Accusing Illinois state officials of disregarding the rights of families during the coronavirus pandemic, a top public defender has taken the extraordinary step of fighting for a temporary restraining order against the Department of Children and Family Services, which has barred most family visits.
In a court filing publicized by tweet Friday, Cook County Public Defender Amy Campanelli said the child welfare agency’s suspension of all supervised visits between parents and their children in foster care has been done with “no thought to the tragic results on families, siblings, and our communities.”
In Chicago, Campanelli tweeted, the majority of those parents are “are black poor families who are suffering.”
She could not be reached for follow-up comment on the child welfare agency’s announcement in late March that it would suspend all supervised visits.
Campanelli’s office is seeking a temporary restraining order and preliminary injunction to halt the blanket suspension, and to force the Illinois Department of Children and Family Services to determine whether supervised family visits can happen on a case-by-case basis. National experts on parent representation believe it is the first legal action taken to challenge an agency’s visitation policy during the pandemic.
The May 6 filing to the Circuit Court of Cook County includes sworn statements from four parents and their attorneys – all in pretrial stage, with no court finding that abuse or neglect had taken place, according to the affidavits.
Campanelli’s filing alleges that the barring of supervised family visits violates parents’ due process rights. It also argues that the rules contradict recent federal guidance and jeopardize federal child welfare funding for the state under the Social Security Act.
“We wholeheartedly support the public defender’s case,” said Tanya Gassenheimer, a staff attorney at the Chicago-based Shriver Center on Poverty Law. “It has become a necessary step to right some of the wrongs done to families and to stop the harm as this pandemic goes on.”
Asked to comment on Campanelli’s filing, DCFS spokesperson Jassen Strokosch said in an email that “there have been rapid adjustments made to our system” to balance the need to prevent the spread of coronavirus and the support of families. “DCFS will keep adapting and responding to the changing nature of this crisis.”
Illinois has been among the hardest-hit states during the pandemic with 73,760 confirmed cases and 3,241 deaths, a number topped by only five other states. Late last month, as the state moved toward increased restrictions on movement during the public health crisis, several child welfare and anti-poverty advocates signed onto a letter asking DCFS to keep parents’ rights in mind as the agency made contingency plans.
On March 25, two days after the letter was sent, the child welfare agency appeared to not only disregard the attorneys’ plea, but they also issued a notice that seemed to institute the polar opposite: a move that all but barred separated parents and children from continuing their contact – even when protective safety measures were taken. The agency issued a notice that all in-person supervised visitation was suspended indefinitely.
Unsupervised visits are still permitted, the notice instructs, as long as a “pre-screening tool” consisting of three questions about contact with known positive cases of coronavirus, or recent history of fever or cough is employed. The agency notified birth parents and foster parents of the new protocol by mail two days later.
Most Illinois parents with youth in foster care are subject to supervised visits, which typically take place in public settings, like a McDonald’s, or at a county office. Gassenheimer said legal advocates for the families have proposed conditions that would ensure health and safety at such visits during the coronavirus pandemic, including the use of hand sanitizer, masks and gloves for all participants, before and after each visit.
Gassenheimer said DCFS replied to advocates and the public defender’s office – which represents some parents with children in the foster care system – in an April 28 letter that she described as “fairly unresponsive.”
“Many parents have very young children who cannot communicate via phone or video conferencing, and because of this ban they are deprived of the opportunity to see, touch and hold their young children,” Campanelli said in an op-ed that ran Thursday in the Chicago Sun-Times. “Even mothers who breastfeed their infant children are prevented from doing so.”
Parent advocates were critical of the county court’s child protection division, led by nationally known family preservation advocate Judge Patricia Martin, for not pushing back on the state’s blanket rule on supervised visits.
“It’s disappointing, to be sure,” said Melissa Staas, a supervising attorney for Legal Aid Chicago. In the domestic relations division, which handles private custody disputes, Staas said, Judge Grace Dickler required family visits to continue as ordered.
Judge Martin could not be reached by deadline.
Family visits are a critical piece of the effort to reunify families once a court has determined that children must be taken into foster care. Generally, parents progress from supervised visitation to unsupervised time, including weekend stays. Some dependency court judges have signed off on approved long, unsupervised visits to allow children to return home during the pandemic.
In April, the U.S. Children’s Bureau encouraged courts and agencies to “become familiar with ways in which in-person visitation may continue to be held safely,” to avoid blanket bans on family time. The California Judicial Council, citing the federal guidance, instructed all lower courts in the state to avoid or do away with blanket suspensions.
Still, for many families across the country, court proceedings have been delayed due to public building closures, and family contact has been reduced to phone chats, disrupting the preferred path toward reunification. Video visits have been deeply disappointing and even anguishing, especially in families with babies and small children who can’t distinguish a FaceTime screen from a banana, and wonder why they can’t touch mom or dad through the screen.
In Illinois, the suspended in-person visits were supposed to have been replaced in all cases by virtual visits using smartphones or online video platforms. But Gassenheimer said the state child welfare agency has not guaranteed those, leaving it up to contracted foster care providers with limited ability to make sure they take place.
“If they have the capacity and willingness, maybe they happen,” she said. If not, the families are left to ride out the pandemic with little to no communication.
John Kelly can be reached at firstname.lastname@example.org.
CORRECTION: The story originally noted that the motion was made on behalf of three parents, when it was brought on behalf of four.