In a ruling that seemed to be contradicted almost in real time, an Illinois judge dismissed a legal challenge to the state’s blanket ban of most family visits for parents whose children are in foster care.
Circuit Judge Caroline Moreland ruled that challenges to the ban should be taken up in courts that hear child welfare cases. But on the day she dismissed the motion filed by the Cook County Public Defender’s Office, Chicago’s courts announced another round of delays on child welfare hearings.
Cook County Public Defender Amy Campanelli said in an email to The Imprint that her office plans to mount another challenge to the ban and is “working on … ways to attack the Judge’s ruling.”
As the coronavirus spread in Illinois in late March – the state’s 98,030 cases trail only New York’s and New Jersey’s – the child welfare agency suspended all supervised visitation between parents and their children in foster care, saying that those meetings were unsafe and could be replaced temporarily with phone and video calls.
Family visitation, a critical part of maintaining the parent-child bond as systems work toward reunification, has emerged as one of the most affected parts of the child welfare process around the country. Federal officials urged courts and local agencies to avoid blanket orders against in-person visits, but even in systems that permit them, it is unclear how many parents are able to have direct contact.
Some workers within the Illinois Department of Children and Family Services have become dismayed by the rules and their effect on cases. One DCFS investigator, who asked to remain anonymous for fear of losing her job, said the use of only virtual visits is “unconscionable, especially for parents of very young children/newborns.”
The worker said she had recently removed an infant from a mother’s care after delivery and then had to explain to her that “the only ‘visits’ being facilitated currently are FaceTime, indefinitely. It was absolutely awful.”
Tanya Gassenheimer, a staff attorney at the Chicago-based Shriver Center on Poverty Law, said that even virtual visits, the child welfare agency’s prescribed substitute for family time, had been left up to the state’s array of private foster care providers.
The DCFS investigator said that in her region of the state, which does not include Cook County, private agencies are not even sending caseworkers to foster homes to check on children.
“Private agencies are only monitoring the safety of our youth in care via phone/video conferencing,” she said, which means many youth are not seen in person by caseworkers or family.
Arguments in the blanket ban case pitted lawyers representing four parents with children in foster care against DCFS and the Cook County Office of the Public Guardian, which represents children in Chicago’s foster care system. Deputy Public Defender Aaron Goldstein called the blanket ban of all in-person supervised visits a “violation of procedure” and “substantive due process.”
Public Guardian Charles Golbert said the public defenders were “forum shopping” by suing the state in Moreland’s court, as opposed to in juvenile court where the cases were pending. In the case of each parent named in the motion, he said, there was a pending date in late May or early June to consider a request to mandate in-person visits.
But the juvenile court had repeatedly delayed those hearings amid the statewide stay-at-home order and were likely to do so again, Goldstein said. “The motions were not substantively denied, but they were not heard.”
Golbert called it “rank speculation” that the juvenile court would not meet the next scheduled hearings, and Moreland agreed with the children’s attorney, finding that with scheduled court dates on all four cases, “there need not be duplicative litigation on these issues.”
Monday, as Moreland finished her opinion, the Cook County juvenile court delayed all upcoming hearings for 30 days, according to Goldstein.
The judge’s decision to allow the public guardian to be part of the case played a significant role in the outcome. DCFS had not yet formally asked the judge for a dismissal, and the guardian’s office did. Moreland dismissed with prejudice, which means this specific case cannot be brought back to court.
Before filing to halt the ban on visits, Goldstein, the deputy public defender, said his office had actually asked Golbert to join them.
“We were disappointed with the Public Guardian’s decision to move to dismiss the action since it’s their clients who are most adversely affected by this illegal ban on visits,” Goldstein said, in an email to The Imprint.
In an email after the judge dismissed the case, Golbert said he supports the idea of challenging the suspension of in-person visits, but on a case-by-case basis in juvenile court. There, he said, the judge “knows the family, and is in the best position to make a decision that takes into account the need for meaningful visitation” while protecting the health and safety of parties involved.
Golbert called himself a frequent “vocal critic” of the agency during the hearing. But he supports its decision to create a default suspension of in-person visits, as opposed to judges deciding on how safe they are in each case.
“I cannot say that DCFS’s policy is unreasonable in these unprecedented circumstances,” he said in his email.
While Moreland’s ruling focused on the appropriate venue for a legal challenge to the visit ban, she also said in her opinion that she believed the state DCFS’s blanket rule was legal.
Under the state’s Child Protection Act, she wrote, the agency can restrict or terminate parent or sibling visits any time it believes they “would be contrary to the child’s health, safety, and welfare.”
Assistant Attorney General Barbara Greenspan, representing the child welfare agency, said that visits were continuing using video technology, which “can allow a young person to maintain a visual image on a regular basis.”
Goldstein said that a recent letter, DCFS Director Marc Smith boasted about the agency’s procurement of 85,000 gloves and 100 gallons of hand sanitizer.
“They are equipped and have the ability” to conduct supervised visits safely, Goldstein said.
NOTE: This article was updated on May 20, 2020.