Opposition Brief — Suter v. Artist M.
Supreme Court brief1992
Ask Donna
What actually matters in this document.
Text
| Supreme Court, U.S.
OOUCINAL PILED
rela % ieee
APR 12 199]
OFFICE OF THE Cink |
No. 90-1488
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1990
SUE SUTER, et al.,
Petitioners,
Vv.
ARTIST M., et al.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
RESPONDENTS' BRIEF IN OPPOSITION
Patrick T. Murphy
Counsel of Record
Michael G. Dsida
Counsel for Respondents
Cook County Public Guardian
1112 South Oakley Boulevard
Chicago, Illinois 60612
(312) 633-2500
Dated: April 19, 1991
TABLE OF AUTHORITIES ...... + 626 « «
JURISDICTION ...
STATUTES INVOLVED ...... +. © «© © «© «© «© «
STATEMENT OF THE CASE ..... +. +6 «© © « »
REASONS FOR DENYING THE WRIT .....+24. «
Re
Il.
IIl.
IV.
PETITIONERS HAVE NOT PROPERLY CHALLENGED ONE OF THE TWO
INDEPENDENT GROUNDS FOR THE COURT OF APPEALS' DECISION,
THEREBY RENDERING CERTIORARI INAPPROPRIATE . .
A. Petitioners Have Waived Review of the Court of
Appeals' Holding That Children May Enforce the AAA
Through an Implied Cause of Action . a oe a
B. Petitioners' Failure to Question Respondents'
Implied Cause of Action Renders Certiorari
BmGppeeweaate «. «6 © we eo we eee ele
THE COURT OF APPEALS CORRECTLY DECIDED THE ——
PRESENTED BY PETITIONERS. ..... +. « oe © e
iii
14
16
16
17
18
A. The Court of Appeals Properly Applied Wilder in Holding
That Children May Enforce the AAA's Reasonable Efforts
Mmpauaremenmet. « © ees eee eveeeeee ee
B. The Court of Appeals Correctly Held That Children
Living At Home Under DCFS' Supervision Have
Enforceable Rights Under the Act ....
THE COURT OF APPEALS' DECISION IS CONSISTENT WITH OTHER
DECISIONS OF THIS COURT, THE COURTS OF APPEALS AND
oy ey Pe ee ee ee ee ae ee a
A. The Court of Appeals' Decision Is Consistent with
this Court's Rulings in Other § 1983 Cases...
B. The Court of Appeals' Decision Is Consistent with
Decisions of Other Circuits Holding the Act To Be
Bmferceenle ..- + 2«+seeeveeeeeeee 6 @ «
Cc. The Court of Appeals' Decision Is Fully Consistent
with the Decision of State Courts Enforcing the
AAA's Reasonable Efforts Requirements ......
GIVEN ITS NARROW HOLDING, THE SEVENTH CIRCUIT'S
DECISION WILL HAVE MINIMAL IMPACT ON OTHER STATES'
CHILD WELFARE SYSTEMS ....+ + +6 © © © © © © «© « «
18
25
28
29
30
32
33
CONCLUSION .
APPENDIX
42 U.S.C. § 671(a)
42 U.S.C. § 1983
District Court's Findings of Fact (July 25, 1990) (includi
Seventh Circuit's Remand Orders at pp. 26 and 27).
ii
ng
37
T E OF A R E
CASES
Berkemer v. McCarty, 468 U.S. 420 (1984). 17
City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) 18
Cort wv, Bam, G22 U.G. 66 (1975) .. «© © e we ec eo ec eo 0 eo to AG, 47
Dennis v. Higgins, U.S. __, 111 S. Ct. 865 (1991) 19, 28, 29
Federal Energy Administration v. Algonquin SNG, 426 U.S.
548 (1976) . ‘ oeceee ; eee 21
Gardner v. Parson, 874 F.2d 131, 142 (3rd Cir. 1989) 36
Golden State Transit Corp. v. Los Angeles, 493 U.S. _, 110 S.
Ct. 444 (1989) ... oe ec eoeoe oe eo ee ew ew 8 CUS
Goldstein v. Cox, 396 U.S. 471 (1970) 15
Harpole v. Arkansas Department of Human Services, 820 F.2d 923
(8th Cir. 1987). 7 ee 8 «€ © 6 6 Oe. 6 68 8 ee ele ee
Illinois v. Rodriguez, U.S. __, 110 S. Ct. 2793 (1990) 18
In re Carl O., 523 A.2d 1339 (Conn. App. 1987) 32
In re Nicole G., 577 A.2d 248 (R.I. 1990). .... 33
In re Scott County Maater Docket 672 F.Supp. 1152 (D. Minn.
1987), aff'd sub nom, rs_ v. Scott unty, 868 F.2d 1017 (8th
Cir. 1967)... eeoeneeneeeeuen ¢ Ow ee 31
In re Victoria M., 255 Cal. Rptr 498 (Cal. App. 1989). 32
In the Interest of A.B., 444 So. 2d 981 (Fl. App. 1983). 33
In the Interest of A.M.K., 723 S.W.2d 50 (Mo. App. 1986) 33
In the Interest of Burns, 519 A.2d 638 (Del. 1986) 32
In the Interest of Kenny F., 786 P.2d 699 (N.M. App. 1990) 32
In the Interest of M.H., 444 N.W. 2d 110 (Iowa App. 1989). 32
In the Interest of S.A.D., 555 A.2d 123 (Pa. Super. 1989). 32
Jones v. Hildebrant, 432 U.S. 183 (1977) ..... 17
L.J. v. Massinga, 838 F.2d 118 (4th Cir. 1988), cert. denied,
488 U.S. 1018 (1989) ... oeecerereeeeeeeee es ee
iii
Lynch v. Dukakis, 719 F.2d 504, 509-12 (1st Cir. 1983) . . 31, 36
Matter of Jones, 436 N.E.2d 849 (Ind. App. 1982) ...... . 33
Matter of Sheila G., 462 N.E.2d 1139 (N.Y. 1984) ...... . 33
Michigan v. Long, 463 U.S. 1032 (1983) ........... 18
Middlesex County Sewerage Authority v. Nation lammer
Association, 453 U.S. 1 (1981) ....424+++2+s+ 2+ © «© « « 2
Peochurat State School and Hospital vy. Haldeman. 451 U.S. 1
(1980)... - « « 28, 29, 30
R.C. v. Hornsby, No. 88-D-1170-N (M.D. Ala. April 19, 1989). .32
Sockwell v. Maloney, 431 F. Supp. 1006 (D. Conn. 1976), aff'd,
wee V.a8 Saue (ame Cis. 1977). 2 es ws we we we ese eee ene aoe BB
The Monrosa v. Carbon Black Export, 359 U.S. 180 (1959) ... 17
Timmy S. v. Stumbo, 916 F. 2d 312 (6th Cir. 1990) ...... 30
Wilder v. Virginia Hospital Association, U.S. __, 110 S.Ct.
S@ueew Caeeeep se sc esc eee see eee eee eee eee te ew = 6BRSSia
Winston v. Children and Youth Serv Acne ak —Daiauare ou nt Ry. 748
F.Supp. 1128 (E.D. Pa. 1990)... oo
Wright v. Roanoke nadave.comant ane an AMSROE ALY. 479 U.S.
418 (1987) ... eee ocece
STATUTES AND REGULATIONS
DOO °™—~—~—~—~—~EEe- © © © 6 6 G6 eee eeseeseevnesesece cs oh
28 U.S.C. § 1331... 1... es 8
28 U.8.C. §@ 1943 . 2. 2s we we we ee eves 8
ee ems MME SG ec ec ec ese ee see te ee ee ee eet tl tlk A
ae U.6.6. §©@ GOGB es ew ses eevses 8
42 U.S.C. § 620-628, 670-679a . . . . 2. 2. ew eee 2
GB U.B.6. G@ GSPEBNMS) « 2 ws we eevee eevee evnesevnsns &
me Wememe @ Geeeeep cece eeceseeeeseesesnsvnens « eSetsa
2 U.6.6. © GVRB) «© - se see eeseeesvesesevesseee ss &
2 U.G.6. @ G7AtGNMA) . « see eee eveseenvnveeesns ss &
42 U.S.C. § 1396a(a)(13)(A) . 2. 2 2 we ew ew ee
42 U.8.C. §6 31993 . 2. se ee ee eeees
42 U.S.C. § 6010
PA. GB-aGA7T (ZAR). «© ew ew we eevee eeee ee ee
P.A. 85-985 (Ill.) ...
Ill. Rev. Stat. ch. 23, para. 2058.2 ......
Ill. Rev. Stat. ch. 23, para. 5005 .......
Ill. Rev. Stat. ch. 23, para. 5006a. .......
Ill. Rev. Stat. ch. 37, para. 802-10...
45 C.F.R. § 1357-15(e@)(2). . . 2. © © © © © © we we ow we ow oe et 23,
48 Fed. Reg. 56049 (1983). ......
DCFS Policy Guide 91.1 (March 28, 1991). ....
COURT RULES
Supweme Court Rule 34.3(@) . «© «see eeeeveevee ce co SG,
Supreme Court Rule 14.1(k)(ii)
OTHER AUTHORITIES
H.R. Cong. Rep. 96-900, 96th Cong., 2d Sess. 46, reprinted in
(1980) U.S. Code Cong. & Ad. News 1556 .......2.+64+64528-s
125 Cong. Rec. 22683 (Aug. 3, 1980). .
125 Cong. Rec. 22686 (Aug. 3, 1980). .......
126 Cong. Rec. 14645 (Jume 13, 1980) ......
126 Cong. Rec. 14766-67 (June 13, 1980). .....
ue)
o@
”
”
»-
3
No. 90-1488
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1990
SUE SUTER, et al.,
Petitioners,
Vv.
ARTIST M., et al.,
Respondents.
RESPONDENTS’ BRIEF IN OPPOSITION
-TO PETITION FOR CERTIORARI
Respondents Artist M., et. al, by their next friend, Patrick
T. Murphy, respectfully request that this Court deny the petition
for writ of certiorari, seeking review of the Seventh Circuit's
opinion in this case. |
JURISDICTION
On October 29, 1990, the Seventh Circuit affirmed orders of
the District Court denying in part petitioners’ motion to dismiss
and granting respondents’ motion for a preliminary injunction.
The Court of Appeals denied petitioners’ petition for rehearing
with suggestion for rehearing en banc on December 20, 1990.
This Court's jurisdiction is based on 28 U.S.C. § 1254(1).
STATUTES INVOLVED
The statutes at issue are 42 U.S.C. §§ 671(a) and 1983,
which are included in the appendix.
STATEMENT OF THE CASE
This action arises out of the State of Illinois’ practices
of failing to make reasonable efforts to preserve and to reunite
families and of failing to provide case plans, case reviews, and
appropriate monitoring to children in its care, all as required
by the Adoption Assistance and Child Welfare Act of 1980,
42 U.S.C. §§ 620-628, 670-679a (the "AAA" or the “Act").
Petitioners, the Director and Guardianship Administrator of the
Illinois Department of Children and Family Services ("DCFS" or
the "Department”), purport to fulfill these obligations through a
system of their own design -- namely, by assigning 4 caseworker
to each child under their care or supervision. Petitioners,
however, regularly fail to assign caseworkers to these children
and their families. As a result, as both the District Court and
the Court of Appeals recognized, petitioners systematically
violate their obligations under the Act, Pet. App. 19a, 53a-54a,
and children under their care and supervision suffer from:
an increased likelihood that [their] families would be
broken up or remain apart, that [they] would be
deprived of protective services, and that, in the
absence of timely case plans and case reviews, [they]
would be left in unnecessarily restrictive or dangerous
placements, denied...essential visits with their
parents and place[(d] at risk of further injury.
Pet. App. at 19a (internal quotations omitted). To remedy
petitioners’ violations of the AAA, the District Court entered a
minimally intrusive preliminary injunction, which the Seventh
Circuit affirmed on appeal.
Respondents are children who are abused or neglected by
their parents or whose parents are unable to care for them for a
variety of reasons. In each of their cases, DCFS files a
petition for adjudication of wardship in the Circuit Court of
Cook County, Illinois, County Department, Juvenile Division
("Juvenile Court"). Based on the recommendation of investigators
with DCFS' Division of Child Protection ("DCP"), the Juvenile
Court then places many of these children in the agency's custody.
In the remaining cases, the Juvenile Court orders the child to
remain at home under DCFS' supervision ("protective order
cases"). App. at 9-10, paras. 1-3.’
Under the system designed by petitioners, DCP investigators
provide no family preservation, family reunification, or other
services to these children and their families. Instead, DCFS
chooses to provide a caseworker to each child to fulfill its
obligations under the Act. Consequently, when DCFS assumes
custody of a child, one of its caseworkers must be assigned in
order to maintain the child's family ties, work toward
reunification, and ensure the child's well-being. To those ends,
under DCFS' system, the caseworker must search for relatives
qualified to care for the child or locate a suitable non-relative
placement; arrange appropriate counseling; complete school
* In apparent disregard of Supreme Court Rule 14.1(k)(ii),
petitioners omitted from their appendix the District Court's
findings of fact, its July 24, 1989 memorandum opinion and order,
and orders entered by the Court of Appeals, prior to its
decision, remanding the case to the District Court for additional
factual findings. Accordingly, respondents have included each of
those documents in their appendix.
3
transfers where appropriate so the child's education is not
interrupted; arrange family visitation; provide appropriate
medical care; and generally assure the child's safety. The
caseworker is also responsible for developing a written,
individualized case plan and advising the Juvenile Court of the
condition of the child and the family. Id. at 9-ll, paras. 2, 4.
Similarly, DCFS delegates to its caseworkers the
responsibility of securing family preservation services in
protective order cases. Under DCFS' system the caseworker alone
is responsible for arranging individual or family counseling to
ease or eliminate the crisis that led to the child's
mistreatment; homemaker and housekeeping services so that the
conditions of the home will not require the child's removal;
substance abuse programs to enable parents to attend to their
children's needs; help in obtaining food, shelter and medical
care; and monitoring of the child's safety at home. Id. at 12,
para. 6.
DCFS contracts with private agencies to provide services in
some protective order and custody cases. In these cases DCFS and
the private agency share the responsibility for delivering
services. Together, the DCFS caseworker and the private agency
prepare a case plan and provide an administrative case review.
The DCFS caseworker, however, retains ultimate responsibility for
all facets of the case. The DCFS caseworker also remains
responsible for ascertaining whether there are appropriate
relatives with whom to place a child. Moreover, certain private
agencies are unable to provide necessary services (such 4s
4
psychiatric hospitalization for a suicidal child). In those
cases the DCFS caseworker is responsible for obtaining and
authorizing such services. The DCFS caseworker may also be
required to consent to familial visits. Finally, the DCFS
caseworker is responsible for planning for the long-term care of
children, particularly when the private agency provides only a
short-term placement. Id. at 12-13, paras. 7-8.
Until DCFS has assigned a caseworker, it provides no
services to respondents or their families. For example, a young
child in DCFS' custody may be denied visits with her parents or
siblings for several weeks. Others may be left in inappropriate
placements such as shelters, even when appropriate relatives are
interested in caring for them. Without a caseworker, some
children are denied essential sex abuse treatment, grief
counseling or psychiatric care. Many more are unable to attend
school. Finally, without a caseworker some children remain
indefinitely in DCFS' custody without any plan for their case.
Id. at 13-14, para. 9.
Children who reside at home under DCFS' supervision are also
denied family preservation services and protection when no
caseworker is assigned. For example, without caseworkers,
children who come under DCFS' supervision because their parents
fail to provide adequate food may go hungry again and have to
leave home. Parents who are ordered to obtain drug treatment by
the Juvenile Court and are willing to do so in order to keep
their children get no assistance in locating and enrolling in a
drug treatment program. Children who are without an assigned
caseworker to make home visits may be further abused by their
parents and may have to be removed from their families. Id. at
14-15, para. 11. In short, under its own system, DCFS cannot
fulfill the Act's reasonable efforts, case plan, case review, and
monitoring requirements after it initiates a case without
assigning a caseworker.
In such cases DCFS' failure to provide caseworker-initiated
services promptly is particularly harmful. Because family
members are the most motivated during a time of crisis, immediate
intervention is essential. Thus, in custody cases, the
likelihood that children whom DCFS separates from their families
will return home is directly related to the speed with which they
receive reunification services. The longer DCFS delays in
providing such services during this critical period, the more
likely it is that the child will never return home. Thus, the
goal of family reunification becomes more remote and less
attainable when no caseworker is assigned. Similarly, when
children remain at home, DCFS' failure to quickly provide family
preservation services places them at risk and often results in
their removal from home.
At the time respondents filed their complaint, DCFS
regularly failed to assign caseworkers capable of initiating
child welfare services for them and their families, both in
protective order and in temporary custody cases. In most cases
DCFS did not assign a caseworker until at least two weeks after
the first Juvenile Court date. In many others DCFS failed to
assign a caseworker at all during the first 30 to 45 days. In
some cases this gap lasted even longer. Id. at 15, para. 13. In
protective order cases, the Juvenile Court, at the request of DCP
investigators, often scheduled the first court hearing for a
future date. Yet even in those cases, with advance notice of the
impending Juvenile Court case, DCFS regularly failed to assign a
caseworker promptly after the court case commenced.
After petitioners did assign caseworkers to them,
respondents often lost the benefit of the assignment when DCFS
transferred or terminated their caseworkers or when their
caseworkers took leaves of absence or resigned. In these cases
DCFS simply failed to assign a caseworker to replace the previous
one. As a result, these children were again left for significant
peri -ds of time without a caseworker, and thus without family
reunification, family preservation, and other child welfare
services. Id. at 16, para. 15.
According to DCFS' own records, at the end of September
1988, over 200 cases in Cook County had been without an assigned
caseworker for more than 30 days. DCFS records in November 1988
showed that 320 cases in Cook County had been unassigned for over
30 days, that 83% of those had been unassigned for over 60 days
and that 63 cases had been unassigned for over 100 days. On
December 13, 1988, the head of DCFS' Cook County operations wrote
that unassigned cases in Cook County were on the rise. Id. at
17, para. 17.
Despite these conditions, DCFS did nothing to expedite the
assignment of caseworkers to fulfill its family preservation,
family reunification, case plan, case review, and monitoring
obligations to children and their families. DCFS simply failed
to require its personnel to assign cases promptly. It also
failed to develop a policy or procedure for reassigning cases of
caseworkers who resign, transfer, or are absent for substantial
periods of time. On the contrary, DCFS deliberately chose not to
reassign many such cases. In many other cases DCFS made "paper
assignments” by assigning a caseworker in name only -- one
incapable, because of the size of his or her caseload, of
providing appropriate family preservation or family reunification
services, participating in a case review, developing a case plan,
or adequately monitoring the child's safety. Id. at 17-18,
paras. 18-19.
On December 14, 1988, respondents filed their complaint in
the United States District court for the Northern District of
Illinois. These children alleged that petitioners' failure to
assign them caseworkers promptly violated their rights, and those
of similarly situated children, under the Act. Respondents
sought declaratory and injunctive relief, both directly under the
Act, through an implied cause of action, and under 42 U.S.C.
§ 1983. A subclass of petitioners -- those in respondents'
custody -- also complained of violations of their rights under
the Due Process Clause of the United States Constitution. On the
same day respondents filed motions for class certification and
for a preliminary injunction. The District Court exercised
jurisdiction over the case pursuant to 28 U.S.C. §§ 1331, 1343,
2201, and 2202.
After granting the motion for class certification and
expediting discovery, the District Court conducted a three day
hearing on respondents’ motion for a preliminary injunction in
January 1989. The evidence revealed systemic problems in DCFS'
caseworker assignment practices as described above and the
resultant violations of respondents' rights under the Act.
Respondents also showed the harm suffered by individual children
who were entrusted to DCFS' care and supervision. In response,
DCFS' witnesses described the plan which they had developed to
reorganize the Department, purportedly designed to ensure prompt
caseworker assignment.
The District Court initially accepted DCFS' assurances
regarding its reorganization plan. Consequently, it deferred
ruling on respondents’ motion for a preliminary injunction for
well over a year.
By July 1989 DCFS had implemented three of the four elements
of its plan:
(a) the Early Response Package, which reduced the paperwork
necessary to transfer a case from DCP to a caseworker;
(b) the expansion of its Interim Services Team ("IST")
program, designed to allow DCFS to assign all new
custody cases promptly to an IST caseworker before
transferring them shortly thereafter to an area office;
and °
(c) the Family First Initiative ("Family First"), designed
to provide intensive services to children remaining at
home with their parents.
On July 16, 1989 DCFS completed the final element of its plan,
the reorganization of DCP. Id. at 19, para. 20.
As time passed, however, it became apparent that the
District Court's faith in DCFS' plan had been misplaced. First,
significant delays persisted in assigning caseworkers at the
outset of cases. By petitioners’ own admission, one fourth of
the cases sent to IST were not assigned a caseworker promptly.
In the remaining cases, DCFS did not even know when children were
assigned a caseworker. Id. at 19-20, sesee. 21, 25. DCFS also
failed to reassign a caseworker once IST had relinquished
responsibility for a case. Id. at 19-20, paras. 22-23.
Moreover, neither IST nor the Family First program
functioned as planned. In July 1989 approximately one-third of
the new custody cases went directly from DCP to area offices
without IST intervention, despite petitioners’ assertions that
all such cases would first be sent to IST. In those cases DCFS
failed to assign a caseworker until, on average, ten days after
the first Juvenile Court date. As for Family First, DCFS
regularly left children whose cases were initially assigned to
that program without a caseworker -- without regard for their
continuing need for one -- after Family First ended its two to
three month association with the family. Id. at 20, para. 24.
DCFS' heralded reorganization plan also failed to address
the gaps created when caseworkers resigned, transferred, were
fired or took leaves of absence. If a caseworker were absent for
less than 30 days, the supervisor merely monitored the case
without handling the everyday service needs of the family. When
10
caseworkers were absent for longer periods, DCFS' policy and
practice continued to permit supervisors to leave cases
unassigned for 30 or more days. Given the number and frequency
of transfers and the high turnover rate of DCFS caseworkers,
DCFS' unwillingness to remedy that problem was especially
dangerous. Children whose cases were reassigned during a
caseworker's absence did not fare any better, because petitioners
reassigned those cases en masse to a single caseworker. Given
the nature and voiume of the reassignments, the caseworker could
not provide services to those children and their families. Id
at 21, paras. 26-27.
Finally, even after implementation of its plan, DCFS failed
to hold anyone in the agency accountable for assigning a
caseworker promptly. DCFS assigned Mark Moses to monitor
caseworker assignment, but it did not require him to take action
when he learned of unassigned cases. Gloria Lewis, DCFS'
Associate Deputy Director for Cook County Operations and the
supervisor of its four area offices, received monthly reports
listing unassigned cases, but she had no responsibility for
ensuring the assignment of caseworkers to those families. DCFS
gave John Goad and Chris Benson the responsibility of monitoring
compliance with the Early Response Package, but they reviewed
DCFS' performance only twice in all of 1989. Id. at 21-22,
paras. 28-29.
Thus, instead of developing appropriate internal checks,
DCFS simply relied on its expectations -- "wishful thinking," in
the words of the District Court -- that cases would be assigned.
ll
Id. at 22, para. 29. But its wishful thinking was not enough.
Despite its reorganization, DCFS continued to deprive children
and their families of caseworkers and the services and
protections required by the AAA, which under DCFS' system, only
the caseworkers could provide.
In the face of these problems, petitioners filed a motion to
dismiss respondents’ complaint. On November 21, 1989, the
District Court granted the motion only as it related to
respondents’ constitutional claims. The District Court denied
the motion in all other respects, holding that respondents stated
a cause of action under the AAA -- both through an implied cause
of action and under § 1983 -- particularly with respect to the
Act's reasonable efforts requirement. Pet. App. at 35a-44a.
Nevertheless, the District Court continued to defer to DCFS'
reorganization plan and invited the Department to apprise the
court of any progress in its implementation.
DCFS, however, made no progress. In November 1989 the
Department began sending all new cases -- not merely new custody
cases -- to IST. Id. at 32, Stip. 16. But logs from January and
February 1990 (finally revised to reflect the date of caseworker
assignment) demonstrated continuing delays there. DCFS did not
assign a caseworker within five days of the first Juvenile Court
date -- its stated goal -- in 56 of approximately 150 cases
sent to IST in those two months. In February 1990 alone DCFS
failed to meet its own five-day goal in 40% of the cases sent to
IST and in 60% of those not screened in advance. Twelve per cent
12
were left unassigned for more than three weeks. Id. at 23,
paras. 33-34.
Moreover, DCFS continued to leave cases unassigned, on the
average, for nearly three weeks after IST completed its tasks.
DCFS also failed to improve its policies or its prectices
regarding the reassignment of cases in the area offices. As a
result, when caseworkers were absent, DCFS left their former
cases unassigned for an average of 30 days. Id. at 24, para. 35.
System-wide caseworker assignment problems grew as well.
The total number of unassigned cases grew from 232 on June 30,
1989, to 404 by the end of the year, parallelling the pattern of
1988. The number of cases unassigned for over 30 days doubled
during the same period of time. Id. at 24, para. 36.
The District Court ultimately concluded that DCFS, despite
its reorganization plan, continued to violate the AAA. Based on
the evidence it had received over the previous 14 months, the
court concluded that respondents had satisfied each of the
requirements for the issuance of a preliminary injunction. Thus,
on March 2, 1990, the District Court entered a preliminary
injunction which prohibited petitioners from:
(a) feiling to assign a caseworker capable of providing
child welfare services to each of the plaintiffs and their
families within three working days of the time that
plaintiffs’ cases are first heard in Juvenile Court; and
(b) failing to assign a caseworker capable of delivering
child welfare services within three working days of the time
that a previously assigned caseworker relinquishes
responsibility for any portion of a case.
Pet. App. at 56a. Petitioners then appealed.
13
The Seventh Circuit affirmed the District Court in an
opinion entered on October 29, 1990. The court below first
affirmed the District Court's November 21, 1989 holding that
respondents could enforce the AAA, both through an implied cause
of action under the Act and under § 1983. The court then upheld
the injunction as fully supported by the evidence. On December
20, 1990, the Seventh Circuit denied DCFS' petition for
rehearing.
REASONS FOR DENYING THE WRIT
This Court should deny the petition for a writ of
certiorari. First, petitioners seek, in essence, an advisory
opinion from this Court. They question only the Court of
Appeals’ decision affirming respondents’ right to enforce the AAA
under § 1983. They leave unchallenged the court's clearly
articulate and equally correct holding that regardless of § 1983,
respondents were entitled to the relief granted by the District
Court under the AAA through an implied cause of action. Pet.
App. 14a-18a. This Court's review, however, is limited to
questions properly presented in the petition. Sup. Ct. R.
14.1(a). Therefore, regardless of how this Court answers the
questions petitioners do present, the Court of Appeals’
affirmance -- given its independent foundation in its implied
cause of action holding -- must stand.
In addition, the decision below was correct and consistent
with the decisions of this Court, the other courts of appeals,
and the state courts. The Court of Appeals properly applied
Wilder v. Virginia Hospital Association, U.S. , 110
S. Ct. 2510 (1990), this Court's most recent § 1983 decision
14
regarding the Social Security Act (of which the AAA is a part),
to the facts of this case. It correctly held that the
respondents ere beneficiaries of the AAA; that the AAA imposes
binding obligations on States accepting its funding; and that t!
AAA's provisions are neither too vague nor too amorphous to be
unenforceable. Pet. App. at 9a-l3a. Thus, with Wilder clearly
applicable here -- and in light of the broad construction to be
afforded § 1983, Golden State Transit Corp. v. Los Angeles, 493
U.S. _, 110 S. Ct. 444, 448 (1989) -- the Court of Appeals
correctly concluded that respondents in DCFS' custody or under
its supervision could enforce the requirements of the AAA.
Finally, the Court of Appeals’ holding will have, at most,
minimal impact on other States. The court held that when a State
receiving funds under the AAA assigns to caseworkers exclusively
the responsibility of making reasonable efforts and
systematically fails to assign caseworkers to abused and
neglected children and their families, a court may remedy that
systemic deficiency by entering a minimally intrusive preliminary
injunction. Id. at 16a-18a. Moreover, the injunction here is
dependent on complex facts -- reviewed extensively by the
District Court and again by the Court of Appeals -- regarding
Illinois’ own child welfare policies and practices. In view of
the AAA's deference to States, those policies and practices are
unlikely to recur elsewhere, thereby minimizing the import of the
Court of Appeals' decision. Given these reasons, and given this
Court's presumption against reviewing interlocutory orders,
Goldstein v. Cox, 396 U.S. 471, 478 (1970), certiorari should be
15
I. PETITIONERS HAVE NOT PROPERLY CHALLENGED ONE OF THE TWO
INDEPENDENT GROUNDS FOR THE COURT OF APPEALS' DECISION,
THEREBY RENDERING CERTIORARI INAPPROPRIATE.
A. Petitioners Have Waived Review of the Court of Appeals'
Holding That Children May Enforce the AAA Through an
Implied Cause of Action.
In affirming the preliminary injunction, the Seventh Circuit
expressly and independently held that children in DCFS' custody
and children under DCFS' supervision may enforce the AAA directly
through an implied cause of action. The court correctly applied
the four-part test of Cort v. Ash, 422 U.S. 66, 78 (1975), and
found that respondents stated a cause of action independent of
their rights under § 1983: "(E)ven if the plaintiffs could not
pursue their claims under Section 1983, we conclude that the AAA
contains an implied private right of action." Pet. App. at
14a.’
Nonetheless, petitioners fail to raise this issue for review
in accordance with Supreme Court Rule 14.1(@a). Instead, they
question only the enforceability of 42 U.S.C. § 671(a)(15) under
§ 1983 and the right of abused and neglected children who remain
at home to enforce the AAA. Pet. at i. Indeed, petitioners
never even acknowledge, let alone dispute, the Seventh Circuit's
reliance on an implied cause of action in its decision to uphold
the injunction.
Petitioners mention respondents’ implied cause of action but
once in the entire petition, and then only in a footnote. Id. at
* The District Court also found that respondents could
pursue their claims directly under the Act through an implied
cause of action, Pet. App. at 35a-4la, and relied on that
analysis in entering the preliminary injunction. Id. at 54a.
16
7 n.l. Yet even there, petitioners fail to present the issue in
a way which would justify its review. Petitioners, purportedly
relying on Wilder, erroneously equate the analysis under Cort v.
Ash with that which governs cases arising under § 1983. Yet this
Court in Wilder explicitly differentiated the two lines of cases.
As this Court stated, the § 1983 analysis "is a different inquiry
from that involved in determining whether a private right of
action can be implied from a particular statute.” 1105S. Ct. at
2517 n.9.
In sum, applying Supreme Court Rule 14.1l(a) here,
petitioners have waived review of the Court of Appeals’ holding
that children in DCFS' custody or under its supervision may
enforce the Act directly through an implied cause of action.
Since that question is neither “set forth in the petition, [nor]
fairly included therein, [it should not] be considered by this
Court." Id. See also Jones v. Hildebrant, 432 U.S. 183, 184-85
188-89 (1977); Berkemer v. McCarty, 468 U.S. 420, 443 n.38
(1984).
B. Petitioners’ Failure to Question Respondents' Implied
Cause of Action Renders Certiorari Inappropriate.
Because petitioners have failed to challenge both of the
Court of Appeals' holdings in accordance with Supreme Court Rule
14.1(a), this Court should deny their petition. As this Court
has made clear, certiorari is inappropriate when, as here, a
petitioner challenges only one of two independent grounds of a
court of appeals' decision. The Monrosa v. Carbon Black Export
17
359 U.S. 180, 183 (1959). Moreover, the Court of Appeals, like
the District Court, clearly and plainly stated that its decision
rested independently on its holding regarding respondents'
implied cause of action -- making certiorari even less
appropriate in this case. See Illinois v. Rodriguez, U.S.
__, 110 G. Ct. 2793, 2798 (1990); Michigan v. Long, 463 U.S.
1032, 1041 (1983). Because the decision below will stand
regardless of how this Court answers the questions presented by
petitioners, granting certiorari here would require this Court to
render an advisory opinion -- which it may not do under Article
III's "case or controversy" requirement. Id. at 1042. Thus, in
light of the “commitment of scarce judicial resources" which
certiorari entails, City of Oklahoma City v. Tuttle, 471 U.S.
808, 816 (1985), this Court should deny the petition.
Il. THE COURT OF APPEALS CORRECTLY DECIDED THE QUESTIONS
PRESENTED BY PETITIONERS.
Turning to the questions which petitioners have presented,
the Court of Appeals correctly decided each. The court, in
addressing them, followed Wilder, this Court's most recent
application of § 1983 to the Social Security Act and its most
relevant case here. Petitioners fail to raise any responsive
argument_rct already properly addressed by the court below.
Therefore, for this reason as well, certiorari should be denied.
A. The Court of Appeals Properly Applied Wilder in Holding
That Children May Enforce the AAA's Reasonable Efforts
Requirement.
In Wilder this Court articulated the standard which governs
here, stating that a statutory provision, (1) if intended to
18
benefit a putative plaintiff, creates an enforceable right under
§ 1983:
{(2)] unless it reflects merely a
congressional preference for a certain kind
of conduct rather than a binding obligation
on the governmental unit, or [(3)] unless the
interest the plaintiff asserts is too vague
and amorphous such that it is beyond the
competence of the judiciary to enforce.
110 S. Ct. at 2517 (citations and internal quotations omitted).
See also Dennis v. Higgins, U.S. , 111 S. Ct. 865, 871-72
(1991); Golden State, 110 S. Ct. at 448. Notwithstanding
petitioners' assertions to the contrary, the Court of Appeals
properly applied these three tests and correctly held that under
§ 1983, children who are repeatedly and regularly denied
caseworkers under Illinois' child welfare system may enforce the
AAA's reasonable efforts requirement.
First, the Court of Appeals stated that Congress clearly
intended to benefit respondents in enacting the AAA, Pet. App. at
10a, a statement which petitioners neither can nor do dispute.
Second, the court correctly determined that the Act's reasonable
efforts requirement imposes a binding obligation on DCFS. Id. at
10a-lla. As Judge Cummings stated, the reasonable efforts
requirement, like the case plan, case review and monitoring
> After criticizing the Seventh Circuit for allegedly
ignoring the Wilder test, Pet. at 8, petitioners themselves
disregard this first prong of Wilder altogether. See, e.g., Pet.
at ll, 14 (referring to "two-pronged test"). But as this Court
made clear in Dennis, its most recent § 1983 decision on this
issue, a court must ascertain whether the plaintiff is a
beneficiary of a statute in order to determine its
enforceability. 111 S. Ct. at 871-72.
19
requirements, is "“set[{] forth in mandatory language" and is "tied
indisputably to the funding provision." Id.
Petitioners first concede, Pet. at 13, and then (in remarks
irrelevant to the question they seek to address) dispute the
mandatory nature of the AAA's reasonable efforts requirement.
Pet. at 17. But the language of the Act fully supports the
Seventh Circuit's conclusion. The reasonable efforts requirement
is an express and unconditional part of the contract between the
State and the federal government and is included among the
conditions which a State must satisfy in order to qualify for
federal funds. In the provision entitled "Requisite features of
State plan," the Act states, “In order for a State to be eligible
for payments under this part, it shall have a plan...which...
provides that, in each case, reasonable abduct will be made...."
42 U.S.C. § 671(a) (emphasis added). After focusing primarily
and extensively on this and other language of the statute, Pet.
App. at 6a-8a, 10a-lla, the Court of Appeals properly concluded
that the Act binds States accepting its funding to make
reasonable efforts. See Middlesex County Sewerage Authority v.
National Sea Clammers Association, 453 U.S. 1, 13 (1981) (courts
are required to look first and foremost to language of a statute
in assessing its enforceability).
The Act's legislative history provides further support for
concluding that the reasonable efforts provision is privately
enforceable by individuals. For example, prior to the Senate
vote on the Act on June 13, 1980, Senator Cranston, the Act's
20
sponsor,‘ explained that the then-current statute contained only
"very generalized provisions" regarding family preservation and
reunification services and that those provisions had "had little
specific impact upon a State's responsibility to provide services
designed to prevent a child's removal from his or her home, or to
help alleviate the problem which caused the child's removal in
the first place.” 126 Cong. Rec. 14766-67 (June 13, 1980). In
contrast, he stated, the AAA "“provide[s] specific requirements
that states must include” in their State plan "to assure that in
each case reasonable efforts be made...." id. (emphasis added
Elsewhere, the legislative history supports the same conclusion.
See, e.g., infra at 26-28. Thus, the Court of Appeals correctly
concluded that through the reasonable efforts provision, Congress
intended to and did impose a binding obligation on the States.
Looking to the third prong of Wilder, the Court of Appeals
correctly determined that the right to reasonable efforts is
sufficiently explicit to be judicially enforceable. Pet. App. at
lla-l3a. In Wilder this Court stated:
That the [Boren] Amendment gives the States
substantial discretion in choosing among
reasonable methods of calculating rates may
affect the standard under which a court
reviews whether the rates comply with the
Amendment, but it does not render the
Amendment unenforceable by a court. While
there may be a range of reasonable rates,
there certainly are some rates outside that
range that no State could ever find to be
reasonable and adequate under the Act.
110 S. Ct. at 2523 (emphasis in original).
* As this Court has noted, in interpreting an act of
Congress, the statements of the act's sponsor should be given
substantial weight. Federal Energy Administration v. Algonquin
SNG, 426 U.S. 548, 564 (1976).
21
In a parallel and searching approach, the Court of Appeals
here acknowledged that "“DCFS has substantial discretion in
choosing the method it will use to implement the requirements of
the AAA." Pet. App. at 12a. The court recognized and accepted
that DCFS, in exercising that discretion, had chosen "to use
caseworkers as the means through which these services are
provided.” Id. at lla. Tracing Wilder's analysis, the court
below then looked at DCFS' existing caseworker assignment
process, as described by the District Court in its findings of
fact. It then demonstrated how a court could easily assess
whether DCFS' complete failure to assign caseworkers promptly
comports with the Act's reasonable efforts requirement:
[A]lthough a caseworker does not herself
provide services, caseworkers are necessary
to arrange for the provision of services by
others. The caseworker is a "lifeline."
When the caseworker is absent, no efforts can
be exerted for preventive and reunification
services.
Id. at lla-l2a. (citations omitted).
The Seventh Circuit, again relying on Wilder, then correctly
stated that in such circumstances, "(t]he judiciary is...capable
of determining whether the state is exerting ‘reasonable efforts'
to provide [the] services" required by the AAA. Id. at 12a.
And here, the District Court correctly made that determination
based on an extensive factual record -- a record showing that
DCFS fails to make feasonable efforts in each case as a result of
its failure to assign caseworkers to children and their families.
Petitioners assert that the AAA is unenforceable, relying on
the Act's purported lack of an "objective benchmark" to measure
22
the reasonableness of DCFS' efforts. Pet. at 14. As the Court
of Appeals recognized, petitioners are wrong. Applying the Act
to the facts of this case, there is no ambiguity about the
unreasonableness of petitioners’ efforts to preserve and to
reunite families. Because no caseworkers are assigned to the
respondents, no efforts are expended at all. Pet. App. at 12a,
19a. Even if a “benchmark” might be helpful in construing the
AAA's reasonable efforts requirement in other circumstances, no
court would need any “benchmark” to enforce the Act here or to
determine that these facts entail a violation of the Act's
mandates. Moreover, as the Seventh Circuit recognized, Pet. App.
at 7a, n.10, to the extent an “objective” reference point is
required, federal regulations setting forth preventive and
reunification services, 45 C.F.R. § 1357-15(e)(2), provide
guidance comparable to the regulations mentioned in Wilder: the
"factors which a State must consider in adopting its rates." 110
S. Ct. at 2522 (emphasis added).
Petitioners also attempt to distinguish Wilder from the
decision below by pointing to the "substantial discretion" that
the AAA provides to States in their implementation of its
requirements. Pet. at 14 n.3, 18. They thereby ignore (at best)
or misrepresent (at worst) this Court's recognition in Wilder of
the "substantial discretion” afforded States by the Boren
Amendment. 1105S. Ct. at 2523. In fact, the AAA provides States
less discretion than that provided them under the Boren
Amendment. Compare 42 U.S.C. § 671(a) (requiring the Secretary
23
to approve plan) with id. at 1396a(a)(13)(A) (requiring the
Secretary only to find States' assurances satisfactory).
In a further attempt to distinguish it from this case,
petitioners also misconstrue Wilder in their discussion of the
Boren Amendment. Pet. at 13-14. The Boren Amendment requires
States to set reasonable rates with reference to efficiently and
economically operated facilities, as petitioners recognize; but
it also includes a requirement, which the plaintiffs in Wilder
sought to enforce and which petitioners here omit, that States
"assure (sic) that individuals eligible for medical assistance
have reasonable access...to inpatient hospital services of
adequate quality.” 42 U.S.C. § 1396a(a)(13)(A). Neither the
statute nor the implementing regulations define "reasonable
access” or “adequate quality.” See e.g., 48 Fed. Reg. 56049
(1983) (rejecting proposal to define “reasonable access"). This
Court in Wilder nevertheless concluded that courts are competent
to determine both whether a State has set reasonable rates and
whether it has ensured reasonable access to medical care of
adequate quality. 110S. Ct. at 2523.
Finally, Illinois’ actions in the wake of Congress'
enactment of the AAA in 1980 belie petitioners' suggestion that
the reasonable efforts provision is too ambiguous to be
considered part of the State's contract with the federal
government. In 1985 the Illinois legislature amended the State's
Juvenile Court Act to require judges to find that reasonable
efforts were made before placing a child in DCFS' custody. P.A.
83-1517 (amending predecessor version of Ill. Rev. Stat. ch. 37,
24
para. 802-10). More importantly, two years later, the Illinois
legislature enacted the Family Preservation Act, P.A. 85-985,
which among other things, requires DCFS to provide family
preservation services to families whose children have been
removed or are at risk of being removed and to develop and
implement a plan to make such services available throughout the
State. Ill. Rev. Stat. ch. 23, paras. 2058.2, 5005, 5006a. Se
also DCFS Policy Guide 91.1 (March 28, 1991) (identifying
services to meet reasonable efforts requirement in environmental
neglect and domestic violence cases). Thus, with DCFS having
accepted millions of dollars from Congress under the Act,
petitioners cannot now claim ignorance. DCFS has long Known that
reasonable efforts are required of it under its AAA contract with
the federal government.
Having correctly applied Wilder here, the Court of Appeals
properly concluded that Congress created enforceable rights in
the AAA's reasonable efforts requirement. Rather than render
that provision meaningless, the Court of Appeals interpreted it
to give full effect to the clearly expressed intent of Congress.
See Wilder, 110 S. Ct. at 2519-20.
B. The Court of Appeals Correctly Held That Children
Living At Home Under DCFS' Supervision Have Enforceable
Rights Under the Act.
Having properly found that children have a right to
reasonable efforts under the Act, the Court of Appeals declined
to carve out a special exception for children at home under DCFS'
supervision. As Judge Cummings stated, "the language of that
statute does not reveal an intention by Congress to limit its
25
terms only to children actually in foster care outside the home,
and the DCFS fails to provide a compelling reason to read such a
distinction into the statute." Pet. App. at 18a (citation
omitted).
The court's holding is well supported by the language and
history of the AAA. First, Congress' emphasis on leaving
children at home, on returning children to their homes as soon as
possible, and on services to meet both these ends resounds
throughout the AAA. Indeed, family preservation and family
reunification are together a primary objective of the Act. Thus,
the Act expressly imposes upon DCFS a binding obligation to make
reasonable efforts to keep children at home prior to placing them
in foster care. 42 U.S.C. § 671(a)(15). Other provisions of the
Act also show the importance cf the States' efforts to keep
children at home. See, e.g., id. at § 627(b)(3) (requiring
preplacement preventive service program); id. at § 672(a)(1)
(requiring judicial determination that State made reasonable
efforts prior to placing child in foster care).
Second, the Act's legislative history supports the Court of
Appeals’ holding. As Senator Cranston's remarks show, Congress
enacted the AAA primarily to protect children against being
removed unnecessarily from their homes and to minimize the human
and financial costs which their removal entails:
The human costs of failing to take whatever
steps are available to prevent the removal of
a child from his family are beyond
calculation. The financial cost of placing a
child in long term foster care -- running as
high as $30,000 a year for institutional
placements -- can become enormous,
26
particularly in contrast to the cost of
preventive services which could avert the
necessity for removal or continued removal of
the child.
125 Cong. Rec. 22686 (Aug. 3, 1979). Senator Cranston described
the importance of the family preservation requirement even more
forcefully on other occasions:
[W]here removal can be prevented through the
provision of home-based services, these
agencies will be required to provide such
services before removing the child and
turning to foster care. These provisions...
are among the most important aspects of this
legislation. Far too many children and
families have been broken apart when they
could have been preserved with a little
effort.
Id. at 14767 (June 13, 1980).° ee also id. at 22683 (August 3,
1979) (reasonable efforts provision “critical to our efforts to
reform the foster care system"). Other parts of the legislative
history provides further support for the Court of Appeals’
holding. See, e.g., H. R. Cong. Rep. 96-900, 96th Cong., 2d
Sess. 46, reprinted in (1980) U.S. Code Cong. & Ad. News 1566
("State plan must provide that in each case...reasonable efforts
will be made..."); 126 Cong. Rec. 14645 (June 13, 1980)
(Congressman Conable: funds conditioned on State providing
° with these remarks, Senator Cranston integrated the Act's
requirement that States make reasonable efforts to prevent
children's placement with two provisions which petitioners
conceded below to be fully enforceable -- the case plan and case
review requirements. Like the structure of the Act itself, see
42 U.S.C. § 671(a)(15), (16), Senator Cranston's statement, made
on the date of the Act's passage, shows Congress’ intention that
the three provisions be treated similarly and supports a finding
that the reasonable efforts provision, like the case plan and
case review provisions, is fully enforceable.
27
"services to preserve families"; Congressman Rousselot: States
must make “every effort" to preserve families).
Petitioners ignore Congress’ decision to provide the States
over $300 million to fund family preservation services -- in
contrast to the mere $1.6 million which Congress allocated to
provide “appropriate” treatment in the “least restrictive"
setting in Pennhurst State School and Hospital v. Halderman.
451 U.S. 1, 24 (1980). Petitioners then suggest that Congress'
decision to fund preventive services in the Act through what is
now Title IV-B of the Social Security Act, as opposed to through
Title IV-E, somehow renders the rights of children residing at
home unenforceable. Pet. at 19-20. Petitioners thereby
demonstrate an appalling lack of understanding of the central
purpose of the entire Act -- family preservation. The Court of
Appeals gave petitioners’ argument the short shrift it deserved.
Given the clarity with which Congress has spoken in imposing this
obligation upon States, the Court of Appeals properly elected not
to second-guess the method by which Congress chose to defray
their costs in meeting it. Pet. at 18a.
IiIl. THE COURT OF APPEALS' DECISION IS CONSISTENT WITH OTHER
DECISIONS OF THIS COURT, THE COURTS OF APPEALS AND STATE
COURTS.
Given its adherence to the Golden State-Wilder-Dennis test,
the Court of Appeals' decision is consistent with this Court's
rulings in other § 1983 cases. Likewise, the court's ruling is
fully consistent with those in other circuits and in the state
courts holding that the AAA, including its reasonable efforts
28
provision, is fully enforceable. Consequently, petitioners’
claim of a conflict of decisions is meritless.
A. The Court of Appeals’ Decision Is Consistent with this
Court's Rulings in Other § 1983 Cases.
The opinion below fully comports with this Court's decisions
in other § 1983 cases preceding Golden State, Dennis, and Wilder.
In Wright v. Roanoke Redevelopment and Housing Authority, 479
U.S. 418 (1987), for example, this Court held that federal
regulations conferred upon tenants of federally subsidized
housing the right to a reasonable allowance for utilities, a
right which those individuals could privately enforce under
§ 1983. Id. at 423-32. Despite petitioners’ claim to the
contrary, the “guidelines” set out in the federal regulation
relied upon in Wright, id. at 437 (O'Connor, J., dissenting), are
no more concrete and directive than the “examples” of preventive
and reunification services set forth at 45 C.F.R. §
1357.15(e)(2). See also supra at 23.
The opinion in this case is also consistent with Pennhurst,
in which this Court construed 42 U.S.C. § 6010, the “bill of
rights” in the Developmentally Disabled Assistance and Bill of
Rights Act. This Court there found that Congress had not
conditioned receipt of funding upon compliance with § 6010 and
that the provision "does no more than express a congressional
preference” for the policies there articulated. 451 U.S. at 19,
22-24. Based on its precatory nature, this Court refused to find
the bill of rights enforceable. See also Wilder, 110 S. Ct. at
2518 (discussing grounds of Pennhurst decision).
29
By contrast, the provisions petitioners violate here are
specific requirements “tied indisputably to the funding
provision...[{,] readily distinguish[ing this case] from
Pennhurst...." Pet. at lla. Indeed, Congress' words here could
not be more clear: "In order for a State to be eligible for
payments under this part, it shall have a plan approved by the
Secretary which..." provides that it will make reasonable efforts
in each case prior to a child's placement to prevent her removal
and after placement to facilitate her return to her home.
42 U.S.C. § 671(a)(15) (emphasis added). Likewise, in contrast
to Pennhurst, 451 U.S. at 23, the AAA expressly authorizes the
Department of Health and Human Services to withhold funding if
the Secretary finds that a State has failed to comply with the
reasonable efforts requirement, 42 U.S.C. § 671(b) --
"“support[ing] the conclusion that the provision does create
enforceable rights." Wilder, 110 S. Ct. at 2520. In short, as
Pennhurst requires, in the AAA Congress spoke with a clear voice;
with a command, not merely with a nudge. 451 U.S. at 17, 19.
B. The Court of Appeals' Decision Is Consistent with
Decisions of Other Circuits Holding the Act To Be
Enforceable.
Other courts of appeals which have considered the issue have
each held that courts may enjoin violations of the AAA through
§ 1983. Timmy S. v. Stumbo, 916 F.2d 312, 315-16 (6th Cir. 1990)
(granting injunction under § 1983 as remedy for unlawful
exclusion of foster parents from administrative hearings); L.J.
v. Massinga, 838 F.2d 118, 122-123 (4th Cir. 1988), cert. denied,
488 U.S. 1018 (1989) (granting injunction to remedy violation of
30
case plan, case review and reporting requirements); Lynch v.
Dukakis, 719 F.2d 504, 509-12 (lst Cir. 1983) (granting
injunction to remedy violation of case plan and case review
requirements). See also Sockwell v. Maloney, 431 F. Supp. 1006
(D. Conn. 1976), aff'd, 554 F.2d 1236 (2nd Cir. 1977) (granting
injunction under § 1983 for unlawful suspension of foster care
payments under the AAA's predecessor).
Cases cited by petitioners are inapposite. In In re Scott
County Master Docket, the District Court, applying the reasonable
efforts mandate, concluded only that the State was not required,
given the sexual abuse involved in that case, to maintain the
children in their homes or return them to their fanilies. 672
F.Supp. 1152, 1202-03 (D. Minn. 1987), aff'd sub nom. Myers
Scott County, 868 F.2d 1017 (8th Cir. 1987). If anything, Scott
County undermines petitioners’ claims that federal courts are
unable to apply the reasonable efforts mandate, and that the
analysis undertaken below was unprecedented. See also infra
35-36. Harpole v. Arkansa:
Department of Human Services, 820
F.2d 923 (8th Cir. 1987), is also readily distinguishable.
There, in an abbreviated discussion, the court focused primarily
on the appropriateness of the remedy sought, holding that an
individual indirectly injured by the State's alleged violations
of the Act could not seek damages in her case. Id. at 928.
Similarly, the alleged “uncertainty” among the district
courts does not justify certiorari here. Pet. at 8-9. First
outside of the Seventh Circuit, the only district court to
address the issue held the reasonable efforts requirement fully
31
enforceable. R.C. v. Hornsby, No. 88-D-1170-N, slip op. at 13-20
(M.D. Ala. April 19, 1989). Second, within the Seventh Circuit,
the court below firmly resolved whatever conflict there may have
been. Third, the pendency of other reasonable efforts cases in
federal court renders certiorari even less appropriate. With
only one court of appeals having addressed the enforceability of
42 U.S.C. § 671(a)(15), the issue -- if one exists -- is not ripe
for this Court's review.
S- The Court of Appeals’ Decision Is Fully Consistent with
the Decision of State Courts Enforcing the AAA's
Reasonable Efforts Requirements.
Certiorari is also inappropriate because the Court of
Appeals’ decision is consistent with those of state courts.
State courts addressing the issue have been nearly unanimous in
enforcing the Act's reasonable efforts requirement. See, e.g.,
In the Interest of Burns, 519 A.2d 638, 647-49 (Del. 1986); In
the Interest of M.H., 444 N.W. 2d 110, 113 (lowa App. 1989); In
the Interest of Kenny F., 786 P.2d 699, 703-04 (N.M. App. 1990);
In the Interest of S.A.D., 555 A.2d 123, 127-28 (Pa. Super.
1989). But see In re Carl O., 523 A.2d 1339, 1343 (Conn. App.
1987).
Other state courts have shown a similar inclination,
enforcing state law provisions requiring reasonable efforts
without hesitation. See, e.g., In re Victoria M., 255 Cal. Rptr
498, 503-05 (Cal. App. 1989) (reversing order terminating
parental rights based on lack of reasonable efforts to reunite
family); In the Interest of A.B., 444 So. 2d 981, 995-96 (Fl.
App. 1983) (reversing dispositional order based on State's
32
failure to show reasonable services were provided to reunite
family); In the Matter of Jones, 436 N.E.2d 849, 851 (Ind. App.
1982) (affirming termination of parental rights after finding
reasonable services had been offered); In the Interest of A.M.K.,
723 S.W.2d 50, 52-53 (Mo. App. 1986) (same); Matter of Sheila G.
462 N.E.2d 1139, 1140-41, 1150 (N.Y. 1984) (directing dismissal
of termination petition based on agency's failure to provide
reunification services to father); In re Nicole G., 577 A.2d 248
(R.I. 1990) (directing State to provide housing assistance in
fulfillment of reasonable efforts obligation).
In short, the Court of Appeals decision is fully consistent
with the decisions of state courts and other courts of appeals
and prior decisions of this Court. Therefore, this Court should
deny the petition.
IV. GIVEN ITS NARROW HOLDING, THE SEVENTH CIRCUI
WILL HAVE MINIMAL IMPACT ON OTHER STATES’ CH
SYSTEMS.
nal
>
,
—
rs
~~ i/
The Seventh Circuit's holding was extremely narrow and
limited to the unique set of facts before it. As @ result, the
court's decision will have little impact beyond the litigants a:
will have little or no effect on other States’ child welfare
systems. Therefore, this Court should not grant certiorari.
Before entering the injunction, the District Court conducted
a lengthy hearing on respondents’ motion for a preliminary
injunction. It also considered petitioners’ attempts to
reorganize the Department, purportedly to remedy the system-wide
problems depicted at the hearing. Finally, it reviewed lengthy
submissions by the parties regarding DCFS' caseworker assignment
33
practices from July 1989 through February 1990. In short, the
District Court entered its order only after an extensive and
detailed review of the facts in dispute.
Based on its review, the District Court concluded that DCFS
arranges for services for children and their families by
assigning them caseworkers. App. at 9-12, paras. 2, 4, 6.
Without a caseworker, the Department exerts no efforts to prevent
the removal of children from their homes or reunite children with
their families. Id. at 11-15, paras. 5, 9, 1l. At the time of
the hearing, DCFS regularly failed to assign caseworkers
promptly. Id. at 15-18, paras. 13-19. Despite DCFS'
reorganization, the Department continued to leave children
without caseworkers regularly in late 1989 and early 1990. Id.
at 19-24, paras. 21-27, 31-36. As a result, and given DCFS'
reliance on caseworkers, children were irreparably harmed and
Genied the services to which they were entitled under the Act.
Pet. App. at 53a-54a.
Endorsing the District Court's extensive findings of fact,
id. at 5a, the Court of Appeals' holding was appropriately
narrow: when a State assigns exclusively to its caseworkers the
responsibility for making reasonable efforts to preserve and
reunify families but regularly and systematically fails to assign
them to abused and neglected children under its care or
supervision, @ court may remedy that systemic deficiency by
entering a minimally intrusive preliminary injunction. Id. at
l16a-17a. -Thus, as its initial remand order portended, the Court
of Appeals shaped its decision to closely fit the facts of this
34
case. Indeed, the injunction upheld below was fully consistent
with the manner in which the State had exercised its discretion
in attempting to meet its obligations under the Act. Compare id.
with Wilder, 110 S. Ct. at 2525 (Rehnquist, C.J., dissenting).
On the other hand, in view of the discretion afforded all
States under the AAA, similarly detailed findings of fact showing
the vital role of caseworkers and systemic deficiencies in a
State's caseworker assignment system may never be seen beyond
Illinois’ borders. See Winston v. Children and Youth Services of
Delaware County, 748 F.Supp. 1128, 1133 (E.D. Pa. 1990) (no
uniformity required in State systems for fulfilling reasonable
efforts requirement). Therefore, the court's decision below will
have only minimal effect on other States’ child welfare systems.
Likewise, nothing in the Court of Appeuls' decision suggests
any erosion of the federal court's deference to the expertise of
child welfare agencies, and nothing in the recognition of
respondents’ rights under the Act conflicts with this deference.
Petitioners fail to justify certiorari with their ‘avalanche
argument, which Judge Cummings fully addressed:
The district court's injunctive relief does
not dictate a method of assigning caseworkers
or interfere with the ability of caseworkers
to exercise their own professional judgment
on the job. The court is not creating
federally enforceable rights to beds,
monetary assistance, or housing. The
injunction merely fulfills the minimal
requirement of the AAA that reasonable
efforts are made toward the goals of reducing
unnecessary foster care placement and family
disruption, and it does so through a method
designed to maximize DCFS decisionmaking.
35
Pet. App. at 16a-17a.° Indeed, far from being an “unprecedented
expansion" of the role of federal courts, Pet. at 2l, the
injunction here is consistent with and no more intrusive than the
First Circuit's decision in Lynch. 719 F.2d at 514.
The federal courts’ role in State's child welfare decisions
is minimized by other considerations. The doctrines of
collateral estoppel and abstention, for example, would regularly
bar the federal court from "second-guessing" decisions in
individual cases already active in a state court. See, e.g.,
Gardner v. Parson, 874 F.2d 131, 142 (3rd Cir. 1989) (AAA-based
family preservation claim collaterally estopped by finding in
Family Court proceedings). Moreover, any plaintiff surviving
such hurdles may still be obligated to demonstrate systemic
deficiencies in a State's plan (such as those shown in this case
by respondents), as opposed to individual mistakes by individual
caseworkers. 42 U.S.C. § 671(a). Finally, under Wilder, certain
other plaintiffs may be unable to overcome the deference required
of a court in its review of a State's compliance with the
reasonable efforts requirement. 1105S. Ct. at 2523.
Consequently, this Court should disregard petitioners'
contentions that the decision below will overwhelm the federal
courts with child welfare litigation.
®* As the Court of Appeals noted, the district court also
took steps on its own to ensure that the injunction would be only
minimally intrusive. Pet. App. at 12a-l3a. The District Court
refused to place a numerical limit on caseload size as requested
by respondents and included in the injunction the three day
benchmark set by petitioners themselves. Id. at 21-22, para. 37;
id. at 55a, n.3.
™ 36
CONCLUSION
For these reasons, the petition for certiorari should be
denied.
Respectfully Submitted
Patrick T. Murphy
Counsel of Record
Michael G. Dsida
Counsel for Respondents
Cook County Public Guardian
1112 South Oakley Boulevard
Chicago, Illinois 60612
(312) 633-2500
37
APPENDIX
l.
STATUTES INVOLVED
42 U.S.C. § 671(a):
Requisite features of State plan.
part,
In order for a State to be eligible for payments under this
it shall have a plan approved by the Secretary which --
(1) provides for foster care maintenance payments in
accordance with section 672 of this title and for adoption
assistance in accordance with section 673 of this title;
(2) provides that the State agency responsible for
administering the program authorized by part B of this
subchapter shall administer, or supervise the administration
of, the program authorized by this part;
(3) provides that the plan shall be in effect in all
political subdivisions of the State, and, if administered by
them, be mandatory upon them;
(4) provides that the State shall assure that the
programs at the local level assisted under this part will be
coordinated with the programs et the State or local level,
assisted under parts A and B of this subchapter, under
subchapter XX of this chapter, and under any other
appropriate provision of Federal law;
(5) provides that the State will, in the
administration of its programs under this part, use such
methods relating to the establishment and maintenance of
personnel standards on a merit basis as are found by the
Secretary to be necessary for the proper and efficient
operation of the programs, except that the Secretary shall
exercise no authority with respect to the selection, tenure
of office, or compensation of any individual employed in
accordance with such methods;
(6) provides that the State agency referred to in
paragraph (2) (hereinafter in this part referred to as the
"State agency”) will make such reports, in such form and
containing such information as the Secretary may from time
to time require, and comply with such provisions as the
Secretary may from time to time find necessary to assure the
correctness and verification of such reports;
(7) provides that the State agency will monitor and
conduct periodic evaluations of activities carried out under
this part;
(8) provides safeguards which restrict the use of or
disclosure of information concerning individuals assisted
under the State plan to purposes directly connected with (A)
the administration of the plan of the State approved under
this part, the plan or program of the State under part A, B,
C, or D of this subchapter or under subchapter I, V, X,
XIV, XVI (as in effect in Puerto Rico, Guam, and the Virgin
Islands), XIX, or XX of this chapter, or the supplemental
security income program established by subchapter XVI of
this chapter, (B) any investigation, prosecution, or
criminal or civil proceeding, conducted in connection with
the administration of any such plan or program, (C) the
administration of any other Federal or federally assisted
program which provides assistance, in cash or in kind, or
services, directly to individuals on the basis of need, and
(D) any audit or similar activity conducted in connection
with the administration of any such plan or program by any
governmental agency which is authorized by law to conduct
such audit or activity; and the safeguards so provided shall
prohibit disclosure, to any committee or legislative body
(other than an agency referred to in clause (D) with respect
to an activity referred to in such clause), of any
information which identifies by name or address any such
applicant or recipient; except that nothing contained herein
shall preclude a State from providing standards which
restrict disclosures to purposes more limited than those
specified herein, or which, in the case of adoptions,
prevent disclosure entirely;
(9) provides that where any agency of the State has
reason to believe that the home or institution in which a
child resides whose care is being paid for in whole or in
part with funds provided under this part or part B of this
subchapter is unsuitable for the child because of the
neglect, abuse, or exploitation of such child, it shall
bring such condition to the attention of the appropriate
court or law enforcement agency;
(10) provides for the establishment or designation of a
State authority or authorities which shall be responsible
for establishing and maintaining standards for foster family
homes and child care institutions which are reasonably in
accord with recommended standards of national organizations
concerned with standards for such institutions or homes,
including standards related to administration policies,
safety, sanitation, and protection of civil rights, and
provides that the standards so established shall be applied
by the State to any foster family home or child care
institution receiving funds under this part or part B of
this subchapter;
(11) provides for periodic review of the standards
referred to in the preceding paragraph and amounts paid as
foster care maintenance payments and adoption assistance to
assure their continuing appropriateness;
(12) provides for granting an opportunity for a fair
hearing before the State agency to any individual whose
claim for benefits available pursuant to this part is denied
or is not acted upon with reasonable promptness;
(13) provides that the State shall arrange for a
periodic and independently conducted audit of the programs
assisted under this part and part B of this subchapter,
which shall be conducted no less frequently than once every
three years;
(14) provides (A) specific goals (which shall be
established by State law on or before October 1, 1982) for
each fiscal year (commencing with the fiscal year which
begins on October 1, 1983) as to the maximum number of
children (in absolute numbers or as a percentage of all
children in foster care with respect to whom assistance
under the plan is provided during such year) who, at any
time during such year, will remain in foster care after
having been in such care for a period in excess of twenty-
four months, and (B) a description of the steps which will
be taken by the State to achieve such goals;
(15) effective October 1, 1983, provides that, in each
case, reasonable efforts will be made (A) prior to the
placement of a child in foster care, to prevent or eliminate
the need for removal of the child from his home, and (B) to
make it possible for the child to return to his home;
(16) provides for the development of a case plan (as
defined in section 675(1) of this title) for each child
receiving foster care maintenance payments under the State
plan and provides for a case review system which meet the
requirement described in section 675(5)(B) of this title
with respect to each such child; and
(17) provides that, where appropriate, all steps will
be taken, including cooperative efforts with the State
agencies administering the plans approved under parts A and
D, to secure an assignment to the State of any rights to
support on behalf of each child receiving foster care
maintenance payments under this part.
2. 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. For the purposes
of this section, any Act of Congress applicable exclusively to
the District of Columbia shall be considered to be a statute of
the District of Columbia.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ARTIST M., et al.,
Plaintiffs, 88 C 10503
Vv.
Judge Shadur
GORDON JOHNSON, et al.,
Defendants.
On June 21, 1990 the Court of Appeals entered an order
partially remanding this case to this Court for the entry of
factual findings as to the current delays in caseworker
assignment and reassignment (the “June 21 Order"). This Court
promptly set a status hearing to schedule the proceedings
necessary for that purpose. Because of certain questions
identified by this Court in that status hearing, defendants (for
convenience hereafter referred to collectively as "DCFS")
returned to the Court of Appeals, and the June 21 Order was
modified on June 27, 1990 by the “June 27 Order.** This Court
then set for July 18 both (a) an evidentiary hearing and (b) the
contemporaneous advance submission by the parties of proposed
findings of fact and conclusions of law--that was the earliest
date that the parties could do so, given the preparation that
they required for those purposes.
In part this Court directed the parties to include in their
evidentiary submissions the information that would facilitate
i
Copies of the June 21 Order and June 27 Order are
attached as Exhibits 1 and 2 to this memorandum opinion.
this Court’s recapitulation of the situation as of the March 2,
1990 date of entry of the preliminary injunction order now on
appeal, and that would do so in the context of the record that
had been before this Court reflecting the earlier situation at
DCFS.’ That would effectively enable this Court to provide the
Court of Appeals with a brief motion picture rather than simply a
still photograph, inasmuch as DCFS’ perceived lack of progress
under its own Reorganization Plan despite the passage of many
months was the key motivating factor in this Court’s decision to
enter the March 2 injunction order.
Shortly before the scheduled July 18 hearing date the
parties advised this Court that they had been able to reach
stipulations as to a number of the facts that would obviate the
need for a testimonial hearing, so that they would meet the July
18 date established by this Court with paper submissions rather
than testimony. Both did so at the end of the July 18 working
day.’
On July 20 DCFS moved to strike virtually all of plaintiffs’
submission, setting that motion for hearing on July 24.* To the
That requested presentation was viewed as helpful in
directing this Court’s attention to the specific record
references to the before-and-after situations.
Their Stipulations (cited here as “Stip. {--") are
attached as Exhibit 3 to this memorandum opinion.
That four-day gap (weekend included) conformed to this
District Court’s General Rule 12(e), which specifies two working
days’ prior notice by personal delivery of any motions to be
presented in court. However, this Court frequently deals with
extent that DCFS’ motion related to the proposed findings of fact
("Findings") tendered by plaintiffs, that criticism was indeed
ironic: It essentially sought to object because plaintiffs’
submission did deal, in an effective and informative way, with
the background that was known to this Court when it rejected
DCPS’ purported implementation of its Reorganization Plan as
having failed to deliver the results that it was supposed to
accomplish, and thus as a failure to comply with the statutory
“reasonable efforts” standard. And although DCFS’ motion
proposed to criticize plaintiffs as thus seeking to buttress
their case before the Court of Appeals, in a number of vital
areas DCFS’ own Proposed Findings of Fact did exactly what DCFS’
counsel were urging was improper on plaintiffs’ part--for DCFS’
submission also sought to argue its own case és a matter of
advocacy.*
matters on a more expedited basis where there is an emergency or
where timing is otherwise critical, and where the opponent does
not urge any prejudice by reason of the accelerated schedule. It
would seem that type of accelerated treatment should have been
sought here, given the Court of Appeals’ specified July 26
deadline.
Por example, DCFS Proposed Finding 3 unconvincingly
sought to reduce the stipulated 19-day average delay in cases
transferred from Interim Services Teams ("“ISTs") to DCFS area
offices at the end of the 30 to 45-day period of initial services
provided by the IST (Stip. 4419, 3). DCFS would have this Court
find that the 19-day delay somehow becomes a 5-day delay merely
because the transferor IST technically (that is, on paper)
retains responsibility for a case for 14 days after the file is
transferred. From the prior hearings conducted by this Court and
from other evidentiary submissions, such theoretical wholly-on-
paper responsibilities do not at all serve the goal of actual
caseworker assignments to people who are physically able to
perform the various caseworker responsibilities. This Court has
Accordingly DCFS’ motion to strike much of plaintiffs’
submission has been denied. This Court does agrees that no
Conclusions of Law of the type suggested by plaintiffs are called
for--those were expressly included in th.s Court’s preliminary
injunction order--and so plaintiffs’ recommended legal
conclusions have not been taken into account here.
One last point should be addressed before turning to the
Findings themselves. This Court has of course not gone forward
with any proceedings in this action during the pendency before
the Court of Appeals of the interlocutory appeal from the March 2
preliminary injunction--but that does not relieve this Court of
its responsibility to be alert to developments potentially
affecting the case. Thus this Court had also been fully aware
of, and had been monitoring, the pendency of Wilder v. Virginia
Hospital Association, 110 S.Ct. 2510, 2517-23 (1990).* It
accordingly reviewed the Wilder decision as soon as it was handed
down.
If this Court had viewed that decision as in any respect
destroying the underpinnings of this Court’s determination of
plaintiffs’ reasonable likelihood of success on the merits in
therefore rejected DCFS’ position as at war with the facts.
That awareness of Wilder was not primarily stimulated
by this case. As it happened, this Court had late last year,
based on the Supreme Court’s having accepted review in Wilder,
deferred ruling on a motion in an entirely different case on its
calendar--one that posed the identical substantive question of an
enforceable private cause of action under the specific statute
involved in Wilder (the Boren Amendment to the Medicaid Act).
this case--that is, as negating the existence of plaintiffs’
private cause of action here--it would have considered that its
judicial responsibility called for requesting 4 remand from the
Court of Appeals to enable this Court to vacate the preliminary
injunction because of that supervening development of law.’
Potential mootness would always seem an appropriate consideration
under such circumstances.
Accordingly this Court has indeed considered the effect of
Wilder on its preliminary injunction decision here. It has
determined that the Supreme Court’s upholding of the Boren
Amendment’s “reasonable rates” standard as giving rise to private
enforceable rights under Section 1983° strongly reinforces,
’
Indeed that is essentially what this Court did in
United States v. Williams, 877 F.2d 516 (7th Cir. 1989). There
this Court had, during the course of the criminal trial, rejected
the proposed entrapment defense of codefendant Tedric Beverly
("Beverly") based on the then-established principles consistently
announced by our Court of Appeals’ decisions. After Beverly had
been convicted by the jury and sentenced by this Court and had
then taken an appeal, the United States Supreme Court reversed
our Court of Appeals in United States v. Mathews, 108 S.Ct. 883
(1988), which involved the same entrapment question. This Court
therefore requested the Court of Appeals to remand the case to
permit this Court to determine whether adherence to the
supervening Supreme Court decision in Mathews would have required
it to submit defendant’s entrapment defense to the jury (as this
Court had refused to do at trial)--see this Court’s opinion in
United States v. Beverly, 699 F.Supp. 1256, 1258 (N.D. Ill.
1988). Such a limited remand was ordered by the Court of
Appeals, this Court made the necessary determination and returned
the case to the Court of Appeals, and the conviction was then
affirmed at 877 F.2d 516.
In addition to its rejection of the argument that “the
obligation imposed by the [Boren] Amendment is too ‘vague and
amorphous’ to be judicially enforceable” (Wilder, 110 S.Ct. at
2522), the Supreme Court characterized as an “objective
benchmark” a standard that called on a court to review whether
rather than casting into any doubt, this Court’s decision as to
the "reasonable efforts” standard under the statute at issue here
(and see the opinion to the same effect by this Court’s colleague
Honorable William Hart in Norman v. Johnson, 1990 U.S. Dist.
LEXIS 6181, at 7-12 (N.D. Ill.), issued after this Court’s
opinion here and before the Supreme Court’s decision in Wilder).
This Court will therefore not request any further remand to
enable it to consider vacating the preliminary injunction order
now on appeal.
This opinion now turns to the Findings. As was true during
the proceedings that took place before the entry of the March 2
preliminary injunction, this Court has found DCFS’ position
largely unpersuasive and that presented by plaintiffs largely
persuasive. These Findings therefore draw largely on plaintiffs’
submissions.
Pindings of Fact
Initiation of Juvenile Court Cases
l. As to each member of the plaintiff classes, DCFS has
filed or will file a petition for adjudication of wardship
("petition") in the Circuit Court of Cook County, Juvenile
Division (*Juvenile Court”), alleging that the child is abused,
neglected or dependent. 1-17-89 Tr. 26, 274.
2. DCFS’ filing of a petition is based upon an
investigation conducted by its Office of Child Protection,
the State had “ensur(ed] ‘reasonable access’ to eligible
participants” (jd. at 2523).
("DCP"), one of whose investigators is assigned to each case.
1-17-89 Tr. 225, 275, 276. Such investigators do not themselves
provide or arrange for any services for children or their
families. P. Ex. 29: Denton Dep. 9-10.
3. When DCFS files the petition, it requests an award of
temporary custody or the entry of a protective order. If it
seeks the former, the temporary custody hearing usually occurs on
the same day the petition is filed; but if DCFS recommends a
protective order, the first court date is usually scheduled at
some future date (at varying intervals) after DCFS files the
petition. P. Ex. 29: Benson Dep. 19. Even where DCFS may seek
temporary custody of the child, the child and the parents have a
right to contest that request. Thus some of those cases, as well
as those in which DCPS recommends a protective order, result in
the Juvenile Court’s referring the child to his or her parents‘
custody under a protective order. 1-17-89 Tr. 27-28.
Conversely, when the Juvenile Court awards temporary custody, it
appoints Gary T. Morgan or another person as custodian of the
child.
Vital Role of the Caseworker’
4. When temporary custody is taken, a DCPS caseworker must
be assigned in order to maintain the child’s family ties, work
toward reunification and ensure the child’s well-being. To those
ends the caseworker must search for relatives qualified to care
for the child or locate a suitable placement; arrange arp=ropriate
counseling; complete school transfers where appropriate so the
child’s education is not interrupted; arrange family visitation;
provide appropriate medical care; and generally assure the
child’s safety. 1-17-89 Tr. 247-58; P. Ex. 29: Mayberry-Dunn
Dep. 15-16, Williams Dep. 22-27. In temporary custody cases the
caseworker is also responsible for developing a written,
individualized case plan and advising the Juvenile Court of the
condition of the child and the family. 1-17-89 Tr. 31; 1-19-89
Tr. 786; P. Ex. 29: Mayberry-Dunn Dep. 15-16, Williams Dep. 22-
27.
5. If no caseworker is assigned to the case, the child is
usually dropped off at a placement without any information about
his or her case, such as the nature of the abuse or neglect and
the names of family members. Without that critical information,
DCPS’ proposed Findings seek to denigrate the
importance of caseworkers as mere “case managers, who arrange for
the provision of services by otners." But that is both (1) a
mistaken emphasis on the mechanics rather than the human values
involved in the relationship and (2) all of a piece with DCFS’
consistent substitution of a theoretical paper structure of
“responsibility” for the existence of a live person with actual
hands-on responsibility for assuring that the needed services are
in fact provided (see n.5, Finding 19 & n.10 and Pinding 22.
11
neither reunification services such as visitation nor other vital
child welfare services can begin. 1-17-89 Tr. 82; 1-18-89 Tr.
351-56.
6. In protective order cases the caseworker must secure
services to preserve the family: individual or family counseling
to ease or eliminate the crisis that led to the child’s
mistreatment; homemaker and housekeeping services so that the
conditions of the home will not require the child’s removal;
substance abuse programs to enable parents to attend to their
children’s needs; help in obtaining food, shelter and medical
care; and monitoring of the child’s safety at home. 1-17-89 Tr.
168, 183; P. Ex. 29: Mayberry-Dunn Dep. 15-16.
7. DCFS may also contract with a private agency to provide
child welfare services in both protective order and custody
cases. Significantly, DCPS’ own standards confirm the importance
of personal contact by the assigned worker--it requires a private
agency to see the child within 24 hours of receipt of the case.
Plaintiffs’ January 19, 1990 Response to Defendants’ Report to
the Court ("P. Resp.") Ex. 1, Int. 5(h).
8. When a case is transferred to a private agency, DCFS
and the private agency share the responsibility for delivering
services, so that the private agency delivers services directly
white DCFS has a supervisory and monitoring role. 1-19-89 Tr.
699; P. Ex. 29: ae Dep. 39. DCFS caseworkers are
jointly responsible with the private agency for preparing a case
plan and providing an administrative case review, and they retain
i+:
ultimate responsibility for all facets of the case. p. Ex. 29:
Williams Dep. 26. DCFS’ caseworker also remains responsible for
ascertaining whether there are appropriate relatives with whom to
place a child. 1-17-89 Tr. 94. Certain services (such as
psychiatric hospitalization for a suicidal child) may not be
provided by a private agency, and the DCFS caseworker remains
primarily responsible for obtaining or providing the consent for
such services. 1-18-89 Tr. 359. DCPS’ caseworker may also be
required to authorize familial visits. 1-18-89 Tr. 363, 365.
DCPS’ caseworker is also responsible for planning for the long-
term care of children in short-term private agency placements, a
responsibility that includes authorizing a psychological
evaluation, which is essential to the long-term placement of an
adolescent. 1-18-89 Tr. 353.
9. Unless and until DCFS has assigned a caseworker, no
services can be or are in fact provided to plaintiffs or their
families. P. Ex. 29: Mayberry-Dunn Dep. 35, Denton Dep. 29. Por
example, a young child in DCPS’ Custody may be denied visits with
her parents or siblings for several weeks (1-17-89 Tr. 89; i-18-
89 Tr. 342, 355-56, 363-65); be left in an inappropriate
placement such as a shelter, even when appropriate relatives are
interested in caring for her (1-17-89 Tr. 84-85); be denied sex
abuse treatment, grief counseling or psychiatric care (1-17-89
Tr. 100, 111; 1-18-89 Tr. 359); be unable to attend school (1-18-
89 Tr. 341-42); or be in DCPS custody without any case plan
(Benson Exs. 1 and 5)--all while awaiting the assignment of a
Caseworker.
10. DCFS’ failure to provide caseworker-initiated services
at early stages of its custody of plaintiffs is particularly
harmful. 1-18-89 Tr. 367, 499-500; 1-19-89 Tr. 636; P. Resp. Ex.
2. Because family members are the most motivated during a time
of crisis, immediate intervention is essential. 1-18-89 Tr. 389.
Relatedly, the likelihcod that children whom DCFsS separates from
their families will return home is directly related to the speed
with which they receive reunification services. 1-18-89 Tr. 500;
P. Resp. Ex. 3. Thus the greater the delay in providing such
services during this critical period, the more likely it is that
the child will never return home, and the goal of family
reunification becomes more remote and less attainable. 1-17-89
Tr. 227; 1-18-89 Tr. 365, 367; 1-19-89 tr. 629.
11. Children who reside at home under DCFS’ supervision are
also denied family preservation services and protection when no
caseworker is assigned. 1-17-89 Tr. 183. For example, without a
caseworker a child who had come under DCFS’ supervision because
her parent failed to provide adequate food went hungry again and
had to leave her mother’s home (1-17-89 Tr. 129-31); a parent who
had been ordered to obtain drug treatment by the Juvenile Court
and was willing to do so in order for her children to remain with
her had no assistance from a caseworker in locating and enrolling
in a drug treatment program (1-18-89 Tr. 402-06); and a child who
was without an assigned caseworker to make home visits was
further abused by his father and had to be removed from his
14
father’s custody (1-17-89 Tr. 131-38).
12. When children remain at home, DCFS’ failure to provide
family preservation services quickly places them at risk and
often results in their removal from home. 1-17-89 Tr. 129-37; l-
18-89 Tr. 512; 1-19-89 Tr. 629; P. Ex. 29: Johnson Dep. 29-30.
Defendant Gordon Johnson testified (1-19-89 Tr. 630):
(Wje didn’t have a strong preventive effort
at the front end of the System to try to keep
children, as much as possible, at home with
all the possibility of good services.
Without such an effort, the child’s Situation often deteriorates
and DCPS must remove the child from her home. 1-17-89 Tr. 133-
38; 1-18-89 Tr. 447, 512.
13. As of December 31, 1988 DCFS regularly delayed the
assignment of cases to caseworkers capable of initiating child
welfare services to the plaintiffs and their families, both in
protective order and in temporary custody cases. In most cases
DCFS did not assign a caseworker until at least two weeks after
the first Juvenile Court date. Ina large number of cases the E
delays lasted 30-45 days after plaintiffs’ cases were initiated
in Juvenile Court, with some delays in excess of 45 days. Stip.
1.
14. Delays described in Pinding 13 occurred in cases sent
from DCP to one of the ISTs. ISTs handled new temporary custody
cases except sex-abuse cases. Other court cases-~-protective
order and sex-abuse cases--were sent from DCP directly to one of
DCFS’ area offices. There were similar 30-45 day delays in those
cases. Stip q2.
15. Ina large number of cases, even after caseworkers were
assigned children lost the benefit of the assignment when their
cases later became unassigned. That happened at various stages
in a variety of ways. In cases initially sent to an IST, the
caseworkers were assigned for only 30 to 45 days. Stip. q3.
After the IST completed its tasks, each of its cases would be
transferred to one of DCFS’ four area offices. Id. There
children were again often left for Significant periods of time
without a caseworker, and thus without family reunification and
other child welfare services. 1-17-89 Tr. 33, 188; 1-19-89 Tr.
605-06, 680-81.
16. Similar gaps occurred when DCPS failed to reassign
cases after caseworkers in DCFS’ four area offices resigned, were
terminated, transferred or took leaves of absence. 1-17-89 Tr.
32-33; 1-19-89 Tr. 685-89, 745; P. Exe. 23-25. Those gaps arose
regularly as well, for DCPS caseworkers frequently transfer, take
leaves of absence, are terminated or resign. Stip. 44. -
Children whose cases were previously assigned to-those
caseworkers generally went without a caseworker for 30 days after
those absences began. Stip. 46. Moreover, some children’s cases
remained assigned to workers who had left DCFS months earlier.
P. Ex. 23, 25.
17. Unassigned cases generally were a significant problem
as of January 1989. At the end of September 1988 DCFS records
16
reflected that there were over 200 cases in Cook County that had
been unassigned for over 30 days. P. Group Ex. 28-0 at 2. at
the end of November 1988 DCFS records showed that 320 cases in
Cook County had been unassigned for over 30 days, that 83% of
those had been unassigned for over 60 days and that 63 cases had
been assigned for over 100 days. P. Group Ex. 28-R; P. Ex. 26.
In November 1988 Mark Moses, the DCFS employee responsible for
monitoring the unassigned caseworker problem, actually wrote,
"(T)here are good reasons to have those cases unassigned."
Plaintiffs’ Group Ex. 28-0. On December 13, 1988 the head of
DCPS’ Cook County operations wrote that unassigned cases in Cook
County were on the rise. P. Group Ex. 28-P.
18. DCFS did nothing to expedite the assignment of
caseworkers capable of delivering family preservation, family
reunification and other services to children and their families.
Delays described in the prior Findings were a direct result of
DCFS’ failure to require its personnel to assign cases promptly.
P. Ex. 29: Benson Dep. 30-31. DCFS had no mechanism that
Systemically assured prompt caseworker assignment. 1-17-89 Tr.
241-42. For example, DCFS did not limit the time within which a
supervisor must assign a case. P. Ex. 29: Benson Dep. 30-31.
19. DCPS also failed to develop a policy or procedure for
reassigning cases of caseworkers who are absent, irrespective of
the reason, for substantial periods of time. 1-19-89 Tr. 685-89,
745; P. Group Ex. 28-H, J, N, O, R. In fact DCFS’ witnesses
testified that there was a “management decision“ not to reassign
cases of workers on leave and that DCFS had no procedure whatever
regarding cases of workers on leave for a period up to five
weeks. 1-19-89 Tr. 745; and see Stip. 441 5, 6. Often DCFS made
paper assignments by assigning a caseworker in name only. 1-17-
89 Tr. 190. Such paper assignments left the child without
__._ Services, for in reality the child lacked a caseworker.’’ 1-19-
89 Tr. 688; 1-17-89 Tr. 110-11; Benson Ex. 5.
DCPS "Caseworker Assignment Practices: 1989-90
20. By July 1989 DCFS had implemented three of the four
elements of its plan to remedy the caseworker assignment process:
(a) the Early Response Package, reducing the paperwork
necessary to transfer a case from DCP
investigators to the IST and follow-up caseworker
teams (1-19-89 Tr. 606);
(b) the expansion of the IST program, designed to
allow DCFS to assign all new custody cases to
an IST before transferring them to an area
office; and
(Cc) the Family First Initiative ("Pamily First"),
designed to provide intensive services to
children remaining at home with their
parents.
‘* At the risk of belaboring the point, this past pattern
of behavior on DCFS’ part ties directly into the lack of
credibility of DCFS’ argument referred to in n.5. It also
reinforces the appropriateness of this Court’s looking at DCFS’
past performance (or more accurately its lack of performance)
when this Court evaluated the situation at the time it entered
the March 2 preliminary injunction order.
D. Supp. Submission (August 4, 1989) at 29-32; Stip. qq 8, 9, 11
and 12. On July 16, 1989 the final element of DCFs’ plans, the
division of DCP into the same geographic areas as the area
offices, was completed. Stip. 44.
21. Despite the changes, Significant delays persisted in
assigning caseworkers at the outset of cases. For children whose
cases were initiated in Juvenile Court in July 1989, DCFS took an
average of 9.3 days between the initial court appearance and the
assignment of an IST caseworker and 19.1 days between the
transfer from the IST to the assignment of a follow-up
caseworker. P. Resp. at 3.
22. IST caseworkers retain full responsibility for a case
for 30 to 45 days. Stip. 3. After that initial period DCPS can
extend the assignment of an IST caseworker for an additional two
weeks, but during the extension the caseworker’s role is limited
to court appearances and to arranging placement changes. P.
Resp. Ex. 1, Int. 3(k). IST does not retain responsibility for
the remaining caseworker functions such as monitoring a child’s
safety or arranging parent-child visits.'' Moreover, the :
practice of extending IST responsibility is not always followed.
P. Supp. Submission (February 12, 1990) at 12 n.9.
23. As a result of DCPS’ policies and practices, children
wnose cases were initially served by an IST were without a
caseworker capable of delivering the full array of reunification
and other child welfare services for an average of one month
a4
See n.5.
within the first two to three months. P. Resp. at 3. Those
caseworker gaps occurred at a time crucial to the reunification
of plaintiffs with their families. td. Exs. 2, 3.
24. Neither the IST nor the Family First program functioned
as planned. In July 1989 approximately one-third of new custody
cases went directly from DCP to area offices without IST
intervention. P. Resp. at 6. In those cases DCFS failed to
assign a caseworker until, on average, 10 days after the first
Juvenile Court date. Id. at 6-7. As for Pamily First, children
whose cases were initially assigned to that program experienced
significant delays after the expiration of the two to three
months during which Pamily First served the family before
assignment of a caseworker at the area offices. 1-19-89 Tr. 602;
P. Resp. Ex. 9.
25. DCPS’ claims that 77% of July 1989 cases were assigned
from DCP to IST in under 5 days were based on a log that IST
maintained for new cases. P. Resp. Ex. 1, Int. 2(b). But that
log sid not include the date on which cases were really assigned
at IST. Id. Ex. 4, Benson Dep. 28-29; Stip. 417. Instead the :
information contained in the log and the basis for DCFs’
representations was merely the date that the early response
package “was received at IST." Defendants’ January 31, 1990
Reply to Plaintiffs’ Response to Defendants’ Reports to the Court
(“D. Reply") at 14. DCPS had no record of when the cases were
actually assigned to an IST caseworker capable of providing child
welfare services to plaintiffs and their families. P. Resp. Ex.
20
4, Benson Dep. 17-18, 28-29.
26. DCPS’ changes did not address the gaps created when
caseworkers resigned, transferred, were fired or took a leave of
absence. Stip. 425. Given the number of and frequency of
transfers and the high turnover rate of DCPS caseworkers, DCFS’
failure to attempt to deal with that problem was especially
dangerous. Goad Ex. 9 at l, 3; P. Group Ex. 28-0 at l; P. Ex.
29: Denton Dep. 22. If a caseworker were abeent for less shan 30
days, the supervisor merely monitored the case without handling
the everyday service needs of the family. D. Supp. Submission
(August 4, 1989) at 36. When absences extended beyond 30 days,
DCPS’ policy and practice continued to permit supervisors to
leave cases previously assigned to the absent caseworker
unassigned for 30 or more days. Stip. Wi 4-6, 25.
27. Cases that were reassigned during a caseworker’s
absence were reassigned en masse to a Single caseworker, who by
the nature and volume of the reassignments was not and could not
be expected to provide services. P. Resp. Exs. 10, ll.
28. Even after implementation of DCPS’ plans, its
procedures failed to fix responsibility for assigning a
caseworker promptly. DCPS assigned Mark Moses to monitor
unassigned cases but did not require him to take action when he
observed the existence of unassigned cases. P. Resp. Ex. 6,
Moses Dep. Gloria Lewis, DCFS’ Associate Deputy Director for
Cook County Operations who supervises the administrators of the
four area offices, received monthly reports listing unassigned
21
cases. P. Resp. Ex. 7, Lewis Dep. Nonetheless, she played no
role and had no responsibility in ensuring the assignment of
those cases. Id. at 15, 47-49.
29. John Goad and Chris Benson, to whom DCFS entrusted the
responsibility of closely monitoring compliance with the Early
Response Package, reviewed DCFS’ performance on only two
occasions in all of 1989. John Goad Affidavit (January 31, 1990)
("Goad Aff.") at 3-4, attached to Defendants’ Reply of the same
date. DCPS instead simply relied on its expectations (really its
wishful thinking) that cases would be assigned. Defendants’
Reply at 4, 14. x
30. DCFS finally revised the IST logs in December 1989 to
record the date on which a caseworker was actually assigned.
Affidavit of Chris Benson (January 31, 1990) ("Benson Aff.") at
9, attached to Defendants’ Reply; Stip. 418. DCFS then submitted
December logs for one IST team to this Court. Benson Aff. Ex. F.
Of the 20 cases that DCFS selected for the Court’s review, only 9
were assigned in 5 days or less. Id. All the remaining cases
were assigned only after significant delays, with several of them
assigned 10 days or more after the first Juvenile Court date.
Id. -
31. Om December 7, 1989 Goad wrote in an internal
memorandum that the percentage of cases not routed to IST within
5 days had increased since July 1989, a trend he described as
“disappoint(ing}).* Goad Aff. Ex. B.
32. IST logs from January and February 1990 also
22
demonstrated continuing delays in IST caseworker assignment. In
January and February 1990 DCFS sent approximately 150 cases to
IST for assignment of a caseworker. Stip. 421. In several cases
IST logs did not contain adequate information to determine the
date on which a caseworker was assigned. Id.
33. DCFS did not assign a caseworker within $ days of the
first Juvenile Court date in 56 of the remaining 146 cases sent
to IST in January and February 1990. Id. DCFS thereby fell
significantly short of the goal that it had established for
itself: assignment of a caseworker within three to five days.
1-17-89 Tr. 227, 149; Defendants’ Proposed Findings of Facts and
Conclusions of Law (January 30, 1989) at 44; Defendants’
Supplemental Reply Regarding Pefendants’ Reports to the Court and
in Opposition to Plaintiffs’ Motion for Preliminary Injunction
(February 12, 1990) at 3.
34. In February 1990 alone DCFS did not assign a caseworker
within 5 days of the first court date in 40% of the cases sent to
IST (33 of 82) and within.’10 days of the first court date in 22%
of those cases (20 of 82). Of the February 1990 IST cases, 12%
(11 of 82) were left unassigned for more than three weexs.
Excluding cases that had been screened in advance, DCFS failed to
assign 4 caseworker within 5 days of the first court date in 60%
of the February cases.'’
By agreement of the parties in open court on July 24,
DCFS’ February 1990 logs have been made Exhibit A to the
Stipulations and are accordingly attached as part of Exhibit 3 to
this opinion.
23
35. DCFS also continued to leave cases unassigned, on the
average, for nearly three weeks after IST completed its tasks.
Stip. 424. DCFS also failed tc modify its policy or its
practices against the reassignment of case in the area offices.
Stip. 425. As a result, DCFS left cases previously assigned to
absent caseworkers unassigned for an average of 30 days. Id.
36. System-wide caseworker assignment problems grew as
well. Thus the total number of unassigned cases grew from 232 on
June 30, 1989 to 404 by the end of 1989, parallelling the pattern
of the previous year. P. Resp. Ex. 13. And the number of cases
unassigned for over 30 days doubled over the same period of time.
Id.
37. For an extended time period of many months during the
pendency of this case, this Court had left DCFS wholly
unconstrained by any order setting time requirements for
caseworker assignments, because it had taken DCFS at its word
that its adoption and implementation of the Reorganization Plan
represented the “reasonable efforts” required by the statute. It
was only after DCFS’ performance had failed so substantially,
with no adequate explanation offered by DCFS for that failure and
with DCFS’ unfulfilled generalized predictions having
demonstrated a total lack of credibility, that the preliminary
injunction order now on appeal was entered as required to satisfy
DCPS’ statutory “reasonable efforts" obligation. In doing so
this Court (a) rejected plaintiffs’ request for an order
requiring such assignments to be made within 24 hours as an
24
unrealistic requirement, (b) accepted DCFS’ representations that
a three-working-day requirement was capable of accomplishment
(although DCPS did object to the entry of any such order) and
(C) deferred the effective date of the preliminary injunction
order by approximately 90 days, thus accepting DCFS’ position as
to the amount of additional time that it would need for that
purpose.
C7 as
—~ Ute lee CIP ee
Milton I. =
United States District Judge
Date: July 25, 1°90
25
ee ame
Gnit-. States Court of appeals
For the Seventh Circuit
Chicago, Illinois 60604
June 21, 1990
Before
Hon. WALTER J. CUMMINGS, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. JESSE E. ESCHBACH, Senior Circuit Judge
ARTIST M., et al.
Plaintiffs-Appellees,
Appeals from the United
States District Court
for the Northern
District of Illinois,
Eastern Division.
No. 88 C 10503
Nos. 90-1742 and v.
90-1764
GORDON JOHNSON, et al.
Defendants-~Appellants.
Milton I. Shadur, Judge.
ORDER
The preliminary injunction entered by the district urt
requires that the Department of Children and Family Services
(DCFS) assign a caseworker within three working days from the
time plwintiffs' cases are first heard in juvenile court as well
as within three working days from the time a previously assigned
caseworker relinquishes any portion of a case. DCFS voluntarily
instituted a Reorganization Plan which has as its goal the
reduction of delays in caseworker assignment to three to five
days in most cases. It is unclear from oral argument before us
and from the record what amount of delay currently exists between
(1) a hearing in juvenile court and the assignment of DCFS
caseworkers to that case, and (2) reassignment of a case to a new
caseworker following the relinquishment of any portion of a case
by the previously assigned caseworker. The record is also .
unclear on how far away DCFS is from attaining the goals outlined
in that Plan. Accordingly, this appeal is remanded for the
limited purpose of permitting the district court to hold an
evidentiary hearing, if deemed necessary, and to enter written
findings with respect to the extent of the present delay in
caseworker assignment and reassignment and the extent to which
DCFS has met its goals under the Plan. The district court should
also inform us if a preliminary injunction is still necessary.
We request that the findings be made as soon as possible, but no
later than July 26, 1990.
The defendants' motion to strike pages 463 to 475 of the
Appendix to the plaintiffs' brief is denied.
Exhibit 1 ; 26
Gnited States Court of Appeals _
For the Seventh Circuit
Chicago, Illinois 60604
June 27, 1990
CORRECTED
Before
Hon. WALTER J. CUMMINGS, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. JESSE E. ESCHBACH, Senior Circuit Judge
ARTIST M., et al. )Appeals from the United
Plaintiffs-Appellees, }States District Court
)for the Northern
Nos. 90-1742 and Vv )District of Illinois,
90-1764 )Eastern Division.
]No. 88 C 10503
GORDON JOHNSON, et al. ]
Defendants~-Appellants }Milton I. Shadur, Judge.
ORDER
Our order of June 21, 1990 remanded this appeal to the
district court for entry of factual findings with respect to the
current amount of delay in caseworker assignment and
reassignment. We now modify that order and direct the district
court to enter written findings on the following factual issues
as they existed at the time the injunction issued: (1) the
amount of delay between a hearing in juvenile-court and the
assignment of DCFS caseworkers to that case, (2) the amount of
delay between the time a caseworker relinquishes any portion of a
case and the time a new caseworker is assigned, and (3) the
extent to which DCFS has met its numerical goals, as set forth in
our June 21, 1990 order, under the Reorganization Plan. We
request, as before, that these findings be made as soon as
possible, but no later than July 26, 1990.
Exhibit 2
27
a
acca aaa
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN i CEIVED
ARTIST M., et al., . :
gt JUL La WSU
Plaintiffs,
MILTON L Swadye wrk
grect coat
TP eet: be om OTE
Hon. Milton I. Shadur
Vv.
GORDON JOHNSON, et al.,
Defendants.
STIPULATIONS
Plaintiffs Artist M., et al., by their
attorneys, and defendants Gordon Johnson and Gary T.
Morgan, by their attorneys, hereby jointly stipulate to
the following facts.
Conditions as of December 1988
1. As of December 31, 1988, the Department of
Children and Family Services ("DCFS" or the "Department")
regularly delayed the assignment of cases to caseworkers
capable of initiating child welfare services to the
plaintiffs and their families. In most cases, DCFS did
not assign a caseworker until at least two weeks after
the first Juvenile Court date. In a large number of
cases the delays lasted 30-45 days after plaintiffs’
cases were initiated in Cook County Juvenile Court, with
some delays in excess of 45 days.
- Exhibit 3 : 28
2. These delays occurred in cases sent from
DCFS's Office of Child Protection ("DCP"), the
Department's investigative arm, to one of its Interim
Services Teams ("IST"). IST handled new temporary
custody cases except sex-abuse cases. Other court cases,
namely protective order and sex abuse cases, were sent
from DCP directly to one of DCFS' area offices. There
were similar 30-45 day delays in those cases.
3. In IST cases, the IST caseworker retained
responsibility for the case for 30-45 days. After IST
caseworkers completed their tasks, the IST supervisor
called the Service Coordination Unit ("SCU"), which then
assigned the case to a caseworker team at the appropriate
area office. IST then sent the case fi_e to the
supervisor of the team through DCFS's messenger service,
which operated three times per week. The supervisor of
the team then would assign the case to a caseworker.
Reassigqnment of Cases
4. Follow-up caseworkers in the four area
offices frequently transfer within the Department, take
leaves of absence, are terminated, or resign from their
positions in DCFS's area offices. (The following
29
discussion will refer to these caseworkers in the
aggregate as “absent caseworkers.")
5. As of December 31, 1988, DCFS policy
allowed team supervisors 30 days in which to make
decisions regarding the reassignment of the absent
caseworkers’ cases.
6. DCFS's management policy and practice
permitted supervisors significant latitude and discretion
in decisions regarding reassignment of cases. The cases
of absent caseworkers generally were not reassigned for
30 or more days after their absences began.
Changes in DCFS's Caseworker Assignment System
7. In 1988, DCFS administrators became aware
of delays in caseworker assignment. As part of their
efforts to remedy those delays, on January 1, 1989, the
Division of Cook County Operations ("DCCO") initiated use
of an Early Response Package for cases transferred from
DCP to IST.
8. The Early Response Package contains those
investigation materials necessary to obtain a Juvenile
Court order, enabling c=ses to be transferred out of DCP
prior to completion of the entire investigation.
30
9. In February 1989, DCFS began sending
certain protective order cases to private agencies under
the Family First program, for provision of intensive
home-based services by the private agencies.
10. By August 31, 1989, Family First had
provided services to 169 families in Cook County under
Juvenile Court protective orders.
ll. Between January and May 1989, the
Department added two new IST teams, bringing the total to
four units, with the goal of eventually assigning all
court cases to IST.
12. On May 22, 1989, DCP began transferring
all new temporary custody cases involving sex abuse to
IST.
13. DCPS's Cook County region contains four
area offices, covering distinct geographic areas. On
June 1, i989, the four IST teams were geographically
aligned with the four Cook County area offices.
14. On July 16, 1989, the DCP teams vere
geographically aligned with the four ares offices.
15. In September 1989, the Department
initiated a Home of Relative Initiative, which called for
most cases involving children placed in foster care with
relatives to be transferred to private agencies for case
31
management and services, with a goal of reducin
WO
caseloads across the entire DCFS system.
16. In November 13, 1989, DCP Dbegan
transferring protective order cases to IST. New court
cases (other than previously Opened cases, Home of
Relative cases, or Family First cases) went from DCP to
IST as of that date.
17. During 1989, the DCP and IST
administrators monitored initial assignment of
caseworkers at IST through, among other means, use of
logs which reflected receipt of the case at IST.
18. In December 1989, the IST logs were
modified to reflect actual assignment of an IST
caseworker.
Conditions as of 1989 and Early 1990
19. Cases transferred from DCP directly to
area offices during 1989 experienced delays similar to
those in December 1988. Cases transferred from IST to
area offices during 1989 experienced average delays of 19
days.
20. In January and February 1990, DCFS sent
‘approximately 165 cases to IST for assignment of a
caseworker. In some cases IST logs did not contain
naam
adequate information to determine the date on which a
caseworker was assigned.
21. DCFS assigned a caseworker within five
calendar days of the first court date in 90 (61 percent)
of the remaining 146 cases sent to IST in January and
February 1990. The Department failed to assign a
caseworker within five calendar days in the remaining 56
cases (39 percent).
22. In January and February 1990, DCFS did not
assign a caseworker within 10 calendar days of the first
court date in 25 cases sent to IST, or 17 percent.
23. In January and February 1990, DCFS did not
assign a caseworker within three weeks of the first court
date in 14 cases sent to IST, or 10 percent.
24. As of March 2, 1990, cases transferred
from IST to area offices were unassigned for an average
of 19 days.
25. Defendants did not change DCFS's policy
regarding the reassignment of cases previously assigned
to absent caseworkers between December 31, 1988, and
March 2, 1990. DCFS's practice as of March 2, 1990, left
cases previously assigned to absent caseworkers
unassigned, on average, for 30 days.
Dated: Chicago, Illinois
July 18, 1990
Respectfully submitted,
Patrick T. Murphy
Michael G. Dsida
Susan Tone Pierce
Julie L. Biehl
OFFICE OF THE PUBLIC
GUARDIAN
1112 South Oakley Boulevard
Chicago, Illinois 60612
(312) 633-2500
Attorneys for Plaintiffs
Susan GetZendanner
Christina M. Tchen
Charles F. Smith
Kimberley K. Baer
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM
333 West Wacker Drive
Suite 2100
Chicago, Illinois 60606
(312) 407-0700
Attorneys for Defendants
35
a
7s)
4
Q
— > q a“ ry . ? i)
MINE OA Bi 6/-¢ ULPILL Pe — ( ate ¢ pur | :
‘Ni lalla eS | he Aly, | cep a AL LAA) vs an
ME csp ye 0-4 COEF S| Pon] Cx | Mad
| 2%caah) P7672 > oe aie ll ray ante; bay pga he " prhucp
Pray f é “ad? ' BM MN ae Gl | a7r7"nN 1
VP ty ress 77 ore eee: mney yal | v7 ary
YAS I/- jt (4,-/ “« CMTC, ip ae) infor gs renbkryy 99 ‘Jo whey |
ee . . . A »c\ \n J i “»” 7 "
» +5 —— 7 a en ee. Ane & Sv) CAMs A |
‘iad t { PA of ty QOD, Ge Pine ee Redipe owes pte ot i . \
WT L pyre iat, a) wwe a= aa —* ' “WIM % wr, ‘Oh (2M)
Sg due] ac Ad C4 L-EWWANLE UZ ILE He, ougyrg eof r/o iy, “ere cranny
pt i, ot ial “ACTA Gla OV it
Céfre/e’ Gf AS Z 7 VEMOLE vuvowy buy ie Viay
06///% | CC7TE| Gomaee: s4| aT —- oe Ue Wy
peace 74 CYTE I Cale| erOND OY | wrrmery)
‘RE PPA Te Ea - —— | Oe LRY aE 5) anna
:; Wi 2 — OPT D+“? VE~ hs at
— ‘wy _6b-1¢-7 YI ; . wry . C450)
: ) 7?/| Wee o 9eAC|! vprgey
WN foe 0 | OB7E 7 a /e/1 FOGERTY Wrvy, a
nl Ween thn Mist te bl Vie 77Vpwry UPULY, 7X yg vmiax CEG yfrvay A
ODSCH7A Fog oon. IV) OS PAP AT. —rerfre——
are Lin — 7%
7.) O6f?//e CAL '1/f ©7E CS/GORL CORE PIP 7A 5;
7 iy feu, yoy (UOMEA OF SAE’ PW ru ry
13) ————<—<$—<—
4/10 y ’ “Aj Gila ; — — 4 = I
| P| STP lie : Kiara | OTE | —apaenigh
oy, ow
}
Wi 7G) iva TS) jawa ee eee Wmaa75a;
om os ta w/e SUNOS VAIN / Ng i= Smid i) WYN wv
wax pa Ac rw] ' ms: —-- = — . a . ow i
0 a Se — cet scene —[—=—=—__ —
ri rhein cj of
S20TIA ¥
W219 Id PINTVWAPT aurese> « 5
9ZOTIO ¥
g °AOSr OS7A77JE
55 7 0G" Ob) 44/1 law, a
FPN TED,
“9 ODP OBSEF
Ie -U 4 PIA | Ye
“4 he |O2 YE J OFA
DE Ge P6-7- MO COZ
avs se 74 a
DO WA) Uipeify
mieciwal ive ~ TT a AevD
wax AW e/a iM Ava
608. f4F
36
vanv by QU wea aon
eee
ASV - WAL ADAMS Winiini
as af 5i7f Yr 1% ee | TWA w toll
= a . mar ApAye aecers “orgy the ee dad
, ip 927° 279 DPV Be! wry SIAL MO SOLE 5 “2379d
a . = TTOC jew WF
frreer a i4 '
————— a Awe drrercre %
rrwys “Ay perrer
es = NE 06/41 / mm 7 ed -
Perrier £ te
Ares beter %
yew ners Aycan a
ae 15-073 =» ™ 77777" “9s ome?
atlas hy, ") swerriey ow 777 2Or0 Kryvz07
7 a.) Pad 4 ‘
GREG A IW P. mennt Powwvniy BvOwLeY Fie Aveeno
a | nents soy ,
temiore * ) ‘iD
FAOL ol
VIAL] Se %,| —| wah Seep—|— _
i 144 Sy MT? O 7
se . Y al SOA —ve o OY p sam AA
PORPR| Eee) freyour ran dvianyy os F/B)" at
Be VELA -LAL ke
44
a CkAr, <
4e honnaser ee OE) 2 as _—
BEEN — Oru er? 72 ans PI Rhy
/ . ”
OSZ/74\, Sve, OF Fear “SCG OW
ae ad IRE iexregpe | mien se] i
: A ww
VA .
TLEPB) S204 Hyg} eng apr
(LE 34 fy a IY my Tey COL 2 y
POT” [i wei7asi| PEO Scams | - av ] eo 7
' ws fl. dog ‘Se — - — ae nS
M1 POTPPWAPT eUes0D = 5
Le)
reer ady) wMuluso
I
: PM | ei tte a
— : - ‘ £ a J ‘
Thre ] ‘Lape =p, Wha
Ves Ld M, T97 CJ EMA —— Lage begmy oy <5 7 pe YA8E/2 (79 BE E/ . ; oll
hy ' he ani 1m (i w noes | ht
7 i Os f —_ CAT WPS rer” a ~ imopry “: liv 1 OO: “Mepug A ACH>/ » & cmuglvy?
: “me ” “/ 7a rd : — .- OP HERE : wong
1M, ° tx] _"$ ‘ALA xe {Rom youd O
P Jn'nn 4, rt fal -- 0 Anaad hie a , Ote 4° peerwal/ ” Ae ( WIA |» or VILL.
> ype] ¢ ar lh OSfEKIE NM ¢ gu. S/o S¢ aurys avunhern3 sectce («
5-2-7 1 Wiltio We =| — 7s pe ms NDAD
PO ei Er gett Gown poc] | eI?
— - -2 = / ae nd OF . . 4
Lc 4 7) SA/IE7= GCV/R De ISH yy or ¥/'64/ AA ANY VOG CA, 92 a ny »?
- fe , ‘ — = ~>7—- a 7 € T ‘ : tAVZ eT
were MOO "'), an = TT 3 “ be 7" Ar7oxr
. ( ‘ . - , / —w .
ME oc. «tid EZRA) RT “we Se dp] mony oo ose _|__ evOe
ithe [C6 2 84 sheep ye | % | ep | ses rere Z.
wt fe “te ‘ . a DVIIO”D
yet Weyl -_ — —-}| —t—_ PYser¥ ry Ai
PYOVTEN 05 40 og UTRTE| CEH E/E Ll il A YORT-
. a ; | RETR T eS TAR 7 i a © ; adds
“ hie 5 er b aq sich Pee jeer oy D008 772 ‘peorteu mee
oe Pl ess ~, OEVLETE| SAMS PRY @SswyD AA’ OF DooK¥ Sean?
i ad : - _
. _ - WWIZIw yn ar PIO? F7 2
tl ¢c - /y "Gny a (Omer pe TEX ru
aed ld 1 hs a ok a ;
0 O89 fl OM ‘ oe ws 5P—+0 Se Wd (ley Ww TH g S/T”
. | OY AZ ear — ge
Y «, 77909 ath vor
— - PUREE a “ye CD eI a8 rr
Cbép—sr Od eh) Mak Avring orony TPIPOD a V/A ‘Orvnrd
ited ; reeendace ;
- Ai 4 ha ee 772 ©96):w9 o77 71S
In0 a Lae? Od PE 1. a 229¢ Wt enIH 2090 S AFLP e 0777280)
ui/atva ——e “mM ASVD tat | ii7ww7isi 24.4) SOOM eat ssauogv 2 SWYN A TiWVa
wiax emp es /a. [eco anv f wos §HL-do0 aj -
— 5 nae or eae a ' #919034 PITT WapPT BurescD = 5
> ee
L20Tta ¥ vau AE Muze was 501 asw > wal ADAUIS WiitLiaT
3§
‘
&
WPA ann h
ec DUS) CHSCEA Bl % Bia
YN Yo) ( 1%
Siwy . < 97.2 % ] m7) df y
@ y ) VAZe ‘Claw Veen * OPARWY /S* L/P Ee Wy Ve IMCL,
é wes Soy OA /k Oe VWVARLE CLYE Lepr) Sve marie ped hl bY aA Ep oO a
ff "Fag Ye ' 2
, p 07 ; = wv t, v ww A/IIO te// y
(4 b/ f ( ie 7 "Wiz OAL = I, sterw vs » S$ /'/o ‘4 > y 0, v
| Hay Fy = perry a wo = d YA /¢ af * ) Fac. 4 77 a7 Sun?
alif. _# 4,| Ky cA(ls \ » Wad "od 4 2X
A ) dy 57 - . + PADMA IVD ) a
MIM)? € SA COLE) OAER: oY / x. :
Wi cival Aiva aoliiwe ir Sep ; Y e-agy oA = > ¢’e
y1ax t ie
“a ex PEAT SF hy
ES Ca ae cal V7 w/a THO] SAV 2-4 TDL
IOV HY
j ) { ey , mt st yay “y * reel ©
" wee i »* t, r -
. — 4 | ant a pene | aoe ty oy 9 to 5 oUg wIMITIN) P1969 ry vy ¢
yryeg? | omen HL 9
| / / —— /? . Hife Lh eng, 2 ‘dvas9e 7G
‘ , “7 indie (Cgpsepy ac? -7yv mi
a phy "] } VA cree r - iT rrr rye wre atv ng . ev" ¢ €c, sed Yad g, 7) cenee ove 1G)
\
} \ wry) |
' \ \ werd! = oa . \ \
a 7 TR gr} hh A
\ \ Ae ee)
| | \
‘ \ 4 mi, i)
\ \ ri ’ . \ . . : |
\ ; ‘ (say ,) \
“"ywrrew., |
Lf 2
\ | \ ——: : all —« / oh . _ — .
' ° Up A " ? (Smiriry wen Che -tol ; "
or ho 4! [ a / —_ y h) vies . : orinn > 'oosr / vec’) Levers’ (E)
ye |? Us OONKG?2 Q ~4 It te par " “ ym OS 50 ‘en SL
, = os nt —— §——__—_f£__ ff ; - : r r- 7 y
“i Ay “4 A/t 41% Taj Od ff / MA (
r a a Ly 73 1a ALLE! Valea Wa
| ONL A ||) AMA Alas OO 4/8. 4 / ath
Tae PAEL/ \/ | aA Wi VPP Ra Rads To
, 4 = J = ; : s } ie bike 7 f
ao 4462Yo ¢ f / “VY , 4 140 \
a > ae ee | Cina Andel, Ane, scent . _ ‘ — '
ee - #9 7 Ar Awe) (44 97-4) Al og? sis &ury TY Urwoad /y)
, oc 7
4/870 Ot REFS hy “p7t ; buy *°**) “Aww Mus 2 S07(WOhWy 7 bORE [HY 2 Jso-swrrms)
ATT "fee | — PRES-BT 377 2 eee y pe
u ~ Vs Id ww 4 “1% \5, oaayl ( 2" Lep SA Jo)
ony ¢@ -
IF —faresr | 6 [meter oe oe) ruses y orem ‘vary |i)
ce AMi; Sted id Ag? CR Vuvoy nummd A¢ H ed Leonean S7009 90) f
44v0 15) 41iva ‘IGM 3aSWD tal 107 Wee iS i at b+ ONSS VETTES SSawccv >| an Mines
EXAN| AS /AL PASM Ate § wos §RL- doo l ——_4A___ — ¥
S919 34 Pelt jvuepy SUIPODy .- -
"ta vy ; ee
Vay . dz WAL OI asvo WV3L JDIaw IWLLNI
‘7 - /
4 aie 2M Gio
rn ae madd ee da acd PL
* Ph) ae | etnecenepeigstllacciemmcetaaittiins cain Ore 7 LE mnie ‘ervey _ ES) LT ie A i yr) Pr PDS (! Aww nay
® Wary * rv | Cot A 415 ‘7 HS Bald Bk ‘f ! ; ! hy on
“eee a ry, Mow re T ( ) LOnmh-ere - ret fLINIry hat |
7" * : 7 Orurel (A @9 edt ie TAGE MW 'S*7085- ry mg OG) |X )
” " r we ae | ee ft Usaerive r + z=
a PTT)
= / / (yong | / fff Vin fi
Up
/ e , (0) b>vryl
eal hn th ae STES- AL
74 YT, O03 pag At . shor 1 eres a ‘own sweat ‘S209 ” 0) 1
VAY oe ay —S --|- : x “i evra) Peep bony (° th") jony ' ;) $a ‘
' A oo +1 99M CT yorotcs 227 OMI (0) ed DWV ON ht'z?/up |
a ——- i sree / J //
f Moore Ss rere vA
omaha 4— . pmmeny ( %phr)5) . J J / J
| / fo) preter ‘oi F
a — : a — — . v COjp9 7 Av? () tes , ,
a," yh! & VUOLCE ph Oe ee (ory v4 $y . J ee
pryogys 67? oi ———_L__} , Cat Myeys? yore N virwry ae "7
474; Gru posers (cab J neater) 9) 77) "rHVONS AL
/ J Ja . ie/dt
roses tet) oye) IG Ge Oeigicl PN'BSS? yng ‘ler’ ‘h hy
iii, he / | pone ae sts ay'7 jor) / ape wine,
fon) ,) ——S > . " ° bk >? oy ImMLOyy ¢)
ean ea hada LEE Te om eng emrmon Maye rvsserming |6) |
, , ’ wpvar - ft Uir7z pa vag ¢ ml j
“gs, ll i - i ik {54 917) —_ 7 j senteny worke) Navy sary ¢)
ae serene “9 4" | WLS ae aos ron yyy) le aon] =| ace
Ah tt | ee ey sm ha bys ay ?
. Re 4 Tanase: es "hese ee ee) TMi pany YIN) J)
gt SU TS eee pa ee ee 2907") NV PPI rep =
sree ‘bige | pata : 9) 1D (OMIT wr Bh “190.
ac 3 : 2 id ll rt SEP hls j aliny | "hd Ln (rpey*) 97709 Dna TIVG ING Sy Iw IC ©)
| Din 7 Me Re a: 67 ferthe Many meny ‘sry every 4 6 T ee
4v0 15) 3iv0 | “Sin deva~ PCT [7 pevisi 242;3) SANOSVARHM/NawO IH SSawOdV 2 a ATW :
LXAN|ANS/OL | aSaN ATE § ws $L-do0 |
rr Po a @919024d Pelj} WEP! eU;eD0D « 5 ,
{
vauv | 82 Wal Dol aS WVAL ZDIAM «Ala
‘y va vers |
aLV0 io] ative
LYXAN | AS /OL
NITMND
T Viera
i
§ wos
41
a eee
S¢pn -ct LY a7)
»>/ or : id ||
2WWN A'lIWW4
pada | (‘*) rir y +
"19934 Pe}j} IEP] sUTeZCD « a
“82 WVAL SOI asvD WVAL JDIAD
vauve
[Pry aF
20% SES V.
V/PSSIE
JVH
Lwyer |
c Tybumypug
AS a/b "9 OPES
42
a a
CATES -4AS
coebr cs
b/s Je
——
.
Cbs/beys 374
¥S/809E | SA
{Geb
~~?
owed 5 MTA
yok Sear be yw
aly 2eydess (ne
lett TITY FAS
aw *’ J
AoW Yr (Eo
€
. In F#meD 4ES9
2)
Uyr4ehpk As57
vauv
|
W21GAd PFI} } wap] seuyecoD -
2 WAL DOT 3SVD - WAL ZOIAMaS “IMaUNI
Ube) kyrreg
LUN shy (ervey ¢
pre -%A
vd? 07 Ser
= haha
; Y~) INA
Od VP"D (x
ODPM VP") (50
O6/ ~SS%4
na A
~? gr
00/8 bRoAL HAN 3 7 i hes fie; PR POST sey
thDe WA TZ POD “$ OFLs7/ ss
PL) Ay ¥" d?5€¢ 277 SUaL yx? oy, “sd 4d
£ 7 oes ee, PR IS
Yhehsx| 4/9e 097 AO | Noy aly Ke
WW revisi 99 ghayoe grr7g7 7 °S lrOS v1) 2907) ‘soley,
os-a50 SLOG VAMAHM/ Na I HO Ssauadv 2
wad SWYN ATINVS
ov? £8909” Sp? 7 sb
: obb/ ' 97?4
43
v d/se7]t YAO | : |
WH P
» Berrys f » cIvor
eS 4 277 TR ov9 R356 TY Fe aha bias geet deysrg S Jigs od yey, |
oe + PAL tye JEAYS/ | SA GP ey >>> S9Zp -OR ES |
o A &’-A Sher ‘vd Mr, r7 ON 4 A Aypry ‘Ls
<i Mc Ze 00 8L/ bE] coop oasy rs oirnery PF pep ‘'S SLL |
—— ie ayv| % Joe /e WECALEL CAGE Wt |
eae : 77 8,1 28 Cw
—5-rom SLES ww Mad Ad Whidtihd 5 157 Eg bfir)y| OEM my fves *Frwce “5 opis Arvay ‘ cwnpy :
sate Gio | id Md la be ! :
~ tL oh-8-f mt LOAsAsri ¢ !
“t+ SMUELs +I Jey soon |
ryhnvy Avoysup (nd
i: 7 /
bs WEF so he) ol Ty, HY —- os dog m, PS °§ Shr WU) S77 |
é o "Yel cues Ssee ~ Ct rt : 3
byie/r id y oe rn y w
“tees 4 eb/te| weber Hod Fe aha me Syren (a J™ 2974'S lolp |A\ 474990 ‘syxspry
7 wh . £ ob/ir]e Cr8/| Isgr “i aes —I. f |
as/re/e : —v ° P : ’ 7
OAT of 078 | OFA RIE a ect ds Bh he os
bmn aa ¥ 298¢le LP ve T# ae ‘hewey os 4279)’ /aa)
2g , °
r ‘LIT? coO6h SEZ vy, L797 dny wehbe? ows vy a 2%) vp ‘R900 Ly )
> 7 Le | Wee st wee en} :
cbc mg) TATE Vas > (wf Erbe peg hops! 95 ‘spypity
* oA M/E 4e 06/hs /e coehe rsd oy ; ob fir agieny 4 a oo, 05 Sof je? sau TA]
WH es / FAN sate es 2G
P A/ / oA rhe ac28) SITEE f a yr, r AlhsS.-85L rae Kio J
x, = Ob/tr)” fe %/3/¢ “7 o/s av LN N/E 4 Al han "74
' $ Peary vf iby psay BHWN ADIN
‘Mee - oF) $ pe PECPLYl B56 5
1 pp i ede 5 SPL Say Gee tat |iW/revasi 243) SWNOGVaaI/ Naud iD penmes S pop stig—
s i ae i caine 4534 Alaa §' 9s 08-28 wetdoag P8171IVEP] euyeccD - 3 obbl q7J
4 | ~ 3 — WW3L 901 SVD - Wl SDIAWaS “Imani
OFOTTO ¥
ThOTLO V
44
OG SALW
MWEr/r- MZ
| Ww
hy had
GS FTE d/ PRY ply ‘Red he 1 © Sst vowas yey
“q| ¢°/ie7y 00 /$bo%e Oy ~1'9) Patho 2ya/ -BE_S
. td art : / .
wrver te AG" Vey “esti S$ L/S Ver pag “sores |
of]7¢ ] CoYSZAZ >> PIho -2038
voce | ¥9p7ELE heyreg NV Gd 829 /V rns -s o¢gy ap rvuy ‘Angong
a. £ “/
<_| sh/ri/e 3
3s?
eyeyry smears? o
32
ooessZbA
"2/1 PASOALE
3LV0 1] 3Lv0
wax LX9N] dS /OL
a
nrg J {to
| SIV ws 's opr
b/se/e PL)
UUW rly var”
243) Snover aud ii |
BWYN ATiWWs
82 WV3L 501 asvD - WV3L ZI Anas “TUGLNI
Ee ott
S°1G3d PSOTJ} WEP] eUyeoOD = 5 Obby 977
a—_—_,_
—_-—_——_;
x
aoe < W627
. va)
ry
4 yf. e7?
tH
Ht)
Wi } y?
eva FAS.
plaron,
VSTOWYV vy -
oy
iacaad
A »)
(4 tpn vy pe,
ry tre gba
BIbEPOVY? Wes
PIV TLE
SoaMOV
vl
| “ /<
‘ sz >
in LY
Ly, Hs
Ee
if ¢ /
Ve
“Hay
a We
>, AM
/? “$e
a
ey,
$ he 45
a Vg
Ye MW
re 719
1 oy
77,
‘ig Y/
wi7aive) Give i5)ziva
wa4ax LX9N ANG /OL x
LROTLO y
46
. 77 aaeree ee $$
IZ, “BE - oP a j 7 y shinny é' / |
Aer VAM & wi 5% rmvnaeral A acatiald dal al aa “VIN “yore
Aij-- 9S LEAT, cy af |
Av losscoce| Shoe] / Je | 4] rd| nh G TE icp, | hi we
EE |o OBA ETE -
av |P22TzE ae °F | ody! Od m pil im bof cone, Mas
, 4 WR 7 MA se a 2 On ‘
-&7Ee WIT REE) thee je | opel hevexs S 5 9D8\K M-meony %
Ye PRAGA] Ss - 7
e/¢ | bereele| fr Ee Stn bung warheniy ID ’ ren Doe |
bye | “TK P| ¥O Liaw |
op «| PPAROTE t~ La pur | le WOME? SOLSY :byy7 x VY —T
«PBA TB oN By AP pry
~— PEDH. : | Auny Ypopy nr——/_y aos
“ay | Bharee| ¥ thn cl
* bye KAW 7, TX“ et ree
AY «| PRCIEL Bary
ae C TO ACEL Ip 7 ; ‘ v e
Sy picid" | e ee yan} -» Z| EMIT) heyy ter)
34 35ND | Pa |i nevisi 243] SANOSVARHM/NawO TID SSTwOIV 3 awn A TiWvS
| ey
| yo aan! Aas WL SO) 3SWD - WWAL 3DIAMaS WiNGINI eld 7’
47
K\/alvo)
oaey | comegy oy PELLR| ceoewg teraly
Ke APL, 7
Hy fromerg| 29 B AE 09 tasant A
Poe lasz nag y Paty a
OFFER
7EPLE| deh | ye] ond BCF Magy hmong
dey| armend LIMA IS Oho mar gort9
4 | gam my of £/09 Prray corre
a ee eee
prre H~ grevonyet | | ern —moyy
@21G14g PF} WFP] SUTED0D « 5
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ARTIST M., et al.,
Plaintiffs,
v. No. 88 C 10503
GORDON JOHNSON, et al.,
ed
Defendants.
MEMORANDUM OPINION AND ORDER
In December 1988 plaintiffs filed this action as a class
action seeking declaratory and injunctive relief pursuant to
the Adoption Assistance and Child Welfare Act of 1980 ("AAA”
42 U.S.C. §§620-629, 670-679a--either under 42 U.S.C. §1983
("Section 1983") or perhaps via direct action--and under the
Due Process Clause. Plaintiffs simultaneously filed a Motion
for Preliminary Injunction and a Motion for Class
Certification.
Upon presentation of plaintiffs’ motions, defendants
concurred in the propriety of certifying two classes of
Dlaintiffs:
C
-
Class A: Children who are or will be the subjects of
neglect, dependency or abuse petitions filed in the
Circuit Court of Cook County, Juvenile Division
(“Juvenile Court"), who are or will be in the custody
of Department of Children and Family Services ("DCFS"
Or in a home under DCFS supervision by an order of
Juvenile Court and who are now or will be without a
DCFS caseworker for a significant period of time.
Class B: Children who are or will be the subjects of
neglect, dependency or abuse petitions filed in
Juvenile Court who are or will be placed in DCFS'
custody and who are or will be without a DCFS
caseworker for a significant period of time.
48
This Court entered a memorandum order certifying both classes,
Granting plaintiffs’ request for expedited discovery and
setting plaintiffs' Motion for Preliminary Injunction for an
early evidentiary hearing. After that hearing (the "“Hearing”)
was held, with extensive evidence presented by both sides, the
parties presented their post-Hearing submissions.
Defendants in this action are DCFS Director Gordon Johnson
("Johnson") and DCFS Guardianship Administrator Gary Morgan
("Morgan"). 1/ DCFS is the state agency charged with, amona
other things, investigating allegations of child abuse and
neglect throughout Illinois and caring for children and
families who are the victims of child abuse and neglect. This
action is concerned solely with cases in the Cook County
Region.
Oo
rr?
Plaintiffs complain that DCFS has a policy and practice
failing promptly to assign a caseworker to court cases
following the issuance of a temporary custody or protective (or
so"
Morgan testified that although he is named personally by
the Juvenile Court as the custodian of children placed in
the temporary custody of DCFS, day-to-day decisions
regarding those children are made by DCFS personnel who are
designated agents of the Guardianship Administrator and
who are located in the Area Offices, Division of Chil
Protection, Interim Service Teams, Emergency Services
Center and other units directly responsible for serving
children in the care of DCFS. Morgan has no line
authority over those persons, nor does he have any
responsibility for developing generally any policies with
respect to the care of children in DCFS' custody, or
specifically with respect to the assignment of
caseworkers. Accordingly, although named as a defendant,
Morgan does not have any responsibility for the alleged
practices and policies challenged in this action.
49
Supervision) order and of failing promptly to reassign court
cases when a caseworker goes on leave, is terminated or
resigns. Plaintiffs claim that alleged policy and practice
violates both AAA and the Due Process Clause.
This Court has previously deferred issuance of its
findings of fact and conclusions of law for two reasons
impacting importantly on the availability and propriety of
preliminary injunctive relief:
1. the known imminence of post-Hearing Supreme Court
decisions in key areas affecting the core of plaintiffs'
claims and
2. DCFS testimony at the Hearing as to its then
recent adoption and ongoing implementation of a
restructuring plan to address caseworker assignment delays
directly.
Now the end of the Term has come, the Supreme Court decisions
have indeed been handed down, and it appears that they may
perhaps have gutted much if not all of plaintiffs’ potential
predicates for obtaining relief. This memorandum opinion and
Order addresses the case in its present posture,
As for plaintiffs' claim under Section 1983, Will v.
Michigan Department of State Police, 109 S.Ct. 2304, 2312
(1989) has now announced that no action against a state or
against its officials qua officials (the capacity in which
Johnson is in fact sued here) can proceed under that statute:
We hold that neither a State nor its officials acting
in their official capacities are "persons" under
§1983.
90
To be sure, Will, id. at 2311 n.10 (citations omitted) tempers
that seemingly unqualified pronouncement with an "of course”
hedge that draws upon the familiar fiction that informs Ex
parte Young and its progeny--that a State cannot act
unconstitutionally, so that any state official who violates
anyone's constitutional rights is perforce Stripped of his or
her official character:
Of course a State official in his or her official
capacity, when sued for injunctive relief, would be a
person under §1983 because "official-capacity actions
for prospective relief are not treated as actions
against the State.”"...This distinction is "commonplace
in sovereign immunity doctrine,"...and would not have
been foreign to the 19th-century Congress that enacted
§1983.. *-
But in this instance that stated limitation on the newly-
announced Will ruling marks a need for further inquiry rather
than the end of the matter.
As stated at the outset of this opinion, plaintiffs asx
for declaratory and injunctive relief. But the injunction they
seek is not the garden-variety limited restraint on an
individual defendant's conduct. Instead it calls for mandatory
relief that would, if granted, impose a major financial burden
on the State of Illinois. As Edelman v. Jordan, 415 U.
LF)
or
wn
666 (1974) said: 2/
(2
2/ Although the Edelman discussion (like that in Quern [cite
next in the text] and all the other cases treating with
the issue now under consideration) occurs not in a Section
1983 case but in the Eleventh Amendment context, Justice
Brennan's dissenting opinion for four Justices in Will, 109
S.Ct. at 2312 seems accurate in stating:
Like the guest who wouldn't leave, however, the
ol
We do not read Ex parte Young or subsequent holdings
of this Court to indicate that any form of relief may
be awarded against a state officer, no matter how
closely it may in practice resemble a money judgment
payable out of the state treasury, so long as the
relief may be labeled “equitable” in nature.
If the reason the State cannot be sued under Section 1983
is indeed the bar against invading the sovereign's fisc without
its consent, that identical consequence would flow from the
decree sought by plaintiffs, though nominally injunctive in
form and though nominally issued against state official Johnson
rather than the State itself. It is of course true that for
Eleventh Amendment purposes the Court has distinguished between
retrospective relief (held impermissible) and prospective
relief (held permissible), stating in Quern v. Jordan, 440 U.S.
332, 337 (1979) (citations and footnote omitted): 3/
In Edelman we reaffirmed the rule that had evolved in
our earlier cases that a suit in federal court by
private parties seeking to impose a liability which
must be paid from public funds in the state treasury
is barred by the Eleventh Amendment....We rejected the
notion that simply because the lower court's grant of
retroactive benefits had been styled “equitable
restitution" it was permissible under the Elevent,.
Amendment. But we also pointed out that under the
Footnote Continued
Eleventh Amendment lurks everywhere in today's
decision and, in truth, determines its outcome.
But it is not necessary for today's purposes to choose
sides between the majority and minority opinions in Will.
What is most significant is that Edelman and like cases
draw on the notion of the State as sovereign, the identical
concept that the Court majority in Will relies on in
finding the State cannot be a Section 1983 "person."
3/ Will, 109 S.Ct. at 2309 n.6 rejects one of the
petitioner's arguments there as “no more than an attempt to
have this Court reconsider ast v. Jordan, 440 U.S. 332,
99 S.Ct. 1139, 59 L.Ed.2d 3 (1979), which we decline to
do.”
02
landmark decision in Ex parte Young, 209 U.S. 123
(1908), a federal court, consistent with the Eleventh
Amendment, may enjoin state officials to conform their
future conduct to the requirements of federal law,
even though such an injunction may have an ancillary
effect on the state treasury....The distinction
between that relief permissible under the doctrine of
Ex parte Young and that found barred in Edelman was
the difference between prospective relief on one hand
and retrospective relief on the other.
But will that Eleventh Amendment parallel extend chapter
and verse to Section-1983? Is form to prevail over substance,
so that this action will lie under Section 1983 in accordance with
Will's n.10 exception? Or does the real-world major financial
impact of the relief demanded by plaintiffs mean that Will's
general rule barring Section 1983 actions against the State and
its officials as surrogates for the State is to control here?
If the latter is the proper reading of Will, it would sap
of any real force the cases on which plaintiffs have placed
their principal reliance for purposes of AAA-related relief:
L.J. v. Massinga, 838 F.2d 118 (4th Cir. 1988); Lynch v.
Dukakis, 719 F.2d 504 (lst Cir. 1983); and see Del A. v.
Edwards, 855 F.2d 1148 (Sth Cir. 1988). Both L.J., 838 F.2d at
123 and Lynch, 719 F.2d at 509-10 held AAA privately
enforceable under Section 1983, and to that extent they would
clearly be overturned by such a construction of Will. As for
Del A., the Court of Appeals there vacated the panel opinion
and granted rehearing en banc (862 F.2d 1107 (5th Cir. 1988)),
following which the case has been dismissed February 28, 1989.
And of course Will would then moot defendants’ reliance on
Spielman v. Hildebrand, 873 F.2d 1377, 1386 (l0th Cir. i989),
93
which had expressed “considerable doubt whether [AAA] confers
any substantive rights that can be the subject of an action for
damages under section 1983."
Finally, if Will were to foreclose plaintiffs' access to
Section 1983, their right to relief in this action would have
to stem--if at all--from one or both of (1) an implied direct
private action for defendants' claimed violations of AAA or
(2) plaintiffs' stated claim under the Due Process Clause.
Each of those alternatives bears examination here.
AAA unquestionably does not by its terms afford parties in
plaintiffs' situation an express cause of action. And
plaintiffs have really not responded to defendants' Proposed
Conclusion 8, which points to the increasingly restrictive
reading that the Supreme Court has given to implied private
actions--a much more demanding standard than Cort v. Ash, 422
U.S. 66 (1975) was initially thought to have established. Most
recently our Court of Appeals has spoken to that issue in King
v. Gibbs, 1969 U.S. App. LEXIS 8718, at 15-16 (7th Cir.):
The Supreme Court, in Cort v. Ash, set out a four-part
test to determine whether a private right of action
should be implied from a statute:
First, is the plaintiff "one of the class for
whose especial benefit the statute was
enacted,”"...? Second, is there any indication of
legislative intent, explicit or implicit, either
to create such a remedy or to deny one? Third,
is it consistent with the underlying purposes of
the legislative scheme to imply such a remedy for
the plaintifit? And finally, is the cause of
action one traditionally relegated to state law,
in an area basically the concern of the States,
so that it would be inappropriate to infer a
cause of action based solely on federal law?
54
422 U.S. at 78 (citations omitted).
In its recent pronouncements, the Court has reaffirmed
the use of the Cort test but has also made it clear
that the principal focus is on the second of the Cort
factors--whether the legislature intended to create a
private cause of action. See Cannon v. University of
Chicago, 441 U.S. 677 (1979); Touche Ross & Co. v.
Eediaaten. 422 U.S. 560, 568 (1979). The first and
third of the Cort factors are aids in determining that
intent, Touche Ross, 422 U.S. at 575-76; see also P.
Bator, D. Meltzer, P. Mishkin, D. Shapiro, The Federal
Courts and the Federal System 946 (1988), and, by
negative implication, it is unclear whether the fourth
Cort factor--whether the cause of action is generally
thought of as a matter of state concern--has any
continuing significance. But see Merrill Lynch,
Pierce, Fenner & Smith v. Curran, 465 U.S. 353, 393
(1982) (Court noted that fourth Cort factor favored
implying private right of action under a provision of
the Commodities Exchange Act.). In sum, unless a
congressional intent to create the right of action
"can be inferred from the language of the statute, the
Statutory structure, or some other source, the
essential predicate for implication of a private
remedy simply does not exist." Northwest Airlines
Inc. v. Transport Workers Union, 451 U.S. 77, 94
(1981).
At least until otherwise demonstrated, then, it must be
considered that AAA provides plaintiffs no direct ticket of
entry to this federal court.
As for plaintiffs' claim sounding in due process, DeShaney
v. Winnebago County Department of Social Services, 109 S.Ct.
998 (1989)--albeit in a different context--has most recently
reconfirmed the restricted scope of States' obligations to
their citizens under notions of substantive due process.
DeShaney emphasized the nature of the Due Process Clause as a
charter of negative liberties rather than as an affirmative
guaranty.
05
To be sure, in the course of its DeShaney discussion the
Court reconfirmed the existence of "certain limited
circumstances [in which] the Constitution imposes on the State
affirmative duties of care and protection with respect to
particular individuals” (id. at 1004-05, and see generally the
entire discussion in Part II of the opinion, id. at 1002-07).
But DeShaney specifically did not retreat from the principles
announced in the Court's two decisions during the October 1985
Term delimiting the scope of substantive due process (id. at
1003):
Like its counterpart in the Fifth Amendment, the Due
Process Clause of the Fourteenth Amendment was
intended to prevent government "from abusing [its]
power, or employing it as an instrument of
oppression,” Davidson v. Cannon, [474 U.S.] at 348,
106 S.Ct., at 670 [1986]; see also Daniels v.
Williams, [id.)] at 331, 106 S.Ct., at 665 [1986]
("*"to secure the individual from the arbitrary
exercise of the powers of government,"'" and "to
prevent governmental power from being ‘used for
purposes of oppression'") (internal citations omitted) ;
Parratt v. Taylor, 451 U.S. 527, 549, 101 S.Ct. 1908,
1919, 68 L.Ed.2d 420 (1981) (Powell, J., concurring in
result) (to prevent the “affirmative abuse of power"),
Its purpose was to protect the people from the State,
not to ensure that the State protected them from each
other.
Both Daniels, 474 U.S. at 331 (emphasis in Original)
("Historically, this guarantee of due process has been applied
to deliberate decisions of government officials to deprive a
person of life, liberty, or property") and Davidson, id. at 347
("In Daniels, we held that the Due Process Clause of the
Fourteenth Amendment is not implicated by the lack of due care
of an official causing unintended injury to life, liberty, or
property") emphasized that the harm complained of must have
96
10
been intended ry the public official, rather than negligently
inflicted. And because DeShaney dealt with petitioners to whom
the State did not owe the special level of responsibility that
runs in favor of persons in state custody, the Court was not
called on to specify whether the Daniels-Davidson standard of
intentionally inflicted harm or some lesser benchmark was
required in the “special relationships" situations discussed in
Part II of the opinion. As to persons in plaintiffs' position,
then, a double question exists: whether they stand in the
“special relationships” category and, if so, what standard is
prescribed by the requirements of substantive due process.
In summary, the posture of plaintiffs' claims appears to
be this:
1. Input is required from both sides as to whether
Section 1983 (assuming arguendo that DCFS were held to
have violated AAA) has been rendered unavailable to
plaintiffs by Will.
2. Unless plaintiffs can demonstrate otherwise, any
contentions they have advanced as to an implied private
cause of action created by AAA itself must be rejected for
lack of subject matter jurisdiction. |
3. Amy contention that plaintiffs seek to ground in
the Due Process Clause depends on the standard applicable
to such contention--whether that of intentionally
inflicted harm (a standard that plaintiffs clearly cannot
meet) or something less (a question whose answer may
27
ll
depend on what that “something less" is), 4/
Both sides are directed to file contemporaneous supplemental
submissions on those legal issues in this Court's chambers on
Or before August 4, 1989. Because it may also be relevant to
determine what has happened since the Hearing to the plan
described in defendants’ Hearing testimony, defendants are
Ordered to include a-brief Statement of the current posture of
that plan as part of their Submission. This action is set for
a status hearing at 9 a.m. August 15, 1989 to discuss
(1) whether anything further will be required in the latter
respect and also (2) the ultimate disposition of the
OD Enc.
Milton I. Shadur
United States District Judge
preliminary injunction motion,
Date: July 24, 1989
4/ Both sides should also review our Court of Appeals’ two-
week-old en banc decision in Easter House v. Felder, No.
86-2164, slip op. (7th Cir. July 9 ° aster House
cuts such a wide swath out of Section 1983's coverage, and
it is so new, that its potential implications even for a
Substantive due process claim such as that advanced by
plaintiffs here should be looked at.
58
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.