By Bridget L. Schott
In the aftermath of the recession or perhaps just as a way expand ones business, it is likely that many attorneys find themselves taking on cases and clients in areas of law they may previously have been unfamiliar. Juvenile Law, and specifically as it pertains to Abuse and Neglect cases, is often one of those areas. Unfortunately, it can be an area that is quite overwhelming and unique, but in order to vigorously work for your client, there are many tools of the trade one should know. Having a working understanding of this area of law will allow you to hold the Department of Children and Family Services more accountable to your client as well as give your client the best possible chances for returning their child home.
The Juvenile Court Act of 1967 controls and provides the guidelines for the abuse/neglect cases. If your potential client comes to you after protective custody of their child has been taken by the Illinois Department of Children and Family Services (DCFS), then there a few things you can expect to have happened which led to that decision, and you will want to be able to explain these to your client. The severity of the implications of DCFS involvement should be stressed to your client from the outset, so that they can understand from the beginning that failure to cooperate could have an end result of their parental rights to their child being terminated.
In a typical case, a hotline report has been called into the DCFS hotline by a mandated reporter, which could include a school employee, child care personnel, medical personnel or law enforcement. That reporter is mandated to make a hotline report if they suspect a child has been abused or neglected, and can include situations where they have observed someone beating a child or hitting a child with an object, or they observe marks on a child's body that do not appear to have been caused by an accident, or where a child discloses that they have been harmed, or if a child appears to be undernourished, is dressed inappropriately for the weather or is young and has been left alone. A child having been born exposed to an illegal drug or a parent's drug use also leads to a hotline call.
Upon receipt of the hotline call, the DCFS Central Registry will have contacted a local DCFS Investigator to conduct an investigation into the allegations of the hotline call. The investigator was likely to have met with the parent who the allegations run against, as well as the named children. Hospital or school staff might also be interviewed and the children would be examined to see if there are present signs of abuse. If the investigator determines that the circumstances are severe enough, he or she will take temporary protective custody of the child or children and remove them from the parent's home. If that route is taken, the next step would be a shelter care hearing, and the parent should be advised to stay in contact with the Investigator. Even if the circumstances do not warrant taking protective custody of the child, the investigator may still find that the hotline report should be "indicated" for neglect or abuse and DCFS would offer services to the parent.
If a shelter care hearing is required, the DCFS investigator will have provided the investigation report to the State's Attorney's Office, who will prepare a petition with charges of abuse or neglect, and file it in the Circuit Court of either the county where the neglect happened or where the child resides. When children are taken into temporary protective custody, your client is entitled to (and the Juvenile Court Act requires) a Temporary Custody Hearing being held within 48 hours to determine whether the child shall be further held in custody.(705 ILCS 405/2-9(1) (West 2010) The petitioner (the State) is required to notify the minor's parent or guardian of the time and place of the hearing. If you have spoken to your potential client prior to this hearing occurring and decided to represent the parent, the shelter care, or Temporary Custody Hearing would be the first opportunity to enter one's appearance.
At the Temporary Custody Hearing, parents are served with petitions in the matter and evidence is presented to the court so a probable cause determination can be made. This can be done through a proffer of reports from DCFS and other agencies or through testimony by the DCFS Investigator. It is proper for the Circuit Court to consider previous indicated reports of abuse and neglect through the DCFS central registry which involve the minor's parent, guardian or custodian. 705 ILCS 405/2-10(2) (West 2010) As an advocate for the respondent parent, the most probable opportunity for persuading a court to deny a shelter care request and place the child back with the respondent parent is through highlighting that there exists no immediate or urgent necessity to remove the child or that DCFS has not documented the reasonable efforts that were made to prevent or eliminate the necessity of removal of the minor from the home. An avenue to explore may be why a safety plan was chosen as the desired route instead of protective custody.
You may find that instead of a potential client coming to you the day DCFS takes protective custody of the child, they come to you after the Shelter Care hearing has already taken place. If your client has not attended the hearing and you are within 10 days of the hearing, the Juvenile Court Act allows your client an opportunity for a Rehearing on Temporary Custody, so that they have an opportunity to be heard and understand the reasoning for custody of the children being taken. 705 ILCS 405/2-10(3) (West 2010)
If, despite your best efforts for your client, temporary custody is granted to DCFS, then there are additional requirements that the State and/or DCFS must comply with in the process of advancing toward an adjudicatory hearing. If the Juvenile Court Act requires the State or DCFS to comply with an action or a filing and they fail to do so, then, depending on the infraction, it may be proper and in the best interest of your client to file a motion to dismiss based on that failure, or at least explore a motion to compel the filing. For example, the Juvenile Court Act requires that when DCFS is appointed as the temporary custodian, they "shall file with the court and serve on the parties a parent-child visitation plan, within 10 days, excluding weekends and holidays, after the appointment." 705 ILCS 405/2-10(2) (West 2010) Visitation with the child is such an important thing for your client that you should absolutely insist this statute be adhered to by DCFS. The "shall" in the statute is indicative of the importance placed on it by the legislature. The statute further explains that the frequency, duration and locations of visitation shall be measured by the needs of the child and the family, and not by the convenience of Department personnel.
As counsel for the parent it is your duty to explain to your client that acceptance of services shall not be considered an admission of any of the allegations in the petition. If your client chooses the wise route of engaging in services offered by DCFS to correct conditions that led protective custody to be taken, they should know that the Juvenile Court Act does not allow that information to be used against them at the Adjudicatory hearing. DCFS is obligated to begin offering services at the outset of the case, and establishing the requirements which will be expected out of a parent in order to regain their children, and publishing them in a Client Service Plan. For your client's sake, cooperating in services and following the Client Service Plan would be in their best interest as well, for parents are only entitled to 9 months after the adjudicatory hearing to make progress and efforts toward returning the child home and correcting the conditions that led to the child being taken, before a Termination of Parental Rights petition could be filed. Your client should be encouraged to keep an open line of communication with their caseworker, as this will facilitate the best results toward regaining their child.
The Adjudicatory Hearing is a fancy phrase for the trial on the State's Petition for Wardship based on the abuse or neglect. As all actions under the Juvenile Court Act are civil in nature, the State must prove its case using a preponderance of the evidence standard. Abuse and neglect cases employ some rules of evidence that are quite unique, and many of them can only be found in the caselaw for your specific appellate court district. By statute, there are some areas of juvenile law that constitute prima facie evidence of abuse or neglect, including having a medical diagnosis of battered child syndrome, failure to thrive syndrome, fetal alcohol syndrome or has been a victim of any number of sex crimes. 705 ILCS 2-18(2) (West 2010) Medical records are admissible to the court, as well as any indicated report held by DCFS. 705 ILCS 405/2-18(4)(a) and (b) (West 2010) As an example of caselaw driving the rules of evidence, the 4th District has ruled that the entire DCFS investigatory file is not admissible for the Circuit Court to consider in its ruling; only the "indicated report" portion of the investigative file is admissible. In re J.C., 2012 IL App (4th) 110861, 966 N.E.2d 453. The Juvenile Court Act also requires the proceedings to work on a fairly tight schedule. The Adjudicatory hearing must commence within 90 days of the date of service of process on the parties. 705 ILCS 405/2-14(b) (West 2010) The time limit is quite strict, and the adjudicatory hearing can only be continued beyond the 90 day mark one time, for up to 30 days, and only if the continuance is consistent with the health, safety and best interests of the minor and approved by the court. 705 ILCS 405/2-14(c)(West 2010) If the case continues beyond that point, it may be in your client's best interests to file a motion to dismiss, and it could likely be granted.
A finding that the State has proven its counts of abuse or neglect at the Adjudicatory Hearing does not end your responsibility in the case. The Dispositional Hearing is equally as important as the Adjudicatory Hearing as it determines whether it is in the best interest for the child to be made a ward of the court or whether it would be safe to return the child to one of the respondent parents with certain conditions. The hearing allows the Court and attorneys to examine the services which will be provided to the respondent parents, and to make suggestions of additions or deletions as required. If the only barrier for your client regaining their child is one of financial circumstances alone, then you should request custody and guardianship to be returned to your client, as financial circumstances alone do not support an unfitness finding. If custody and/or guardianship of the child is granted to DCFS, Permanency Hearings shall follow the Dispositional Hearing every 6 months to assess the parents progress and efforts toward returning the child home. DCFS is also under requirements to the Court to put forth reasonable efforts in providing parents the services they need to regain their child. If your client is not receiving the services they need, you should consider requesting that DCFS has not upheld its end of the bargain. Your representation of your client can end one of two ways, at opposite ends of the spectrum. Your client will either have custody and guardianship of their child restored to them, if they have successfully completed all their requirements, or a Termination of Parental Rights petition will be pursued, and your client may lose all rights to their child. The severity of the implications of these proceedings should be stressed to your client at every step of the process.
In conclusion, the area of abuse and neglect law is rich with opportunities for litigation, but is not an undertaking to be taken lightly. The lives of children and the futures of families weigh on the backs of the attorneys involved. Having a working knowledge of the process of juvenile courts is imperative to your success. Taking on a client in a case like this requires dedication to a potentially years-long court process, but the success of your client regaining their children can be quite rewarding.
Jon D. McLaughlin
