DCFS and divorce in Illinois

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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DCFS Investigations And Divorce In Illinois

DCFS and divorce in Illinois

The Illinois Department of Child and Family Services (DCFS) is a non-law enforcement agency with investigative powers.  Specifically, DCFS, is required to investigate any reports of child abuse or neglect in the state of Illinois.

In the early days of a divorce, it’s been my experience that unhappy married couples will turn to DCFS to resolve disputes regarding children in advance of filing for divorce. DCFS investigations can sometimes escalate the tension in a troubled marriage or provide needed consequences and remedies for unhealthy behavior. 

The people who work at DCFS are trying their best to provide safety and security to the children of Illinois.

“The Illinois Department of Children and Family Services shall, upon receiving reports made under this Act, protect the health, safety, and best interests of the child in all situations in which the child is vulnerable to child abuse or neglect, offer protective services in order to prevent any further harm to the child and to other children in the same environment or family, stabilize the home environment, and preserve family life whenever possible.” 325 ILCS 5/2

While the goal and mechanisms of DCFS are noble, you should still consider your own goals in your divorce when dealing with DCFS.

Who Reports Child Abuse And/Or Neglect To DCFS?

DCFS will begin an investigation if anyone calls in a report of child endangerment to 1-800-25-ABUSE.  If a child is in immediate danger of abuse, you should call 911.

More typically, DCFS cases get reported by a professional who has come into contact with the child “when they have reasonable cause to believe that a child known to them in their professional or official capacities may be an abused child or a neglected child”

This could literally be anyone.  The Illinois statute lists 71 types of professionals who are required to report any suspected abuse or neglect. 325 ILCS 5/4(a)

Once a report is made to DCFS, “the Department shall determine whether to conduct a family assessment or an investigation as appropriate to prevent or provide a remedy for child abuse or neglect.” 325 ILCS 5/7.4(a-5)

What Is A DCFS Investigation?

So, there are two functions DCFS can perform, a family assessment or an investigation.

“”[F]amily assessment” means a comprehensive assessment of child safety, risk of subsequent child maltreatment, and family strengths and needs that is applied to a child maltreatment report that does not allege substantial child endangerment. “Family assessment” does not include a determination as to whether child maltreatment occurred but does determine the need for services to address the safety of family members and the risk of subsequent maltreatment.” 325 ILCS 5/7.4(a-5)

So, family assessments do not finalize with a determination of abuse.  They are merely an offer of help (if you want it).

Investigations, however, determine child abuse and/or neglect and issue a report thereupon. So, a DCFS investigation has possible consequences while a family assessment has no consequences.

“”[I]nvestigation” means fact-gathering related to the current safety of a child and the risk of subsequent abuse or neglect that determines whether a report of suspected child abuse or neglect should be indicated or unfounded and whether child protective services are needed.” 325 ILCS 5/7.4

“If the family refuses to cooperate or refuses access to the home or children, then a child protective services investigation shall be initiated” 325 ILCS 5/7.01

If you don’t cooperate with DCFS, a formal DCFS investigation will begin with all of the possible consequences.

Furthermore, “If the Child Protective Service Unit is denied reasonable access to a child by the parents or other persons and it deems that the health, safety, and best interests of the child so require, it shall request the intervention of a local law enforcement agency or seek an appropriate court order to examine and interview the child.” 325 ILCS 5/7.5

DCFS is not ONLY looking for child abuse and neglect. “Information relevant to the assessment must be asked for, and may includeInformation on the existence of domestic abuse and violence in the home of the child, and substance abuse.” 325 ILCS 5/7.4(a-5)

Even a fight between adults or individual drug or alcohol use will be inquired into during a DCFS investigation.

What Are The Consequences of A DCFS Investigation.

“After conducting the family assessment, the Department shall determine whether services are needed to address the safety of the child and other family members and the risk of subsequent abuse or neglect.” 325 ILCS 5/7.4

A DCFS agent will make helpful suggestions to the family about what services are available that would match that family’s particular needs.  The DCFS agent will also make a determination if the report was “unfounded” or “indicated”

“The Child Protective Service Unit shall determine, within 60 days, whether the report is “indicated” or “unfounded” and report it forthwith to the central register. 325 ILCS 5/7.12”

For an “indicated” case,“[i]f the Child Protective Service Unit determines, following an investigation made pursuant to Section 7.4 of this Act, that there is credible evidence that the child is abused or neglected, the Department shall assess the family’s need for services, and, as necessary, develop, with the family, an appropriate service plan for the family’s voluntary acceptance or refusal.” 325 ILCS 5/8.2

“Indicated” can just mean that DCFS will offer services. You cannot be compelled to accept the services of DCFS.

“The Department shall comply with Section 8.1 by explaining its lack of legal authority to compel the acceptance of services and may explain its concomitant authority to petition the Circuit court under the Juvenile Court Act of 1987 or refer the case to the local law enforcement authority or State’s attorney for criminal prosecution.” 325 ILCS 5/8.2

Whether DCFS’s finding is “unfounded” or “indicated”, the alleged perpetrator of the abuse is going on a list. “Unfounded” cases are kept on a list for 5 years. 

“The Department shall maintain in the central register all unfounded reports for a minimum of 5 years following the date of the final finding.” 325 ILCS 5/7.7

These “unfounded” reports are, in theory, inaccessible.

“[N]o information shall be released unless it prominently states the report is “indicated”, and only information from “indicated” reports shall be released.” 325 ILCS 5/7.8

“Indicated” cases shall be kept on file with DCFS for 50 years for the death of a child or sexual penetration of a child, 20 years for serious injuries and other forms of sexual molestation and 5 years for general findings of neglect. 89 Ill. Adm. Code 431.30

Indicated cases are accessible by virtually any government agency or person who has any authority over the child: parent, teacher, physician, etc. 325 ILCS 5/11.1(a)

Specifically, “indicated” reports can be used in a divorce proceeding as evidence.

“A court, upon its finding that access to such records may be necessary for the determination of an issue before such court; however, such access shall be limited to in camera inspection, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it.” 325 ILCS 5/11.1(a)(8)

If you simultaneously have divorce or custody proceedings and a DCFS investigations, this will be a crucial issue. An Illinois family law court will take a DCFS report and its findings very seriously. Furthermore, the court is likely to call in the accuser and the report-maker as witnesses to determine the best interest of the child(ren). These people are already on record as being against the alleged perpetrator.

A DCFS report with unfounded or indicated findings can be crucial piece of evidence in a custody battle.

If the DCFS agent believes the child to be in danger, that agent has the power to immediately take the child away from the parent(s) or caretaker(s).

“An officer of a local law enforcement agency, designated employee of the Department, or a physician treating a child may take or retain temporary protective custody of the child without the consent of the person responsible for the child’s welfare, if (1) he has reason to believe that the child cannot be cared for at home or in the custody of the person responsible for the child’s welfare without endangering the child’s health or safety; and (2) there is not time to apply for a court order under the Juvenile Court Act of 1987 for temporary custody of the child.” 325 ILCS 5/5

DCFS employees are also obligated to report any discovered crimes to the police. “The Department shall within 24 hours orally notify local law enforcement personnel and the office of the State’s Attorney of the involved county of the receipt of any report alleging the death of a child, serious injury to a child including, but not limited to, brain damage, skull fractures, subdural hematomas, and, internal injuries, torture of a child, malnutrition of a child, and sexual abuse to a child, including, but not limited to, sexual intercourse, sexual exploitation, sexual molestation, and sexually transmitted disease in a child age twelve and under.” 325 ILCS 5/7

Furthermore, the police don’t care if the report is “unfounded” or “indicated.” The police will investigate DCFS’s files either way.

“[T]he Department shall adopt rules expressly allowing law enforcement personnel to investigate reports of suspected child abuse or neglect concurrently with the Department, without regard to whether the Department determines a report to be “indicated” or “unfounded” or deems a report to be “undetermined””. 325 ILCS 5/7.3(b)

How To Appeal A DCFS Indicated Finding In Illinois.

If you DCFS issues a report with an indicated finding, there is a very specific appeals process. DCFS will send you all the details about how and when to appeal when they issue their report to you.

“The written notification of the final finding determination of the child abuse and neglect investigation shall be provided to the person indicated for child abuse and neglect within 10 days after the final determination to indicate has been entered into the State Central Register.” 89 Ill. Adm. Code 336.30

“After the Department has indicated a report and issued a notice of the final finding determination and the right to an administrative hearing, the perpetrator named in the notification may appeal by filing a timely and sufficient written Request for Appeal with the Administrative Hearings Unit (AHU). The request must be filed in person, mailed, faxed or delivered by a third-party commercial carrier to the AHU address or fax number within 60 days after the notification sent by the State Central Register (SCR)… Upon receipt of a timely request for a regular appeal, the Department shall send the appellant, prior to the scheduled pre-hearing, a copy of the investigative file from which confidential information has been deleted in accordance with 89 Ill. Adm. Code 431.” 89 Ill. Adm. Code 336.30

“Within 60 days after the notification of the completion of the Child Protective Service Unit investigation, determined by the date of the notification sent by the Department, the perpetrator named in the notification may request the Department to amend the record or remove the record of the report from the register.

Such request shall be in writing and directed to such person as the Department designates in the notification letter notifying the perpetrator of the indicated finding. The perpetrator shall have the right to a timely hearing within the Department to determine whether the record of the report should be amended or removed on the grounds that it is inaccurate” 325 ILCS 5/7.16

If there is a criminal charge related to the plea and a finding of guilt, you cannot appeal the indicated finding.

“[T]here shall be no such right to a hearing on the ground of the report’s inaccuracy if there has been a court finding of child abuse or neglect or a criminal finding of guilt as to the perpetrator.” 325 ILCS 5/7.16

“The administrative appeal hearing shall consist of a pre-hearing conference and a hearing date during which testimony is taken and evidence is received.  The appellant or the appellant’s authorized representative shall be prepared to participate at all pre-hearing conferences and hearings.” 89 Ill. Adm. Code 336.105

The Prehearing Conference For Appealing an Indicated Finding In A DCFS Case

“The pre-hearing conference shall be convened by telephone unless the ALJ and the parties agree that the pre-hearing conference shall be held in person.” 89 Ill. Adm. Code 336.105(a)

The pre-hearing conference is a first step to let the Administrative Law Judge know that you are serious about this allegation and that this will be a serious hearing.

“During the pre-hearing conference, the appellant and the Department should be prepared to discuss:

A)        potential witnesses;

B)        exhibits that might be offered;

C)        timeframes for the administrative appeal hearing;

D)        any potential motions that could be filed;

E)        any other issues that would impact the timing and length of the administrative appeal hearing, such as, but not limited to, whether any of the witnesses require a special accommodation or a translator;”

The [Administrative Law Judge] shall address the following issues during the pre-hearing conference:

 Whether parties have exchanged lists of the names of persons who may provide testimony during the administrative hearing.

3)         Whether children may testify or be involved in the hearing.

A)        Either party requesting that a child be subpoenaed to testify or be involved in the hearing process must demonstrate at the pre-hearing conference that:

i)          the child’s testimony or involvement is essential to a determination of an issue on appeal;          

ii)         the likelihood of inflicting emotional harm to the particular child involved can be minimized with conditions and restrictions and the child’s testimony is necessary for the interests of justice; and

iii)        no alternatives, such as stipulations or transcripts from prior court hearings, exist that may be used as a substitute for the child’s testimony.

B)        In determining whether a child will testify, the ALJ must consider, when available, the opinion of the child’s treating clinician regarding the impact on the child if the child is permitted to testify or not permitted to testify, and how any negative impact could best be minimized for the particular child.    

i)          The ALJ must balance the hardship on the child, taking into account possible restrictions or modifications described in subsection (c)(3)(B)(ii), against the interests of justice and the harm to the child if an appeal is improperly denied or an indicated finding is improperly expunged.

ii)         If an ALJ allows a child to testify, the ALJ may set any conditions or restrictions, and may use any techniques allowed in any juvenile, civil or criminal court (including but not limited to in camera interviews, video conferences, questions submitted in writing, exclusion of parties to the proceeding (including but not limited to the parents), or change of hearing room or location) that will help minimize any emotional impact on the child.

4)         Whether:

A)        the parties agree to hold the hearing by telephone or video conference;

B)        whether witnesses should be scheduled to testify at specific times;

C)        there are any witnesses, such as medical professionals, that should be permitted to testify telephonically; and

D)        whether there are any non-professional witnesses who should be allowed to testify telephonically.

5)       Whether the parties have or will have exchanged records or documents prior to the administrative hearing.

6)       Whether the parties can agree upon any facts as true.

7)       Motions Filed by Any Party

A)         Any motions from the appellant or the Department shall be filed with the ALJ and served upon the AHU and the opposing party within a reasonable time prior to the hearing.

B)          Any motion that is consistent with administrative practice and procedure and does not infringe upon the Director’s authority may be heard.

C)          Motions filed shall be filed in accordance with any motion practice and timelines established by the ALJ responsible for hearing the case.

D)         If any party believes that a finding in a juvenile court proceeding is dispositive to an issue on a pending administrative appeal, he or she may file a motion, with supporting documentation, requesting the appropriate relief.

8)         The need of either party for an interpreter in his/her preferred language or for communication assistance.

9)         Whether any juvenile or criminal cases related to the indicated finding on appeal are pending in circuit court.” 89 Ill. Adm. Code 336.105(a)

The Appeal Hearing For Child Abuse And Neglect Findings In Illinois

The actual hearing is where the Administrative Law Judge hears the evidence and makes a decision regarding the indicated finding that DCFS made.

“During the administrative hearing, the appellant and the Department have the right to:

A)        present and question witnesses;

B)        present any information relevant to the issues;

C)        question or cross-examine witnesses, including an opportunity to question opposing witnesses, and dispute any information; and

D)        present stipulations to facts or issues.

2)         An appellant may bring an authorized representative to the hearing.  All expenses of  an authorized representative or of an appellant’s witnesses shall be paid by the appellant.

3)         Before and during the administrative hearing: 

A)        the appellant may withdraw the appeal; 

B)        the Department may expunge the indicated finding; or

C)        the Department may amend the indicated finding to remove any information that identifies the appellant as the perpetrator of child abuse or neglect.” 89 Ill. Adm. Code 336.115(a)

The hearing is conducted in front of an Administrative Law Judge.  An Administrative judge is not a divorce or family law judge but they are “an attorney licensed to practice law in the State of Illinois” 89 Ill. Adm. Code 336.120(a)

The Administrative Law Judge will “conduct a fair, impartial and formal hearing in which the strict rules of evidence do not apply” 89 Ill. Adm. Code 336.120(b)(1)

This means an administrative appeal is simply telling your story without worrying about the other party objecting.  This makes things much easier for the layperson. But not as fun/challenging for an experienced divorce lawyer.

The Administrative Law Judge will “identify the issues, consider all relevant facts and receive or request any additional information necessary to decide the matter in dispute, including but not limited to additional testimony, documents, exhibits, briefs, memoranda of law or post hearing briefs” 89 Ill. Adm. Code 336.120(b)(14)

Expect whomever accused you of abuse to testify at the appeals hearing.

“Any person who makes a report or who investigates a report under this Act shall testify fully in any judicial proceeding or administrative hearing resulting from such report, as to any evidence of abuse or neglect, or the cause thereof.” 325 ILCS 5/10

“No evidence shall be excluded by reason of any common law or statutory privilege relating to communications between the alleged perpetrator of abuse or neglect, or the child subject of the report under this Act and any person who is required to report a suspected case of abuse or neglect under Section 4 of this Act or the person making or investigating the report.” 325 ILCS 5/10

Finally, the Administrative Law Judge will “have the authority to recommend changes in the child abuse and neglect report in the State Central Register” 89 Ill. Adm. Code 336.120(b)(14) and “present a written opinion and recommendation to the Director after the record of the administrative hearing is completed or transcript is received, whichever is later. The written opinion and recommendation shall include a recommended decision on whether there is a preponderance of evidence of abuse or neglect based on information in the administrative record.  The opinion shall contain findings of fact, summary of testimony and evidence, conclusions of law and a recommendation” 89 Ill. Adm. Code 336.120(b)(15)

If your appeal is granted your file is expunged (erased) from DCFS’s records.

“Should the Department grant the request of the perpetrator pursuant to this Section either on administrative review or after an administrative hearing to amend an indicated report to an unfounded report, the report shall be released and expunged” 325 ILCS 5/7.16

You can double check that the allegation records wer expunged.

“Upon request, a subject of a report shall be entitled to receive a copy of all information contained in the central register pertaining to his case.” 325 ILCS 5/7.19

Appealing an indicated finding is a big hassle just to keep yourself off of a list. But, if being on that list could affect your employment or the custody of your children then appealing a DCFS indicated finding may be worthwhile.

If you’re getting a divorce and dealing with DCFS, please contact my Chicago family law office to learn more about how manage both DCFS and divorce at the same time.