No Recourse- Illinois parents try to stop family separations by taking the child welfare system to court.

On August 8, 2003, my husband, Tom, was on the back porch of our home with Ryan, our 4 month-old-son, and Briana, our 18-month-old daughter. Tom was holding Ryan when he threw the diaper bag into the house and stepped backwards—on to Briana’s foot. Trying not to hurt Briana, Tom lost his balance and fell with Ryan over the railing into the grass below.

I called 911 immediately and Ryan was taken by ambulance to the hospital. After a CT scan, Ryan was diagnosed with an “acute subdural hematoma,” which is bleeding between the brain and the skull. Ryan spent the night in the Pediatric Intensive Care Unit.

After a second CT scan, Ryan was diagnosed with a “chronic subdural hematoma,” which means the doctors believed that he’d had bleeding in his brain before. Because of this diagnosis, we were accused of child abuse, specifically Shaken Baby Syndrome. (The assumption was that he’d had bleeding in the brain because we shook him.) The hospital contacted the Illinois Department of Children and Family Services (DCFS).

Separated in a Second

Later that afternoon we met a DCFS investigator. He was young, wearing chinos and a polo shirt. He did not have a business card or any proof he was with DCFS. After a 10 or 15 minute conversation covering the events of the night before, he told us that DCFS would begin an investigation on Monday, but until the investigation was finished, our children were not allowed to come home. Ryan would have to remain in the hospital and our daughter, Briana, after being examined at the hospital, would have to stay with relatives. There was no paperwork, no forms, just a direct order that our children could not come home.

I fell apart. How could it be this easy to keep our children from their home? As I was attempting to make phone calls to find out what we could do, I felt like I couldn’t breathe and started to hyperventilate. I had just learned what a panic attack feels like.

That evening, my daughter had to get a CT Scan of her head, X-rays of every bone in her body and a drug test. Of course, all were negative. Then they released her to my sister’s care.

That night I cried myself to sleep. Unfortunately, it was the first of many nights that I would be distressed, exhausted and in tears.

A Separation Plan

That weekend, we contacted an attorney experienced in family law. She told us that since we had nothing to hide, we should talk to DCFS and answer their questions honestly. She advised us, “This is how you deal with DCFS if you want your children to come home.”

On Monday we met another DCFS worker. He handed me a “safety plan” written by DCFS. It stated that we were not to have unsupervised contact with our children during the investigation, which could last up to 60 days. We could visit our children while they stayed with family, but could not be alone with them.

“What will happen if we refuse to sign the safety plan?” I asked.

Our choices were to sign the “voluntary” agreement or he would take our children into protective custody and place them in foster care with people we did not know.

No Choice but to Sign

The DCFS worker said that he believed the investigation would be wrapped up in a week. Still, I was scared and upset. How could they think we did something to hurt Ryan? Or that we were a threat to our children?

We argued. My husband and I wanted the investigation done immediately. Why a week? Thinking back on that conversation, I realize just how naive we were. A week’s separation seemed like a lifetime.

Crying uncontrollably, I asked my husband what we should do and he replied, “We have no choice but to sign.” So we did.

A Routine Threat

Later I learned that these “voluntary” safety plans – offered with the threat of removal if a family does not comply – are routine in Illinois. These plans usually demand that the children stay with relatives, or that the parents themselves live apart from their children.

DCFS has estimated that about 10,000 safety plans are used every year, usually at the very beginning of a case, before the system has found evidence of wrongdoing. Parents are required to sign these safety plans even though DCFS has not gone before a judge with evidence that a child’s safety is at risk. The safety plans typically last 30-60 days, though some have gone on for a year or more.

Until parents and lawyers filed a court case to stop these separations, families could not go to court to challenges these separations even though the majority of investigations end with a decision to clear the parents of wrongdoing and close the case.

Families Fight Back

In 1997, parents and their lawyers filed a lawsuit on behalf of tens of thousands of Illinois families who were subjected to “voluntary” safety plans. They hoped that the suit would stop the practice of separating parents and children without court review of evidence that the children are at risk of harm.

The case, called Dupuy II v. Samuels, argued that because parents have a fundamental constitutional right to remain with their children except in the case of “compelling state interest,” the state must prove more than “mere suspicion” before separating parents and children. It also argued that safety plans are not voluntary because no family has ever taken the “choice” to place their children in care. Finally, it argued that families have a right to “due process,” meaning a legal process to challenge the separation.

In March, 2005, Federal Judge Rebecca Pallmeyer ruled in favor of Illinois families: Safety plans that cause separations lasting more than a few days violate families’ right to due process. In December 2005, the court created a 14-day review process in cases where safety plans are used, but it was just a meeting with the same investigative team that set up the safety plan in the first place, and the decision could not be appealed.

When I read about this ruling in the newspaper, I was so excited, I immediately called the law firm and asked how I could help. Later, I was able to file a written statement about my family’s experience with DCFS in order to support the case.

A Terrible Choice

In October 2006, the Dupuy parents and their lawyers appealed the ruling. Even 14 days is a long time to be separated because of “mere suspicion.”

However, Judge Richard Posner of the Seventh Circuit Court of Appeals ruled against the families, deciding that the family separations that DCFS demands are always voluntary, so that the DCFS practices do not violate parents’ rights to due process.

In his opinion Judge Posner compared a parent’s choice—of having their children placed informally with a relative or placed in foster care—as equivalent to being offered a choice of a “manhattan or a martini” at a cocktail party.

When I heard this, I was appalled. I couldn’t believe that a judge could be so flippant about families losing their children when they’ve done nothing wrong. A manhattan or a martini? Funny thing: I have been offered my choice of drinks at many parties and never did I have a panic attack trying to decide which drink to have.

No Recourse

I believe Judge Posner’s words communicate his ignorance of what really goes on when DCFS investigates a family. It also shows that he has no idea of the effect that separations due to “voluntary” safety plans can have on the families. In my family, the safety plan had a devastating impact.

The investigation took a lot longer than the week our caseworker had promised. DCFS was waiting for a second opinion report written by a doctor who would review the evidence. After two weeks, we found out that the doctor had not even received the medical records he needed. I personally went to the appropriate hospitals to collect the medical records and delivered them.

I was constantly calling the caseworker and his supervisors to check on the progress. The answer was always the same: “We’re waiting for the doctor’s report.”

I asked our caseworker how we could get our case into court. I believed that a judge would reunite our family immediately. I couldn’t stand waiting as our captives did nothing. But our caseworker said that the only way we could go to court was if he took our children into protective custody. He even said: “A white baby like this will be placed with a family long before the paperwork is done.”

Separated for 43 Days

After Ryan was released from the hospital, he and Briana stayed with family. We were allowed to see our children and even spend the night with them, but could not take them home or be alone with them.

Finally, 43 days after the accident, our caseworker called me and told me that although the doctor was not finished with his report, our children could come home.

Three weeks after that, the doctor finally finished his report. This is the statement that took more than two months to complete:

“Although the preliminary MPEEC report concluded that R. [Ryan’s] chronic subdural were “more likely than not” to be a result of abusive head trauma, this opinion was based on the diagnosis of chronic subdural hemorrhage, a diagnosis which is not supported by this review of the medical images.”

A Devastating Impact

The safety plan separation took a severe emotional toll on my family.

Ryan recovered from the accident and is now a happy, healthy 5 year old getting ready to go to kindergarten and spending his summer playing T-ball and swimming. He has no memory of the separation but his childhood has been changed because of the fear my husband and I felt. Seeing Ryan sit up, stand and walk were painful instead of joyful. We feared that if Ryan fell and got hurt that we would be back in the grip of DCFS.

It has taken years to come to terms with the events of those 43 days. I still feel anger and sadness and have nightmares. Now that our third child, Kelsey, is beginning to walk, the panic is back that a fall could bring DCFS into our lives.

Hoping for the Best

Despite Judge Posner’s ruling, DCFS agreed to continue some of the procedures Judge Pallmeyer had ordered in December 2005, including the informal review process and an internal review by investigators every five days.

Still, the Dupuy families filed a petition this year asking the United States Supreme Court to review the case. We were hoping that the Supreme Court would rule that these are not “voluntary” separations but ultimatums not based objective evidence of wrongdoing and that, without an appeal process, they are unconstitutional.

But on June 16, 2008 the Supreme Court declined to hear the case. This means that Illinois and other states can still require separations on “mere suspicion” and without a legal process to challenge the separations in court.

When I heard the news, I was very upset. I felt like the justices were saying what happened to my family was OK. It was not OK. The question I live with now is: How can I continue to fight to change this policy so that thousands more families do not have to live with the uncertainty and fear that has had a lasting impact on my family and me?

Mary Broderick is president of the board of The Family Defense Center, a Chicago-based nonprofit that advocates justice for families in the child welfare system. Go to for more information about this case.

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