital thought it unlikely that P.O. was
injured by his crib.

• Doctor 2
• A.H.'s explanation is unlikely
• But based on the medical history of the child,
  the nature of the injury and his interactions
  with the family "there exists
• a possibility that the cause of the
• fracture was accidental"
• another treating physician
•  
• Doctor 4
• P.O.'s injury was caused by P.O. catching his leg
  in the bars of the
• crib during a seizure
• S.N.'s father - a retired surgeon

• Doctor 1
• A.H.'s explanation of P.O's injury is "not
  plausible."
• a treating physician at the hospital
•  
•  
• Doctor 3
• P.O.'s injury could have occurred during a
  seizure
• Letter to Acevedo "it is my strong opinion that
  P.O. was not the subject of child abuse from the
  babysitter."
• P.O.'s Pediatrician

30
Constitutionality of the "Credible Evidence
Standard"

• 3 Factor Balancing Test
• Mathews v. Eldridge, 424 U.S. 319, 355 (1967)
•  
• 1. The nature of the private interest affected by
  the official action
•  
• 2. The risk of error and the effect of additional
  procedural safeguards
•  
• 3. The governmental interest

31
Constitutionality of the "Credible Evidence
Standard"

• 3 Factor Balancing Test
• Mathews v. Eldridge, 424 U.S. 319, 355 (1967)
•  
• 1. The nature of the private interest affected by
  the official action
• Plaintiffs' liberty interest was a "serious and
  legitimate" private interest.
•          - McDonald, 141 F. Supp.2d at 1136.
•  
• 2. The risk of error and the effect of additional
  procedural safeguards
•  
• 3. The governmental interest
•    State's interest in protecting children was
  equally "powerful and
• countervailing." - McDonald, 141 F. Supp.2d
  at 1136.

32
Risk of Error

• 74.6 of all indicated findings that are
  challenged 
•      are ultimately reversed on review
• The court found the error rate was a result of 2
  defects
• The extremely low standard of proof required to
  indicate a finding
• The delays that allow evidence to become
  unreliable over time
• The court directed DCFS to modify this policy
• Gave DCFS two options
• Change the standards if that would be the most
  effective way to lower the error rate
• Train the investigators on the proper way to
  implement this standard

33
2. Notice and Hearing Policies

• A. Policies do not provide persons who have
  been indicated with constitutionally adequate
  notice of the findings against them
• B. Policies do not offer meaningful opportunity
  to contest such a finding
• C. SCR Notice does not identify the evidence
  supporting the indicated finding
• D. SCR Notice does not inform the indicated
  person about the length of time the indicated
  report will remain in the SCR

34
Constitutionally Inadequate

• 1. Indicated persons only have 15 days to appeal
  an adverse internal review determination 
•  
• 2. A failure to appeal in a timely manner
  constitutes as a waiver of the appeal
•  
• 3. Appellants only have access to heavily
  redacted files
•  
• 4. An appeal does not stay the inclusion of the
  indicated report in the SCR
•  
• 5. The appeals process takes an average of 657
  days

35
DCFS Amendments to SCR Notice Rules

• 1. A specific statement whether the Department
  has determined the report indicated or unfounded
  as a result of the investigation
•  
• 2. The name of the perpetrator
•  
• 3. The allegations determined indicated
•  
• 4. The length of time the indicated case shall be
  retained by the department
•  
• 5. A statement that a department review of an
  indicated decision is available
•  
• 6. A statement that a review must be requested in
  writing within 60 days after notification of the
  completion of the investigation 
•  
• 7. The name and address of the individual who
  must be contacted in order to request a review of
  the department's decision
•  
•  Is this enough?

36
CANTS 8 Form (last revised 1/2009)
37
CANTS 8 Form (last revised 1/2009)
38
Court Granted Request for Preliminary Injunction

• DCFS notice and hearing policies were
  unconstitutional
• "A deprivation of life, liberty or property must
  be preceded by notice and opportunity for hearing
  appropriate to the nature of the case" -
  McDonald, 141 F. Supp. 2d at 1137
•  
• Delays were unconstitutional
• Due process requires a hearing at a meaningful
  time
•  
• Amended polices classified as "a step in the
  right direction"
• Court requested evidence that the new rules
  provided constitutionally adequate notice in
  practice

39
Preliminary Injunction Granted Now What?

• Workers at DCFS...
• undertrained
• understaffed
• overworked
• underpaid
•  
• Delays inevitable
•  
• Indicated person shouldn't have to pay the price
  for DCFS' lack of resources
• "Each day of delay marks another day which a
  perpetrator, branded with the scarlet 'I,' is
  unable to secure any employment in the child care
  profession." - Judge Pallmeyer

40
3. Disclosure and Use Policies

• Predicated on such a low standard of proof
•  
• Court held that the first step in addressing
  these policies is to strengthen the standard on
  which indicated reports are found
• This ensures only guilty parties are disclosed to
  licensing agencies and employers as indicated
  persons
• Does it?

41
4. Special Policies

• A. Protective plans are implemented before DCFS
  decides to indicate or unfound a report
• B. Foster care prevent the placement of new
  foster children in homes based on an indicated
  finding, even if the parent is deemed "not
  responsible" for the neglect
• C. DCFS neglects to expunge reports from the SCR
  that have expired or were ordered expunged
• Due Process Violations?

42
District Court's Holding

• A. Protective Plans No violation of due process
  rights 
• Characterized as "Voluntary"
• Are they?
• B. Foster Care Holds No violation of due process
  rights
• Permissible because they protect children from
  the possibility of abuse or neglect while the
  investigation is pending
• If DCFS policies are appropriately revised
•  
• C. Failure to Expunge Violation of due process
  rights
• Directed DCFS to immediately expunge expired
  reports, etc.
•  

43
U.S. Court of Appeals, 7th CircuitJudge Ripple

• Because DCFS changed its standard from any
  credible evidence to considering all evidence,
  the court of appeals found the standard
  appropriate at the pre-indication stage.
• Why not change standard to preponderance of the
  evidence, beyond a reasonable doubt, etc.?
• Administrator's conference, rather than a full
  evidentiary hearing, adequate to ensure
  individual due process.
• Administrator's conference also appropriate for
  career entrants, not just for current child care
  workers
• Foster care holds not appealable and not lifted
  until the circumstances that led to the hold are
  no longer present 

44
Plaintiffs' Stories

• Mary Broderick
• "The fear and injustice that we experienced
  during that time still haunts my family today.
• Mary Brodericks Story
• Jennifer Evans
• We have no other choice, we have to take her.
• Jennifer Evan's Story
• Faith Kumar
• I could no longer do private practice with young
  people. I could no longer teach
• Faith Kumar's Story

45
U.S. Court of Appeals, 7th CircuitJudge Posner

• The court of appeals found safety plans to be
  voluntary, and thus no hearing was required
  before implementing them.
•  
•  

"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?"
46
7th Circuit Oral ArgumentAttorney Robert Lehrer

•  
• "What is wrong with settling a dispute?"
•  
• Judge Posner "It is not a forbidden means of
  'coercing' a settlement to threaten merely to
  enforce one's legal rights...If the agency has
  even a bare suspicion, this may ripen in the
  course of the investigation into cause to obtain
  a court order of removal, and this possibility is
  all that the consent form should and does warn
  the parents of."
• Sense of frustration from the judges
• Andy Mathews "weren't expecting hostility from
  the 7th Circuit"

47
DCFS Position

• Number one priority is welfare of the child
• Tendency to be overprecautious
•  
• Dr. Ron Davidson
•  
• If a case is not clear-cut, the Department must
  always side with the children involved, for their
  safety always comes first.
• We can fix due process, but I don't know how you
  fix a dead child or a child who's been raped or
  tortured or beaten. I don't have a fix for that.
•  
• Source Dateline NBC "Clearing Names," aired on
  May 4, 2001

48
Plaintiffs' Petition for Writ of Certiorari

• Croft v. Westmoreland County Children Health
  Servs., 103 F.3d 1123 (3d Cir. 1997)
• Must have "reasonable and articulable evidence
  giving rise to a reasonable suspicion that a
  child has been abused or is in imminent danger of
  abuse" before State can separate parents from
  their children
• 7th Circuit held that DCFS only requires mere
  suspicion of wrongdoing before they present
  safety plans that separate parents from their
  children
• Which Circuit do you agree with? 

49
U.S. Supreme Court

• Denied cert on June 16, 2008
• Safety plans are still implemented based on mere
  suspicion and with no opportunity for parents to
  challenge the basis
•   
• Diane Redleaf
• "The decision today does not mean that the
  Supreme Court has accepted the decision of
  the Court of Appeals as correct. It simply leaves
  to another day and another forum the resolution
  of the issues we present."
•  
• Theories as to why cert was denied?
• Politics of the Court
• Concerns about factual disputes
• Not a court to just fix inconsistencies
•  
•  

50
III. The Impact of the Case Decision on the
Litigants and the Lawyers
51
Positive Impact on the Plaintiffs

• Plaintiffs had a positive experience from
  testifying
•  
• Felt empowered
•  
• Their rights had been violated and they were
  finally being vindicated
•  
• Felt good that they were doing something to help
  society as a whole, making things better for
  other people and for children

52
Impact on the Lawyers

• Diane Redleaf 
•  
• Regrets
• 2000 went the entire year without getting paid
  at all
• Took 12 years to get a fee order
• Is it too much to ask of attorneys to take
  something like this on?
•  
• Retrospect
•  7th Circuit Appeal
• Had they known they would have gotten that panel
  in the 7th Circuit, they would have been
  reluctant to appeal
• But they weren't getting relief so they wanted to
  appeal anyway
• Another choice of a martini or a Manhattan

53
Impact on the Lawyers

• Robert Lehrer
• "There's more to be done."
• Hard to measure impact with injunctive relief
  unless closely monitored
• Would have gone for trial on the merits rather
  than series of injunctions
• Amy Zimmerman
• "It's disheartening because the process can take
  so much time, energy, and resources. It makes you
  consider alternative strategies before doing
  this."
• Andy Mathews
• Gained legal experience from this pro bono case
  that he couldn't have gotten as a first-year
  associate
• Carolyn Shapiro

54
WelcomeCAROLYN SHAPIRO

• Faculty member at Chicago-Kent School of Law
• Member of the team that drafted and filed Cert
  Petition with the Supreme Court
• __________________________________________
• What was your role in the Dupuy case?
• Why do you believe cert was denied?
• What was the impact of the case on the public and
  yourself
• Where do we stand today?

55
IV. The Impact the Case has had on the Public
Since its Decision
56
Where Are We Today?

• Courts
• Working on drafting a monitoring order
• Without a strong monitoring order, DCFS gets away
  with "slippage"
•  
• Policies
• People are still indicated with very little
  evidence
• Trying to get these people eligible for the
  administrative review process
•  
• Safety Plans
• DCFS still putting up a lot of hurdles in terms
  of allowing kids to return to the parents
• Pursuing safety plans as a legislative initiative
• Suing over egregious and coercive use of safety
  plans

57
Discussion

• Are safety plans too intrusive or is this the
  best way to balance the competing interests of
  state goals, parental rights, due process rights,
  and child welfare?
• Psychological effect on child vs. risk of
  abuse/neglect?
• DCFS is understaffed and its employees are
  overworked. Will increased funding solve all
  problems?
• Current news Gov. Pat Quinn plans to cut 16
  million from DCFS budget, but can't violate
  federal judge order to avoid budget cuts that
  would "present a certainty of irreparable harm"
  to the 16,000 children under DCFS care
• What is certainty of irreparable harm? Laying off
  50 DCFS investigators? Cutting down on training
  requirements?
• Compare/contrast this case with Castle Rock
• Governmental agency doing too little vs. too much