Transcript Client confidentiality in the new Illinois Rules of

Recent PrecedentSetting Cases:
Victories for Parents
Hernandez v. Foster (7th Cir.)
Background on SAFETY PLANS
• DCFS uses safety plans as an end run around
Juvenile Court Act
• Dupuy v. Samuels: 2006 Seventh Circuit ruling
that safety plans are voluntary
• Common practice of safety plans after taking
protective custody
Hernandez v. Foster
• Facts of Hernandez case
• An especially good vehicle for a test case on
the voluntariness of post-protective custody
safety plans.
Hernandez v. Foster
Procedural Posture
• Defendants’ motion to dismiss denied by
District Court
• Defendants’ motion for summary judgment
granted by District Court
• Plaintiffs appealed the granting of summary
judgment
Hernandez v. Foster
The four main issues decided by the 7th Circuit:
• (a) DCFS gets qualified immunity for the
removal
• (b) DCFS cannot hold children for 48 hours if it
is clear within that time probable cause no
longer exists
Hernandez v. Foster
Four main issues cont’d:
• (c) DCFS may not gain safety plans after
protective custody lapses through the use of
threats
• (d) prospectively (after October 7, 2011, the
date of the ruling) DCFS may no longer
remove children from their families without a
court order based on probable cause alone;
some exigency is also necessary.
Hernandez v. Foster
• The impact of the three rulings in favor of
families (b-d) above; advocacy issues
• The role of the Family Defense Center in
Hernandez and other cases like it.
In re Dar C. (Ill. Sup. Ct.)
• Synopsis of Facts
• Overview of lower court rulings and Supreme
Court opinion
In re Dar. C.
A statute may be facially constitutional, but
unconstitutional as applied
• In state court, focus on Illinois jurisprudence
• When making constitutional arguments in state court,
always cite to Illinois supreme court cases, as well as
federal cases
In re Dar. C.
Take risks in juvenile court
• Due process for parents is limited under the Juvenile
Court Act; our task is to keep the limitations from
collapsing inward
• Even mistakes can be exploited to protect the rights of
parents
• Don't sweat the ridicule: You might end up winning in
the supreme court—with a unanimous decision and
two special concurrences!
In re Dar. C.
Working with amici
• Invite criticism; adjust your theory
• Keep your case theory and argument in focus
throughout all working drafts
In re A.P. (pending in Ill. Sup. Ct.)
• Facts
• Appellate Court Opinion
• Issues in the Supreme Court
Julie Q. v. DCFS (pending in Ill. Sup. Ct.)
• Case pursued under ANCRA, not Juvenile
Court Act
• Facts
• Two defeats in a row
• Huge victory in Appellate Court
– Allegation #60 (environment injurious) void as a
matter of law
– ALJ relied upon impermissible hearsay
Slater v. DCFS (Ill. App. Ct.)
• Another DCFS investigation that never resulted in
juvenile court involvement
• Outstanding young mother was indicated for
causing a “wound by neglect” after an
undisputed accidental injury
• Again—2 defeats in a row
• Appellate court held that the mere fact that an
injury occurred is not sufficient to prove
neglect—there must be identifiable neglectful
behavior
In re J.C. (Ill. App. Ct. – unreported)
• Complicating fact of Mother being Deaf and
sign language interpreter needed for all court
proceedings
• In termination proceedings, trial court found
mother unfit, largely due to housing issues
that were beyond mother’s control
• Appellate Court ruled that the finding of
unfitness was contrary to the manifest weight
of the evidence
Recent cases of interest:
Illinois Supreme Court
US Supreme Court
In re C.C. 2011 IL 111795
• 705 ILCS 5/1-5(1): Parties—guardian
• Grandparent who was legal guardian of minor
not entitled to remain a party when
guardianship vacated at disposition
• Former guardian may petition under 705 ILCS
5/2-28(4) to have guardianship restored
In re C.C. 2011 IL 111795 (cont.)
• Notable quotes:
• ¶ 38 “We find that the appellate court erred in
looking to the children's best interests in
deciding that Long would remain a party to
the case even after she was dismissed as the
children's guardian”
In re C.C. 2011 IL 111795 (cont.)
• Notable quotes:
• ¶ 41 “We apply the statutes of this state as
written, and do not carve out exceptions that
do not appear in the statute simply because
we do not like how the statute applies in a
given case.”
In re Haley D. 2011 IL 110886
• Termination of parental rights: Relief from
default order/default judgment
• An order of default by itself is not a final order
or judgment when seeking relief under 735
ILCS 5/2-1301 or 2-1401
In re Haley D. 2011 IL 110886 (cont.)
• Practice point: Even a party in default still has
rights to notice, so know them!
– 705 ILCS 405/2-15
– 705 ILCS 405/2-16
– 705 ILCS 405/2-29
In re Haley D. 2011 IL 110886 (cont.)
– 735 ILCS 5/2-604 (“In case of default, if relief is sought, whether
by amendment, counterclaim, or otherwise, beyond that prayed
in the pleading to which the party is in default, notice shall be
given the defaulted party as provided by rule”)
– 735 ILCS 5/2-1302 (“Upon the entry of an order of default, the
attorney for the moving party shall immediately give notice
thereof to each party who has appeared, against whom the
order was entered, or such party's attorney of record. However,
the failure of the attorney to give the notice does not impair the
force, validity or effect of the order”)
In re Haley D. 2011 IL 110886 (cont.)
– Supreme Court Rule 105 (“If new or
additional relief, whether by amendment,
counterclaim, or otherwise, is sought
against a party not entitled to notice under
Rule 104, notice shall be given him as
herein provided”)
In re Haley D. 2011 IL 110886 (cont.)
• Notable quote:
• ¶ 90 “While courts must always remain mindful
of the best interests of minor children in cases
such as this, the focus of the Juvenile Court and
Adoption Acts is not solely on the child. A
parent's right to raise his or her biological child is
a fundamental liberty interest [citations omitted]
and Illinois law favors natural parents having
custody of their children [citations omitted]”
Other cases
– In re Jonathan C.B. 2011 IL 107750 : No right to
jury trial in delinquency
– Williams v. Illinois, 567 U.S. ____ (2012): Expert’s
referral to DNA test results as basis for opinion in
criminal trial did not violate Confrontation Clause.
• n.b. no majority on the law
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