DCFS ADMINISTRATIVE EXPUNGEMENT HEARINGS (INDICATED REPORT APPEALS)
A MANUAL FOR SELF-HELP BY THE FAMILY DEFENSE CENTER MAY 2010
TABLE OF CONTENTS
Preface ……………………………………………………………………………………iv About the Family Defense Center …………………………………………………………v About this Manual……………………………………………………………………….vii
I. BACKGROUND TO DCFS INDICATED REPORTS
Overview of DCFS Investigations ………………………………………………………….1 Challenging a DCFS “Indicated” Report …………………………………………………..6
II. HOW TO HANDLE YOUR OWN APPEAL FROM FILING TO DECISION
Getting Started …………………………………………………………………………. . 8
- Should I appeal even if I don’t have a lawyer?
- When can I appeal?
- Can an appeal hurt me?
- How do I appeal and how will my appeal start?
- Do I really have any chance of winning if I represent myself?
- Can I have someone besides a lawyer speak for me?
- Why is the process called an “expungement” hearing or “appeal” when there has been
no conviction against me?
- What is an expedited appeal and who gets one?
- Who is considered a child care worker?
- How do I know if DCFS has received my request for an appeal?
What Happens Before the Hearing? …………………………………………………. . 16
- What is the pre-hearing conference?
call from the judge?
- What time should be included on the subpoena for the witness to testify?
- Can my witnesses testify over the phone?
- What do I do if something unexpected happens and I need to discuss it with the judge and
How Do I Prepare for My Hearing? …………………………………………………… 26
- What rules should I know?
- What do the terms “abuse” and “neglect” mean?
- How do I start in my preparation?
- What do I do with the investigative file?
- How should I review the specific allegations against me? How can I use the definitions
of these allegations to my advantage?
- What areas should I focus on in preparing my cross-examination of the DCFS witnesses?
- Who should I call as my own witnesses? How should I present their testimony?
- How do I examine myself? How do I tell my side of the story?
- What do I do if I need a continuance?
- What do I do if DCFS requests a continuance?
What Happens at the Hearing? …………………………………………………………. 38
- General suggestions for the hearing.
- Where are the cases heard? In a regular courtroom?
- What is the “burden of proof” that applies to this hearing?
- What does “preponderance of the evidence” mean?
- Who goes first at the hearing? What is the usual order of the presentation?
- Should I make an opening statement?
- What are objections to testimony and evidence? How should I handle them?
- Should I testify? When do I testify?
- Does the alleged victim testify?
- What if one of my witnesses has to testify early in the day, before DCFS has finished
presenting its case?
- What is a stipulation?
- What is “hearsay” evidence?
- What does it mean that the rules of evidence do not strictly apply? Do I still make
- Is the investigative file evidence? Should I object to letting the file into evidence?
- Should I make a closing statement?
What Happens After the Hearing? ………………………………………………………. 50
- Does the Administrative Law Judge decide the case?
- When does the Administrative Law Judge issue the recommendation?
- When does the DCFS Director issue the final administrative decision?
- How am I notified of the decision?
- What if the Director disagrees with the Administrative Law Judge?
- And if I lose?
III. SAMPLE DOCUMENTS FOR APPEALS
Request for Expedited Administrative Expungement Appeal ………………………… A-1 Request for Administrative Expungement Appeal ……………………………………..A-2 Witness and Exhibit List ………………………………………………………………..A-3 Request for Subpoenas ……………………………………………………………………A-4
Motion for Testimony by Telephone ……………………………………………………A-5 IV. TEXT OF DCFS RULES
Introduction to Rules ……………………………………………………………………B-1 List of DCFS Child Abuse and Neglect Allegations (from Rule 300, Appendix B) …..B-2 DCFS Rule 336: Appeal of Child Abuse and Neglect Investigation Findings …………B-3 DCFS Rule 300.20 (Definitions) ………………………………………………………B-4 DCFS Rule 300.90 (Time Frames for the Investigation) ………………………………B-5 DCFS Rule 300.100 (Initial Investigation) …………………………………………….B-6 DCFS Rule 300.110 (The Formal Investigative Process) ………………………………B-7
V. ADVANCED ADVOCACY TECHNIQUES TO PROTECT YOUR RIGHT TO A SPEEDY DECISION
General Overview……………………………………………………………………….C-1 Scheduling the Hearing Date……………………………………………………………C-2 Special Note Regarding Expedited Hearings………………………………………………………….C-3 Counting Time: EXAMPLES…………………………………………………………………………….C-4
VI. SAMPLE DCFS INVESTIGATIVE FILE
Introduction and Description …………………………………………………………..D-1 Standard Notice of Indicated Finding ………………………………………………….D-2 Investigation Summary ………………………………………………………………………………….D-3 Risk & Safety Assessment ……………………………………………………………..D-4 Contact Notes …………………………………………………………………………..D-5 Domestic Violence Screen ………………………………………………………. . …..D-6 Redaction Checklist ……………………………………………………………………D-7 Police Report Redaction Notice ………………………………………………………..D-8 Notice of Pre-Hearing . …………………………………………………………………D-9
If you think that the Illinois Department of Children and Family Services has wrongly
targeted you as a “perpetrator” of abuse or neglect, you are not alone. Thousands of Illinois residents have been subject to “indicated reports” that are successfully removed through the DCFS appeal process. People who see their appeal through to conclusion often get these indicated findings overturned, whether or not they have a lawyer to help them. If you believe you have been wrongfully accused or if you believe the finding against you should be changed, this Manual may help you get a fair decision on your appeal.
While this Manual is written to guide you if you do not have a lawyer, you may wish to consult it even if you have a lawyer. You may want to share it with your lawyer, too. Lawyers who help people in the DCFS administrative appeal process can access another version of this Manual written for lawyers (with more rule and case citations), which is available on the Illinois Legal Aid Online web site, http://www.illinoislegalaidonline.org. This Manual is not meant to substitute for the legal advice and assistance you will get from your own legal representative. However, for many people who are unable to get legal representation (because of where they live or the costs of hiring an attorney or other reasons), this Manual will help you know how to approach your appeal and give you some tools to increase your chances of success.
ABOUT THE FAMILY DEFENSE CENTER
The Family Defense Center’s mission is to advocate for justice for families in the child
welfare system. We advocate for families who need our help the most: families threatened with losing their children to foster care. Any family can be the victim of a false, harassing, or misguided DCFS Hotline call. And unfortunately, many times DCFS does not successfully screen out the valid calls from the false ones. We strongly believe that the fairness of the child protection system depends on respecting the legal rights of persons who are investigated, so that people who are guilty of abuse or neglect are either punished or rehabilitated and people who are innocent of abuse are able to care for children without DCFS intervention.
Unfortunately, however, throughout America, families at risk of separation lack legal resources to adequately defend themselves against abuse or neglect charges even when they are innocent.
The Family Defense Center works to change the imbalance of resources available to families who are suddenly faced with accusations of child abuse or neglect in a DCFS investigation. We help people respond to these allegations when they have defenses but do not know how to present them in order to protect themselves, their families, and their careers. The Family Defense Center does not, however, focus on criminal [police] investigations and if a family member’s primary concern is a criminal investigation, we generally refer them to criminal defense counsel.
The Family Defense Center opened its doors to clients in Cook County and the collar counties in 2007. The Family Defense Center is the first-of-its-kind legal advocacy organization: we provide high-level systemic advocacy and grassroots activities for families treated unfairly by state child protection agencies, focusing especially on issues that arise during child protection
investigations. We have served over 1,000 individual clients and there are thousands of other individuals and families who benefit from our systemic advocacy. We hope this Manual will assist individuals throughout Illinois who we cannot represent directly but who still need guidance in interacting with DCFS.
The Family Defense Center handles many individual cases each year and refers dozens of cases to its pro bono program, which is available for families earning less 250% of the federal poverty line. If you live in the Metropolitan Chicago area and wish to have your case considered by the Family Defense Center and/or its pro bono referral program, you may email us at email@example.com, or download and fax to our attention a completed Client Intake Form available in the “Legal Representation and Services” section of our website at http://www.familydefensecenter.net. Our fax number is 312-356-3203. Please be aware that our office uses a sliding scale fee schedule and you will be asked to verify your income in order for us to make any decision about representing you at a DCFS appeal hearing.
ABOUT THIS MANUAL
This Manual is meant to help make sense of a process with which most people who are
not lawyers—and even many lawyers—may not be familiar. As with any process, there are rules and policies that are well-known to the people working in the system but not well-known to those who have never been through the process previously. The judges and administrators who run the DCFS administrative hearings system are required to maintain a fair system, including creating a complete record of the process on your appeal. You have the right to be treated with respect through the appeal process and to be informed of your rights.
The DCFS administrative hearing system will not make your case for you, nor will it help you if you miss important deadlines. This Manual is meant to highlight some of these steps in the process so you can avoid some pitfalls that trip some people up along the road to an appeal decision. The Manual includes helpful sample forms and issues to consider during a case. However, it cannot and does not exhaust the many possible avenues a case can take.
You, the reader, are referred to as “the appellant” in this Manual because you the one who is asking for the DCFS administrative appeal. This Manual is organized in four parts; you may not need to read through the entire Manual if, for example, you are just looking for a sample form to use or a DCFS rule you want to read. Part I discusses the background to indicated reports—that is, the process that DCFS uses to come to a decision to “indicate” or “unfound” an allegation. It also gives an overview of the appeal process.
Parts II—the main part of this Manual for people who are representing themselves in their own appeal—discusses the appeal process itself and uses a question and answer format. This is not a complete list of all the possible issues that arise in appeals, but it does review many of the most common questions appellants and their lawyers have that come up the first few times
they have such an appeal. The number in parentheses following a question refers to the DCFS Rule Number on the issue, which you can refer to in Part IV of the Manual for more specific information in presenting your case.
Part III includes sample forms for all the usual steps in the appeal process. Part IV contains an explanation of the laws governing investigations and some of the rules that DCFS is required to follow in the appeal process; reading these rules is not required but can be helpful (and the other parts of the Manual refer to some of these rules). The full text of all of the DCFS Rules regarding indicated findings and appeals are at 89 Ill. Admin. Code 300 (and Appendix B to Rule 300–the investigations and allegations rules) and 89 Ill. Code 336 (the rules about DCFS administrative appeals). All DCFS Rules and Procedures can be found at the following address: http://dcfswebresource.dcfs.illinois.gov/.
Part V presents some advanced strategies to deal with common problems that arise in scheduling DCFS appeal hearings. These problems occur because DCFS operates under court orders to hold timely hearings, but there are some exceptions to that duty that DCFS can use to cause unwanted delays. This section provides some ways to avoid having long continuances that cannot be counted in the strict court-ordered deadlines.
Part VI is a short sample DCFS file. We use this part to show you examples of some of the information you will receive from DCFS when you get your own file.
We hope this Manual helps you. The Family Defense Center welcomes feedback on this Manual. We will revise it periodically to address comments and questions we receive from appellants who use the Manual in their hearings.
Diane L. Redleaf Executive and Legal Director
Melissa L. Staas Staff Attorney
Allegra A. Cira Staff Attorney
Development and External Affairs Coordinator
Mayetis Dawson Office Administrator
This Manual was developed in substantial part by Alison McIntire, former Staff Attorney with the Family Defense Center, and has been adapted from the Family Defense Center’s Pro Bono Lawyer Training Manual.
PARTI. BACKGROUNDTODCFSINDICATEDREPORTS Overview of DCFS Investigations
DCFS investigations begin with a call to the DCFS State Central Register phone number (800-25-ABUSE), commonly called the “Hotline.” The Hotline’s offices are located in Springfield, Illinois. DCFS Hotline call screeners first conduct a brief screening interview to decide if a call should be referred for investigation (some cases in neglect categories such as “environmental neglect” may be referred for a “family assessment” instead of a full investigation). Calls that meet minimum requirements for investigation are “coded” by number within one of DCFS’ categories of abuse and neglect allegations. Some calls can be listed under a number of allegations. (A list of the categories of abuse and neglect allegations can be found in Part IV of this Manual.) Each coded call is then referred to an investigative team in one of DCFS’ local field offices throughout Illinois.
DCFS requires investigators to see (or make a “good faith” attempt to see) the child within 24 hours of the call. Within 48 hours of the call, this investigator should perform a safety and risk assessment based on Appendix G to DCFS Procedure 300. Safety assessments may result in a “safety plan,” possibly requiring temporary placement of your children in someone else’s care, or even the decision to take protective custody of a child. This Manual does not address the complex legal issues regarding safety plans or protective custody.1
1 The Family Defense Center has extensive experience working with families challenging safety plans and protective custody. A future Manual may address these topics. If you believe your rights were violated through a safety plan or if protective custody of your children was taken without probable cause, you may contact the Family Defense Center at firstname.lastname@example.org for more information about your rights in this situation. Please be aware that your contact with the Family Defense Center does not represent any agreement by the Family Defense Center to accept your case for legal representation; the Family Defense Center only represents clients in individual cases after those clients enter into specific retainer agreements with the Center.
At the beginning of the investigation, the investigator is required to talk to the child abuse/neglect reporter (the person who called the Hotline) and to the child’s parents. The reporter may be any person. Reporters can be anonymous callers, identified persons, or “mandated” reporters. “Mandated” reporters are people who work with children, such as teachers and doctors, who are required to call the Hotline whenever they have a good faith reason to believe a child is abused or neglected. These Hotline calls are strictly confidential, so the person who is the target of the investigation cannot find out who made the call except in very unusual situations. It is often possible to guess, however, who made the call. If you do not know who called the Hotline, it is not worthwhile to press DCFS to provide this information because DCFS investigators are not allowed to reveal the identity of callers.
During the investigation, you do have the right to know what the allegations against you are. You are entitled to be told approximately when and how you are alleged to have abused or neglected a child. You have the right to present as much evidence contradicting the charges as you can. DCFS rules require investigators to make contact with alleged perpetrators (if you are the person targeted as being accused of committing the abuse or neglect, that’s you) within 7 days of the Hotline call in order to provide written notice of the allegations being investigated. In practice, DCFS frequently delays talking to the accused perpetrator, sometimes because of police involvement, but more often simply because of bad practice. Issues of DCFS’ failure to follow its own policies during the investigation can be discussed at your hearing. See p. 32.
NOTE: If you work with children (except if you are a tenured public school teacher who is protected under state law), you should notify DCFS right away that your job involves work with children. While you might be afraid to tell DCFS this information, it will actually provide you some added protection for your career. At the same time, be sure to tell DCFS that
you are not authorizing contact with your employer about this allegation, unless the allegation arose at your place of employment. We recommend that you give DCFS a written notice that you work with children (you can use the words “Dupuy-eligible” if you wish; Dupuy is the lawsuit that establishes the rights of people who work with children to special processes for review before a finding can be made against them). No person who has been identified under the Dupuy lawsuit as working with children may be “indicated” without first having the investigation and evidence reviewed by a high-level DCFS Administrator at an Administrator’s Conference. This is a telephone conference at which you and the DCFS investigator on your case each have a chance to explain your sides and answer any questions asked by the Administrator. People who work with children also have the right to faster appeals. See pp. 13-14 (discussing rights of people who work with children).
While DCFS is the primary agency responsible for investigating abuse and neglect claims against people who have legal responsibility for taking care of children (parents, some household members, and child care professionals), some cases that are called into DCFS are also investigated by the police. Similarly, many calls to the police are often referred to DCFS. The outcome of one investigation does not decide the outcome of the other, except that “unfounded” DCFS investigations rarely result in a criminal case being filed.
DCFS investigations are different from police investigations in several ways:
(a) The police do not determine whether cases have merit or not; DCFS does determine the merits of the cases they investigate when DCFS “indicates” or “unfounds” an
(b) The police have the power to arrest and detain adults and to take children into
protective custody for up to 48 hours. DCFS has no power to arrest or detain adults,
but its investigators do have the power to take children into protective custody. Neither the police nor DCFS can hold a child in protective custody for longer than 48 hours (excluding legal holidays and weekends) without filing a court action;
(c) The police have no time limit on their investigations. In contrast, DCFS does have time limits under its rules to complete its investigations; and,
(d) The police have no authority to demand that people under investigation must cooperate with them unless they get warrants or court orders; even with a court order, the police cannot compel anyone to make a statement in a criminal investigation. DCFS similarly cannot demand cooperation, but unlike the police, it can and often does treat lack of cooperation as a negative factor against you in making safety decisions and issuing an “indicated” report.
By law, the DCFS investigator has a duty to complete the investigation within 60 days, but can obtain extensions for a good reason, or “good cause.” At the end of a DCFS investigation, the investigator and his or her supervisor make a final outcome determination, concluding that the allegation is either “unfounded” or “indicated.” If the allegation is “indicated,” DCFS is expected to decide who the “person responsible” for the abuse or neglect (i.e., the “perpetrator” of the abuse) was.
“Unfounded” means DCFS determined that there was not credible evidence to support a finding of abuse or neglect; “indicated” means DCFS determined that there was credible evidence to support a finding of abuse or neglect. It is now a constitutional requirement that before DCFS concludes there is “credible evidence” to indicate a report, it must conduct a full investigation in which it gathers and considers both inculpatory and exculpatory evidence—that is, evidence of guilt as well as evidence of innocence. After collecting any evidence supporting
the allegation and any evidence contradicting the allegation, DCFS must review all of the evidence gathered and make a decision based on that evidence. (While this is the constitutional requirement, DCFS investigators are not all well-trained and proficient in evaluating evidence, which is why people targeted in DCFS investigations too often are wrongly “indicated”)
Once DCFS makes an indicated finding, that finding is registered in the State Central Register (“SCR” or “Register”) for various lengths of time depending on the seriousness of the specific allegation category (5, 20 or 50 years). The only way to get rid of an indicated finding after it is registered in the SCR is to have it overturned through the DCFS administrative appeal process. Indicated findings are only partially confidential: they can be accessed in a number of harmful ways that can have very serious negative consequences for individuals, both personally and professionally. The personal consequences are potentially varied and deep: an indicated finding may be used to determine the custody of children or restricted visitation with children; it may cause a strained relationship with a spouse, significant other, or family member; and it may be used against the person who is indicated in limiting their access to children in the future. Indicated findings limit individuals’ ability to adopt children or become foster parents or guardians of children. Of course, in many cases, indicated findings also lead to added debt through lost time at work and the assumption of legal bills to overturn the finding.
If the indicated person works with children, the indicated finding may operate as a “blacklist” against employment in their field. For non-tenured public school teachers and teachers in private schools, social workers, day care owners, residential care owners, medical personnel in a children’s health clinic, and individuals in many other careers, there is a real and significant risk the person may lose their job or career because of the indicated report. While the report remains registered, it may be harder to get a promotion or change jobs even if the
employer does not take any negative action in the current job. Indicated findings hurt people who work with children because most employers in these areas do background checks and search the DCFS State Central Register when they make hiring decisions or when they have to get their own licenses renewed.
Not everyone is likely to be affected by an indicated report in the same way. For people whose children are grown and people who have no intention of ever working with children, the consequences of an indicated report may be much less significant than for parents of younger children, persons planning to adopt children, and people who work in a child care field such as day care or social work.
Challenging a DCFS “Indicated” Report
After DCFS makes the decision to indicate you and place your name in the State Central
Register, you may decide to challenge, or appeal, the indicated finding. In DCFS terms, your appeal is a request for an expungement hearing. See Question 7 at p. 12 (explaining why this name is a misnomer). An expungement hearing is an administrative hearing that is convened by an administrative law judge (ALJ). We refer to this person as the “judge.” These hearings take place in a conference room, usually last at least a half day, and often take a full day and sometimes longer. Hearings are legal proceedings that include the presentation of the testimony of various witnesses and offering other evidence including documents like pictures and medical records.
Following the hearing, the judge will made a recommendation to indicate or unfound allegations against you based on applying the policies and procedures listed at DCFS Rules and Procedures 300 Appendix B to your specific situation. See p. viii above for an explanation of
how you can find the DCFS Rules and Procedures. The judge’s decision is only a recommended decision; it must still be reviewed and approved or rejected by the DCFS Director. See p. 50 for a discussion of what happens if the judge and DCFS Director disagree.
The DCFS Director’s decision will tell you either that expungement is granted or denied. Sometimes, if there is more than one finding against you, you can win on one finding and lose on another. If expungement is granted, congratulations—you won! DCFS is not permitted to try and overturn the decision to grant an expungement. If expungement is denied, you can “appeal” the decision to the Circuit Court in your area (by filing a Complaint in Administrative Review) but you MUST DO SO within 35 days of the decision, according to the Illinois Administrative Review Act. This deadline is very strict.
PART II. HOW TO HANDLE YOUR OWN APPEAL FROM FILING TO DECISION
In the next sections of this Manual, we will walk you through the appeal process from
start to finish, answering the questions we often get from clients and from lawyers who have never handled this type of case before. We assume the person asking the question is the person DCFS has “indicated” for abuse or neglect and refer to that person as “You.” Only an indicated person can appeal an indicated finding.2
1. Should I appeal even if I don’t have a lawyer?
a. You should appeal an indicated finding if you believe it is wrong. Indicated findings can
have many negative effects on you, your family and, potentially, your career if you work with children or plan to in the future. Depending upon the specific allegations, an indicated finding will remain in the state record for 5, 20 or even 50 years. It will turn up during background checks for employment and volunteer activities. It may prevent you from obtaining employment in a setting in which there is contact with children and could seriously limit or completely change your career options if you are already working with children. For some people, the consequences are not significant, but for most people, even if the consequences are not obvious, a mistaken indicated finding just does not feel right and it is worth appealing to clear your record. Anyone who is concerned about the consequences of an indicated report and who believes the indicated finding is wrong should appeal.
2 Parents can act as “next friends” and appeal on behalf of their children. Children age 10 and under should not be indicated at all. Children may only be indicated for 5 years or until their 23rd birthday and only if they are “responsible” for the care of the child victim, are a parent or sibling or live with the alleged victim.
- When can I appeal?
a. You can and should appeal as soon as you get the notice of an indicated finding. Be sure
you do not miss the 60 day deadline!
b. There is no rule against an “early” appeal if you have been told you are being indicated.
However, you need to contact the DCFS Administrative Hearings Unit (see address and phone number at Question 4 below) if you do not receive a notice within 14 days acknowledging your appeal, especially if it was filed early.
- Can an appeal hurt me?
a. Generally, no. Sometimes, a very negative decision can hurt you but usually it is
possible to protect yourself even if the decision against you is very negative. You have a legal right to appeal, and exercising this right should not have a negative impact on you if you have been wrongly indicated. However, you may decide this finding is something you can live with, especially if the finding is only a five-year finding and you do not work with children or have children of your own.
b. On rare occasions, an appeal can have a negative impact if the administrative law judge makes a written determination that finds you are “not credible” or you have committed a serious act of child abuse and someone (such as an ex-spouse) gets a copy of the decision. Because appeals are confidential, however, no one but you and DCFS should receive a copy of the appeal decision. If someone close to you was involved in the DCFS case against you, if they learn of the outcome, they may try to use it against you. In these circumstances, you may need to think about how a negative decision might hurt you more than help.
c. At the same time, many people do win their appeals! Sometimes those who lose their appeals get decisions that are either neutral (no worse than the indicated finding itself) or even helpful (such as finding that the person appealing loses for technical reasons but is a “good parent” nevertheless).
4. How do I appeal and how will my appeal start? (DCFS Rule 336.40 and 336.80)
- You must file your request for an appeal within 60 days of receiving the DCFS letter stating that the report was indicated. If it is filed beyond that 60-day deadline, it will be dismissed as untimely. For purposes of determining the timeliness of a request for an
appeal, the appeal is considered filed as of the date that DCFS receives it.
- You must fax or mail a written request that DCFS review its decision. A template for
this written request can be found at Part III of this Manual.
- The request must be sent to: Administrative Hearings Unit Expungement Appeals
406 E. Monroe St., Station #15
Springfield, Illinois 62701-1498
Phone number: 217-782-6655 (call if you do not hear about your appeal within 14 days of filing it)
- The written request must include the following:
- Name, address, and phone number of the appellant (remember, that’s you!);
- Name, address, and phone number of the appellant’s representative, if any (see p. 12 below);
- Full name(s) of the child(ren) in the indicated finding (if known); and
- The SCR number (which should be listed on the indicated finding notice you receive
IMPORTANT: The phone number you list here is the number at which the judge assigned to your case will contact you. This is critical because, as will be discussed below at p. 16, if the judge cannot reach you, your appeal will be dismissed. Therefore, you must notify DCFS Administrative Hearings Unit (312-814-5540 in Chicago; 217- 782-6655 in Springfield) immediately if your number changes or if you will not be at the number they have on record for you for a specific scheduled call. See p. 16 below regarding pre-hearing phone conferences.
v. If you need a translator at the hearing, you should note that in your appeal request.
- You should include with your written request for an appeal a request for a copy of the DCFS investigative file for the case, though DCFS is required to provide you a copy for
your appeal even if you don’t specifically ask for it.
- Suggestion: Send the appeal request via certified mail to have proof of when DCFS
received it. Also, fax it and keep a copy of the fax receipt. Timing is very important!
- Suggestion: You can use the sample at Part III in this Manual. Fill in your own
information and sign it!
5. Do I really have any chance of winning if I represent myself?
a. Yes! The mere fact you are appearing pro se (representing yourself) does not mean you will lose. Remember that no one knows the facts of your case better than you. Pro se appellants with good cases who present themselves and their cases well can and do win! In 1997, the last time a complete review of all appeals was done outside of DCFS, it turned out that 74.5% of people who appealed won! While the percentages reported as winning their appeals dropped to about 50% by 2005 and may be slightly lower in 2010,
that’s still a very high rate of success. Many of the people who have won their appeals
- Can I have someone besides a lawyer speak for me? (DCFS Rule 336.70)
a. Yes. DCFS rules allow you to have an “Authorized Representative,” which may be a lawyer or anyone else you choose. The authorized representative needs to file a written authorization for representation. See Rule 336.70 in Part IV for the exact format requirements for this authorization. Sometimes, appellants without an attorney have found it easier to have a friend or family member who is not an attorney question the witnesses (including you) and make the arguments.
- Why is this process called an “expungement” hearing or “appeal” when there has been no conviction against me?
- Good question! We think these appeals are misnamed and should be called “Indicated
- These types of administrative hearings (challenging DCFS “indicated” findings) are
termed “expungement” hearings or “appeals” even though they are the first hearing on the question of whether an indicated report is supported by the law and the facts (i.e., they are the first neutral decision regarding the guilt or innocence of the person who has been “indicated” for abuse or neglect).
- The term “expungement” refers to the fact that indicated reports are placed on the State Central Register prior to this hearing, and are maintained in the State Central Register for a legally defined period (5, 20, or 50 years), unless removed through the administrative appeal process. Therefore, by appealing you are requesting expungement of your name from the State Central Register.
- Good question! We think these appeals are misnamed and should be called “Indicated
8. What is an expedited appeal and who gets one? (DCFS Rule 336.85). NOTE: THIS SECTION APPLIES ONLY IF YOU ARE A CHILD CARE WORKER AS DCFS DEFINES IT. See DCFS definition under Question 9 at p. 14.
- Child care workers (broadly defined as including many types of professionals who work with children) are entitled to special “expedited” processes, including an Administrator’s Conference and an expedited appeal.
- Administrator’s Conference. An Administrator’s Conference for child care workers (also discussed at p. 3 above and in DCFS Rule 300.160) takes place before DCFS “indicates” the report. It is a phone conference with a high level DCFS Administrator that is intended to allow you to present your side of the case against DCFS’ decision to indicate you for abuse or neglect. An Administrator’s Conference is not like a typical hearing during which testimony is provided; rather, it is a conversation regarding why you should or should not be indicated. It is especially important to present evidence and issues that the DCFS investigator has not considered. You may also send in documents for the Administrator to consider.
- Expedited Appeal. If at the close of the conference DCFS decides to indicate an abuse or neglect finding, you will receive a formal letter notifying you of the indicated report. As a child care worker you are entitled to an expedited appeal and DCFS must issue its final decision within 35 days of receiving the appeal request, if you request an expedited appeal. (The timing for a standard appeal requires DCFS to issue its final decision within 90 days of receiving the appeal request. See p. 17 below for further discussion on timing.) A pre-hearing conference will be set within 14 days of the receipt of your appeal request, and the hearing must be held within 7 days of the pre-hearing
conference. Any child care worker can request the expedited appeal even if DCFS failed
to properly provide the Administrator’s Conference prior to “indicating” the report. 9. Who is considered a child care worker? (DCFS Rule 300.20)
- A child care worker means any person who works directly with children, or owns or operates a child care facility, regardless of whether the facility is licensed by DCFS. Child care workers also include license applicants and people in education programs or other training who work in a child contact field. Nannies are child care workers, as are janitors and park district workers who work in children’s programs. Tenured school teachers in public schools are not eligible for the special review processes available to other child care workers (because they have job protection under state law), but most school employees (including non-tenured teachers) and many health care employees who work with children are eligible.
- You should consult with the Family Defense Center (“FDC”) on any questions that arise regarding whether you are entitled to “child care worker” status, especially if you are a child care worker and DCFS refuses to accept that status, and you have been notified you are going to be “indicated.”
10. How do I know if DCFS has received my request for an appeal?
a. Once DCFS receives your appeal request, it will send you a letter by certified mail
notifying you of the pre-hearing date and time. See a sample pre-hearing notice in Part VI. This letter contains the following information:
i. Time and date of your pre-hearing conference (explained in the next section);
ii. Name of the DCFS attorney (often a temporary assignment; the assigned DCFS attorney will send to you his or her “appearance” by mail a few days before the pre- hearing teleconference);
iii. Name and contact information of the Administrative Law Judge (ALJ) hearing your case;
iv. The DCFS Procedures for the particular allegation (this includes the definition of the allegation as well as the investigative steps DCFS was required to follow during the investigation). This is important to review as you prepare for your hearing,
v. Your rights and responsibilities on appeal. This last piece of information is extremely useful and answers a lot of questions regarding what you need to do to handle your appeal. Keep it for reference during your case.
Around this time, you should also receive a copy of the Investigative file (see pp. 29-30 below, in the section How Do I Prepare for My Hearing?, for more information on the investigative file).
What Happens Before the Hearing?
- What is the pre-hearing conference? (DCFS Rule 336.110(b))
- A pre-hearing conference is a telephone meeting with the Appellant (or designated representative), the Administrative Law Judge (ALJ), and the DCFS attorney. A record of the pre-hearing conference is preserved through a tape recording (as are all the hearing proceedings).
- At this meeting, certain issues are always addressed: 1) each side provides the witnesses they will call (some judges prefer that a list of potential witnesses be exchanged in writing prior to the pre-hearing conference); 2) whether either side wishes to have a child under 14 years of age testify at the hearing; 3) scheduling of the hearing; 4) documents to be exchanged before the hearing; 5) stipulations (i.e., agreements to certain facts or certain testimony); and, 6) pre-hearing motions (i.e., a request to have a witness testify by telephone).
- How does the conference start?
- The ALJ calls you at the number you provided on your appeal request unless you have
provided another phone number or an attorney has appeared for you.
- You have an obligation to update DCFS and the DCFS attorney any time your contact information changes. If your phone number changes and the judge attempts to call you
at a non-working number and cannot reach you, the ALJ may dismiss your appeal.
- Call the DCFS Administrative Hearings Unit (Chicago 312-814-5540 or Springfield 217-782-6655) to update any phone number information and fax in a corrective phone
number notice (Chicago Fax 312-814-5602 or Springfield Fax 217-557-4652).
- The ALJ calls you at the number you provided on your appeal request unless you have
d. If you have not received a call within 10-15 minutes of the scheduled time for your pre- hearing conference, we suggest that you call the main number listed for the ALJ on the pre-hearing notice you received (see p. 16 above) and let the main receptionist know that you are expecting a call but have not heard from the judge.
- What do I do if my appeal was dismissed because I missed the pre-hearing conference call from the judge?
a. Immediately file a request to reinstate your appeal. (DCFS Rule 336.200(d)). Currently, you only have a 14-day window of time in which to make such a request. In your request to reinstate your appeal, you should explain why the phone call was missed.
- Why is it important to pay attention to scheduling the hearing date?
- Timing issues. You have very clear rights to a timely decision on your appeal. In fact,
even if you lose your expungement appeal, you can still win expungement if DCFS violated your rights to a timely hearing by even one day! Keeping track of the allowed time for DCFS to complete the hearing and give you a decision is important. And DCFS will be very well aware itself that the clock is ticking while your appeal is pending.
- Strategies. There are many complicated techniques we have seen DCFS use to avoid providing a late appeal decision. In general, you need to assert that you want your hearing as soon as possible as long as you still are given enough time to get subpoenas out (allowing 14 days in regular, non-expedited appeals). See Part V for a discussion of strategies on getting a timely hearing and avoiding pitfalls that can delay the date on which a final decision is required.
- Timing issues. You have very clear rights to a timely decision on your appeal. In fact,
c. If you do genuinely need more time to prepare for your own hearing, you can ask for more time. But make it clear that at the end of the time you need, you want the next available date the judge can give you. It is good to state that you are not waiving any of your rights after the date you are asking for. See Part V for possible responses you can give if you are asked to waive your speedy hearing rights.
d. What if I am unable to get witnesses I need on the date I am offered? You need to decide how critically important the witness is to your case. As with any decision about when you want your hearing to be held, you need to balance your own interests and your rights to a timely decision with your need to get all the essential evidence in. Sometimes there is no one “right” answer as to when the hearing should be held. If you do need more time, you can call the judge and ask for a status conference to discuss the dates. Some judges will want you to put your request in writing.
5. Does DCFS ever drop cases before the hearing?
a. Sometimes. If, after reviewing DCFS’ investigation file, you think there are strong
arguments that DCFS had little or no evidence supporting the allegations, we recommend that you contact the DCFS attorney to discuss why DCFS should drop the indicated findings. Sometimes DCFS will agree to cut the Registry period from 20 or 50 years to 5. We recommend you call the attorney as soon as possible because the DCFS attorney has to go through a long, bureaucratic process to get permission to drop a case; if you address this possibility too close to the hearing, there may not be sufficient time for the DCFS attorney to get a decision. If the case is weak, occasionally (and depending on the DCFS attorney) DCFS will decide not to go forward with a case
and, instead, will inform the judge that DCFS has decided to “voluntarily unfound” the case.
Sometimes the DCFS attorney will learn from you that the case against you is weaker than the file shows. If this occurs, sometimes the DCFS attorney is able to communicate to the judge her or his own assessment of the available evidence in a way that can help you.
If you sense any hostility or disrespect from the DCFS attorney, you should terminate the conversation. You have no duty to talk to that attorney. Occasionally, DCFS attorneys act inappropriately toward appellants; most, however, are professional and competent and will appreciate hearing reasons why the case should have been unfounded.
The Family Defense Center keeps information about the conduct of attorneys and judges in the administrative hearing system. We also have a form we encourage people to send us regarding information about investigators. If you wish to give us this feedback, please fill out the DCFS personnel evaluation form at http://www.familydefensecenter.net/dcfs-investigation-survey.html and either e-mail it to email@example.com or fax it to 312-356-3203. We keep evaluator information confidential unless you indicate that it is okay for us to give out your name and contact information.
(DCFS Rule 336.140)
I find out before the hearing what evidence DCFS is going to present against me?
a. Prior to the pre-hearing, you should have received the DCFS investigative file. See pp. 29-30 below for more information on the contents of the file. If you have not received
this file by the time of the pre-hearing, you should let the judge know that you have not yet received the file and that there should be a new pre-hearing so that you have the opportunity to review the file prior to the pre-hearing. Because it is DCFS’ responsibility to send you the file prior to the first pre-hearing, the time between the pre-hearings should count within the 90-day deadline.
b. In addition to the DCFS investigative file, there is an exchange of information in which each party presents a list of witnesses who may be called at the hearing and a list of documents that may be introduced in evidence. Copies of any documents either side wishes to introduce into evidence must be provided to the other party at least several weeks prior to the hearing. There is usually no “formal discovery” (that is, no depositions and usually no written discovery requests).
c. The list of witnesses and documents are merely possible witnesses and exhibits that DCFS may present at the hearing. This means that not everyone on the list will necessarily testify. In fact, DCFS usually lists every person the investigator talked to and does not list critical witnesses the DCFS investigator may have omitted. Closer to your hearing date, the DCFS lawyer is likely to know that many of the witnesses listed won’t actually be called to testify. You may call the DCFS attorney in advance of the hearing to find out who from their list they actually plan on calling to testify. DCFS almost always calls the investigator (or supervisor, if the investigator is not available) and anyone who witnessed the alleged abuse or neglect as witnesses.
7. Who should I list as witnesses?
a. This question is hard to answer in general terms; it very much depends on the case.
However, you should always list at least the following individuals: 1) yourself;
2) anyone who has direct knowledge about the alleged incidents of abuse or neglect and can present reasons why the account DCFS has given is flawed; and, 3) “everyone on the DCFS witness list,” to protect your right to call DCFS’ investigators and others as witnesses on your side. When in doubt, put someone’s name on the list because you can always decide later not to call that person as a witness, but it is harder to add someone’s name late in the process if you leave that person out on the first list you submit.
b. See Part III of this Manual for a sample witness and exhibit list. 8. Should I have as many character witnesses as possible?
a. No. The ALJ presumes that anyone you call as a character witness will say good things about you. Judges often do not want to hear from a witness unless the person can testify directly about the allegations. If possible, choose one or two people who have seen you around children—preferably those children against whom DCFS has alleged abuse or neglect—to say that they’ve known you for a long time and they have never seen you act inappropriately with these or any other children. A recent friend or neighbor who has seen you around children a lot is likely to a better witness than an old friend who knows your character well but has never seen you with children. Don’t list all of your relatives; rather, list only those who know you and your interaction with children best, as well as those who present information most clearly. Keep in mind that witnesses generally must be present in person at the hearing unless special arrangements are made.
9. What is a subpoena and do I have to subpoena witnesses? (DCFS Rule 336.160)
- A subpoena is an order (from the DCFS Administrative Hearings Unit) compelling a witness to appear at the hearing to testify. Issuing a subpoena is a way to ensure that a
particular person will appear at the hearing.
- You are not required to have subpoenas issued for your witnesses, but you may. We
suggest you do, particularly for people who are testifying as professionals (i.e., a teacher or doctor for the child) and for witnesses who are not close family members. DCFS will issue the subpoenas for you, but a request for the subpoenas must be submitted no later than 14 days before the hearing.
- Your request for subpoenas can be done in a somewhat informal way; there isn’t a required form for it. You can write a memo or a letter with the names and addresses of the witnesses to whom you want subpoenas sent. The request should be addressed to either of two individuals in the Administrative Hearings Unit: Debra Martin and/or Australia Gray-Rogers. It may be faxed to them at 312-814-5602. See Part III of this Manual for a sample.
a. You may put down an approximate time. The DCFS attorney will present his or her witnesses first, so your own start time will usually be at least 1-2 hours after DCFS. You can ask the DCFS attorney prior to the hearing date how many witnesses she plans to call and how long she expects the presentation of her case to last, and schedule your
TIP: Tell your witnesses to bring something to read to the hearing because it is often unclear how long they will have to wait. Your witnesses will usually testify after DCFS
finishes its side of the case. If you have several witnesses, they may be waiting for a while before their own testimony starts. They will not be allowed to sit in the hearing room, so having a good book in the waiting room helps.
Let’s say your hearing is set for Aug 20. You know that you will call the following witnesses: 1) your spouse, 2) your best friend who has also been your neighbor for the past 10 years, 3) your child’s pediatrician, and 4) a case worker who had been coming to your house before the investigation.
QUESTION: Who should you subpoena?
ANSWER: To be safe, you should request subpoenas for all of your witnesses, so that in case one is unable to testify for some reason, you have proof that you tried to get them there, and could possibly get another chance to present their testimony.
While you may trust your spouse to show up and testify, sometimes employers require proof that a tribunal has required someone’s presence before letting that person leave work. It is always a good idea to subpoena professional witnesses, such as doctors, other medical professionals and case workers.
TIP: Tell everyone you are subpoenaing to expect to receive a subpoena in the form of an official notice from DCFS, and tell them the time you are asking them to come to the hearing. You can let them know that if you decide they will not be needed, you will tell them not to come. Some witnesses worry that once they have a subpoena, it cannot be cancelled. This is not true—you can always cancel the witnesses you have subpoenaed. However, before you tell someone they no longer have to come, make sure that DCFS didn’t subpoena them as well. You do NOT have the right to cancel a witness that
DCFS has subpoenaed. You should send any witness whose testimony you cancel a written notice of your decision not to call them at the hearing.
QUESTION: In the situation above, when should you submit the subpoena request? ANSWER: No later than August 6 (14 days before the hearing date).
11. Can my witnesses testify over the phone?
- You may make a motion to have testimony heard by telephone. This is common for
professional witnesses, i.e. doctors, or those witnesses who live far away. See Part III for a sample Motion for Testimony by Telephone. You should file this motion as soon as you think telephone testimony is a possibility and no later than 14 days before the hearing. If you’re not sure you need someone to testify by telephone, go ahead and file the motion because it is better to have the motion granted and then have the person be able to testify in person, than it is not to have requested it and determine a few days before the hearing that the witness is only available by phone.
- We strongly encourage all non-professional witnesses who live locally to be physically present, if possible. This is because a judge can more easily assess how believable a witness is if the judge sees him or her in person. Many judges will not allow people to testify by phone if they live in the same area as the hearing and do not have a particularly strong reason why they can’t come to the hearing. Judges’ practices vary, however, so if a witness you want to call has a particular reason why they cannot make it in person, ask the DCFS lawyer and judge for a status hearing to discuss the concern. See Question 12 below regarding status hearing requests.
12. What do I do if something unexpected happens and I need to discuss it with the judge and DCFS’ lawyer?
- Unforeseen issues do come up in expungement hearings. A witness you had counted on may be unavailable after they get their subpoena. You may become sick or notice something about DCFS’ case record that shows you haven’t received the whole file. These are just a few of the issues that sometimes occur in the few weeks before a scheduled hearing.
- If you decide you cannot proceed with the scheduled hearing because of the unforeseen issue, call the DCFS Administrative Hearings Unit (see p. 11 for phone numbers) to ask for a prompt phone status hearing. Also try to call the DCFS lawyer to explain the situation.
How Do I Prepare for My Hearing?
- What rules should I know?
- DCFS Rule 336 explains the administrative hearing process that DCFS uses for appeals of indicated findings. See Part IV. However, you do not have to learn these rules. Reading over the rules is a good idea, but do not pressure yourself to learn them.
- DCFS Rule 300 and Procedures 300 provide the general guidelines for reports of child abuse and the procedures to be followed by DCFS investigators during an investigation. See Part IV for additional relevant rules. As with the hearing rulings, it is not a bad idea to read over these rules as you are preparing your case—but there is no need to learn these rules in detail. The focus of your hearing is on the facts of your case and presenting them as well as you can.
- Appendix B of Rule 300 and Appendix B of Procedures 300 list the specific allegations and provide specific required investigative steps for each allegation. We strongly suggest that you become very familiar with the requirements for the specific allegation(s) that pertains to your case, especially because you may find certain required steps that were ignored or left incomplete in the DCFS investigation of the specific allegation against you. You may look up the allegation using the allegation number, such as 10/60 (“Substantial Risk of Physical Injury”) or 74 (“Lack of Supervision”).
- DCFS rules and procedures can be found at http://dcfswebresource.dcfs.illinois.gov/.
- What do the terms “abuse” and “neglect” mean? (300.20)
a. DCFS Rule 300.20 defines the terms “abused child” and “neglected child,” abbreviated somewhat here. See Part IV.
- An “abused child” is a child whose parent (or immediate family member, or any person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent) 1) inflicts or allows to be inflicted mental or physical injury; 2) creates a substantial risk of physical or mental injury; 3) commits or allows to be committed any sex offense against such child; 4) commits or allows to be committed an act or acts of torture upon such child; or, 5) inflicts excessive corporal punishment. A “paramour” is a parent’s romantic partner who is not a spouse, such as a fiancé, girlfriend or boyfriend.
- A “neglected child” is any child who is not receiving the proper or necessary nourishment or medically indicated treatment or other necessary care.
- Each of the specific types of abuse or neglect is defined at Appendix B for Rule 300 and Appendix B for Procedure 300. Look at these definitions carefully as you prepare—most likely, you will see some types of evidence listed on which DCFS did not adequately focus in the investigation. This information will help you to prepare your own evidence, your cross-examination of the investigator and your arguments.
- DCFS has to prove its case against you by the preponderance (slight majority of) the evidence. DCFS must also show that the person being indicated either resides in the same household as the child or was a “person responsible” for the care of the child. For example, a cousin who was visiting the home where the alleged abuse occurred and was not in charge of caring for the alleged victim could not be indicated for child abuse.
3. How do I start in my preparation?
The following steps will be discussed in more detail below:
- Read through the investigative file very carefully, and take notes. See Question 4 below and see Part VI for tips on what’s important to look at most closely. For example, the safety assessment forms usually do not have any real effect on the indicated finding decisions DCFS makes, so do not get tripped up examining those forms in too much detail. The contact notes are the “guts” of the investigation. In reviewing the contact notes, look for who DCFS did not talk to but should have interviewed.
- Review the DCFS definitions for the specific allegation(s) at issue in your case. This definition tells investigators what they should have found in order to indicate you for the allegation against you.
- Find the “procedure” that has the same number as the Rule defining the allegation against you. See http://dcfswebresource.dcfs.illinois.gov/downloads/procedures/. Procedures set out what the investigator was supposed to do during the investigation. You may find areas that were missed during the investigation and you can prepare questions (cross-examination) about any of the missed requirements.
- Speak to the witnesses.
- Prepare questions for the witnesses DCFS will call to testify. These are called cross-
- Prepare questions for the witnesses you will call to testify. These are called direct
examination questions. You must be careful not to put any words into your witness’s mouth. You can share your questions in advance with witnesses you think are going to help you make your case for expungement. If the information you get is not what you expected, try rephrasing your question.
- If you have arranged for an authorized representative to do the questioning at the hearing (see p. 12 above—as a reminder, this person does not need to be an attorney), work with your authorized representative to prepare the examination questions for you. If you will be representing yourself at the hearing and asking all the questions, prepare a written statement to read to the ALJ.
- Prepare an opening statement and a closing argument. In general, an opening statement just reviews what you expect your witnesses to show without debating why DCFS’ decision is wrong. A closing argument can be a logical argument about what the evidence showed and why it was not sufficient for an indicated finding. You should be prepared to deliver your closing argument at the end of the hearing, so it is a good idea to have an outline prepared before the hearing starts with points you want to be sure to make.
4. What do I do with the investigative file?
- You should very carefully review the DCFS investigative file prior to a hearing because
it presents DCFS’ case against you, including all of the evidence DCFS gathered and considered during its investigation. We cannot emphasize enough the importance of reviewing this file. In the cases we handle at the Family Defense Center, we always do an abstract (i.e., summary) of the file so we can quickly find the page at which each witness was interviewed. We recommend you do this too.
- The file is comprised of computer-generated forms completed by the DCFS investigator. Investigative files are generally organized in the following way:
- Hotline narrative
- Investigation summary
- Safety assessments
- Contact and Supervisory Notes
c. The first few pages contain the names and contact information of the appellant and the
subjects of the investigation. The “Narrative” section, also located toward the beginning, is the information that was given to DCFS by the reporter when he or she called the DCFS Hotline. See Part VI (showing an example of these pages of the file).
- The investigation summary lists each allegation that was investigated and whether that allegation was indicated or unfounded. This section is very important because it provides DCFS’ reasons for reaching the determinations it did and lists the information that either supports the allegation (inculpatory evidence) or contradicts the allegation (exculpatory evidence). See Part VI.
- The next section of the file will include information regarding any risk assessments that were completed and details of the safety plans a family was under, if applicable. These forms are generally not particularly important to the investigation decision.
- The remainder of the file is comprised of “Contact Notes” and “Supervisory Notes.” For each interview the investigator conducts during the course of the investigation, he or she should have created a Contact Note documenting the date of that interview and summarizing the content of the interview. Supervisory Notes represent instructions the investigator’s supervisor is giving and may also summarize conversations that occurred between the supervisor and investigator.
- Behind the computer-generated forms, there may also be additional documents the DCFS investigator collected, such as medical records or letters.
- How should I review the specific allegations against me? How can I use the definitions of these allegations to my advantage?
- As noted above, Appendix B for Rule 300 and Appendix B for Procedures 300 define the allegation(s). These definitions will specify the elements of the allegation—in other words, what DCFS must prove to win the case.
- For most abuse allegations, DCFS must prove both an injury (or substantial risk of serious injury) and that a non-accidental direct action of the caretaker caused the injury (or that the caretaker failed to prevent someone else from causing the injury in a non- accidental way).
- For most neglect allegations, DCFS must prove that the caretaker blatantly disregarded his or her responsibilities. Not every accident equals blatant disregard!
- For less serious allegations, DCFS must prove not only the existence of the elements, but also that the application of a list of factors (such as the child’s age and/or the frequency of the occurrence) demonstrates that the incident was serious enough to constitute abuse or neglect. These factors do not apply in all allegations, however, so be sure to check the Rule and Procedure for your specific allegation.
- Appendix B of Procedures 300 also sets out the required investigative steps, including the people an investigator must speak with and the documents they must gather to indicate someone. Definitely cross-examine the investigator on these procedures if she failed to follow them.
- What areas should I focus on in preparing my cross-examinations of the DCFS witnesses?
a. Begin with preparing the cross-examination of the investigator, since you can be sure the DCFS attorney will call the investigator to testify (or, in limited cases, the investigator’s
supervisor will be called if the investigator is unavailable). Write down all of your questions and review them a few times—do not plan to come up with all of your questions at the hearing because you will not have time to prepare before the cross examination starts. You can make notes on your question sheet as the investigator is testifying.
- A good way to start preparing questions for DCFS witnesses is to look for any inconsistencies in the investigative file among witness statements, and particularly the alleged victim’s statement. Determine which parts of the Appendix B to Rule 300 or Procedures 300 the investigator ignored, if any (such as factors to be applied or investigative steps). If applicable, cross-examine the investigator on the incompleteness of the investigation—who the investigator did not talk to, who he or she did not meet with in person, etc.
- What kinds of questions should I ask in cross examination? What form should my questions take?
In preparing for cross examination, you should ask questions to which you already know the answers. You should not give witnesses open-ended chances to explain their actions. For example, “why did you decide to indicate this report?” would not be a good cross examination question. It is better to ask the same sort of question (to show there was not a good reason to indicate the report) in a very direct “leading” form, such as, “Isn’t it true that when you indicated the report, you hadn’t talked to Dr. X? And you didn’t talk to Sally Johnson, whose name I had given you?” and “Isn’t it true I told you that I had already seen a doctor? But even though I told that to you, you didn’t write that down in your note of our conversation on September 1, did you?”
Cross examination is a hard skill for anyone to learn without experience. Try to avoid asking “why” questions. Try not to argue with the witness. One thing to consider in preparing to cross examine a DCFS investigator is, “Did the investigator write anything that is helpful to my case?” If so, you need to ask the investigator questions to bring out that information. Cross examination doesn’t have to be “cross” or mean. You can use it to draw attention to information that helps your side of the case.
Sometimes investigators are told by their supervisors that they must indicate the allegation even when they believe the investigation should be unfounded. In such cases, be sure you ask the investigator about his opinion and the fact that it was the supervisor who decided to indicate the report.
Often, our clients are surprised that witnesses say things they believe are untrue. They are tempted during hearings to start an argument with the witness. This is not a good idea! Remember that the witness who is testifying can be cross-examined to bring out evidence that she is lying, but only on TV do witnesses break down on the stand and admit a lie! It is usually better to try to show the witness is misremembering information because notes contradict what she is saying than to confront the witness directly.
How do I prepare to question DCFS’ other witnesses? What questions should I ask those
In general, this is a hard question to answer because every case is fact-specific. If you need to find out what the person is likely to say against you, you can call them in advance of the hearing to ask that question. This will help you avoid being surprised by information you haven’t heard before. If the person was interviewed by DCFS, you can go over the notes of that conversation to make sure that DCFS recorded their information
correctly. You will often find that the DCFS notes in the investigative file are incomplete or even incorrect. You should ask questions to highlight any inconsistencies, mistakes, or incomplete aspects of what DCFS says you did versus what the paperwork shows. You can also highlight any incomplete or inconsistent aspects of what DCFS claims a witness said during the investigation versus what the witness is actually saying at the hearing.
We recommend that you prepare bulleted lists of questions for each witness, and bring those lists with you to the hearing. This will help you keep track of the points you want to make with each witness and will guard against forgetting points due to understandable nerves or anxiety during the hearing.
7. Who should I call as my own witnesses? How should I present their testimony?
a. When you question your own witnesses, it is called direct examination. The general rule for direct examination is that, unlike cross examination, you are NOT allowed to ask leading questions (see below for an example of a leading question). Instead, you should
try and frame your questions in an open-ended way. EXAMPLE:
DCFS indicated a report against you because you had left your four-week old baby on the couch alone while you briefly used the bathroom, and he fell off the couch and suffered a bruise. You want to call your mom as a witness because she arrived at your house shortly after the accident and she has often observed you with your children.
DON’T ASK: You see me and the kids about 3 days each week, right?
DO ASK: In an average week, how often do you see me and the kids?
DON’T ASK: When you arrived at the house after the accident, wasn’t I really upset and
DO ASK: When you arrived at the house after the accident, how did I appear?
- Try to frame the direct examinations like a natural conversation as best you can. Asking questions in chronological order helps the judge to follow the story you are trying to present. Ask follow-up questions in order to elicit more helpful information. For example, if in the example above your mom testifies that she thinks you are, in general, very concerned about the safety and well-being of your children, ask her why she thinks
that—what specific observations has she made that has led her to that conclusion?
- Keep in mind that generally, people can only testify as to matters about which they have direct knowledge. Generally, they are NOT allowed to testify as to matters when their knowledge came from other people. However, see p. 46 below for exceptions to this
- As with cross-examination, we suggest that you prepare a bulleted list of all of your
questions for your own witnesses. When you are in the middle of a stressful hearing, you
won’t remember the questions you wanted to ask unless you prepared them beforehand!
8. How do I examine myself? How do I tell my side of the story?
- This depends on whether you have arranged for a friend or family member to handle all of the questioning at the hearing (see p. 12 above for information on “authorized representatives”) or you are handling all the questions yourself.
- If you have an “authorized representative,” you should work with that person to develop the questions for you similar to how you developed your other direct examinations. You will want the questions to guide you through the incident step-by-step. If the allegation is as to your own children, you will want to include questions that highlight your strengths as a parent and demonstrate your commitment to their safety. If the allegation
is related to your professional capacity (i.e., teacher or daycare provider), you will want to include questions that demonstrate your commitment to your field and to the safety of the children you work with.
c. If you do not have an “authorized representative” to conduct the direct examination of you, you should prepare a statement to read at the hearing. The statement should include the information mentioned above. The point in time in the hearing at which you will deliver the statement may vary (see p. 38 below for more information on how events may transpire at the hearing).
TIP: Try to stick just to the facts and your direct knowledge and observations. Your testimony is not the time when you make your arguments about why you think the indicated report is wrong—save that for your closing argument! Your testimony is merely your opportunity to present the facts as you know them to exist.
d. In either scenario, you should be aware that the DCFS attorney will likely have cross examination questions he or she will want to ask you.
9. What do I do if I need a continuance?
- Continuances, or extensions of time, may be granted for “good cause” (DCFS Rule
336.150). Any request for a continuance should be in writing and submitted to the judge.
You must also send a copy to the DCFS attorney.
- HOWEVER, be careful. A request for a continuance affects your right to a timely
decision within 90 days (35 days if you are a childcare worker). Any additional time you request will not be included as part of the 90-day count, but instead will be attributed to you and extend the amount of time in which DCFS must provide you with a final
decision. See Part V for more examples of how the timing problem might play out if
you ask for a continuance.
10. What do I do if DCFS requests a continuance?
a. Object to it! You have no duty to agree to any continuance request by DCFS (and DCFS attorneys are instructed not to make such requests because of the tight time limits for these appeals). If the ALJ grants the DCFS continuance over your objection, insist on the earliest possible rescheduled date. Accept any date that is as early as possible and convenient for you, and state that you do not waive any of your rights under Lyon. (Lyon v. DCFS is an Illinois Supreme Court decision (in 2004) that requires DCFS to provide you with a final decision in your appeal within 90 days of the date that DCFS receives your appeal request.)
Assume the same dates as in the example above, except DCFS requests the continuance instead of you.
QUESTION: When should you get a decision?
ANSWER: May 30. DCFS’ continuance request does not change the date count because the additional time is “attributed” to DCFS, not to you.
Date counting strategies are discussed in more detail in Part V.
What Happens at the Hearing? 1. General suggestions for the hearing.
- At any hearing, what matters most is the impression you give the judge of yourself as a human being. You want the judge to think you would never hurt a child. To the extent your demeanor gives the judge second thoughts about you, you will hurt your own case. Being a little emotional is not a bad thing (contrary to what many of our clients think), but trying to avoid answering questions will make you look bad at your hearing.
- Demeanor. Appeals from DCFS indicated finding cases can be difficult because they involve emotional issues, which can make representing yourself even harder. You may demonstrate some emotion during your own testimony. For example, it is not necessarily a bad thing to cry, but it is never good to act out in anger. We strongly recommend, for example, that you do not do things like sigh loudly or roll your eyes while the investigator testifies. This will not help your case! Your sighs and harumphs are not evidence and will not help you with the judge. Remember, you have the chance to question all the DCFS witnesses—save your energy for when it can do you the most good.
- How to address people. Call the Administrative Law Judge, or ALJ, “Judge (Last name)” or “your honor” or “judge.” Call the DCFS attorney Mr./Mrs./Ms. (Last name). Do the same for all witnesses, even your own. It demonstrates professionalism and seriousness about your case.
d. What to wear. Your case begins the minute you walk into the room with the ALJ, and how you present yourself and your case matters. Therefore, we suggest dressing at least in business casual attire, though a suit or other formal business attire is best.
- Where are the cases heard? In a regular courtroom?
a. In the Chicago area, cases are heard in the DCFS Administrative Hearings Unit,
located at 17 North State Street, on the Seventh Floor.
b. The location of the hearing depends on the location of the investigation and, if the
investigation did not occur in Chicago, the hearing may be held at a local DCFS field
c. The hearings are held in regular meeting rooms, around conference tables, with the
judge at the head of the table. It is likely that the hearing will last a full day.
d. The only people who will be allowed in the hearing room at any given time are you, your authorized representative (if any), the judge, the DCFS attorney and the testifying witness. Therefore, if you have brought friends or family members with you, they will not be allowed in the hearing room unless they are your authorized representative or while they are giving their testimony as a witness. Tell them to bring
a book with them to pass the time in the waiting area.
- What is the “burden of proof” that applies to this hearing? (DCFS Rule 336.100)
a. DCFS has the burden to prove that a preponderance of the evidence supports the indicated finding, and, therefore, that the indicated finding should not be amended, expunged, or removed. For this reason, DCFS presents its evidence first.
4. What does “preponderance of the evidence” mean?
a. Preponderance means “more likely than not.” This is the amount of proof DCFS has
to show in order to “win” the case. If DCFS wins, it means your expungement request is denied. Many of us are familiar with the burden of proof in criminal cases—beyond a reasonable doubt—which is the highest level of proof the law can require. In civil cases, and in these hearings, the burden is a lot lower. If it is helpful to think in terms of percentages, preponderance means a 51% probability that the appellant abused or neglected the child.
5. Who goes first at the hearing? What is the usual order of the presentation?
- First, usually the ALJ starts the hearing by turning on the tape recorder, and introducing herself or himself and the people present. She or he may also have some
opening remarks regarding the procedure for the day.
- The ALJ will ask if you received a copy of your rights and responsibilities (which
you should have received with the pre-hearing notice, see p. 15 above). If you have already reviewed those rights and responsibilities, you may waive the reading of them at the hearing. If you do not waive the reading, the ALJ will be required to read them aloud.
- The ALJ will ask both you and the DCFS attorney if you want to present any opening statements. Opening statements are discussed further at p. 41 below.
- After the opening statements (if any), DCFS begins to present its case by calling its first witness, usually the investigator. Sometimes, however, DCFS may call you first. Be prepared for this! After each DCFS witness is questioned by DCFS, you will have an opportunity to cross-examine the DCFS witness. Generally, your questions are
limited to those topics that the DCFS attorney asked the witness. Once DCFS has called their last witness, their case is closed and they will inform the ALJ that they have “rested.”
e. Finally, you may present your case by calling the witnesses you choose in whatever order you would like. You ask them questions first, and then the DCFS attorney will have the opportunity to cross-examine them. This is also your opportunity to introduce any documents or exhibits you want the judge to consider. Once your last witness has testified and you are done introducing your documents (if any), you tell the judge that you have no more evidence to present.
6. Should I make an opening statement?
a. Generally, a short opening statement outlining what you believe to be the important
facts and evidence and/or your main arguments for expungement is a good idea. It provides a framework for the judge. You are not required to make one, however. An opening statement should list the witnesses and provide a brief idea of what they are going to say during the hearing.
7. What are objections to testimony and evidence? How should I handle them?
- As a non-lawyer, you are not expected to know the rules of evidence but you are
entitled to object to evidence that the judge should not consider.
- There are many kinds of objections that can be made while evidence is presented and most of these have a “common sense” basis. For example, you can object that testimony is “not relevant.” You can object if a witness is talking about something about which they do not have “personal knowledge.” You can also object to any hearsay testimony, though as discussed below, some hearsay (such as the statements
of children as to their own abuse or neglect if they are under 14 years old) will be allowed into evidence. You should not try to learn all the “exceptions” to the hearsay rule, but if it sounds like a witness is repeating information reported to them by someone else (i.e., “the doctor told me it was a serious bruise”) you should object to that testimony as “hearsay.” You can state, “If DCFS wants to present this testimony as to what the doctor said, DCFS should call the doctor himself.” DCFS judges often will not allow testimony as to what someone said when that person is an important witness who should testify directly.
c. You should not be rattled by objections to your testimony or your witness’ testimony. Objections are ways that are used to clarify questions and make sure that the evidence that is being considered is reliable enough to get into the “record.” Objections do not mean that you or your witness said something wrong.
d. If essential information you want to present is not being considered, you can ask to do what is known as an “offer of proof.” This is just a statement that you make as to what the evidence would show if you were allowed to present it.
8. Should I testify? When do I testify?
a. If there are no pending criminal charges related to the underlying incident(s) that led
to the indicated finding, you should generally testify. This is the case particularly if the alleged victim has made statements contrary to your own regarding the alleged abuse: you may testify about those inconsistencies. Unlike a criminal case, if you don’t testify, it is likely that the judge will reach more negative conclusions about you than if you do testify. Note: if there is the possibility of a criminal case against you concerning the allegations for which you have been indicated, even if you have not
been charged yet, you should consult with a criminal lawyer before making any
decision about whether you should testify.
- As discussed above at p. 29, the format of your testimony will depend on whether you
are being questioned by a person you have authorized to act as your representative (such as a family member or close friend) or you are proceeding without an authorized representative and, instead, have prepared a statement.
- If the DCFS attorney has called you as a witness in his or her presentation of DCFS’ case against you, you have a choice. You can deliver your statement (or give your whole testimony if you are being questioned by your authorized representative) directly after DCFS has questioned you. The ALTERNATIVE is to only answer the questions DCFS asks you and then wait to tell your side of the story the way you had prepared (via statement or examination) after DCFS has rested and it is your turn to present your case.
- REMEMBER, your testimony is not the time for you to make your arguments about why you think the judge should rule in your favor. Rather, when you testify (by either answering the questions of your authorized representative or by delivering your prepared statement) you are merely presenting the facts of what occurred based upon your direct knowledge and observation.
- No matter which options you choose regarding when you testify and how you testify, the DCFS attorney (and very possibly the judge) will have follow-up questions for you when you are finished.
TIP: Answering the questions from the DCFS attorney can be a bit nerve-wracking. Try to stay calm and take deep breaths. The best approach is to listen carefully to the
exact question the DCFS attorney is asking and answer only that specific question. Remember that you will get your chance to tell your side of the story later! Also remember that you don’t have to convince the DCFS lawyer you are right, you need to convince the judge, so stay focused on how the judge is responding to you. If you are not sure that you understand the question, you can ask for it to be repeated. As always, remain respectful of the attorney and the judge at all times.
9. Does the alleged victim testify?
a. Generally, the alleged victim does not testify, for several reasons. First, the hearsay
(out of court statements offered for their truth) of a child’s report (if the child is under the age of 14) regarding abuse can be considered without the children’s testimony (DCFS Rule 336.120(b)(10)). See p. 46 below for more information on hearsay. This means that anyone who the child told about the abuse may testify as to what the child said. For example, if the alleged victim told their teacher, step-father, older sibling and social worker that they were abused, any or all of those people may testify as to what the child said. This is hearsay evidence, which is not admissible in a regular court, but is admissible in DCFS appeal hearings.
b. Second, under DCFS Rules, any child under 14 years of age may testify only if the party proposing such testimony can demonstrate certain factors. Those factors include that the child’s testimony is essential; there is no likelihood of inflicting emotional harm; and no alternatives (i.e., stipulations or prior transcripts) exist as a substitute (DCFS Rule 336.110(b)). Judges usually frown on a party suggesting such testimony because they do not want to traumatize children or take them out of school.
c. Children who are over the age of 13
- Helpful to your case: If the child is 14 years old or older and the child has
favorable testimony to present, include that individual on your witness list and
call him or her as a witness.
- Harmful to your case: If the child is 14 years old or older, has harmful things
to say about your case, and the DCFS attorney is not calling him or her as a witness (and, instead, is relying solely upon the hearsay statements of other witnesses), object to the hearsay statements (this objection might be overruled, but you should make the objection for the record). You should then point out in your closing argument that DCFS did not call essential witnesses to testify in person.
TIP: See if you can get the DCFS attorney to stipulate to the testimony of child witnesses
(see Question 11 below).
10. What if one of my witnesses has to testify early in the day, before DCFS has finished
presenting its case?
a. You can ask to call this witness “out of order.” Usually, you should plan your
witnesses’ testimony to begin after allowing adequate time for DCFS to present its entire case, but special scheduling needs can be accommodated by asking the judge for permission to allow a witness to testify earlier in the day.
11. What is a stipulation?
a. A stipulation is an agreement between you and the DCFS attorney that a certain fact
is true or uncontested. Stipulations can narrow the issues for the hearing and minimize the number of witnesses actually called to testify so that the judge is able to
focus on the most important facts. They can also be a vehicle for you to make sure
that favorable evidence is included in the record.
b. For example, the DCFS attorney is usually agreeable to stipulating that, if called as a
witness, the regular pediatrician for the child would testify that the child was up-to- date on his or her regular examinations and immunizations and that the pediatrician has never observed any signs of abuse or neglect (assuming, of course, that the DCFS attorney is able to verify this information with the pediatrician before the hearing). Through this stipulation, you can make sure that this favorable evidence is in the record, and you don’t need to call the pediatrician to testify.
12. What is “hearsay” evidence? (See also Question 7 above regarding objections.)
a. Hearsay evidence is second-hand information that is reported based on what someone
has told the witness, rather than something that the witness observed himself.
b. At regular trials, the general rule of evidence is that hearsay is not allowed—people can only testify to matters about which they have direct knowledge (and not as to
matters about which their knowledge has been obtained from someone else).
c. However, at DCFS hearings, the rules of evidence do not strictly apply and many hearsay statements may be allowed. The judge will definitely allow the hearsay statements of children under age 14 to be admitted via other persons (for example, the investigator will always be allowed to testify as to what the 7-year-old child told him, or the teacher will always be allowed to testify as to what the 11-year-old child told
13. What does it mean that the rules of evidence do not strictly apply? (336.120(b)) Do I still make objections?
a. The rules of evidence are rules that determine what kinds of evidence are admissible in court proceedings and how that evidence can be submitted to the court.
b. Judges vary in how they apply the rules of evidence. Some judges will apply the rules of evidence more strictly than others. Some will rule that evidence of prior arrests is not allowed (as is usually the case in regular trials) and will “sustain” (rule in favor of) objections of “double hearsay” (where the Department is often trying to bring in testimony from the investigator regarding what the reporter said the alleged victim said). Other judges will be very loose about the evidence rules and let all sorts of evidence into the record that would not be allowed at a civil trial.
c. Regardless of the loose application of the rules of evidence, if you think that the evidence is irrelevant or should be legally inadmissible (like an arrest, or a polygraph test), make objections! See Question 7 above at p. 41. If the DCFS attorney is relying upon the hearsay statements of an adult witness (i.e., having the investigator testify as to what your ex-spouse said happened) without calling that adult witness to testify directly, object to this as inadmissible hearsay. While your objection might be overruled, as with any trial proceeding, you are creating a record for potential further review in case you lose your hearing.
d. Remember that just because a certain piece of evidence is presented against you, you do not automatically have a reason to object. The judge is going to want to hear all of the appropriate evidence, even if it is information you don’t like.
14. Is the investigative file evidence? Should I object to letting the file into evidence?
- Despite the fact that the investigative file contains mountains of hearsay that may not all be relevant, judges usually allow them in as evidence. However, there are two
points you can make to try to limit information included in the file.
- First, if the file is incomplete or notes were not made close in time to the conversations recorded, you can object to the admission of the file because it isn’t
“kept in the ordinary course of business.”
- Second, even if everything in the file is proper, you can state that the admission of the
file as a business record does not mean that all of the information in the file is admitted “for the truth.” You should state that the file can come into evidence as a recording of what DCFS did during the investigation, with specific conversations recorded in it not taken as true.
In the investigative file, there is a contact note created by the investigator wherein the investigator summarizes a conversation she had with a doctor. The contact note claims that the doctor told the investigator the child’s injury could only have been caused by abuse. At hearing, the doctor does not testify.
QUESTION: What do you say about this part of the investigative file when the DCFS attorney asks to have the file admitted into evidence?
ANSWER: You have no objection to that contact note being admitted as a record of one of the investigative steps DCFS took during the investigation. However, because the doctor did not testify at the hearing, you do object to the contact note being
admitted as support for the alleged “truth” of what the investigator claims the doctor
15. Should I make a closing statement?
- YES! This is the moment you have been waiting for—your golden opportunity to present all of the reasons why you think the indicated report is wrong.
- You should prepare a closing argument beforehand, using the DCFS definition of the allegation (see p. 28 above) and the anticipated testimony to make your points. After all testimony has been presented at the hearing, you can change your argument to reflect what is actually said, if needed.
- The ALJ may state that she or he does not need to hear closing statements. You should try to give your statement, however, even if DCFS decides not to make one. Tell the judge you have prepared a statement that you would like to get on the record.
What Happens After the Hearing?
- Does the Administrative Law Judge (ALJ) decide the case? (336.220)
No. The ALJ makes a recommendation to the DCFS Director, who then makes the final
- When does the Administrative Law Judge issue the recommendation? (336.220)
For expedited appeals (in the case of child care workers, see p. 13 above), the judge will issue the recommendation within 35 days after receipt of a request for an appeal. For all others, it will be issued within 90 days after receipt of a request for an appeal. Note: these time limits only apply where the client has not “agreed” to a later hearing date or waived their right to a speedy hearing.
- When does the DCFS Director issue the final administrative decision?
Within the same time period explained above (35 days for child care workers; 90 days for all others). Note: these time limits only apply where the client has not “agreed” to a later hearing date or waived their right to a speedy hearing. Usually, you will receive the final decision 4-6 weeks after the hearing.
- How am I notified of the decision?
You will receive a certified letter from the Director stating the Director’s decision and enclosing the ALJ’s written recommendation/opinion.
- What if the Director disagrees with the Administrative Law Judge?
The Director’s final administrative decision stands, unless and until it is successfully appealed through an administrative review action (see next question).
- And if I lose?
You may choose to appeal it to the circuit court under the Administrative Review Act (735 ILCS 5/Art. III). To be timely, the “action to review a final administrative decision
shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision.” The DCFS decision is considered to be “served” based upon the date it was post-marked. In order to be timely, be sure to file the complaint (and have the summons issued) no later than 35 days from the date listed at the top of the decision. This is a very strict deadline!