The Journal of The DuPage County Bar Association

DCFS: How to Navigate the System

By Melissa Kuffel

The Department of Children and Family Services, or DCFS, may be a well-known organization, yet most people, and specifically attorneys and Guardian ad Litems (GALs), are not privy to the unique and mysterious world that surrounds DCFS and its rules and procedures. Without prior knowledge or experience, it can be extremely difficult to navigate the DCFS system. 

When you are an attorney practicing in family law, you inevitably encounter DCFS in some way, shape or form. The issue of orders of protection, domestic violence, drugs, alcohol, and abuse all come into play at different times when handling some divorces and parenting battles, which means DCFS is probably involved or soon to be involved. Whether you are directly handling the DCFS matter for your client, or if you are simply looking to advise your client regarding the divorce matter given that a DCFS case is pending, it is important that you, as the attorney, understand how to counsel your client, and know the basic rules and regulations and how that may affect your case. 

How does DCFS get involved? 
In order for DCFS to even get involved in a given situation, someone would have had to notify DCFS regarding possible abuse or neglect (or dependency, which is when a child needs care that the parents are unable to provide and therefore, must be dependent on the state for care).1 This occurs when someone calls the child abuse hotline. This may be a mandated reporter or someone who observes or suspects child abuse or neglect. Once a call is made to the child abuse hotline, the operator can either take the call as information only or they can open an investigation. If the call is taken as information only, that means that no investigation will be opened and that the call will be documented, but no action will be taken.

If an investigation is opened, then someone from the Department of Child Protection (DCP) will be assigned to investigate the allegation. It is important to understand what the allegation is and what that may mean. Some of the most common allegations you will see are: cuts, welts, marks, bruises; lack of supervision; substance exposed infant; physical abuse; sexual abuse; anticipatory neglect, failure to thrive, and failure to 
protect. The allegation listed will determine the specific details the investigator will be looking for in his or her investigation. 

When an investigation is pending, there are several actions you can take if you are the attorney for one of the parents. You can contact the DCP worker and supply information, if necessary or appropriate, such as background information you may be privy to or documents that may aid the DCP worker depending on what it is you are trying to accomplish. You may also be able to find out from the DCP worker if the investigation is going to be unfounded or indicated long before the final report is written and delivered to everyone. The DCP worker has an extremely important role and it is imperative to respect and understand that role as the attorney for a parent being investigated. 

DCP can decide to do several things when they start an investigation. DCP can make a safety plan, create an intact case, determine the case unfounded, indicate the report, or take protective custody (PC) of the children. The difference between these different paths is drastic. The best result for a parent directly involved in an investigation is that the DCP worker determines that the report is unfounded, meaning the DCP worker did not find enough evidence to substantiate the alleged allegations. However, if the DCP worker indicates the report, then he or she can decide the severity of the situation and determine if a safety plan and/or an intact case would 
suffice or if the situation is so dire that DCP needs to take protective custody of the children. 

Safety Plan vs. Intact Case vs. Protective Custody
The difference between a safety plan, an intact case, and protective custody comes down to the severity of the situation and determining whether the children can be maintained in their home by adding services and/or monitoring by DCFS. A safety plan is the least drastic measure, which is a plan written by the DCP worker that is meant to alleviate the reason for why the hotline call was placed to begin with. For example, if the hotline was called because mom’s boyfriend beat the children, then a safety plan may be put in place stating that the mom may not allow the boyfriend to be around the children. Another example may be if the hotline was called because one sibling is hurting another sibling, then the safety plan would call for the parents to ensure that the siblings are supervised at all times. 

However, a safety plan alone may not be enough. When this is the case, DCP may decide to open what is called an intact case, which is where an intact worker from DCFS will give the parent(s) a service or multiple services in order to address the reason the investigation was opened. For example, the investigation may have been opened because mom reportedly has an opioid addiction. If the neglect of the child and the opioid addiction are not to the extent that the DCP worker feels protective custody must be taken, then the DCP worker may recommend an intact case be opened and that the mom enroll in a drug treatment program as well as individual therapy to address the underlying reasons for the addiction. The intact worker would then monitor the family and review the toxicology screens and the therapy reports in order to determine if the services are correcting the conditions that lead to the investigation. If the intact worker does not feel that the parent is adhering to the services or that the services are correcting the conditions that led to the investigation, then the intact worker can then determine that protective custody is necessary. Therefore, it is extremely important if you are the attorney for a parent that is part of an intact case that you counsel your client to engage in all recommended services and to follow all recommendations from the service providers. 

Protective custody (PC) is the most dramatic action that DCP can take, because it entails taking the children from the parents and placing them in the custody and control of DCFS. Once protective custody is taken, it can be extremely difficult for a parent to get their child back in a timely manner. On average, once PC is taken, it may take anywhere from six months to several years for a parent to get their child out of the system. Thus, helping your client to avoid PC is extremely important. 

When PC is taken, the statute provides that a temporary custody (TC) hearing must be conducted within 48 hours to determine if there is probable cause and urgent and immediate necessity to take custody of the children.2 At the onset, as the attorney for a parent whose children are in protective custody it may seem that you have a good chance to prove at TC that there is not probable cause and that there is no urgent and immediate necessity. However, this is very rarely the case. The reason being is that the State’s Attorney’s office will only screen a case for TC if they are extremely confident the Judge will make a finding of probable cause and urgent and immediate necessity. Therefore, it is an extremely rare occurrence for the Judge not to take TC of children after PC is taken. It is also important to understand that at the TC hearing the Judge is not determining whether or not there was in fact abuse and neglect.3 The Judge has a much lower threshold than determining abuse and neglect and is simply determining if there is probable cause to believe the allegations may be true and that there is urgent and immediate necessity to place the children in the custody of DCFS. 

In order to take TC, the Judge will also have to make the finding that DCFS made reasonable efforts to prevent or eliminate the need to remove the children from their home, or that no reasonable efforts could be made to prevent or eliminate the need for removal.4 This is where the Judge may consider whether a safety plan was put in place, an intact case was open, and whether the parent(s) engaged in any services. Generally, this is one of the areas that an attorney for one of the parents may have some success in avoiding TC. If you are representing one of the indicated parents, you may want to argue that reasonable efforts have not been made and that reasonable efforts to implement some services or additional services would eliminate the need to remove the children. 

Another way to avoid TC is to argue that there is no urgent and immediate necessity. Some Judges will consider returning the children home under an order of protection along with implementing some services if the Judge feels that there is not urgent and immediate necessity to remove the children.5 This argument usually goes hand in hand with the argument mentioned above, that DCFS did not make reasonable efforts. 

What happens if the Judge does take TC? 
If the Judge decides that there is probable cause and urgent and immediate necessity, and that reasonable efforts could not eliminate the need for removal, then TC will be taken and the DCFS administrator will be appointed as the guardian of the children.6 At this point, DCFS will assign an agency to service the case which includes: finding a placement for the children; establishing a visitation plan for the parents/children; establishing a visitation plan between siblings if they are not all in the same placement; setting up the Integrated Assessment; and developing a Service Plan.7 

Placement, Visitation, Integrated Assessmentand Service Plan
First and foremost, DCFS will focus on finding an appropriate placement for the children. DCFS is under an obligation to make reasonable efforts to first place the children with a relative before looking into other types of placement.8 There are also many other factors DCFS must consider when determining an appropriate placement including level of care,specialization, location, access to services, religious background, ethnic background, Indian heritage, as well as the placement of any other siblings. If the children are placed in a placement that you do not agree with or if the children are removed from a placement where you wanted the children to remain, you can file a clinical placement review which requires DCFS to conduct a clinical review of the placement change and to determine if the change in placement is/was appropriate.9 

Once DCFS has placed the children, they will then set up a visitation plan between the children and the parents. The visitation plan will be based on the severity of the allegations in the case, the ages of the children, whether or not services are in place, and the special needs of the children.10 Typically speaking, most parents begin with supervised day visits and will need to work towards getting approved for unsupervised visits or overnights. In order achieve a more liberal parenting schedule, parents need to engage in the recommended services as outlined by the integrated assessment (IA) and make progress towards correcting the conditions which caused the case come into the system. 

The IA is an assessment conducted by a clinician approved by DCFS to determine what services the family needs and what strengths and weaknesses the family may have. The IA should be conducted shortly after TC is taken, however, it may take several months for the final IA to be distributed to all of the parties. Many times this can be a frustrating time for parents trying to get their children back because they cannot even begin to work towards return home until they start their services, and they cannot start services until the IA is finalized and the service plan is created. However, it is important to understand that the system is slow and that expecting something different will lead to only further frustration for both the attorney and the client. 

Eventually, though, the IA will be completed and it will be used to develop the service plan which will be the essential document in achieving return home of the children. The service plan will give a list of services for the parents, the children, and the foster parent(s), as well as DCFS in order to serve the best interest of the children and to lay out a road map for the parents to achieve return home. The service plan will be reviewed every 6 months at a meeting called an ACR, where DCFS or the assigned agency (“assigns”) will determine if the parents are satisfactory or unsatisfactory in making progress in their recommended services. The only way for a parent in the system to get their children returned home is to make substantial progress in his or her services. 

With all of this said, services and placement and visitation may all be for nothing if the Judge does not, in fact, make findings of abuse or neglect at the adjudication (ADJ). If the Judge does not make any findings of abuse or neglect then the case is immediately dismissed and the children are returned home.11 Then again, this is extremely rare, mostly because as mentioned before, the State will only prosecute the case if they are extremely confident they are going to win. Thus, the Judge will most likely make a finding, or multiple findings of abuse and/or neglect and, therefore, the case must then proceed to a dispositional hearing (DH or “dispo”). 

Although Judges often hold an adjudication and a dispo back-to-back on the same day, these are two drastically different proceedings with very different outcomes. At adjudication the Judge is determining if there is a factual basis to sufficiently prove the allegations of abuse and neglect which led to the children coming into DCFS custody.12 In other words, adjudication is looking at events that happened prior to TC. Whereas, at dispo the Judge will be looking at events that have happened since TC. Specifically, the Judge will be determining if the parents are fit, willing, and able to have the minors returned to their care.13 The judge will make this determination based off of the parents’ involvement/progress in services, as well as the needs of the children. Thus, on the same day, the Judge could rule that the children have been abused and neglected (at ADJ), and yet also decide to send the children home (at dispo) because the Judge found the parents to be fit, willing, and able based on the parents’ efforts since TC.14 Therefore, it is extremely important to know the difference between these two proceedings and to determine ahead of time with your client what your strategy is for each of these proceedings individually. 

At this point in the case, it is basically a race against time for the parents to get their children back. If a parents fails to make substantial progress towards return home and/or fails to make reasonable efforts towards return home, then the state can ask the Judge to terminate their parental rights in as little as nine months from the date of adjudication.15 In order to determine if the parents are making progress and making reasonable efforts towards return home, the court will hold a permanency hearing (PH) every 6 months to get a report from the caseworker and to review the service plan.16 The goal for any parent in the system is to achieve return home as quickly as possible, which means if you represent one of the parents you should stress to your client the importance of getting into services and making progress as quickly as possible. 

The DCFS road is long and the pot holes are deep.
Ultimately, any involvement with DCFS can be extremely arduous and stressful for everyone involved. It is nearly impossible to understand all of the rules, regulations, laws, case law, and how they all work together without being enveloped in the DCFS world for an extended period of time. Any single situation or scenario can take you down an entirely different path into new and unchartered territory. Though the road may seem long, and the pot holes deep, the DCFS road is still navigable. Hopefully, this article provides the basic building blocks to help family law attorneys begin to navigate the complexities of the DCFS world. 

1. 705 ILCS 405/2-3
2. 705 ILCS 405/2-9
3. People v. Jacqueline M. (In re I.H.), 238 Ill. 2d 430, 345 Ill. Dec. 532, 939 N.E.2d 375, 2010 Ill. LEXIS 1541 (Ill. 2010).
4. 705 ILCS 405/2-10
5. 750 ILCS 405/2-20
6. Id.
7. DCFS Procedure 301, Section 301.55, Subpart A 
8. DCFS Procedure 301, Section 301.6, Subpart A
9. DCFS Procedure 301, Section 301.65, Subpart A
10. DCFS Procedure 301, Section 301.21, Subpart B
11. 705 ILCS 405/2-21
12. Id. 
13. 705 ILCS 405/2-22
14. 705 ILCS 405/2-22
15. DCFS Procedure 315, Section 315.4
16. Id. 

Melissa Kuffel is a family law attorney at Sullivan Taylor & Gumina. Previously, Ms. Kuffel worked at the Cook County Public Guardian’s Office for seven years as a GAL for abused and neglected minors. Melissa graduated from The John Marshall Law School, and received her bachelor’s degree from University of Wisconsin-Madison. She was admitted to practice in 2008.