BH v. Johnson

Decision Date30 May 1989
Docket NumberNo. 88 C 5599.,88 C 5599.
Citation715 F. Supp. 1387
PartiesB.H., C.H., J.E. and C.Z., individually and on behalf of all others similarly situated, Plaintiffs, v. Gordon JOHNSON, Director of the Illinois Department of Children and Family Services, Defendant.
CourtU.S. District Court — Northern District of Illinois


Michael L. Brody, Schiff, Hardin & Waite and Benjamin S. Wolf, Roger Baldwin Foundation of ACLU, Inc., Chicago, Ill., for plaintiffs.

Susan Getzendanner and Christina M. Tchen, Skadden, Arps, Slate, Meagher & Flom, Chicago, Ill., for defendant.


GRADY, Chief Judge.

This case comes before us on defendant's motion to dismiss. We grant the motion in part.


For purposes of this motion, we accept all well-pleaded facts as true and draw reasonable inferences in favor of plaintiffs. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Named plaintiffs, B.H., C.H., J.E., C.Z., E.G., O.G., S.G., C.G., P.G., and A.G., represent a class of "all persons who are or will be in the custody of the Illinois Department of Children and Family Services and who have been or will be placed somewhere other than with their parents" (hereinafter collectively referred to as "plaintiffs"). See Order 88 C 5599 (N.D.Ill. Feb. 22, 1989) (certifying plaintiffs as a class pursuant to Rule 23 of the Federal Rules of Civil Procedure).

Defendant Gordon Johnson ("Johnson") is the director of the Illinois Department of Children and Family Services ("DCFS"). He is sued only in his official capacity. DCFS is an Illinois state agency responsible for the welfare of children whose parents are unwilling or unable to care for them. Amended Complaint at ¶ 10. As of the date of filing of the complaint, 15,000 children were in the custody of the DCFS. Am.Compl. at ¶ 9(a). When a child is removed from his or her parents, a "follow-up" caseworker is assigned to take responsibility for the child. Am.Compl. at ¶ 11. According to DCFS procedures, "the follow-up caseworker is to work with the family, arrange for appropriate services — for example, homemakers, counselors, therapists, and day care — and oversee the child's welfare including his or her medical needs, education, and, if the child is not immediately returned home, placement in a foster home, group home, or institutional care facility." Id.

The facts, as alleged in the complaint, paint a bleak and Dickensian picture of life under the auspices of the DCFS. Plaintiffs assert that there is little hope that children in the custody of the DCFS will receive services to which they are entitled. Id. at ¶ 12. Of the approximately 15,000 children in defendant's custody, more than 4,000 have been prevented from returning to their parents for two years or more. Am. Compl. at ¶ 21(a). As of June 30, 1986, more than 4,300 children in DCFS care had been in six or more placements. Id. at 21(b). These placements usually involve extended stays in mental hospitals, detention centers, group homes, shelters, and other institutions. Some children are kept in mental institutions long after professionals responsible for their treatment have declared them ready for discharge. Id. at 21(c). The institutions in which plaintiffs are "warehoused" do not offer adequate educational opportunities or, indeed, activities of any sort. Plaintiffs claim that the behavior of the children who reside in these institutions is controlled by brutal physical discipline. Id. These institutions are incapable of serving the needs of children and often cause serious damage to their physical and emotional well-being. In one DCFS shelter in May 1988, an eight-year-old girl was raped by two twelve-year-old boys. Id. at ¶ 16.

The institutional disrepair of DCFS is illustrated by the experience of the named plaintiffs in this case. For convenience, we allow the complaint to tell its own story:

(a) B.H. is a 17 year old male who has been lost in the DCFS system for four years. After removal from the custody of his family, DCFS put B.H. in a series of at least 10 different placements, including repeated placements for extended periods of time in temporary shelters. One of the nontemporary placements provided by DCFS was so inappropriate that B.H. faked a suicide attempt in order to secure a new living arrangement. Although he is an honor student, having maintained a 3.9 grade point average last year during his junior year at Maine West High School, B.H.'s education has been disrupted so many times that he did not graduate with his high school class this spring. As of the date of his interview with counsel in preparation for filing this lawsuit, B.H. was in a temporary shelter once again, had no recollection of having seen his caseworker for three months and recalled only two telephone conversations with the caseworker during that period.
(b) C.H. is a 15 year old male who has been in the DCFS system for less than six months. During that period of time he has had five different placements. As of the date of the original complaint, C.H. had been in a temporary shelter for four months. C.H. was removed from his mother's home after he had a confrontation with her boyfriend. Despite the obvious family tensions, as of the date of his interview with counsel in preparation for filing this lawsuit, C.H. and his mother had received no joint counselling or other support from DCFS seeking safely to reunite the family, and C.H. had not, to the best of his recollection, seen his caseworker for a month.
(c) J.E. is a 13 year old male who has been in the custody of DCFS as long as he can remember. J.E. wants to be reunited with his grandmother or his biological mother, who has told him she wants him back, but he has no recollection of any joint counselling with his mother during the years that he has been in DCFS' custody. J.E. has not had any counseling from DCFS at all for the last several months. Instead, he was warehoused for the three months prior to the filing of this lawsuit at the Henry Horner Children's Center ("Henry Horner"), an overcrowded, understaffed mental health facility which controls his behavior by administering strong doses of psychotropic mediation sic. J.E. constantly fears for his physical safety at Henry Horner, where assaults are a frequent occurrence. He has had numerous caseworkers during his time with DCFS and he rarely sees his current caseworker. J.E. has been placed in a series of foster and institutional placements and removed from the one foster family with whom he was able to form a bond. During the time J.E. has been in the custody of DCFS he has threatened suicide.
(d) C.Z. is a 17 year old female honor student who was placed in DCFS' custody approximately one year ago because she alleged she was sexually abused by her stepfather. During her year with DCFS, C.Z. has been in seven different placements. C.Z. has received no meaningful help from DCFS in her efforts to cope with the events giving rise to her allegations of abuse by her stepfather or the deterioration of her relationship with her mother. On information and belief, solely because DCFS had no appropriate placement for her, on two separate occasions C.Z. remained in a locked ward at Henry Horner long after the specific recommendations of mental health officials that she was ready for discharge. Prior to contact with counsel in preparation for filing this lawsuit, C.Z. had not seen her caseworker for two months. On one occasion, C.Z. slit her wrists in order to get the attention of the DCFS worker then in charge of her case.
(e) E.G. and O.G. have been in DCFS's custody since October 9, 1987. DCFS has been involved with their family since October 1986 when O.G. severed his palate with a stick and hospital personnel called the case to DCFS's attention. Subsequent investigation revealed that E.G. and O.G., along with their siblings, A.G., P.G., S.G., and C.G., were kept by their parents locked in a feces and urine infested bedroom, that they were undernourished, that their medical needs were ignored, and that they were otherwise neglected. Between October 1986 and October 1987 DCFS' only effort to provide services to the G. family consisted of sending a homemaker to clean the apartment. The homemaker stopped visiting after being threatened by E.G.'s and O.G.'s heroin addict father. At the time of their removal from their home, E.G. was 3 and O.G. was 6. In the year since they were removed from their home, E.G. and O.G. have been in a total of 8 different placements. In one of the placements, E.G. and O.G. were inadequately fed and clothed. They were removed from another placement because they were both "hit" by the foster mother. In a third placement O.G. was sexually abused. Notwithstanding that he was initially removed from his parents home because of the neglect which caused his severed palate, plaintiffs are informed and believe that E.G. has never received any speech therapy to help him cope with his physical handicap and he has never been evaluated for reconstructive surgery. As of October 28, 1988 DCFS had not made any arrangements to provide O.G. with counselling in order to help him deal with his sexual abuse and, in response to the current foster parents' inquiry on the subject, the DCFS caseworker had threatened to remove E.G. and O.G. from the new foster home if the foster parent continued to "cause trouble" by insisting on such critical services.
(f) S.G., C.G., P.G. and A.G. are the brothers and sisters of E.G. and O.G. They range in age from one year to nine years. All of them have been placed together with the O'C. family, a different foster placement from E.G. and O.G. The separated children have not received scheduled monthly visits and, despite repeated requests from the O'C.s, DCFS has flatly refused to even schedule sibling visits on a weekly basis. Several of the G children have special needs. P.G., for example, was a premature baby who continues to suffer from a weak heart

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