Constitutional question about CPS Service Plans and LIBERTY INTEREST
Greegor
http://www.familydefensecenter.net/dupuy-v-samuels/opinions-and-briefs.html
Opinions and Briefs
Opinions
Opinion # 4 is the main opinion in the appeal, 465 F. 3d 757 (7th Cir.
2006).
Opinion #2 is the detailed trial court opinion setting forth the
facts, 462 F. Supp.2d 859 (N.D. Ill. 2005).
Opinion #5, 295 F.3d 807 (7th Cir. 2007), issued on July 31, 2007, is
the appeal from which the petition to the Supreme Court is proceeding,
but this opinion contains only a very limited discussion of the issues
in the case.
Opinion One (PDF) March 30, 2001
http://www.familydefensecenter.net/images/stories/dupuyopinion1.pdf
Opinion Two (PDF) March 9, 2005
http://www.familydefensecenter.net/images/stories/dupuyopinion2.pdf
Opinion Three (PDF) February 3, 2005
http://www.familydefensecenter.net/images/stories/Dupuy_opinion_3.pdf
Opinion Four (PDF) Court of Appeals Opinion (PDF) October 3, 2006
http://www.familydefensecenter.net/images/stories/dupuyopinion4.pdf
Opinion Five (PDF) Court of Appeals Decision (PDF), Dupuy II, July 31,
2007
http://www.familydefensecenter.net/images/stories/CA_Decision_7-31-07.pdf
Petition and Amici Briefs: U.S. Supreme Court
Petition for Supreme Court Review (Certiorari) (PDF) Dupuy II,
February 13, 2008
http://www.familydefensecenter.net/images/stories/FDC/dupuycertpetition.pdf
Amici Curiae Brief on behalf of Chicago Coalition for the Homeless,
CLAIM, et al., by Baker & McKenzie (PDF) March 2008
http://www.familydefensecenter.net/images/stories/FDC/bakerbrief.pdf
Amici Curiae Brief on behalf of the American Coalition for Fathers and
Children, et al., by McDermott Will & Emery (PDF) March 2008
http://www.familydefensecenter.net/images/stories/FDC/mcdermott.pdf
Amici Curiae Brief on behalf of the American Psychoanalytic
Association and the Chicago Psychoanalytic Society, by O'Melveny &
Myers (PDF) March 2008
http://www.familydefensecenter.net/images/stories/FDC/americanpsychoanalytic.pdf
Amici Curiae Brief on behalf of the Cato Institute, Institute for
Justice, and the Goldwater Institute, by Sidley Austin (PDF) March
2008
http://www.familydefensecenter.net/images/stories/FDC/ijcatogoldwater.pdf
Amicus Curiae Brief on behalf of the Illinois State Bar Association,
by Jenner & Block (PDF) March 2008
http://www.familydefensecenter.net/images/stories/FDC/isba.pdf
Briefs and Important Pleadings: Seventh Circuit Court of Appeals
Brief of the Plaintiffs-Appellants (PDF) Dupuy II, April 11, 2007
http://www.familydefensecenter.net/images/stories/appellants_brief.pdf
Petition for Rehearing En Banc (PDF), Dupuy II, September 4, 2007
http://www.familydefensecenter.net/images/stories/PetitionForRehearingEnBanc.pdf
Defendant's Reply Opposing Petition (PDF), Dupuy II, September 19,
2007
http://www.familydefensecenter.net/images/stories/DefResponseEnBanc.pdf
Dupuy Class Information
Dupuy Class Notice (PDF) April 20, 2006
http://www.familydefensecenter.net/images/stories/DupuyClassNotice4.20.2006.pdf
Stipulation and Order (PDF) Dupuy I, December 15, 2006
http://www.familydefensecenter.net/images/stories/Dupuy__Stipulation.pdf
Articles and Important Documents
Chicago Daily Law Bulletin (PDF) concerning the Petition for
Certiorari, March 21, 2008
http://www.familydefensecenter.net/images/stories/FDC/cert.cdlb.3-21-08.pdf
Press Release (PDF) for the Supreme Court Petition, filed February 13,
2008
http://www.familydefensecenter.net/images/stories/dupuy_press_release_2-13-08.pdf
Youth Law News (PDF) by Diane Redleaf, Robert Lehrer, and Christopher
Wilmes, Apri-June 2004
http://www.familydefensecenter.net/images/stories/youthlawnewsarticle.pdf
Case Examples
FAMILIES THREATENED AND SEPARATED UNDER SAFETY PLANS: FIVE CASE
EXAMPLES FROM THE LITIGATION
These are the stories of five Dupuy class members. 1. Bill M., the
vice president of a technology company, and his wife Gail, a stay-at-
home mom, have two daughters. The younger, age two, fell from the
family's back porch while playing. When her pain did not abate, Gail
took her to the emergency room, where doctors found a leg fracture.
After they returned home, Gail received a call from her child's
pediatrician requesting that she take her daughter back to the
hospital. When she arrived, she discovered that the hospital suspected
that her daughter had been abused because a second fracture reportedly
had been seen on x-rays. DCFS promptly demanded that Bill, who was
considered the likely abuser, leave the family home for 24 hours. He
complied. DCFS failed to contact the family again for a week, waiting
until the day before Thanksgiving, when the investigator demanded that
both parents leave their home or have their children taken into foster
care. Bill and Gail left, while grandparents stayed in the home. The
entire extended family's Thanksgiving was ruined. On December 1, the
parents were allowed back into their home, after another doctor read
the x-rays again and discovered that the hospital's claim of a second
fracture was a mistake.
2. E.D., age 16, had babysat two years earlier for a boy who was then
four years old. The boy and his family moved away from E.D.'s
neighborhood. Suddenly, two years after the last time he had seen the
child, E.D. found himself the target of an accusation that he had
sexually molested the boy. A DCFS investigator named Howell showed up
at the D. family's home and demanded that E.D. leave immediately. If
E.D. did not leave, Howell said, he would take E.D.'s younger siblings
into foster care. E.D. complied, and after a month, Howell allowed
E.D. to return home-as long as his mother agreed to "remain awake at
night when the rest of the family is sleeping in order to supervise
E.D. at night." (See 462 F. Supp. 2d at 881). During this period,
Howell also instructed the family that E.D. was to have "no contact"
with younger children. The safety plan in this case lasted 18 months.
Ironically, DCFS lifted the safety plan restrictions when E.D.'s
family agreed not to pursue their appeal of an "indicated" finding
against E.D.
3. James, a science teacher, and Susan Redlin are the parents of a boy
named Joey, age six, who has a mild form of autism. Susan is disabled
and is confined to a wheelchair. James planned to teach Joey to ride
his bike during the summer. One day in June, James and Joey went to
the Field Museum to see dinosaurs. Following medical instructions to
use a lot of physical contact with Joey because of his son's
condition, James actively tickled him during their Metra train ride
into Chicago. A passenger reported to Metra police that the touching
was suspicious. The police called DCFS. The next day, DCFS
Investigator Homa came to the Redlin home and began to demand a safety
plan. James accused him of being rude and he left. Later the same day,
Homa called Susan and demanded a safety plan that required her to
provide 24-hour supervision of all contact between James and their
son. Terribly shaken, Susan agreed. Because Susan could not go to the
park with James and Joey, Joey never learned to ride his bike that
summer. The safety plan lasted three months; it was lifted at the end
of the summer when DCFS determined the allegations of "sexual abuse"
of Joey were "unfounded" (meaning no credible evidence to support the
allegations was uncovered during the investigation). In James's words,
the safety plan made the family feel like "prisoners in their own
home."
4. Patrick and Stacey D. were preschool teachers at the same school.
On New Year's Day, a preschooler named Amelia, a three- or four-year-
old in Patrick's class, woke in the middle of the night and told her
mother that "Patrick plays with my booty at naptime." The next day,
Amelia's mother notified the preschool director of this statement, and
the director in turn called DCFS's Hotline. (Although the director did
not believe Patrick had abused any child, she considered it her duty
as a "mandated child abuse reporter" to make the call.) DCFS
Investigator Jones immediately called the preschool director and
demanded that the director send Patrick home from work. Investigator
Jones next called Patrick's wife, Stacey, and demanded that she tell
Patrick he had to leave their family home. If not, Jones said, their
three children would be taken into foster care. Stacey came home and
gave Patrick this horrible news. Shocked and with nowhere to go,
Patrick left the home with little cash and few belongings. Homeless,
he stayed in a hallway of an apartment building for several days while
he tried to reach his sister. Eventually, Patrick D. was able to stay
at his sister's home, but limited funds for transportation made it
difficult for him to visit his family. In his case, the safety plan
directive lasted 11 months, during which he appealed an "indicated
finding" against him for sexual molestation of Amelia. Patrick won his
appeal, because the investigation never uncovered any corroborating
evidence and was deemed by DCFS's own hearing officer to be "at a
minimum sloppy and at worst the result of a pre-ordained conclusion."
Patrick's co-teacher was never interviewed, no children confirmed
Amelia's account, and Patrick's children said their father never
touched them inappropriately. No criminal charges were ever brought
against Patrick.
5. Christine and Jimmie Parikh were the parents of two grown children,
the parents of a six-year-old, and guardians of a three-year-old, whom
they had rescued from abandonment by his mother. Christine sometimes
worked as a child care provider for children in her home and Jimmie
managed a fast food franchise restaurant. One of the children for whom
Christine provided child care was an emotionally disturbed 11-year-old
girl. On July 12, the DCFS Hotline received a call accusing Jimmie of
having kissed her while she was at the Parikh's home. There was no
evidence of any inappropriate conduct by Jimmie and the girl's own
mother called her daughter a "liar." DCFS Investigator Abernathy came
to the Parikh home and demanded that Jimmie leave. She expressly
stated that if he did not do so immediately, she would take their two
minor children into DCFS custody. 462 F. Supp. 2d at 878. Jimmie
complied. For several weeks, Christine and Jimmie could only see each
other at a restaurant, where they would cry together. After July,
Abernathy allowed Jimmie to return home, but only on the condition
that Christine supervise all of his contact with their children. DCFS
lifted the safety plan on September 26, deeming the allegation of
"sexual molestation" it was investigating to be unfounded. Even after
the safety plan ended, Jimmie was unable to kiss his children without
fear that another allegation might be made against him.
http://www.familydefensecenter.net/images/stories/FDC/dupuycertpetition.pdf
--------------------------------- ♦ ---------------------------------
PETITION FOR A WRIT OF CERTIORARI
--------------------------------- ♦ ---------------------------------
QUESTION PRESENTED
When the Illinois Department of Children and
Family Services (“DCFS”) receives allegations made
to the State telephone Hotline of child abuse or
neglect, DCFS investigators implement “safety
plans” at the outset of the ensuring investigations.
The safety plans routinely require parents or
children to leave their family home and/or have no
contact or only restricted contact with each other
from the very beginning of investigations until their
conclusion.
This case is a class action brought by parents
and other family members (“parents”) affected by
safety plans. The parents challenge the State’s
policies and practices giving rise to such plans.
The question presented is:
When a State has only “mere suspicion” of
child abuse or neglect, does it deprive the parents
and their children of their rights under the Due
Process Clause of the Fourteenth Amendment when
it:
(a) secures safety plans either by direction
or by telling parents that if they refuse to agree to a
plan, the State may take custody of the children and
place them in foster care; and
(b) provides no opportunity to contest the
plans?
Greegor
Opinions and Briefs
Opinions
(Text)
Amici Curiae Brief on behalf of Chicago Coalition for the Homeless,
CLAIM, et al., by Baker & McKenzie (PDF) March 2008
http://www.familydefensecenter.net/images/stories/FDC/bakerbrief.pdf
(Scanned images of pages)
Amici Curiae Brief on behalf of the American Coalition for Fathers and
Children, et al., by McDermott Will & Emery (PDF) March 2008
http://www.familydefensecenter.net/images/stories/FDC/mcdermott.pdf
(Scanned images of pages)
Amici Curiae Brief on behalf of the American Psychoanalytic
Association and the Chicago Psychoanalytic Society, by O'Melveny &
Myers (PDF) March 2008
http://www.familydefensecenter.net/images/stories/FDC/americanpsychoanalytic.pdf
(Text)
Amici Curiae Brief on behalf of the Cato Institute, Institute for
Justice, and the Goldwater Institute, by Sidley Austin (PDF) March
2008
http://www.familydefensecenter.net/images/stories/FDC/ijcatogoldwater.pdf
(Text)
Amicus Curiae Brief on behalf of the Illinois State Bar Association,
by Jenner & Block (PDF) March 2008
http://www.familydefensecenter.net/images/stories/FDC/isba.pdf
(Text)
Briefs and Important Pleadings: Seventh Circuit Court of Appeals
Brief of the Plaintiffs-Appellants (PDF) Dupuy II, April 11, 2007
http://www.familydefensecenter.net/images/stories/appellants_brief.pdf
(Text) (PDF crashed)
Petition for Rehearing En Banc (PDF), Dupuy II, September 4, 2007
http://www.familydefensecenter.net/images/stories/PetitionForRehearingEnBanc.pdf
Defendant's Reply Opposing Petition (PDF), Dupuy II, September 19,
2007
http://www.familydefensecenter.net/images/stories/DefResponseEnBanc.pdf
Dupuy Class Information
Dupuy Class Notice (PDF) April 20, 2006
http://www.familydefensecenter.net/images/stories/DupuyClassNotice4.20.2006.pdf
Stipulation and Order (PDF) Dupuy I, December 15, 2006
http://www.familydefensecenter.net/images/stories/Dupuy__Stipulation.pdf
Articles and Important Documents
Chicago Daily Law Bulletin (PDF) concerning the Petition for
Certiorari, March 21, 2008
http://www.familydefensecenter.net/images/stories/FDC/cert.cdlb.3-21-08.pdf
Press Release (PDF) for the Supreme Court Petition, filed February 13,
2008
http://www.familydefensecenter.net/images/stories/dupuy_press_release_2-13-08.pdf
Youth Law News (PDF) by Diane Redleaf, Robert Lehrer, and Christopher
Wilmes, Apri-June 2004
http://www.familydefensecenter.net/images/stories/youthlawnewsarticle.pdf
Amicus Curiae Brief on behalf of the Illinois State Bar Association,
by Jenner & Block (PDF) March 2008
http://www.familydefensecenter.net/images/stories/FDC/isba.pdf
14862_4
No. 07-1075
IN THE
N Supreme Court of the United States
_________
BELINDA DUPUY, ET AL.,
PETITIONERS,
v.
ERWIN MCEWEN, DIRECTOR, ILLINOIS DEPARTMENT
OF CHILDREN AND FAMILY SERVICES.
RESPONDENT.
________
On Petition for a Writ of Certiorari to th the
United States Court of Appeals for the Seventh Circuit
________
BRIEF OF THE ILLINOI ILLINOIS STATE BAR ASSOCIAT S ASSOCIATION ION
AS AMIC AMICUS US CURIAE IN SUPPORT OF PETITIONER PETITIONERS
________
ROBERT R. STAUFFER
JENNER & BLOCK LLP
330 N. Wabash Avenue
Chicago, IL 60611
(312) 222 -9350
JOSHUA A. BLOCK
ELISABETH GENN
JENNER & BLOCK LLP
919 Third Avenue, Fl. 37
New York, NY 10022
(212) 891-1627
IAN HEATH GERSHENGORN*
DARREN H. LUBETZKY
DANIEL I. WEINER
JENNER & BLOCK LLP
601 Thirteenth St., N.W.
Suite 1200 South
Washington, DC 20005
(202) 639-6000
*Counsel of Record
Attorneys for Amicus Curiae
ii
14862_4
TABLE OF CONTENTS
TABLE OF AUTHORITIES...................................... iv
INTEREST OF AMICUS CURIAE............................ 1
SUMMARY OF ARGUMENT.................................... 1
I. The Seventh Circuit's Decision Conflicts with
This Court's Due Process Jurisprudence
Requiring Timely Notice and a Meaningful
Hearing Whenever the Government Seeks to
Deprive Persons of Fundamental
Constitutional Interests........................................ 5
II. The Seventh Circuit's Decision Is At Odds
With Every Other Federal Court of Appeals
Decision that Has Addressed Due Process
Protections in the Context of Significant State
Interference in Family Life................................... 9
A. The Courts of Appeals Have Uniformly
Required Prompt Notice and Post-
Deprivation Review of State Action. ............. 10
B. The Courts of Appeals Have Required More
than "Mere Suspicion" of Neglect or Abuse
to Justify State Intervention. ........................ 12
III.The Seventh Circuit's Decision Conflicts With
This Court's Precedents Holding that Waivers
of Fundamental Due Process Rights Must be
Free of Undue State Burdens and Made
Knowingly and Voluntarily................................. 14
A. The Seventh Circuit's Decision Is At Odds
With This Court's "Unconstitutional
Conditions" Jurisprudence. ........................... 15
B. The Seventh Circuit's Decision Contradicts
this Court's Precedent Requiring
iii
14862_4
Procedures to Ensure that Waiver is Made
Knowingly and Voluntarily. .......................... 18
CONCLUSION .........................................................
21
iv
14862_4
TABLE OF AUTHORITIES
CASES
Armstrong v. Manzo, 380 U.S. 545 (1965) ....5, 6, 7
Beck v. Ohio, 379 U.S. 89 (1964) .........................13
Bell v. Burson, 402 U.S. 535 (1971)...................5, 7
Berman v. Young, 291 F.3d 976 (7th Cir.
2002) ................................................................
10
Boykin v. Alabama, 395 U.S. 238 (1969).18, 19, 20
Brokaw v. Mercer County, 235 F.3d 1000
(7th Cir. 2000) .................................................12
Cleveland Board of Education v. Loudermill,
470 U.S. 532 (1985)...................................5, 6, 7
County of Riverside v. McLaughlin, 500 U.S.
44 (1991) ............................................................
8
Croft v. Westmoreland County Children &
Youth Services, 103 F.3d 1123 (3d Cir.
1997) ......................................................9, 13, 14
Doe v. Hennepin County, 858 F.2d 1325 (8th
Cir. 1988).........................................................13
Duchesne v. Sugarman, 566 F.2d 817 (2d
Cir. 1977)...............................................6, 10, 11
Eidson v. Tennessee Department of
Children's Services, 510 F.3d 631 (6th
Cir. 2007).........................................................10
FDIC v. Mallen, 486 U.S. 230 (1988) ....................7
Frost v. Railroad Commission of California,
271 U.S. 583 (1926).........................................15
v
14862_4
Fuentes v. Shevin, 407 U.S. 67 (1972) ..................7
Goldberg v. Kelly, 397 U.S. 254 (1970)..............5, 7
Gottlieb v. County of Orange, 84 F.3d 511
(2d Cir. 1996)...................................................13
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..........5, 8
Hatch v. Department for Children, Youth &
Their Families, 274 F.3d 12 (1st Cir.
2001) ......................................................9, 12, 13
Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985).....10
Jones v. Flowers, 547 U.S. 220 (2006)...............5, 7
Jordan ex rel. Jordan v. Jackson, 15 F.3d
333 (4th Cir. 1994) ................................9, 10, 11
Kovacs v. Cooper, 336 U.S. 77 (1949) ..................19
Lassiter v. Department of Social Services,
452 U.S. 18 (1981)...........................................12
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ....................6
Mathews v. Eldridge, 424 U.S. 319 (1976) ....5, 6, 7
McCarthy v. United States, 394 U.S. 459
(1969)......................................................... 19-20
North Carolina v. Pearce, 395 U.S. 711
(1969)...............................................................
16
Santosky v. Kramer, 455 U.S. 745 (1982) .....12, 19
Sniadach v. Family Finance Corp. of Bay
View, 395 U.S. 337 (1969).................................5
Texas v. Brown, 460 U.S. 730 (1983)...................13
Terry v. Ohio, 392 U.S. 1 (1968) ..........................13
vi
14862_4
Thomason v. SCAN Volunteer Services, Inc.,
85 F.3d 1365 (8th Cir. 1996)...........................13
Troxel v. Granville, 530 U.S. 57 (2000) .............5, 6
United States v. Jackson, 390 U.S. 570
(1968).....................................................4, 15, 16
Wallis v. Spencer, 202 F.3d 1126 (9th Cir.
2000) ..........................................................13, 14
Weller v. Baltimore Department of Social
Services, 901 F.2d 387 (4th Cir. 1990) .....10, 11
STATUTES
325 ILCS
5/5.........................................................17
705 ILCS 405/1-3..................................................17
705 ILCS 405/1-5..................................................17
705 ILCS 405/2-9..................................................17
Fed. R. Crim. P. 11(a)...........................................18
MISCELLANEOUS
Allegheny County Dep't of Human Services,
Safety Plans and Interventions, CYF
Memo No. 008 (August 2006), available
at http://www.dhs.county.allegheny.
pa.us/uploadedFiles/DHS/About_DHS/Pu
blications/Resource_Guides/008Safety
Plns.pdf..............................................................
3
vii
14862_4
Wisconsin Bureau of Program & Policies,
Child Protective Services: Safety
Intervention Standards, Wisc. DCFS
Memo No. 2006-09 (May 2, 2006),
available at http://dhfs.wisconsin.
gov/dcfs_info/ .....................................................2
Iowa Dep't of Human Servs., New Child
Welfare Service Array: Enhancing
Systems Collaboration, available at
http://www.dhs.state.ia.us/dhs/dhs_home
page/index.html.................................................2
Kentucky Standards of Practice:
Completion of Continuous Quality
Assessment, available at https://apps.
chfs.ky.gov/pandp_process/cqa_sop.htm..........2
Maine Dep't of Health & Human Services, A
Guide to Child Protective Services,
available at http://www.maine.gov/dhhs/
bcfs/handbook.pdf .............................................3
Missouri Child Welfare Manual, available at
http://www.dss.mo.gov/cd/info/cwmanual/
section2/ch9/sec2ch9sub2.htm..........................2
14862_4
INTEREST OF AMIC AMICUS US CUR CURIAE AE AE1
The Illinois State Bar Association (the "ISBA") is
an organization dedicated to improving the
administration of justice. Formed in 1877 by a group
of forward-thinking lawyers and judges, the ISBA
remains firmly committed to a variety of equal
justice initiatives. The ISBA is dedicated to ensuring
that State intervention in the protected sphere of
family life comports with the rule of law.
Accordingly, the ISBA has a strong interest in this
Court's review, and ultimate reversal, of the Seventh
Circuit's decision in this case.
SUMMARY OF ARGUMENT
The Seventh Circuit's decision threatens to
deprive families in Illinois and elsewhere of
fundamental Due Process rights that attach when
the State seeks to separate children from their
parents. The interest of parents in the custody, care,
and upbringing of their children is among the oldest
and most venerable fundamental rights recognized
by this Court. No less vital is the right of children to
remain, whenever possible, under the physical and
1 Pursuant to Rule 37.2 of the Rules of this Court, counsel of
record for both parties have consented to the filing of this brief,
and letters of consent have been filed with the Clerk. Counsel
for all parties received notice at least 10 days prior to the due
date of the amicus curiae's intention to file this brief as
required by Supreme Court Rule 37.2(a). No counsel for a party
authored this brief in whole or in part, and no counsel or party
made a monetary contribution intended to fund the preparation
or submission of this brief. No person other than amicus
curiae, its members, or its counsel made a monetary
contribution to its preparation or submission.
2
14862_4
emotional care of their parents. As with the formal
removal of a child from the home, the imposition of a
"safety plan" in Illinois impinges on both of these
rights, often permitting State officials to separate
children from their parents for weeks or even months
at a time. Yet the Seventh Circuit in this case
upheld the policy of the Illinois Department of
Children and Family Services ("DCFS"), which
routinely imposes safety plans on families based only
on the "mere suspicion" of child abuse. Under
DCFS's procedures, parents are not entitled to know
the details of the allegations against them, and the
State provides no mechanism for any type of hearing
before a neutral decision maker either before or
shortly after a safety plan is imposed.
Review by this Court is urgently needed. The
safety plans at issue in this case impact an estimated
10,000 families in Illinois each year. See Pet. App.
41a. Moreover, the consequences of the Seventh
Circuit's decision will extend far beyond Illinois. For
example, of the five states that border Illinois, at
least four appear to have implemented safety plan
procedures similar to those used by the Illinois
DCFS, without any evident Due Process protections.2
2 See Wisconsin Bureau of Programs & Policies, Child
Protective Services: Safety Intervention Standards, Wisc.
DCFS Memo No. 2006-09, at 7, 28 (issued May 2, 2006)
available at http://dhfs.wisconsin.gov/dcfs_info/ (describing
circumstances in which safety plans can be used); Iowa Dep't of
Human Servs., New Child Welfare Service Array: Enhancing
Systems Collaboration, available at
http://www.dhs.state.ia.us/dhs/dhs_homepage/index.html
(same); Mo. Child Welfare Manual § 2, ch. 9.2, available at
http://www.dss.mo.gov/cd/info/cwmanual/section2/ch9/sec2ch9s
3
14862_4
In contrast to Illinois's safety plan procedures,
certain other states and localities require state
actors to provide evidentiary support for safety plans
imposed on families and submit such plans to
judicial review.3 Such safeguards are a
constitutional necessity; they should not be a matter
of state discretion. Without guidance from the
Court, the Seventh Circuit's decision threatens to
leave families more vulnerable to potentially
indefinite state intrusions without the opportunity
for any meaningful hearing or judicial oversight.
This Court's review is particularly appropriate
because the Seventh Circuit's decision conflicts with
this Court's settled Due Process jurisprudence and is
at odds with every other Circuit decision that has
addressed Due Process protections in this context.
This Court has made clear that when fundamental,
constitutionally protected liberty interests are at
stake, Due Process requires, at a minimum, notice of
the bases for state action and the opportunity for a
hearing at a meaningful time and in a meaningful
ub2.htm (same); Ky. Standards of Practice: Completion of
Continuous Quality Assessment, available at
https://apps.chfs.ky.gov/pandp_process/cqa_sop.htm (same).
3 See, e.g. Me. Dep't of Health & Human Services, A Guide to
Child Protective Services, available at
http://www.maine.gov/dhhs/bcfs/handbook.pdf (safety plans
implemented only for cases of substantiated child abuse);
Allegheny Cty. Dep't of Human Services, Safety Plans and
Interventions, CYF Memo No. 008 (August 2006), available at
http://www.dhs.county.allegheny.pa.us/uploadedFiles/
DHS/About_DHS/Publications/Resource_Guides/008Safety
Plns.pdf (providing for judicial review of safety plans).
4
14862_4
manner. Until now, the Courts of Appeals have
uniformly recognized that even temporary
deprivations of child custody require a prompt
hearing and a stricter standard of proof than "mere
suspicion." The Seventh Circuit stands alone in
discarding these well-established Due Process
protections and allowing state officials to evade even
these basic fundamental constitutional safeguards.
Moreover, the Seventh Circuit's only justification
for doing away with these constitutional
safeguards--that the plaintiff parents had consented
to the safety plans and therefore waived any rights
to process--conflicts directly with decisions of this
Court holding that individuals' waiver of their
fundamental Due Process rights cannot be truly
voluntary unless the waiver is free of state coercion
and knowingly made. Specifically, the lower court's
rationale cannot be reconciled with the Court's
"unconstitutional conditions" doctrine, which
prevents the government from offering an ostensible
"benefit" in order to exert overwhelming pressure on
individuals to waive their rights. See United States
v. Jackson, 390 U.S. 570 (1968). In addition to being
unconstitutionally coercive, Illinois's safety plan
system never ensures that parents' waivers are made
knowingly. A defendant who pleads guilty to a crime
is at least afforded a hearing before a neutral
magistrate who determines whether the plea is
entered into knowingly and voluntarily.
Notwithstanding the onerous burden safety plans
place on families, Illinois affords no such procedural
protections to parents who "consent" to them.
5
14862_4
The Seventh Circuit has thus sanctioned
"voluntary" safety plans as a mechanism for the
states to avoid affording families universally
recognized constitutional protections. This Court
should grant certiorari to review the Seventh
Circuit's decision and bring it in line with other
Courts of Appeals' and this Court's precedents.
ARGUMENT
I. The Seventh Circuit's Decision Conflicts with
This Court's Due Process Jurisprudence
Requiring Timely Notice and a Meaningful
Hearing Whenever the Government Seeks to
Deprive Persons of Fundamental Constitutional
Interests.
In a long line of cases covering a wide variety of
circumstances, this Court has consistently required
the government to provide certain basic procedural
protections whenever it deprives persons of
constitutionally protected liberty and property
interests. See e.g., Jones v. Flowers, 547 U.S. 220
(2006) (tax sale of property); Hamdi v. Rumsfeld, 542
U.S. 507 (2004) (detention of enemy combatants);
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532
(1985) (suspension from public school); Mathews v.
Eldridge, 424 U.S. 319 (1976) (suspension of
disability benefits); Bell v. Burson, 402 U.S. 535
(1971) (revocation of driver's license and
registration); Goldberg v. Kelly, 397 U.S. 254 (1970)
(termination of welfare benefits); Sniadach v. Family
Finance Corp. of Bay View, 395 U.S. 337, 341-42
(1969) (garnishment of wages); Armstrong v. Manzo,
380 U.S. 545 (1965) (termination of parental rights).
6
14862_4
The Seventh Circuit's decision discards this wellsettled
jurisprudence.
Indeed, familial association and autonomy "is
perhaps the oldest of the fundamental liberty
interests recognized by this Court." Troxel v.
Granville, 530 U.S. 57, 65 (2000); see M.L.B. v.
S.L.J., 519 U.S 102, 116 (1996) (familial autonomy is
of "basic importance in our society" (quotations
omitted)). The State triggers Due Process
requirements when it impairs the right of parents to
control the upbringing of their children and the
reciprocal right of children not to be "dislocated from
the 'emotional attachments . . . derived from the
intimacy of daily association' with their parents."
Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir.
1977) (quoting Smith v. Org. of Foster Families for
Equality and Reform, 431 U.S. 816, 844 (1977)).
Even interference falling short of formal, permanent
separation is permissible only to protect the State's
compelling interest in ensuring child safety when a
parent is unfit. Troxel, 530 U.S. at 68-69.
Illinois's imposition of safety plans in this case
unquestionably impairs constitutionally protected
interests. When confronted with such significant
impairments, this Court has consistently held that
Due Process requires, at a minimum, notice of the
bases for state action and the opportunity for a
hearing "at a meaningful time and in a meaningful
manner." Loudermill, 470 U.S. at 538; Armstrong,
380 U.S. at 552. Beyond these basic requirements,
the specific amount of process due must be assessed
by weighing the nature of the protected interest, the
risk of an erroneous deprivation through the
7
14862_4
procedures used, the probable value of any additional
procedures, and the interests of the government,
both in effectuating the deprivation and in
maintaining the procedural status quo. See
Mathews, 424 U.S. at 335.
As a practical matter, the government must
virtually always provide notice and an opportunity
for a meaningful hearing either before or shortly
after any significant deprivation of a constitutionally
protected interest. The baseline rule is that
significant deprivations of liberty or property require
notice and a meaningful hearing prior to the
deprivation. See, e.g., Jones, 547 U.S. at 223; Bell,
402 U.S. at 542; Goldberg, 397 U.S. at 263-64;
Sniadach, 395 U.S. at 341-42; Armstrong, 380 U.S. at
552.
Under certain circumstances, usually involving
temporary deprivations, the government may
substitute a post-deprivation hearing, but only when
"accompanied by a substantial assurance that [the
deprivation] is not baseless or unwarranted." FDIC
v. Mallen, 486 U.S. 230, 240 (1988) (temporary
suspension of federally regulated employment);
Mathews, 424 U.S. at 340 (temporary suspension of
disability benefits). Even in these situations,
however, the government must provide advance
notice of the reasons for the deprivation, and the
factual bases underlying such reasons. See
Loudermill, 470 U.S. at 542-46.
Finally, certain "extraordinary" circumstances
may justify the postponement of both notice and a
8
14862_4
hearing. Fuentes v. Shevin, 407 U.S. 67, 91 (1972).4
Even in such "extraordinary" circumstances,
however, notice and a hearing before a neutral
decisionmaker must still be provided "promptly"
following deprivation. See County of Riverside v.
McLaughlin, 500 U.S. 44, 56 (1991).
The Seventh Circuit did not hold, and there is no
indication in the record, that all or even most safety
plans are imposed in extraordinary circumstances
that would justify postponing both notice and the
right to a hearing. Moreover, even where bona fide
concerns for child safety and well-being in
"emergency" situations do justify a degree of
procedural flexibility, see infra, Part II, under no
circumstances may the State disregard the basic
requirements of Due Process altogether. Yet such is
the effect of the safety plan framework sanctioned by
the Seventh Circuit in this case. Indeed, the Illinois
DCFS often separates parents from their children for
4 For example, summary seizure of property may sometimes be
permissible "to collect internal revenue of the United States, to
meet the needs of a national war effort, to protect against the
economic disaster of a bank failure, and to protect the public
from misbranded drugs and contaminated food." Fuentes, 407
U.S. at 92 (footnotes omitted). But see Jones, 547 U.S. at 223
(Due Process requires notice and hearing prior to tax sale of
property). Warrantless arrests and detention of suspected
perpetrators in municipal jails, which implicate Fourth
Amendment protections analogous to Due Process, may
sometimes be justified to protect public safety. See County of
Riverside v. McLaughlin, 500 U.S. 44, 53 (1991). In what is
arguably the most extreme case, suspected "enemy combatants"
may be detained to ensure that such individuals do not return
to battle against the United States in a time of war. Hamdi,
542 U.S. at 533.
9
14862_4
weeks or even months at a time, and otherwise
interferes in family life, without ever informing
parents of the allegations against them or presenting
those allegations to a neutral decisionmaker. See
Pet. App. 45a, 50a, 85a, 93a. Such a complete
absence of Due Process is plainly unconstitutional.
II. The Seventh Circuit's Decision Is A At Odds With
t Every Other Federal Court of Appeals Decision
that Has Addressed Due Process Protections in
the Context of Significant State Interference in
Family Life Life.
Every federal Court of Appeals to confront the
issue has afforded basic procedural Due Process
rights when state and local governments
significantly interfere with family life. All parties to
this case agree that such interference in family life
may sometimes be necessary to protect children. No
other Court of Appeals, however, has ever entirely
disregarded the procedural Due Process rights of
families in such contexts.5
5 The other Courts of Appeals have addressed the Due Process
rights of families in circumstances ranging from truancy and
suspected neglect, see e.g., Jordan ex rel Jordan v. Jackson, 15
F.3d 333, 336-37 (4th Cir. 1994) (child was home alone), to
suspected "emergency" situations where prompt official action
may be needed to prevent immediate physical injury to a child,
see, e.g., Hatch v. Dep't for Children, Youth & Their Families,
274 F.3d 12, 17 (1st Cir. 2001) (child had bruises suggesting
possible physical abuse). While most of these cases involve the
temporary removal of children from their parents' homes, at
least one other Court of Appeals has addressed state efforts to
remove parents from their children. See Croft v. Westmoreland
County Children & Youth Servs., 103 F.3d 1123 (3d Cir. 1997).
The Croft court could "discern no rational distinction" between
10
14862_4
A. The Courts of Appeals Have Uniformly
Required Prompt Notice and Post Post-Deprivation
Review of State Action Action.
Even where immediate interference with family
life is justified due to a potential "emergency," Courts
of Appeals have uniformly held that Due Process
requirements "are not eliminated, but merely
postponed." Weller v. Baltimore Dep't of Social
Servs., 901 F.2d 387, 393 (4th Cir. 1990) (quotations
omitted); see also Hooks v. Hooks, 771 F.2d 935, 942
(6th Cir. 1985); Duchesne, 566 F.2d at 826. Under
no circumstances does the possibility that a child is
in imminent danger relieve the State of its obligation
to promptly provide parents with notice of the
allegations against them and a meaningful
opportunity to be heard. Id. at 828. It is the State's
burden to initiate prompt judicial review: The State
"cannot be allowed to take action depriving
individuals of a most basic and essential liberty
interest which those uneducated and uniformed in
legal intricacies may allow to go unchallenged for a
long period of time." Id.
Thus, the Courts of Appeals have almost always
required that a post-deprivation hearing be held
within hours or days, see Jordan ex rel Jordan v.
Jackson, 15 F.3d 333,,351 (4th Cir. 1994) (delay of 65
hours "is near, if not at, the outer limit of permissible
delay"); Berman v. Young, 291 F.3d 976, 985 (7th
Cir. 2002) (describing a 72-hour delay as "rather
removal of a child and the forced departure of parent, given
that both situations involve the forced separation of otherwise
intact families. Id. at 1126 & n.4.
11
14862_4
outrageous"), and not weeks or months.6 In
requiring such speedy review of governmental
interference in family life, the Courts of Appeals
have been cognizant of the fact that the right to
familial integrity carries--in Justice Frankfurter's
words--"a momentum for respect lacking when
appeal is made to liberties which derive merely from
shifting economic arrangements." Duchesne, 566
F.2d at 828 & n.26 (quoting Kovacs v. Cooper, 336
U.S. 77, 95 (1949) (Frankfurter, J., concurring)).
The lower courts have also noted that prompt
notice and a hearing are essential to minimize the
risk of an erroneous intervention. As Judge Luttig
observed in Jordan: "The fact of certain and prompt
review by superiors and, indeed, a court, not to
mention the scrutiny that parental notification
assures, is bound to discipline the exercise of the [the
State's] emergency removal power . . . further
reducing the risk that the initial removal will be
effected without cause." Jordan, 15 F.3d at 347.
The disciplining effect of a meaningful review is
therefore indispensable to the even-handed
administration of justice.
Minimizing the risk of erroneous interventions in
the parent-child relationship ultimately serves the
interests not only of families but also of the State
itself as parens patriae. There is near universal
agreement that children benefit when the integrity of
6 See, e.g., Eidson v. Tenn. Dep't of Children's Servs., 510 F.3d
631, 634-35 (6th Cir. 2007) (claim of 7-month delay sufficient to
state colorable Due Process claim); Weller, 901 F.2d at 396 (4-
month delay violates Due Process); Duchesne, 566 F.2d at 826
(36-month delay violates Due Process).
12
14862_4
their families is preserved. Accordingly, "[s]ince the
state has an urgent interest in the welfare of the
child, it shares the parent's interest in an accurate
and just decision" that does not wrongly deprive the
parent of custody and control. Lassiter v. Dep't of
Social Servs., 452 U.S. 18, 27 (1981). The mutual
goal of promoting every child's welfare is best served
by "procedures that promote an accurate
determination of whether the natural parents can
and will provide a normal home." Santosky v.
Kramer, 455 U.S. 745, 767 (1982). Without such
procedures, there is a greater risk of careless,
irresponsible disruptions to family life, which will
have a deleterious effect not only on the private
interests of individuals but also the public goals of
the State itself.
B. The Courts of Appeals Have Required More
than "Mere Suspicion" of Neglect or Abuse to
Justify State Intervention Intervention.
In addition to mandating a prompt hearing, the
Courts of Appeals have held that Due Process
requires that government officials have a firm basis
for believing that abuse is occurring before
interfering significantly in the parent-child
relationship.
Most Courts of Appeals confronting the issue
have held that such a basis must at least rise to the
level of a "reasonable and articulable" or "objectively
reasonable" suspicion that child abuse has taken or
will imminently take place in order for the officials in
question to avoid liability. See, e.g., Hatch v. Dep't
for Children, Youth & Their Families, 274 F.3d 12,
13
14862_4
20-21 (1st Cir. 2001); Brokaw v. Mercer County, 235
F,.3d 1000, 1019 (7th Cir. 2000); Croft v.
Westmoreland County Children & Youth Servs., 103
F.3d 1123, 1126 (3d Cir. 1997); Gottlieb v. County of
Orange, 84 F.3d 511, 517 (2d Cir. 1996); Thomason v.
SCAN Volunteer Servs., Inc., 85 F.3d 1365, 1371 (8th
Cir. 1996). At least one Court of Appeals has
imposed a seemingly more stringent standard,
requiring state officials to have "reasonable cause to
believe that the child is in imminent danger of
serious bodily injury." Wallis v. Spencer, 202 F.3d
1126, 1138 (9th Cir. 2000).7
Regardless of the specific standard employed,
some threshold test is necessary to demarcate the
point at which the family's interests in remaining
together as a family are outweighed by the State's
interests as parens patriae. See Hatch, 274 F.3d at
21; Thomason, 85 F.3d at 1373. Like the
requirements of prompt notice and a hearing, such a
threshold test forces state officials to conduct at least
a "minimally adequate" investigation before
interfering with a parent's control of his or her
children. Doe v. Hennepin County, 858 F.2d 1325,
7 This inquiry is somewhat analogous to a Fourth Amendment
probable cause or reasonable suspicion determination by a
police officer conducting a warrantless search or arrest. Cf.
Texas v. Brown, 460 U.S. 730, 742 (1983) (probable cause for
search); Terry v. Ohio, 392 U.S. 1, 22-23 (1968) (reasonable
suspicion for stop-and-frisk); Beck v. Ohio, 379 U.S. 89, 91-92
(1964) (probable cause for arrest). As with an individual's
bodily and personal integrity, state officials cannot interfere
with the integrity of a parent-child relationship without some
reasonable basis to believe that a governmental invasion is
warranted.
14
14862_4
1329-30 (8th Cir. 1988) (Henley, J., concurring).
Such investigations in turn help to prevent
inappropriate or irresponsible interventions. In
Wallis, for example, children were removed from
their home based solely on allegations of Satan
worship by a mentally disturbed relative who had a
history of making false reports. See Wallis, 202 F.3d
at 1138-39. In Croft, state intervention was
triggered by an uncorroborated anonymous tip that
itself constituted only hearsay. See Croft, 103 F.3d
at 1126-27. In both cases, the courts held that family
life could not be disrupted in accordance with Due
Process based on such tenuous allegations. See
Wallis, 202 F.3d at 1139; Croft, 103 F.3d at 1127.
Whether deprivation of the right to familial
integrity takes the form of forced removal or a
"voluntary" safety plan, Due Process requires the
State to act reasonably and on reliable information
when taking action that significantly interferes with
the relationship between a child and his or her
parents. The Seventh Circuit's decision sanctions a
constitutionally impermissible end-run around these
well-established Due Process requirements by
requiring no evidentiary showing by the State to
justify implemention of a safety plan.
III. The Seventh Circuit's Decision he Conflicts With
This Court's Precedent Precedents Holding that Waiver Waivers
of Fundamental Due Process Rights Must be
Free of Undue State Burdens and Made
Knowi Knowingly ngly and Voluntarily Voluntarily.
Illinois attempts to shield its practices from
judicial oversight by cloaking safety plans in the
15
14862_4
legal fiction of the parents' "consent," an argument
the Seventh Circuit adopted as the core rationale for
its decision. See Pet. App. 13a-17a. The Seventh
Circuit's reasoning is fundamentally incompatible
with both the "unconstitutional conditions" doctrine
and established precedents regarding the
requirements for truly voluntary waiver of
procedural Due Process rights.
A. The Seventh Circ Circuit's Decision Is At Odds
uit's With This Court's "Unconstitutional
Conditions" Jurisprudence Jurisprudence.
Contrary to the Seventh Circuit's view, this Court
has long recognized that individuals may, in fact, be
"disadvantaged by having more rather than fewer
options," Pet. App. 16a, when the government uses
its overwhelming leverage to induce them into
sacrificing constitutional rights in exchange for a
particular "benefit." See Jackson, 390 U.S. at 581;
Frost v. RR Comm'n of Cal., 271 U.S. 583, 593
(1926). The "choice" offered in such cases is not akin
to deciding between a martini and a manhattan, as
the Seventh Circuit characterized the parents'
dilemma in this case, Pet. App. 16a, but rather to
choosing "between the rock and the whirlpool."
Frost, 271 U.S. at 593.
This Court explained the pernicious nature of
such a choice in Jackson. The Jackson Court
invalidated a provision of the Federal Kidnapping
Act that authorized the death penalty after a jury
trial, but contained no procedure for imposing the
death penalty upon a defendant who waived his or
her right to a jury trial or pleaded guilty. This Court
16
14862_4
held that the death penalty provision was
unconstitutional because it had the "inevitable
effect" of "discourag[ing] assertion of the Fifth
Amendment right not to plead guilty and to deter
exercise of the Sixth Amendment right to demand a
jury trial." Jackson, 390 U.S. at 581 (footnote
omitted). This Court explained that "the evil in the
federal statute is not that it necessarily coerces
guilty pleas and jury waivers but simply that it
needlessly encourages them. A procedure need not
be inherently coercive in order that it be held to
impose an impermissible burden upon the assertion
of a constitutional right." Id. at 583; see also North
Carolina v. Pearce, 395 U.S. 711 (1969) (holding that
the State may not burden appellate rights by
imposing harsher sentence on remand).
The risk of indefinitely losing a child similarly
chills the parents' right to retain custody of their
children and to maintain their innocence of the
charges against them. Here, as in Jackson, the State
offers an ostensible "benefit," namely
implementation of a safety plan in lieu of protective
custody, but only if parents agree not to assert their
own and their children's substantive and procedural
Due Process rights. There can be no stronger
evidence of a chilling or deterrent effect on basic
constitutional rights than the fact that every single
parent faced with the offer of safety plan "chose" to
waive his or her Due Process rights. See Pet. App.
44a, 94a. The State's ability to exert this kind of
overwhelming pressure on parents is all the more
problematic in light of the exceptionally low "mere
suspicion" threshold for state action.
17
14862_4
In order for the safety plan scheme to pass
constitutional muster, Due Process protections may
not attach exclusively to the "option" any reasonable
parent would find unthinkable. By ensuring that
parents will never reject a safety plan, the State
improperly circumvents the procedural Due Process
requirements that currently attach only to protective
custody.8 Such a system provides an incentive for
arbitrary government action--a disservice to
children, families, and the State itself. Only
comparable Due Process protections for the
imposition of safety plans and protective custody
would uphold the true voluntariness of a parent's
consent to a safety plan, limit the chance of
erroneous intervention, and ensure that DCFS
investigators do not come to view safety plans as an
acceptable alternative to well-established Due
Process requirements.
8 The procedural requirements for taking a child into protective
custody are enshrined in the Abused and Neglected Child
Reporting Act, 325 ILCS 5/5, and the Juvenile Court Act, 705
ILCS 405/2-7(1), 405/2-8, 405/2-9. These statutes together
provide that if the State of Illinois "(1) . . . has reason to believe
that the child cannot be cared for at home or in the custody of
the person responsible for the child's welfare without
endangering the child's health or safety; and (2) there is not
time to apply for a court order . . . for temporary custody of the
child," the State can immediately take the child into "temporary
protective custody," 325 ILCS 5/5, but there is a right to a
judicial hearing within 48 hours, 705 ILCS 405/2-9(1), and (3).
18
14862_4
B. The Seventh Circuit's Decision Co he Contradicts ntradicts
this Court Court's Precedent 's Requiring Procedures
to Ensure that Waiver is Made Knowingly and Voluntarily.
DCFS's extraction of parents' consent suffers
from another serious constitutional flaw. Under the
framework endorsed by the Seventh Circuit, the
DCFS never informs parents of the rights they are
waiving by agreeing to a safety plan. See Pet. App.
45a, 50a. In order for their waiver of rights to be
knowing and voluntary, parents must be informed of
the law in relation to the facts alleged against them.
See Boykin v. Alabama, 395 U.S. 238, 243 (1969)
(citing McCarthy v. United States, 394 U.S. 459, 467
(1969)).
The Seventh Circuit's comparisons to plea
bargaining only illuminate the constitutional flaws
in DCFS's procedures. In the Seventh Circuit's view,
a parent who agrees to a safety plan in the hope of
avoiding a custody hearing is in the same position as
a criminal defendant who pleads guilty "to obtain a
more lenient outcome than he could expect if he went
to trial." Pet. App. 17a. According to the Seventh
Circuit, "[b]ecause the safety plan is voluntary, no
hearing of any kind is necessary; hearings are
required for deprivations ordered over objection, not
for steps authorized by consent." Id. at 15a.
In making this analogy, the Seventh Circuit
overlooked the robust set of procedural rights that
criminal defendants are afforded even when they
plead guilty. A defendant who pleads guilty is
entitled to a hearing to ensure that the waiver of his
19
14862_4
or her constitutional rights is knowing and
voluntary, and not the result of improper
government threats or promises. Federal Rule of
Criminal Procedure 11 provides that before the court
accepts a guilty plea, "the court must address the
defendant personally in open court" and "inform the
defendant of, and determine that the defendant
understands" the Fifth and Sixth Amendment rights
he or she will be waiving by pleading guilty. Fed. R.
Crim. P. 11(b). The court must also "address the
defendant personally in open court [and] determine
that the plea is voluntary" and did not result from
force or unlawful threats, and must determine that
the plea is supported by an actual basis in fact. Fed.
R. Crim. P. 11(b), (c). These procedures--which are
designed to ensure that a plea is knowing and
voluntary--codify constitutional requirements that
apply with equal force to the states. See Boykin, 395
U.S. at 243; id. at 245 (Harlan, J., dissenting).9
In stating that no hearing is necessary because
the safety plans are voluntary, the Seventh Circuit
thus got the analysis backwards. A hearing is
necessary in order to determine whether the safety
plan is truly knowing and voluntary in the first
9 The Seventh Circuit also compared acceptance of the safety
plan to a civil litigant's acceptance of a settlement. But this
Court has made clear that child custody and control cases
require far weightier protections than typical civil litigation
over money damages. See Santosky v. Kramer, 455 U.S. 745,
755 (1982). Indeed these proceedings may "bear[] many of the
indicia of a criminal trial." Id. at 762 ; cf. Kovacs v. Cooper, 336
U.S. 77, 95 (1949) (Frankfurter, J., concurring) (stating that
right to familial integrity carries "momentum for respect" far
greater than any that for any shifting economic entitlement).
20
14862_4
place. "Requiring this examination of the relation
between the law and the acts the defendant admits
to having committed is designed to protect a
defendant who is in the position of pleading
voluntarily with an understanding of the nature of
the charge but without realizing that his conduct
does not actually fall within the charge." McCarthy
v. United States, 394 U.S. 459, 467 (1969) (quotation
marks, citation, and footnote omitted). Like a
criminal defendant deciding whether or not to plead
guilty, in order to assess the pros and cons of
accepting a safety plan, a parent would need to know
his or her rights and the limits of the DCFS's
removal power. Parents are unable to "stand on
their rights" when they do not know what those
rights are.
The record shows that parents subjected to safety
plans were not in fact apprised of their rights. Pet.
App. 41a, 45a-46a. DCFS investigators do not
inform the parents who are the target of the
investigation of DCFS's basis for the safety plan
demand, including the safety factors DCFS found to
be present and the reasons why it concluded the
child is "unsafe." Id. at 45a. Nor do they explain to
parents the legal procedures DCFS would need to
follow or the quantity of evidence that would be
required for the agency lawfully to remove a child
from the home. Id. at 45a, 95a. Without being
informed that the law does not allow the State to
take a child into custody on the basis of mere
suspicion, a parent's agreement to a safety plan is
not knowing and voluntary. "Ignorance,
incomprehension, coercion, terror, inducements,
21
14862_4
subtle or blatant threats might be a perfect cover-up
of unconstitutionality." Boykin, 395 U.S. at 242-43.
In sum, the Seventh Circuit has sanctioned a
deprivation of the substantive Due Process rights of
parents and children alike without any procedural
safeguards and based solely on the unsustainable
legal fiction of parental consent. The decision is
incompatible with this Court's jurisprudence and at
odds with every Court of Appeals that has opined on
the procedural Due Process rights of families in the
face of state intervention. It should be reversed.
CONCLUSION
The Petition for a Writ of Certiorari should be
granted.
Respectfully submitted,
ROBERT R. STAUFFER
JENNER & BLOCK LLP
330 N. Wabash Avenue
Chicago, IL 60611
(312) 222 -9350
JOSHUA A. BLOCK
ELISABETH GENN
JENNER & BLOCK LLP
919 Third Avenue, Fl. 37
New York, NY 10022
(212) 891-1627
IAN HEATH GERSHENGORN*
DARREN H. LUBETZKY
DANIEL I. WEINER
JENNER & BLOCK LLP
601 Thirteenth St., N.W.
Suite 1200 South
Washington, DC 20005
(202) 639-6000
*Counsel of Record
March 7, 2008
Ron
fruitful there gregg?
Ron
"Greegor" <Gree...@gmail.com> wrote in message
news:c94b630f-2b9b-4f20...@2g2000hsn.googlegroups.com...
http://www.familydefensecenter.net/
http://www.familydefensecenter.net/dupuy-v-samuels/opinions-and-briefs.html
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Dan Sullivan
> Just how many people have tried these ideas and found them to be less than
> fruitful there gregg?
greg is a wildman when it comes to using the law to the maximum
extent.
Even if it's not in the proper forum or it keeps children away from
their mother for more than seven years.
Greegor
RVD > ideas and found them to be less than
RVD > fruitful there gregg?
Did you miss that this is an Amicus Curiae?
Do you know what that means, Ron and Dan?
Did you miss the list of the parties in support,
like the Illinois BAR ASSOCIATION?
Dan Sullivan
> RVD > Just how many people have tried these
> RVD > ideas and found them to be less than
> RVD > fruitful there gregg?
>
> Did you miss that this is an Amicus Curiae?
That's not an answer to Ron's question.
> Do you know what that means, Ron and Dan?
That's not an answer to Ron's question.
And I do know what it means.
> Did you miss the list of the parties in support,
> like the Illinois BAR ASSOCIATION?
Like so what?
And that's not an answer to Ron's question, either.
Greegor
RVD > Just how many people have tried these
RVD > ideas and found them to be less than
RVD > fruitful there gregg?
G > Did you miss that this is an Amicus Curiae?
DS > That's not an answer to Ron's question.
G > Do you know what that means, Ron and Dan?
DS > That's not an answer to Ron's question.
DS > And I do know what it means.
I see you're anxious to explain it.
G > Did you miss the list of the parties in support,
G > like the Illinois BAR ASSOCIATION?
DS > Like so what?
DS > And that's not an answer to Ron's question, either.
It was a non sequitor question.
Even if ten million families were rebuffed in court
with these arguments, what is your point?
That great wrongs DO take place in our system
due to the steam roller effect and momentum?
Or is your argument that since it was done that
way, it must be constitutional?
Dan Sullivan
> http://groups.google.com/group/alt.support.child-protective-services/...
>
> RVD > Just how many people have tried these
> RVD > ideas and found them to be less than
> RVD > fruitful there gregg?
>
> G > Did you miss that this is an Amicus Curiae?
>
> DS > That's not an answer to Ron's question.
>
> G > Do you know what that means, Ron and Dan?
>
> DS > That's not an answer to Ron's question.
>
> DS > And I do know what it means.
>
> I see you're anxious to explain it.
You asked if I knew what it meant.
I do.
And I said so.
If you want to post an explanation, go ahead.
> G > Did you miss the list of the parties in support,
> G > like the Illinois BAR ASSOCIATION?
>
> DS > Like so what?
>
> DS > And that's not an answer to Ron's question, either.
>
> It was a non sequitor question.
Oh, really?
In what way?
Or did you mean rhetorical?
> Even if ten million families were rebuffed in court
> with these arguments, what is your point?
This is YOUR thread, dipstick.
What's YOUR point?
> That great wrongs DO take place in our system
> due to the steam roller effect and momentum?
Is that your point?
> Or is your argument that since it was done that
> way, it must be constitutional?
You asked me if I knew what amicus curiea was and I said I did.
Are you ODing on stupid pills today, greg?
Greegor
This is your whiney way of COMPLAINING
without actually saying anything of substance, right Dan?
Dan Sullivan
You asked me a single question and I answered it in the affirmative,
greg.
You, OTOH, failed to answer Ron's question.
It's YOU who don't want to say anything of substance, dipstick.
Dan Sullivan
Greegor
G > This is your whiney way of COMPLAINING
G > without actually saying anything of substance, right Dan?
DS > subject: piggy said you were trying to catch
me in something, greg. Give up, did you?
What would I catch you at, Dan? <g>
Dan Sullivan
I don't have any idea what's in your feeble mind, greg.
Greegor
G > without actually saying anything of substance, right Dan?
DS > subject: piggy said you were trying to catch
DS > me in something, greg. Give up, did you?
G > What would I catch you at, Dan? <g>
G > I don't have any idea what's in your feeble mind, greg.
http://www.youtube.com/watch?v=MsyNNKb4wLg
http://www.youtube.com/watch?v=6GS1Dj-EnGI
Dan Sullivan
Of course you live your pathetic life vicariously on youtube!
Where else?
Not in the real world.
Greegor
G > without actually saying anything of substance, right Dan?
DS > subject: piggy said you were trying to catch
DS > me in something, greg. Give up, did you?
G > What would I catch you at, Dan? <g>
DS > I don't have any idea what's in your feeble mind, greg.
http://www.youtube.com/watch?v=MsyNNKb4wLg
http://www.youtube.com/watch?v=6GS1Dj-EnGI
DS > Of course you live your pathetic life vicariously on youtube!
DS > Where else?
DS > Not in the real world.
Dan Sullivan posting history