Researching references to- safety plans

Post and discuss your research and resources.

Moderators: family_man, LindaJM

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Researching references to- safety plans

Postby Marina » Wed Jun 21, 2006 8:12 pm

Researching references to safety plans
Last edited by Marina on Wed Jun 28, 2006 7:49 am, edited 1 time in total.

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Wed Jun 21, 2006 8:30 pm

February 10, 2005
SessionIN THE MATTER OF J. L. E.Appeal
from the Juvenile Court for White County
No. JU1599; F2186 Sam Benningfield, Jr.,
JudgeNo. M2004-02133-COA-R3-PT -
Filed June 30, 2005 ... JLEOpn.pdf
Last edited by Marina on Wed May 30, 2007 5:17 am, edited 1 time in total.

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

class action, court order - safety plans - Illinois 12/05

Postby Marina » Wed Jun 28, 2006 7:57 am

Illinois Department of Children and Family Services

Child Protection

"In a federal class action case pending in the United States District Court for the Northern District of Illinois, Judge Rebecca Pallmeyer entered a preliminary injunction requiring the implementaton of certain procedures for child abuse and neglect investigations."

"In December 2005, Judge Rebecca Pallmeyer entered another order regarding the Department's policies and practices regarding safety plans implemented during child abuse and neglect investigations. Safety plans are plans developed with the cooperation and involvement of a family during a child abuse and neglect investigation to ensure the safety of children during the investigative process. Safety plans can take a variety of forms and the family's input is essential in developing the safety plan. Safety plans can include asking a caretaker and/or children to live in another location during the investigator or having another person supervisor contact with children during the investigation. The specific circumstances of each safety plan depend on the individual facts involved in each investigation and the individual needs and circumstances of the family. Safety plans should be in writing and a written copy of the plan should be provided to all persons subject to the plan and all persons involved in implementing or monitoring the safety plan.

The court's most recent order regarding safety plans require that investigative staff include a specific date or specific action by which the safety plan will terminate. If the safety plan terminates upon a specific action, the safety plan must contain an explanation of the steps required for the specific action to take place. The court also ordered that investigative staff must monitor and reassess the safety plan on a weekly basis and that the investigator reassess the continued need for the safety plan. The investigator must also document in the investigative file the reason the safety plan needs to remain in effect.

The court also ordered that in certain, limited circumstances, persons subject to a safety plan can request a Safety Plan Team Assessment ("SPTA"). A SPTA is an in person meeting that can be requested by certain persons after a safety plan has been in effect for ten working days or 14 days at which the family can voice their objections to the safety plan and the plan can be continued, modified or terminated.

Under the court's order, a SPTA can be requested only by persons required to adhere to a DCFS safety plan in which:

the person has been advised there is a possibility that the children will be taken into protective custody if no safety plan can be arranged and;
a condition of the safety plan prohibits or restricts physical and/or verbal contact between that person and his or her biological or adopted child; or
a condition of the safety plan prohibits or restricts a person's spouse, child, parent, or legal guardian from residing in the home; or
if the alleged perpetrator is a child, a condition of the safety plan prohibits contact between the alleged child perpetrator and his or her parents, legal guardians or other adult relatives who live with the alleged child perpetrator in the home.
Persons are excluded from requesting a SPTA if they are subject to a court order that imposes conditions regarding contact with children who are subject of a child abuse and neglect investigation. These court orders include orders entered in a criminal proceeding under the Illinois Criminal Code or civil proceedings under the Illinois Juvenile Court Act, the Illinois Marriage and Dissolution of Marriage Act or any civil proceeding with forth conditions regarding contact with children.

Once a family requests a SPTA, they will be notified by the Child Protection Manager of the time and location of the SPTA. The purpose of the SPTA is to permit the family to voice any objections or concerns regarding the safety plan they have and for the Child Protection Manager and other investigative staff to address those concerns and work out a plan that will keep the children safety during the investigation and alleviate the family's issues. The STPA outcomes include continuing the current safety plan, modifying the safety plan or terminating the safety plan. Regardless of the outcome of the SPTA, or at any time during the investigation, the Department maintains the ability to take protective custody of children if warranted by the circumstances. The Child Protection Manager will document what occurs at the SPTA, ask everyone present to sign the document at the conclusion of the SPTA and provide copies to everyone as well."

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sat Jul 01, 2006 4:49 pm

. ... 021205.htm

In last paragraph:

Additionally, Waters testified that, after John Paul J.'s birth, Ardell J. stated she did not intend to comply with the terms of the safety plan she had developed with Steele for the child's care.

Last edited by Marina on Wed May 30, 2007 5:22 am, edited 1 time in total.

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sat Jul 01, 2006 6:07 pm

Action for Child Protection

monthly article for January 2005

Safety and the Legal Process Part 1: The Temporary Custody Hearing ... le0105.htm

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sat Jul 01, 2006 6:19 pm

link obsolete
Last edited by Marina on Sun Dec 27, 2009 11:30 am, edited 1 time in total.

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sat Jul 01, 2006 6:25 pm

Last edited by Marina on Wed May 30, 2007 5:26 am, edited 1 time in total.

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sat Jul 01, 2006 6:54 pm

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Dec 27, 2009 11:33 am

. ... 24p-06.pdf

Pursuant to Sixth Circuit Rule 206
File Name: 08a0124p.06
SMITH, By Next Friends and Parents of Melody and
David Smith; MALAKE DANCER, By Next Friends
and Custodians Melody and David Smith; DAVID
SMITH II, By Next Friends and Parents Melody and
David Smith,
JUDY WILLIAMS-ASH, Hamilton County Job &
Family Services,
No. 06-4638
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 04-00234—S. Arthur Spiegel, District Judge.
Argued: December 6, 2007
Decided and Filed: March 26, 2008
Before: DAUGHTREY, GILMAN, and COOK, Circuit Judges.
ARGUED: Stephen R. Felson, NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio, for Appellants.
Michael G. Florez, HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for
Appellee. ON BRIEF: Stephen R. Felson, Lisa T. Meeks, NEWMAN & MEEKS CO., LPA,
Cincinnati, Ohio, for Appellants. Michael G. Florez, HAMILTON COUNTY PROSECUTOR’S
OFFICE, Cincinnati, Ohio, for Appellee.
COOK, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. GILMAN,
J. (pp. 6-8), delivered a separate dissenting opinion.
No. 06-4638 Smith et al. v. Williams-Ash Page 2
COOK, Circuit Judge. David and Melody Smith filed this 42 U.S.C. § 1983 action against
Judy Williams-Ash—a social worker employed by the Hamilton County Department of Jobs and
Family Services (“Children’s Services”)—claiming violation of their due process right to a hearing
before the temporary removal of their children from their home. The district court granted summary
judgment in favor of Williams-Ash, holding that the Smiths were not entitled to a hearing because
they consented to the removal of their children pursuant to a voluntary “safety plan.” We agree and
David and Melody Smith are the parents of two minors and the legal custodians of another
minor, Malake Dancer. The Smiths have custody of Malake—a nine-year-old who suffers from
cerebral palsy and other disabilities—through a “kinship program” administered by Children’s
Services. Pursuant to this program, Richard Montifore, a Children’s Services employee, inspected
the Smith home in 2004. He found a home so “filthy” that he felt uncomfortable leaving Malake
and the other children in the house. Lori Patton—another social worker—viewed the residence and
also concluded that the children needed to leave. Patton found dog feces under one child’s bed and
so much “clutter” in the house that, in her opinion, the children could not evacuate in the event of
a fire.
These unsanitary and dangerous conditions spurred Montifore to call the police (the Smiths
were later charged with and convicted of misdemeanor child endangerment). The next day,
Children’s Services assigned Williams-Ash to the case. She persuaded the Smiths to consent to a
safety plan that removed the children from the Smiths’ home and placed them with friends in the
neighborhood. With the children in nearby homes, the Smiths maintained close contact—they
visited, arranged outings, and drove the children to and from school.
The safety plan informed the Smiths, “[Y]our decision to sign this safety plan is voluntary,”
and read:
1. This safety plan is a specific agreement to help ensure your child(ren)’s
2. The custody of your child(ren) does not change under this safety plan.
3. Children’s Services is here to help you protect your child(ren) when you may
not be able to do it on your own.
4. If you cannot or will not be able to continue following the plan, Children’s
Services may have to take other action(s) to keep your child(ren) safe.
5. The safety plan will end when you are able to protect your child(ren) without
help from Children’s Services.
6. This safety plan may be changed if new or different services are necessary.
7. You must contact your caseworker immediately if you decide that you cannot
or will not be able to continue following the plan.
No. 06-4638 Smith et al. v. Williams-Ash Page 3
1The Complaint also named Richard Montifore but the Smiths later dismissed the claim against him.
As a part of ensuring the children’s safety, the plan prohibited the Smiths from bringing the children
to their home.
Once the parties agreed to the plan and placed the children in safe homes, Williams-Ash
launched an investigation into the Smiths’ long-term ability to care for the minors. Over the next
two weeks, Williams-Ash interviewed the Smiths, the children, the children’s doctors, the temporary
caregivers, and the Smiths’ therapist. She also re-inspected the Smiths’ home.
The Smiths allege that during this time they cleaned their house and repeatedly asked
Williams-Ash what else they needed to do to allow the children to return. They allege that
Williams-Ash ignored their requests for information and threatened to permanently remove their
children if they stopped cooperating. Though the record before the district court includes Williams-
Ash’s response regarding additional requirements necessary to permit the children’s return,
including doctors’ reports about the state of the children’s health, we take the Smiths’ allegations
to be true for purposes of summary judgment.
After two weeks, the Smiths filed this action against Williams-Ash in her individual capacity
for violating their substantive and procedural due process rights.1 Children’s Services terminated
the safety plan two days later and returned the children—seventeen days after they were removed.
Williams-Ash moved the district court to dismiss, citing her right to qualified immunity. The
denial of that motion precipitated the first appeal of this case. It resulted in a dismissal of the
Smiths’ substantive due process claims, and an affirmance of the denial of qualified immunity,
because judging the Complaint only, it set up a violation of the Smiths’ clearly established right to
procedural due process. Smith v. Williams-Ash, 173 F. App’x 363, 366–67 (6th Cir. 2005) (per
curiam). Although Williams-Ash argued in her first appeal that the safety plan was voluntary, the
panel assumed that Children’s Services acted without the Smiths’ consent because Williams-Ash
failed to enter the plan into the record. Id. at 366. The court invited Williams-Ash to reassert her
qualified immunity defense “based upon a more complete record.” Id. at 367 n.1.
This court reviews the grant of a motion for summary judgement de novo, Westfield Ins. Co.
v. Tech Dry Inc., 336 F.3d 503, 506 (6th Cir. 2003), and will neither “make credibility
determinations [nor] weigh the evidence,” Adams v. Metiva, 31 F.3d 375, 384 (6th Cir. 1994) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Instead, we “view the evidence and
draw all reasonable inferences therefrom in the light most favorable to the non-moving party.”
Baker v. City of Hamilton, 471 F.3d 601, 603 (6th Cir. 2006) (quoting Little v. BP Exploration &
Oil Co., 265 F.3d 357, 361 (6th Cir. 2001)).
To state a viable 42 U.S.C. § 1983 claim, the Smiths must demonstrate that (1) they were
deprived of a right, privilege, or immunity secured by the Constitution or laws of the United States
and (2) the deprivation was caused by a person acting under color of state law. Flagg Bros. v.
Brooks, 436 U.S. 149, 155 (1978); Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). Here,
no one disputes that Williams-Ash acted under the color of state law, only whether she deprived the
Smiths of their right to procedural due process.
nder the [Fourteenth Amendment], the parent-child relation gives rise to a liberty interest
that a parent may not be deprived of absent due process of law.” Kottmyer v. Mass, 436 F.3d 684,
No. 06-4638 Smith et al. v. Williams-Ash Page 4
689 (6th Cir. 2006). “Notice and an opportunity to be heard are necessary before parental rights can
be terminated.” Ahn v. Levi, 586 F.2d 625, 632 (6th Cir. 1978).
Williams-Ash acknowledges that Children’s Services removed the Smith children from their
home without affording the Smiths a hearing. She insists, however, that she did not violate the
Smiths’ due process rights because she removed the children with the Smiths’ consent.
We agree, adopting the reasoning set forth by Judge Posner in Dupuy v. Samuels, 465 F.3d
757 (7th Cir. 2006). In Dupuy, an appeal challenging a preliminary injunction issued in a suit
against Illinois’s child welfare agency, the Seventh Circuit reviewed the constitutionality of
voluntary safety plans similar to the one at issue here. The court held that when a parent voluntarily
consents to a safety plan, “no hearing of any kind is necessary; hearings are required for deprivations
taken over objection, not for steps authorized by consent.” Id. at 761–62.
Although the parents in Dupuy argued that safety plans are inherently coercive when
agencies force parents to sign the plan or face the threat of formal removal proceedings, the court
found no fault in this strategy. “It is not a forbidden means of ‘coercing’ a settlement,” Judge Posner
stated, “to threaten merely to enforce one’s legal rights.” Id. at 762. He analogized the agency’s
threat to a plaintiff’s legitimate threat to press a case to trial in order to induce a defendant to settle.
Id. The defendant’s choice between accepting a settlement or risking a harsher outcome at trial “is
a dilemma implicit in any settlement process. If there weren’t a downside to refusing to settle, there
would be no settlements.” Id. at 761.
In this case, the Smiths remained in the safety plan voluntarily at all times. Although our
dissenting colleague questions whether the Smiths were coerced into the plan, not even the Smiths
argue that they involuntarily consented to enter into the plan. Rather, they only argue that they
“were not allowed to recover their children after the Safety Plan had been initiated despite their best
efforts,” Appellants’ Br. at 17 (emphasis in original), invoking the principle announced in Farley
v. Farley that the consent given as part of a voluntary safety plan may become involuntary during
the course of the plan. 225 F.3d 658, Nos. 98-6114/6115, 2000 U.S. App. LEXIS 17580, at *5 (6th
Cir. July 19, 2000) (unpublished). But here, in light of the Smiths’ admitted failure to utilize the
safety plan’s clear, simple mechanism for rescinding the plan, they fail to raise a genuine issue of
material fact with respect to their continuing consent to the plan.
In addition to informing the Smiths that their agreement with Children’s Services relied on
their voluntary participation (“[Y]our decision to sign this safety plan is voluntary”), the safety plan
instructed the Smiths to inform Williams-Ash if they no longer wanted to participate (“You must
contact your caseworker immediately if you decide that you cannot or will not be able to continue
following the plan.”). As the district court correctly concluded, the Smiths never alleged that they
attempted to contact Williams-Ash—or anyone else at Children’s Services—to revoke their consent.
Rather than take this intuitive step, the Smiths retained counsel and sued for damages.
Unsurprisingly, after Children’s Services first received notice (through the lawsuit) that the Smiths
renounced the safety plan, it promptly terminated the plan and returned the children to the Smiths’
The Smiths concede their failure to revoke pursuant to the plan’s instruction to alert
Williams-Ash. As they see it though, their repeated inquiries to Williams-Ash about both her
investigation’s length and what they needed to do to speed the children’s return “amounted to the
same thing” as an explicit demand to terminate the safety plan. Appellants’ Br. at 15.
The plain-language form provided to the Smiths undercuts their argument. It told them to
revoke their consent by advising their caseworker. To have opted out of the plan would have
triggered consequences: Children’s Services would either return the Smiths’ children or seek to keep
No. 06-4638 Smith et al. v. Williams-Ash Page 5
2Given this conclusion, we do not reach Williams-Ash’s arguments that absolute and qualified immunity shield
her from liability.
the children with their temporary caregivers by filing a civil complaint against the Smiths. See Ohio
Rev. Code § 2151.353(A)(2) (authorizing Ohio’s juvenile courts to award temporary custody of
neglected children to a public services agency). Questioning about the timing of a procedure opted
for to avoid the potential of a more onerous one—a formal custody proceeding—cannot tenably be
viewed as equivalent to opting out. We do not doubt that the Smiths, as any parents likely would,
resented the safety plan from the beginning. But mere displeasure and frustration fails to negate
their consent. Rather than remind Williams-Ash of what she already knew—that they disliked the
plan—the Smiths needed to explicitly withdraw the consent they explicitly gave, thus requiring
Children’s Services to either return the children or file a formal complaint against them. In light of
their admitted failure to do so, the Smiths were not entitled to a hearing.2
For these reasons, we affirm.
No. 06-4638 Smith et al. v. Williams-Ash Page 6

RONALD LEE GILMAN, Circuit Judge, dissenting. Because I believe that there is a
genuine issue of material fact as to whether the Smiths’ consent to the safety plan was voluntary,
I respectfully dissent.

There is no question that “the parent-child relationship gives rise to a fundamental liberty
interest that a parent may not be deprived of absent due process of law,” Kottmyer v. Maas, 436 F.3d
684, 689 (6th Cir. 2006), and that “notice and an opportunity to be heard are necessary before
parental rights can be terminated.” Anh v. Levi, 586 F.2d 625, 632 (6th Cir. 1978). Although
Williams-Ash acknowledges that Children’s Services removed the three children in question without
a hearing, she insists that she did not violate the Smiths’ due process rights because they voluntarily
consented to the removal of their children when they signed the safety plan. The Smiths, on the
other hand, argue that they have presented sufficient evidence to raise a genuine issue of material
fact as to whether they voluntary consented to enter into the plan and whether their consent became
involuntary during the course of the plan.
The majority contends that Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006), a case involving
the constitutionality of voluntary safety plans, is decisive here. I respectfully disagree. The parents
in Dupuy argued that the state agency had coerced their consent by threatening to formally remove
their children from them. No fault was found in this threat, however, because the agency had the
valid legal authority to remove the children. Id. at 762-63. Noting that “[i]t is not a forbidden
means of ‘coercing’ a settlement to threaten merely to enforce one’s legal rights,” the court held that
when a parent voluntarily enters into a safety plan, “no hearing of any kind is necessary [because]
hearings are required for deprivations taken over objection, not for steps authorized by consent.”
Id. at 761-62.
The Dupuy decision, however, is distinguishable from the present case. Dupuy rests on the
premise that the threat of action made by the state agency was grounded in proper legal authority
and, therefore, the consent given by the parents was not coerced. Id. at 762-63. The court in Dupuy
specifically found that the agency threatened to enforce only its valid legal right to initiate a formal
custody proceeding against the parents. Id. at 761-62. Dupuy acknowledged, however, that consent
garnered through misrepresentations or other wrongful means would be involuntary if it was “not
grounded in proper legal authority” or granted as the result of “duress or extortion.” Id. at 762-63.
In the present case, Melody Smith’s affidavit provided sworn testimony that Williams-Ash
made a number of threats that Williams-Ash had no legal right to make. Melody Smith specifically
stated that Williams-Ash told the Smiths that (1) if they did not participate in the safety plan, they
would be put in jail, (2) if they did not follow her instructions, “the children [would not] come home,
period,” (3) if the kids stepped foot in the Smiths’ house, the Smiths would be put in jail and they
would never get the kids back, and (4) if the Smiths attempted to withdraw from the safety plan,
such withdrawal would result not only in formal custody proceedings against them, but they would
be sent to jail.
Because imprisonment is not a permissible consequence of the failure to participate in a
voluntary safety plan, Williams-Ash had no legal basis to make such threats. If the Smiths’
allegations are true, then Williams-Ash’s threats go beyond simply warning the Smiths that
Children’s Services would move forward to enforce a valid legal right. A jury could therefore
No. 06-4638 Smith et al. v. Williams-Ash Page 7
conclude that the Smiths’ participation in the safety plan was the result of forbidden “duress or
extortion.” Dupuy, 465 F.3d at 762; see also Croft v. Westmoreland County Children & Health
Servs., 103 F.3d 1123, 1125 n.1 (3d Cir. 1997) (finding the caseworker’s conduct “blatantly
coercive” in securing a parent’s voluntary departure from the house by improperly threatening to
place his four-year-old daughter in foster care).
Alternatively, the Smiths argue that, even if they are found to have originally agreed to the
safety plan voluntarily, their consent became involuntary during the course of the plan. They assert
that they “were not allowed to recover their children after the Safety Plan had been initiated despite
their best efforts to do so,” and that William-Ash “thwarted” their attempts to regain custody of their
children. Specifically, the Smiths allege that Williams-Ash told them that if they did not obey the
plan, she “would see to it that the children didn’t come home, period,” that she responded to their
requests for the return of their children by telling them that they should just “enjoy their time alone
without the kids,” and that she told them that any attempt to withdraw from the voluntary plan would
result in formal custody proceeding, jail, and loss of custody of the children.
This court in Farley v. Farley, 225 F.3d 658, Nos. 98-6114/6 115, 2000 U.S. App. LEXIS
17580 (6th Cir. July 19, 2000) (unpublished), found that consent given as part of a voluntary safety
plan may become involuntary during the course of the plan. The mother in Farley voluntarily
agreed to a safety plan that allowed her two children to stay with their father, but that left her with
legal custody of the children during the course of the plan. Id. at *4. When the mother eventually
sought the return of her children, the agency told her that it had 60 days to conduct the investigation
and refused to return them. Id. at *5. Only after the mother sought the assistance of the district
attorney were the children returned to her. Id. In considering whether the social worker was
entitled to qualified immunity, the Farley court held that the mother’s due process rights were
clearly violated because her consent “was not voluntary during the entire time period involved.”
Id. at *14.
Like the mother in Farley, the Smiths claim that their consent became involuntary during
the course of the plan. The district court declined to give their argument credence because, despite
the Smiths’ many attempts to secure the return of their children, they did not explicitly state that
they could not or would not continue following the plan. The terms for withdraw stated in the
safety plan, however, were somewhat vague. The plan stated only: “You must contact your
caseworker immediately if you decide that you cannot or will not be able to continue following the
The Smiths allege that they repeatedly contacted Williams-Ash as required by the terms of
the safety plan, that they made repeated attempts to get specifics from Williams-Ash as to what they
needed to do to recover their children, and assert that Williams-Ash threatened them with jail and
permanent loss of custody if they withdrew from the plan. Their decision to hire an attorney to
secure the return of their children also strongly suggests that their consent to the plan had become
involuntary, and the fact that the children were returned to the Smiths two days after they filed a
lawsuit, without any further investigation on the part of Children’s Services, suggests that the
agency may not have had good reason for continuing to detain the children. I therefore conclude
that the Smiths have raised a genuine issue of material fact as to whether they continued to consent
to the safety plan, and that the district court erred in granting summary judgment to Williams-Ash
on that ground.

Neither the majority opinion nor the district court reached the issue of whether
Williams-Ash is entitled to absolute or qualified immunity. Because I believe that the Smiths’
procedural due process claim should survive summary judgment, I must address the question of
No. 06-4638 Smith et al. v. Williams-Ash Page 8
immunity. I conclude that Williams-Ash is not entitled to absolute immunity, but I would remand
to the district court the question of whether she is entitled to qualified immunity.
This circuit has strictly tied absolute immunity to either in-court conduct or conduct that
was otherwise “intimately associated” with the judicial process. Holloway v. Brush, 220 F.3d 767,
774 (6th Cir. 2000). Social workers are therefore “absolutely immune only when they are acting
in their capacity as legal advocates—initiating court actions or testifying under oath—not when
they are performing administrative, investigative, or other functions.” Id. 220 F.3d at 775.
Because all of Williams-Ash’s alleged conduct here occurred out of court, she functioned as a
service provider and an investigator—not as an in-court advocate—and is therefore not entitled to
absolute immunity.
As for qualified immunity, the Supreme Court requires the use of a two-step inquiry to
decide whether a defendant is entitled to such immunity. Scott v. Harris, 127 S. Ct. 1769, 1774
(2007); Hudson v. Hudson, 475 F.3d 741, 745 (6th Cir. 2007). The court must first consider
whether the defendant’s conduct violated a constitutional right of the plaintiff. Saucier v. Katz, 533
U.S. 194, 201 (2001). If a constitutional violation occurred, the court must then consider whether
the violated right was clearly established at the time the violation occurred. Brosseau v. Haugen,
543 U.S. 194, 198 (2004). Because, as discussed above, the question of whether William-Ash’s
conduct violated the Smiths’ constitutional rights hinges on the factual question of whether the
Smiths voluntarily consented to the safety plan, this issue should be initially resolved by the district

I believe that a genuine issue of material fact exists as to whether the Smiths’ initial and
continuing consent to the safety plan was voluntary. I would therefore reverse the judgment of the
district court and remand the case for further proceedings.

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Dec 27, 2009 11:40 am


March 2005 Archives
When a Child Safety Plan = Coercion
By James R. Marsh on March 28, 2005 4:08 PM | 5 Comments

The recent trend in child protective services (CPS) of creating safety plans received a set back recently in federal court. Judge Rebecca R. Pallmeyer of the United States District Court, Northern District of Illinois ruled that in-home safety plans created by the Illinois Department of Children and Families (DCFS) were illegal because they were secured in a coercive manner.

The coercion at issue was the CPS worker's express or implied threat of to take the child into protective custody lasting more than a brief or temporary period of time. The court also ruled that DCFS failure to provide a mechanism to review safety plans once they were put in place violated due process. The court declared that not all child safety plans trigger constitutional issues and gave DCFS 60 days to create constitutionally adequate procedures consistent with the opinion.

The ruling seems to indicate that DCFS can create an acceptable review process that does not require families to hire legal counsel. The issue of coercion is tricky. While it is possible to use non-coercive language, the imposition of safety plans in which parents agree or the child is removed has features not unlike the old consent dockets of juvenile courts which were also ruled unconstitutional.

If the agency judges a child to be in imminent danger of serious harm--general statutory language for justifying removal of a child--acceptance of a reasonable in-home safety plan may be the family's only alternative to placement. If the family does not consent to the plan (assuming the plan is reasonable and justified by the safety assessment) there is a seemingly inevitable coercive reality that without acceptance of the plan, the agency will need to take protective custody in order to ensure the safety of a child.

The issue in this decision is that a family's acceptance of a safety plan must be made only after a full understanding of these realties and the lawful alternatives. Under our constitutional system, state intervention in family life, including the threat of removing a child, is limited. According to this court, due process protections are required to balance the rights of families and the state's compelling interest in a child's welfare.

Guest Commentary by
Thomas Morton
President and CEO
Child Welfare Institute

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Dec 27, 2009 12:00 pm

. ... x?id=93329

A matter of choice: Accept a safety plan or risk having your children taken away
by Erica L. Green and Sandi Villarreal

On Thanksgiving Day 2004, William McCarthy had a hard time finding much to be thankful for. As in years past, he could have reflected on his loving family, his successful company—his happiness.

But on that day, all he thought about was how his daughter’s accidental fall on the back porch two weeks before led to an investigator from the Illinois Department of Children and Family Services telling him that he and his wife had to pack their bags and leave their home.

The next thing he knew, he was having a dinner with his extended family—not because it was a normal Thanksgiving tradition—but because he and his wife weren’t to be left unsupervised with their two children.

“Thanksgiving was depressing,” McCarthy said. “At a time when we were supposed to be thankful for all the blessings that we have in our life, and we had many blessing, it was impossible not to be worried and scared. It was impossible to talk about anything else other than what might happen.”

His daughter’s fall produced an arm fracture that led one doctor at Children’s Memorial Hospital—two days after she had been treated and cleared at the hospital—to believe that she was being abused and that her father was the likely abuser.

A DCFS investigator told the McCarthys she was putting in place a preventive measure to safeguard against any further abuse. The measure was called a “safety plan,” and it would require McCarthy to leave his home for 24 hours.

The suspicious doctor thought 24 hours wasn’t enough. He was so convinced that he called DCFS—weeks after McCarthy returned home—to tell them his opinion. This led to another safety plan that required both McCarthy and his wife to leave the home during a follow-up investigation. The only other option was to place their daughters in foster care.

Ultimately, the DCFS investigation revealed that the allegations against McCarthy and his wife were unfounded, and they returned to their home. A final opinion from a doctor indicated that they had not harmed their daughter.

But, that did not mean the McCarthys went unharmed.

“[During the safety plan] my wife cried herself to sleep every night and I just didn’t go to sleep during the night,” McCarthy said. “There’s this cloud that hangs over you and you worry all the time about what might happen if DCFS shows up at the door and they decide what they say isn’t exactly what they want to see, and take your kids away.”

The McCarthys’ story represents thousands of Illinois families who have argued through state and federal courts that “safety plans” implemented by DCFS strip them of their rights as people and parents.

These families say they are part of the 75 percent of families whose relationship disruptions are based on unfounded reports of abuse. This stark figure found by the Family Defense Center, a Chicago-based legal advocacy group, is one of the driving forces behind a child welfare case that the group took to the U.S. Supreme Court that sought to find safety plans unconstitutional because their implementation denies parents their constitutional due process rights.

A history of “safety plans”

A string of fatal or near-fatal incidents in the early 1990s involving children who were in DCFS care prompted the state to require that the department develop and implement a standardized protocol that would prevent abuse during DCFS investigations.

In 1995, DCFS developed and began implementing a Child Endangerment Risk Assessment Protocol, or “safety plan.” Independent research on CERAP protocol is now submitted annually to the Illinois General Assembly, and DCFS employees are required go through training on the CERAP process.

In a court memorandum, a DCFS official defended safety plans, saying “the CERAP process is the best way to provide workers with a mechanism for quickly assessing the potential for moderate to severe harm immediately or in the near future and for taking quick action to protect children.”

But families and lawyers who have observed the CERAP process contend that it is fatally flawed.

“The U.S. Supreme Court has been clear that it is to be presumed that a parent is acting in the best interest of his or her children,” Melissa Staas, a Family Defense Center lawyer, said. “So if the state is going to be intervening and interfering with that relationship, the state needs to be able to overcome that presumption.”

Rather, she said, parents face an ultimatum—accept the safety plan or risk losing your children—based upon “mere suspicion.”

The move to file a petition with the U.S. Supreme Court was spurred by a plethora of court battles—the first dating back to 1997—between the Family Defense Center and DCFS. Each of the cases challenged some aspect of the department’s investigation procedures.

In 2005, U.S. District Judge Rebecca Pallmeyer ruled that safety plans lasting more than a few days violated the procedural due process rights of families.

“When an investigator expressly or implicitly conveys that failure to accept a plan will result in the removal of the children for more than a brief or temporary period of time, it constitutes a threat sufficient to deem the family’s agreement coerced, and to implicate due process rights,” Pallmeyer wrote.

A unanimous 7th Circuit Court of Appeals panel saw it differently. In an opinion written by Judge Richard Posner, the court found no constitutional problem with the safety plans, noting that parents could “thumb their nose at the [safety plan] and the agency can do nothing but continue its investigation.” Posner went on to say that safety plans are voluntary, offering this analogy:

“We can’t see how parents are made worse off by being given the option of accepting the offer of a safety plan. It is rare to be disadvantaged by having more rather than fewer options. If you tell a guest that you will mix him either a martini or a manhattan, how is he worse off than if you tell him you’ll mix him a martini?”

The martini reference was hard to swallow.

“Posner comparing this type of ultimatum that a parent is given—this horrible, horrible ultimatum of either leave your home or we’re taking your children into foster care—comparing that with a contract negotiation and just really reducing the family life down to a commodity was really insulting,” Staas said.

Nonetheless, on June 16, the U.S. Supreme Court decided not to take the case.

Threshold of evidence

Mary Broderick holds to this day that she was never afraid back in 2003 when hospital officials—as mandated reporters—told her they were required to call DCFS about the head injury that her son, Ryan, sustained after her husband, Tom, fell off their back porch with the 4-month-old.

She knew she had nothing to hide. But her investigator apparently didn’t think so.

“I think why we got slammed so hard is because we weren’t afraid,” Broderick said. “We were afraid of Ryan being hurt, but not of DCFS.”

Broderick said she and Tom were peppered with questions about the injury. After they recounted the incident word-for-word and numerous times, the Brodericks’ investigator found that, “there [was] reasonable cause to suspect that the caretaker caused moderate-to-severe harm or has made a plausible threat of moderate-to-severe harm to the child.”

This was one of 15 “safety factors” that DCFS uses to assess whether a home is “safe” or “unsafe” for the child.

When a report of abuse is made, DCFS investigators use a CERAP form to assess these factors. The form, which resembles that of a medical questionnaire, leads the investigator through a 4-step analysis during which he or she goes through a checklist of 15 “safety factors.”

The investigator checks a “yes” or “no” box indicating whether he or she observes factors ranging from the parent’s behavior to how the family interacts during the time of the investigation. According to DCFS procedures, the “yes” and “no” decisions are to be based on “clear evidence or other cause for concern that a factor is present.”

But in court testimony, John Goad, former deputy director of the department’s Division of Child Protection, said that while investigators are expected to look for a “reasonably extreme version” of a listed safety factor. He conceded that “investigators need neither a certain level of evidence nor evidence confirming that it is more likely than not that a safety factor is present in order to check the factor ‘yes.’”

This unbridled use of power is what disturbs families.

“Once they become involved in your life—no matter how—if they make the decision, it is up to an individual investigator what happens in your life,” Broderick said.

Court documents indicate that DCFS admitted the safety factor that led to the Brodericks being separated from their children for 43 days was met, “even where there is no evidence that the parent or caretaker is unable to ensure the safety and supervision of his or her children.”

Broderick said she consented to the safety plan, and admitted that looking back she would make the same choice.

“It’s not about the choices they are giving people as much as that there isn’t a threshold of evidence necessary before starting to give the options,” Broderick said.

But some families say it’s not an option to begin with.

"Martini or manhattan"

Faith Kumar, whose two children were placed in protective custody, said she didn’t realize a safety plan was even in place until after reading court documents.

DCFS documents read that Kumar was not supposed to allow contact between her daughter and her boyfriend—Cristo Patino—who DCFS had indicated for abuse. Kumar said when a DCFS worker came to her home to investigate a hotline call, Patino was there; her daughter was with a neighbor. The investigator then removed her two children—Kristof, then only a few months old, and Maya, then 5—without speaking to Kumar about the situation.

“[Maya] was really afraid,” Kumar said. “I didn’t know when I would see her again, so I took a picture, and the look in her eyes—she was just so terrified.”

Kumar called her ex-husband’s parents to take the children, which, she agreed was much better than foster care. But she claims she never signed a CERAP form and was never given the opportunity to speak before her children were taken into protective custody.

The signature page of the safety plan form states that “we understand that failure to agree to the plan or to carry out the plan may result in … possible protective custody and or/referral to the State’s Attorney’s Office for a court order to remove my children from my home. I will then have the opportunity to plead my case in court.”

Unlike Kumar, Broderick was given a safety plan that said she and her husband were not to be left unsupervised with her children. She also was told by her investigator that it was voluntary.

“I asked him, ‘if we don’t sign this, what happens?’” Broderick said. “He said very plainly, ‘If you don’t sign this, we’re taking your kids into protective custody and they’ll be placed in foster care.’ So, we did.”

This is a choice that parents said they make when a safety plan is implemented—just not by choice. According to the latest CERAP report to the General Assembly, 7,946 safety plans were implemented between May 2005 and May 2006.

“What we’re arguing is that this situation is coercive just by the nature of being given this ultimatum of either leave your house or we’ll take your children into foster care,” Staas said. “That, by its very nature, is a coercive situation. And therefore no decision that a parent makes in that, under those circumstances, is going to be voluntary.”

The CERAP report shows that a safety plan was implemented in 100 percent of the cases deemed “unsafe” by investigators between 2003 and 2006. The data shows no family refused the plan. Lawyers for the families say that fact shows the plans are not voluntary.

But experts, who in their respective professions find themselves giving the same kinds of options, disagree.

Dr. Carl Bell, a psychiatrist and president of the Community Mental Health Council, intended to testify on DCFS’ behalf in the federal trial but never got the chance because he was removed from Pallmeyer’s courtroom when he—admittedly—made a crass statement in response to a medical witness who testified against safety plans.

Nonetheless, nearly five years later, Bell still thinks that there is a shared responsibility of anyone in the business of welfare, and that DCFS investigators and medical professionals face the same decisions in the interest of saving lives.

“Working out a safety plan is not coercive,” Bell said. “The argument that I never got to make is when you have a patient and they give you evidence that they are suicidal and homicidal, you can automatically lock them up in a hospital. You have enough evidence, and it’s your responsibility to do that. But though you can lock them up, you can also say, ‘look, I can give you a chance to admit yourself, and it can be a win-win situation.' That’s not coercion.”

Bell continued, “An investigator can go in and say ‘we have evidence that we can take your child because they have five iron cord marks on their arms, but if you can find your auntie or your uncle to come stay with you, we can work something out.' Working out a safety plan is not coercion.”

But Bell admitted that there is a downside to the decisions to implement safety plans.

“Now, I understand the problem with how long they take and when investigators didn’t check up,” Bell said. “I have a problem with that and have said as much, and would have said as much had I not been thrown out of court.”

Facing time

Families and the courts have grappled with the issue of what is worse—families being separated or how long it takes to reunite with them.

According to DCFS, safety plans “must be adequate to assure the child’s safety, but as minimally disruptive to the child and family as is reasonably possible.”

But some parents have a hard time with DCFS’ definition of “reasonable.”

“Every week, [the investigator] came, and would say it would be done within a week,” Broderick said. “And then towards the end [he] said, ‘I can’t tell you that it’s going to be done in a week anymore.’ It ended up being 43 days that we were out of the house.”

According to the Brodericks’ safety plan, the investigator set a zero-to-30-day time frame.

Before 2002, DCFS kept no statistical data indicating the duration of safety plans, according to court documents. When families alleged that they were held under safety plans for unsubstantiated amounts of time, the courts found that at least 33 percent of the safety plans reviewed were indefinite in length.

In 2002, DCFS was required to develop a standardized and timely duration in which safety plans could be implemented. The amendment set a safety plan of no more than 60 days, and a weekly review of the safety plans to assess whether they are still necessary.

But even 60 days is too long for those who find out that their cases were unfounded.

Kumar spent an entire year away from her children while DCFS investigated the alleged abuse.

“They continue and they continue and they continue. Every time you think, ‘I’m going to present information’ … no movement,” Kumar said. “They say ‘come back in another month.’ Not another week. Not another three days. Another month.”

The Brodericks said all that they were waiting for was for DCFS to process a second medical opinion that would prove or disprove whether her son had a previous brain injury, which one doctor had alleged was due to abuse by either her or her husband.

The doctor, who had 13 malpractice lawsuits pending against him at the time and later left the state, had made another mistake with the Brodericks’ son. They found out 63 days later that there was no previous brain injury.

Continue in second column

Erica Green/Medill

Aida and John Vallecillo are pictured outside their home with their children. Their safety plan expired just four months ago, after a child abuse allegation made by hospital officials was ruled unfounded in court.
“It could have been done in less than a week,” Broderick said. “It could’ve been done in 24 hours. You never wait over two months to get a second opinion from a doctor—ever—under any circumstances.”

DCFS spokesman Kendall Marlow declined comment under departmental restrictions on commenting on pending litigation. The DCFS website indicates no further amendments to the 30-day timeframe for safety plan investigations.

The fallout

Even when parents are cleared of suspicion, the emotional and financial tolls continue.

Because Kumar was under investigation, she could not continue working with children at her psychology practice or as a substitute teacher, and she spent a year without income. She has been forced to move out of her home, which she can no longer afford, and is living with friends.

But she considers the psychological impacts on her and her children to be worse.

“I couldn’t sleep ever, and I couldn’t eat,” Kumar said. “No one should have to go through that.”

Some families said they have tried to bounce back, but there will always be lasting effects.

The Brodericks said once they were reunited with their children, they became overprotective to the point that they inadvertently were stunting their children’s development. They said that they didn’t allow their son to do basic things like walk up and down stairs, or any basic childhood activities like riding a bike that would welcome the occasional bump or bruise.

“There was no way that we were going to let anything else happen to him and have him go back to the hospital and have to deal with [DCFS] again,” Tom Broderick said. “And there’s always that fear that once you go through it, you never want to go through it again.”

Additionally, they still worry that the misdiagnosis that led to their investigation—and later cleared them of child abuse—has them on edge about Ryan’s childhood development.

“It took away from [Ryan’s] childhood,” Mary Broderick said. “And I still worry about Ryan. Even though they ultimately found that the hemorrhage was a misdiagnosis … I still feel like something could be wrong with him.”

And some families said they don’t know what lasting effects their safety plans will have on their children. For example, McCarthy said he doesn’t know if his daughters will remember their somber Thanksgiving.

“We had dinner at home primarily for the children,” McCarthy said. “[But] they knew something was wrong. Their aunts were showing up unexpectedly. Their mom was crying a lot.”

But ultimately, there is simply the worry of some families that they will never escape the implications of their unfounded allegations.

“My wife worries about the fact that we’re in some system somewhere, and isn’t sure about how they may or may not come up in the future,” McCarthy said. “The lasting impact that this situation has had on me is that it’s forced me to have an unfortunate view about how our government works. It’s my opinion that DCFS is wreaking havoc on innocent people’s lives and it’s the exactly the kind of scary, government abuse that we’re supposed to be protected from. But we’re not.”

Seeking constitutional refuge

It has been done before.

In 1996, a family won an appeal against a county child welfare system in Pennsylvania after an investigator, acting on an anonymous tip, removed a child from her home and accused the father of child abuse.

Though the allegation proved unfounded, the parents asserted that their rights had been violated.

In the case, the court found that the lack of evidence used in removing the child constituted “…an arbitrary abuse of government power. Based on [the investigator’s] lack of an opinion regarding whether sexual abuse had occurred, we hold that [investigator] lacked objectively reasonable grounds to believe the child had been sexually abused or was in imminent danger of sexual abuse.”

However, the court opinion did explicitly state that “whatever disruption or disintegration of family life the Crofts may have suffered as a result of the county's child abuse investigation does not, in and of itself, constitute a constitutional deprivation.”

With the U.S. Supreme Court's decision to pass on the Dupuy case, the core legal issue is resolved for now.

As the case was being appealed to the Supreme Court, experts on both sides said it was an issue worth serious consideration. Richard Epstein, a legal scholar at the University of Chicago who sided with the families on the original Dupuy case, was disturbed by how the appeals court analyzed the issue.

“It is a very hard case, to say the least, but the gist of the problem is the question of what kind of choice is received by parents who are told that they have to move out or to risk loss of custody of their child without any process at all,” Epstein said.

Epstein continued, “I regard it as a due process case, and reject the view that just because there is some choice there is no coercion. Your money or your life is a choice, but if it is a choice between two entitlements you should not be forced to choose between them. The risk of abuse is so great in these situations that some independent and neutral party should pass on the penalty before the sanction is imposed.”

But others disagreed and saw risks in overturning Posner’s decision.

“It would be very unfortunate,” Bell said. “That would be like declaring polio shots unconstitutional. Everyone had to get one, but it protected you.”

Bell also worried about the effect it could have had on the thousands of children DCFS is trying to protect by not placing them into foster care. He believed that there could be a significant impact on the number of foster children in the state.

“I predict if they find it unconstitutional, that number will go up,” Bell said.

DCFS’s numbers bear that out. In Illinois, about 16,000 children were in foster care in 2007, a number that has steadily decreased since CERAPs were implemented. According to the December 2007 report to the General Assembly on CERAPs, the recurrence rate of abuse and maltreatment has consistently declined since the implementation of the CERAP process.

The overall number of children who were allegedly maltreated, too, steadily declined from CERAP implementation until recently. However, numbers for 2006 show the largest number of reports in 10 years.

Several states employ safety plans or a similar method of investigating child abuse and neglect, but it is found that in many instances, parents and children have more rights.

For example, Karen Freedman, executive director of Lawyers for Children in New York City said that New York’s child welfare system, while flawed, employs a critical opportunity for families.

“If a child is displaced in any way by the state, they have to go to court within 72 hours,” Freedman said. “Whether they are removed voluntarily, the parents have the right to be heard and present the facts to see if that removal is justified.”

This process is what families and the Family Defense Center see as the missing link in Illinois.

“There needs to be an opportunity to go before a judge without the threat of foster care,” Broderick said. “They need to raise the bar above mere suspicion. And they need to have some sort of due process where you can get in front of a judge and tell your side of the story without being held hostage for weeks, months, or years.”

But more than a speedy process, Freedman said that in New York there are fundamental legal processes that need to take place.

“It’s really critical that there be an open forum and objective fact-finder—which in these cases would be a judge,” Freedman said. “When all of the parties are accurately and aggressively argued, the facts really come out.”

Freedman continued, “I personally have found that when a determination of imminent danger by the city worker or investigator is made, once that witness is in court, they can’t identify what that risk is. Once they are held to a legal standard, it turns out that there are no grounds for family intervention and family disruption. So, the process works better for both families and children.”

Even with the Supreme Court deciding to pass on the case, Staas said the center’s efforts will not stop there.

“We are starting to put the wheels in motion for some legislative advocacy, so we would probably attempt to go that route,” Staas said. “It is in the preliminary stages, but we are being mindful that there is a possibility that the Supreme Court will decide not to hear this case, and we want to keep some other avenues open and not just concede this ground.”

And while the Family Defense Center fights now for legislation and public education, families who have been through safety plans fight to rebuild their lives and hope other families will be spared.

“I spend a fair amount of time thinking about the fact that we were lucky because we had resources,” McCarthy said. “And we were able to retain a lawyer right away. We were educated enough and confident enough that we were willing to argue with the investigators, who said that we had to sign a safety plan. We were willing to say no, and were able to negotiate.”

But, McCarthy added, “There are all too many people in this country who don’t have resources, and those people are being abused by the government on a daily basis. And those people are experiencing abuse that I don’t think too many people ever consider—the government is literally tearing families apart. It’s unconscionable.”

June 2008


At 9 a.m. on June 16, the Supreme Court announced it would not consider the Dupuy case. It was a surprise to staff at the Family Defense Center, and it was heartbreaking for the families involved.

"I'm outraged," Mary Broderick said at a news conference following the decision. "I can't believe that this can happen here in the United States."

But Diane Redleaf, executive director of the Family Defense Center, said her staff will not stop fighting for the families they represent.

"We need to publicize the fact that families are vulnerable and our laws need to be strengthened to protect them," Redleaf read from a prepared statement.

Redleaf said the group plans to regroup and come up with a legislative platform by September.

Click here to read Redleaf's full statement.

Erica Green/Medill

The Family Defense Center is waiting to hear whether the U.S. Supreme Court will hear their case challenging safety plans implemented by the Illinois Department of Children and Family Services. The center contends that safety plans are unconstitutional and strip parents of their due process rights.
A matter of choice: Accept a safety plan or risk having your children taken away

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Dec 27, 2009 12:13 pm


FILED: June 17, 2009


In the Matter of A. H., a Minor Child.




N. S.,


Washington County Circuit Court
Petition Number 01J050522

James Lee Fun, Jr, Judge.

Argued and submitted on March 11, 2009.

Megan L. Jacquot argued the cause and filed the brief for appellant.

Kristen G. Williams, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.

Before Landau, Presiding Judge, and Schuman, Judge, and Ortega, Judge.




Mother appeals an order establishing a guardianship under ORS 419B.366 for her child. Although father appeared at the guardianship hearing, he and mother are no longer together, and he is not a party to this appeal. Mother contends that the juvenile court erred when it established the guardianship, which was sought because mother's alleged inability to recognize the risk of harm posed by her brother, a convicted sex offender, made it impossible for child to return to mother's care within a reasonable time. On de novo review, ORS 419B200(6)(b), we conclude that there is insufficient evidence that mother's brother poses a risk of harm to child. Accordingly, we reverse.

The Department of Human Services (DHS) first became involved with the family in April 2005 following reports of domestic violence by father. At the time, child was one month old. Mother was offered--but did not follow through with--counseling and domestic violence classes, and the agency closed the file after father moved out of state. Father apparently returned to Oregon soon thereafter, and, when child was six months old, DHS removed her from mother's care due to concern about mother's ability to protect child from father. Child was placed in foster care with relatives, where she has remained since that time.

Throughout mother's involvement with DHS, the primary concern has been mother's inability to recognize and protect child from threats to her safety--initially from father and, later, from mother's brother, a convicted sex offender. Because of its initial concerns about domestic violence, DHS referred mother to classes at the Domestic Violence Resource Center, which mother completed one year after child was placed in foster care. Although the record is unclear as to timing, mother completed a DHS-referred parenting class at LifeWorks Northwest and, later, voluntarily completed an additional parenting class through the Center for Family Success and participated in a seminar on child abuse prevention. Mother has since ended her relationship with father, who currently resides in Arizona.

In late 2006 or early 2007, DHS discovered that, sometime before 2002, mother's brother was convicted of third-degree sodomy, an offense that involves "deviate sexual intercourse" with a person less than 16 years of age. See ORS 163.385(1) (defining the crime of third-degree sodomy). Mother's brother has not completed sex offender treatment. There is no other information in the record regarding the nature of the brother's sex offense.

After learning of DHS's concerns about her brother, mother voluntarily enrolled in a nonoffending parent class through Family Sex Abuse Treatment (FSAT). She completed the program in March 2008. The FSAT providers recommended that mother be part of her brother's treatment in order to help her understand his triggers and "offending cycle." The providers also recommended that mother participate in her brother's formulation of a relapse prevention plan.

Between October 2006 and May 2007, before mother had completed FSAT, the juvenile court repeatedly found that mother was not yet ready to resume caring for child, primarily because she did not recognize that father--and later, her brother--were threats to child. In May 2007, the juvenile court changed child's permanent plan to adoption and ordered DHS to file petitions to terminate the parental rights of both mother and father.

However, by April 2008, DHS had concluded that adoption was no longer an appropriate plan for child and, as a result, the agency moved to dismiss the termination petitions and to implement a guardianship for child. The juvenile court dismissed the termination petitions, found that a safe return to mother was not possible because she did not recognize the threat that her brother posed to child, changed the plan to guardianship, and entered a permanency judgment accordingly. After mother notified the court of her intention to challenge the guardianship, the court scheduled a contested guardianship hearing.

In August 2008, shortly before the September 2008 guardianship hearing, a DHS employee telephoned mother's home to cancel an upcoming visit. A man answered the telephone and identified himself as mother's roommate but, when asked, refused to give his name. Later, when mother was asked about the incident, she denied having a roommate. She explained that she had asked a friend to fix her air conditioner and speculated that perhaps that friend had answered the telephone. At the guardianship hearing, mother testified that she had spoken with her friend and that he had denied ever answering the telephone. She also stated that she had examined her caller ID and that there was no record that DHS had called her home.

Shortly before the guardianship hearing, mother developed a safety plan with the assistance of her FSAT counselor. The plan specified that mother and child would not have any contact with father unless "approved by DHS and accompanied by proper supervision." The plan further specified that child would not have any contact with mother's brother. Mother secured her brother's agreement with the plan but did not present the plan to DHS before the guardianship hearing. When asked whether she believed that her brother represented a threat to child, mother responded:

"I don't. He--he is a registered sex offender. I know that. I understand that. As--as far as keeping them apart, as long as he does not come to my home and I don't take her to him and they're not left alone ever--and they're kept, you know, their distance, then as long as they have no contact, you know, whatsoever until she's of--of that age to decide for herself, you know, to do so, then that--I have no concern. He understands that."

Mother reiterated that, because she did not share a home with her brother, she did not consider him to be a threat and that, although she did not believe that her brother would harm child, she would do everything possible to ensure that he did not do so. Nevertheless, mother stated that she planned to maintain a relationship with her brother and that she believed it was appropriate for her to do so as long as child did not have any contact with him.

Although it appears that mother and her brother shared a home as late as April 2007, mother consistently has denied living with him since September 2007. DHS acknowledges that, despite "numerous" home visits, it has found no evidence that mother's brother currently resides in mother's home. However, because of mother's work schedule, DHS has not been able to conduct unannounced home visits.

Mother's brother currently lives half a mile from mother's home. Mother acknowledged that she occasionally receives mail addressed to her brother at her home but testified that he occasionally uses her address as an emergency address. Although mother believed that child could be returned to her care immediately, she also was willing to wait as long as needed to minimize the stress on child.

Noting that it had initially taken jurisdiction over the family because mother's inability to protect child exposed child from unsafe circumstances, the juvenile court found that, at the time of the hearing, mother continued to have difficulty protecting child. The court emphasized that, over the previous three years, mother had participated in a number of services designed to help her realize that father and her brother were a threat to child and that, despite those services, she continued to receive mail addressed to her brother, continued to reside near him, and did not acknowledge him to be a threat. In light of those facts and the unidentified male at mother's residence, the court found that safety concerns persisted and that child could not be safely returned to mother's care within a reasonable time. After finding the other statutory requirements for a guardianship under ORS 419B.366, the court ordered that a guardianship be established for child.

The facts supporting a guardianship must be established by a preponderance of the evidence. ORS 419B.366(2). ORS 419B.366(5) provides:

"If the court has approved a plan of guardianship under ORS 419B.476, the court may grant the motion for guardianship if the court determines, after a hearing, that:

"(a) The ward cannot safely return to a parent within a reasonable time;

"(b) Adoption is not an appropriate plan for the ward;

"(c) The proposed guardian is suitable to meet the needs of the ward and is willing to accept the duties and authority of a guardian; and

"(d) Guardianship is in the ward's best interests. In determining whether guardianship is in the ward's best interests, the court shall consider the ward's wishes."

A reasonable time is "a period of time that is reasonable given a child or ward's emotional and developmental needs and ability to form and maintain lasting attachments." ORS 419A.004(20).

On appeal, mother contends that, in light of her repeated statements that her brother would not have contact with child, DHS failed to show that there was a plausible risk of harm to child if she were returned to mother's care. DHS responds that, despite mother's professed intentions, her testimony that she did not believe that her brother would harm child demonstrated that she was unable to acknowledge the threat that her brother poses. According to DHS, mother's inability to recognize that threat, combined with her brother's proximity to her home, her continued receipt of his mail at her residence, and her stated intention to continue her relationship with her brother all demonstrate that the safety concerns that brought child into DHS's care have not abated.

We conclude on de novo review that the record does not demonstrate that mother's brother presents a safety risk that prevents child's return to mother. The record establishes neither that her brother would have contact with child nor a nexus between the nature of his prior offense and a risk to this particular child. Accordingly, there is no basis for the required finding that child cannot be returned to mother within a reasonable time.

First, the record does not establish that mother's brother would have contact with child. With the exception of DHS's suspicions, there is no evidence that mother's brother resides with her. Indeed, DHS acknowledges that, despite "numerous" home visits, it has found no indication that mother and her brother are living together. Although there is evidence that, one month before the hearing, there was an unknown male (who identified himself as mother's roommate) at the residence, there was no evidence--even accounting for mother's somewhat unsatisfying explanations--that that person was her brother.

Second, the record contains insufficient evidence of a risk to this particular child. When this court previously has confronted the issue of when and whether a sex offender presents a risk of harm to child, we have required some nexus between the nature of the offender's prior offense and a risk to the child at issue. See State ex rel Dept. of Human Services v. L. C. J., 212 Or App 540, 546, 159 P3d 324 (2007) (evidence that the mother lived with a person who had been adjudicated to be a sex offender based on allegations of victimizing a girl close to the child's age and who was likely to reoffend was sufficient to establish a risk of harm to the child); cf. State ex rel Dept. of Human Services v. Shugars, 202 Or App 302, 315, 121 P3d 702 (2005) (acknowledging, in a dependency case, the postulate that "harm to one child presents a risk of similar or related harm to other children in the same household," but noting that the rule did not automatically justify the blanket imposition of dependency jurisdiction without a consideration of each child's circumstances). Here, DHS has provided no evidence of the circumstances of mother's brother's sexual offense other than that it involved a person who was less than 16 years old and that it occurred some time before 2002. Rather, DHS's position appears to be that, because mother's brother is an untreated sex offender, he necessarily presents a safety risk to child.

This court previously has rejected similar arguments. In State ex rel SOSCF v. Burke, 164 Or App 178, 181-84, 188, 990 P2d 922 (1999), rev den, 330 Or 138 (2000), a termination case, we declined to infer, in the absence of any evidence that the father had ever victimized his toddler children, that he presented a risk to the children, despite evidence that, before their birth, he had engaged in numerous incidents of sexual contact with teenage females. See also State ex rel Juv. Dept. v. K. D., 228 Or App 506, 516 n 4, ___ P3d ___ (2009) (noting that a father's 13-year-old conviction for the statutory rape of two girls, aged 13 and 14, "does not necessarily demonstrate a propensity * * * to be a threat to his toddler son"). Consistently with those cases, we decline to infer, without other evidence, that, because mother's brother is an untreated sex offender, he is a threat to child, even if he resides near mother's home. Because DHS presented insufficient evidence at the guardianship hearing to demonstrate that mother's brother presented a risk to child that prevented child's safe return to mother, the juvenile court erred in establishing the guardianship.(1)



1. Acting on DHS's motion, the juvenile court limited the scope of the evidence below to events that occurred after the April 2008 permanency hearing. The court reasoned that, at the April hearing, it had determined that child could not be returned to mother within a reasonable time, one of the requirements for an ORS 419B.366 guardianship. The court announced that "the information that was adduced" at the earlier hearing would be "incorporated" into the guardianship proceeding, that it "formally adopt[ed]" that information, and that its April 2008 permanency judgment reflected--and it had "a recollection of reviewing"--various documents, including a DHS letter and court report, notes from mother's FSAT participation, an evaluation from child's therapist, and various visitation notes.

"With the exception of the DHS letter and a court report (the latter of which appears to be an updated version of a report that was presented to the court in April), none of the documents mentioned by the court was entered into evidence, and they do not otherwise appear in the trial court file. Accordingly, they are not part of the record on appeal. See State ex rel DHS v. Lewis, 193 Or App 264, 270, 89 P3d 1219 (2004). Although it is well established that courts may take judicial notice of records and prior proceedings in the same case, Oden v. Oden, 157 Or 73, 76, 69 P2d 967 (1937), we do not interpret the juvenile court's vague statement that the information "adduced" at the April hearing was "incorporated" into the guardianship proceeding as taking judicial notice of that information.

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Dec 27, 2009 12:21 pm

. ... 0FINAL.pdf

Office of the Child Advocate White Paper Series on Significant Policy Issues in Child Welfare

July 10, 2009

Reducing the Foster Care Rolls: Are We Using the Right Tools?
A Report on and Recommendations for the Use of Safety Resources and
Temporary Guardianships as Responses to Child Maltreatment Reports in Georgia

Posts: 5496
Joined: Sat Feb 25, 2006 3:06 pm

Postby Marina » Sun Dec 27, 2009 12:58 pm


Search Dupuy v. McEwen

Return to “Research Resources”

Who is online

Users browsing this forum: No registered users and 1 guest