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In a ruling with national repercussions, a federal district judge in Illinois has ruled that the state’s child welfare agency unconstitutionally denies due process to parents by separating families on “nominal evidence” at the beginning of child abuse investigations. The ruling is reverberating nationally among attorneys litigating with state child welfare agencies, said Carolyn Kubitschek, vice president of the National Council for Child Protection Reform and a veteran of 30 years representing families litigating with child protective agencies. Dupuy v. Samuels, nos. 03-3071 and 03-3091. Kubitschek said many state child welfare agencies have practices similar to Illinois’ of giving parents or guardians accused of abuse or neglect the choice of leaving the home during the investigation or surrendering custody of the child. “If you tell people who love their kids they have to leave the house or their kid will have to go into foster care, separated from friends and family and everything familiar, they put the interests of the child first,” she said. “[Case workers] coerce the parents and claim it is voluntary. This is a matter for a judge to decide, not a case worker who has been on the job six weeks.” Attorney Diane Redleaf of Chicago’s Lehrer & Redleaf, which served as lead counsel in the case, said the core issues were the coercive nature of what the Illinois Department of Child and Family Services (DCFS) claimed was a voluntary agreement to separate families, lack of due process for families and the emotional harm on the children and parents. “The defendants said everything was voluntary because [the parents] have the choice of giving up their children to someone they know, like a grandparent, or to a foster family, but that is not genuinely voluntary,” she said. “Usually, on the first day of the investigation, when they should be making a risk assessment, they remove the child from the home. I don’t believe the agency has gotten to where they can protect children without threats to everyone involved.” The ruling is the third by Judge Rebecca R. Pallmeyer of the Northern District of Illinois in Dupuy, a class action filed in 1997 challenging DCFS’ policies and practices in cases of alleged child abuse and neglect. Elizabeth Yore, general counsel for Illinois DCFS, said that the ruling stems from a phase of the litigation begun in 2002, and that the agency’s procedures for implementing “safety plans” have evolved during the litigation. “We are still reviewing the opinion to see if we will appeal,” she said. “Three years is a long time and there have been substantial changes.” Yore noted that the judge did not enjoin the agency from implementing safety plans, but instead gave DCFS 60 days to detail the changed procedures that it claims have been made since 2002. “We believe those changes will address the concerns of the court,” Yore said. According to court documents, DCFS receives more than 350,000 reports of abuse or neglect annually on a 24-hour, toll-free hotline. About one of every three reports results in a formal investigation. Stigma issue Stacey E. Platt, professor at the Child and Family Law Clinic of Loyola University Chicago School of Law and former child welfare case worker in New York, said the most recent Dupuy ruling reveals the harm done by routinely pulling children from parents based on allegations. “The vast majority of cases are unfounded,” Platt said. “The media has focused on cases of children who are returned to abusers or when abuse allegations are not investigated hard enough. The dirty little secret of child welfare in the United States is that these safety plans are coerced and there is a stigma to just being accused of abusing your own child. We have to face the harm that is done when families are torn apart during these investigations.”

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