Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Wednesday, October 11, 2006

Case Law Development: Judge Posner on Constituitonality of State Child Protection Agency Informal Resolutions

Judge Posner applies his usual direct and sometimes ascerbic pen to an opinion reluctantly affirming a preliminary injunction in a 10-year class action suit challenging practices of the Illinois child-welfare agency.  The action alleged that the state agency's practice of offering "safety plans" to parents in lieu of more formal action of removing a child from the home or instituting other formal abuse or neglect proceedings violated parental rights protected by the Fourteenth Amendment.  The trial court had ordered a limited preliminary injunction in the case, which the plaintiffs appealed on the basis that it did not go far enough.  Affirming the injunction, Judge Posner thought it went too far, and would have reversed the order had there been a cross appeal filed by the state.  The absence of a cross appeal did not prevent him from outlining the reasons why he found the plaintiff's arguments "silly."  He analogized the relationship between the state child welfare agency and parents who are unders suspicion of child abuse or neglect to that of any other opposing litigants and saw the state's offer of safety plans in lieu of formal action as akin to negotiated settlements of a tort action.   While I can't buy the analogy when the balance of power is so uneven and one's child, rather than money, stands in the balance, I can't resist but excerpt several paragraphs for your consideration...

Critically, however, the decision to agree to a safety plan is optional with the parents. If they think that if they turn down the plan the state will not try to remove the child from their custody, or that if it does they will prevail in the prompt judicial hearing to which they are entitled on the propriety of the removal, they will reject the plan. The plan is thus a form of interim settlement agreement pending the outcome of the investigation, as when a plaintiff in a suit for restitution agrees not to move for immediate seizure of assets held by the defendant if the latter agrees to place them in judicial custody. It is not surprising that the safety-plan program is not embodied in a statute or formal regulation, but merely in internal directives of the Department of Children and Family Services. It imposes no obligation on anybody.

Which answers the plaintiffs' argument that the Constitution entitles parents to a hearing before they are offered the option of agreeing to such a plan.  There is no right to a hearing when no substantive right has been infringed or is threatened with being infringed. The state does not force a safety plan on the parents; it merely offers it. Parents are entitled to a hearing if their parental rights are impaired, and the offer of a settlement no more impairs those rights than a prosecutor's offer to accept a guilty plea impairs the defendant's right to trial by jury.

It is true that by refusing to agree to a safety plan, as by refusing to plead guilty, a person may find himself in a worse pickle than if he had accepted it. The plan might be for the child's father to move out of the house for a week. If he refused, the state might decide to place the child in foster care, and though if it did so he could demand a judicial hearing, the judge's ruling might go against him. That is a dilemma implicit in any settlement process. If there weren't a downside to refusing to settle, there would be no settlements.

The plaintiffs are very wroth because, they say, the state sometimes offers a safety plan on the basis of "mere suspicion" of child abuse or neglect, rather than probable cause or at least reasonable suspicion. But as mere suspicion--some inarticulable hunch--is not a statutory ground for actually removing a child from his parents' custody (Illinois law requires, as we know, that the state have reason to believe that the child is in imminent danger), the parents in such a case have only to thumb their nose at the offer and the agency can do nothing but continue its investigation, which it would do anyway. The plaintiffs complain that the prospect of a hearing if the state removes a child is not adequate because the hearing will not address the details of the safety plan; it will deal exclusively with the validity of the child's removal from the home and therefore, the plaintiffs insist, is inadequate. The argument is silly; a plaintiff might as well say that a tort suit can't be settled without a hearing on the validity of the settlement. Because the safety plan is voluntary, no hearing of any kind is necessary; hearings are required for deprivations taken over objection, not for steps authorized by consent.

It adds nothing to say as the plaintiffs do that they did not really consent--that the state "coerces" agreement to safety plans by threatening to remove the child from his parents' custody unless they agree to the plan. It is not a forbidden means of "coercing" a settlement to threaten merely to enforce one's legal rights. If you sue and before judgment settle because the defendant is willing to settle on more favorable terms than you expect to obtain from pressing the suit to judgment, you've obtained a favorable settlement on the basis of an implicit threat to litigate to an outcome that would make the defendant worse off than if he settled; but you have not infringed any right of his. Coercion is objectionable--and when objectionable is more aptly described as duress or extortion--when illegal means are used to obtain a benefit.

Dupuy v. Samuels, 2006 U.S. App. LEXIS 24655 (October 3, 2006)
Opinion on web (last visited October 9, 2006 bgf)

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Jugde Posner, though brilliant, obviously does not have a clue about the circumstances that these target parents find themselves in when faced with a child protection investigation. It would be as 'easy' for him to stop what he is doing and fly to africa to defend allegations in front of a tribal chief as it is for many of these families to go into juvenile courts to argue about whether there is 'probable cause' to believe their child is in immediate danger. His opinion also ignores the reality that 'violations' of these consent resolutions are routinely used by child protection agencies to subsequently remove children from their parents. I've never heard anyone argue in favor of child abuse and there are no easy answers for enforcement. However, that does not change the fact that ANY TIME ANYONE threatens to take one's child away and has the apparent ability to do so, there is a de facto element of coercion involved. Because targets of CPA investigations are almost always indigent and under-educated, the pressure they face to 'go along' must seem insurmountable. Considering this imbalance and the stakes (child) involved, it doesn't seem like too much to ask that if a CPA thinks abuse is occurring they should put up or shut up (ie., go to a judge for a removal order).

Posted by: Shawn | Oct 12, 2006 10:12:50 AM

Your opinion of the opinion was so devoid of the realities of how these agencies truly interact, I suggest retirement before people discover how truly out-of-step with reality your opinion of the opinion is.

Please don't take this personally. It's just that Anyone who has spent more than ten minutes studying these agencies learns the system is designed to protect those employed by the system. The financial dots are connected at and surprise; The Office on Violence Against Women benefits not women, but the police in the form of bullet-proof vests. check out where the grant money goes; and please learn why your opinion on the opinion simply is neither accurate or credible.

Posted by: Bonnie Russell | Oct 15, 2006 8:12:34 AM

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