Dupuy v. Samuels (462 F. Supp. 2d 859, 2005)

MEMORANDUM OPINION AND ORDER

PALLMEYER, District Judge.

Plaintiffs represent a class of persons who challenge the constitutionality of certain policies and procedures of the Department of Children and Family Services (“DCFS” or the “Department”) relating to the investigation of allegations of child abuse or neglect. In an earlier proceeding. Plaintiffs focused on the Department’s procedures for determining whether reports of such abuse or neglect should be “indicated” or “unfounded.” On March 30, 2001, the court granted Plaintiffs’ motion for a preliminary injunction as to certain of these “core” and “special” DCFS policies. Specifically, the court found that “the relatively low standard of proof required to indicate a finding, combined with the indefensible delays” in the appeal process and the resulting “staggering ex-pungement rate” of indicated reports, violated Plaintiffs’ procedural due process rights. Dupuy v. McDonald, 141 F.Supp.2d 1090, 1136 (N.D.Ill.2001), aff'd in part and rev’d in part by, Dupuy v. Samuels, 397 F.3d 493 (7th Cir.2005). The court noted, further, its suspicion that the agency’s lengthy delays not only victimized persons who are innocent of abuse or neglect charges, but might also result in exoneration of persons who are guilty of such charges. 141 F.Supp.2d at 1130.

In this proceeding, Plaintiffs are challenging DCFS “safety plans,” which impose restrictions upon families during the pendency of investigations into allegations of abuse or neglect. Plaintiffs claim that the safety plans are unconstitutional and seek further injunctive relief to prohibit DCFS from implementing the plans in any form. Resolution of this issue has been complicated the parties’ contentious dispute as to the appropriate class definition. The court has now entered an order defining the class, for purposes of this stage of the litigation, as consisting generally of persons under investigation for child abuse or neglect who are the subject of “safety plans,” imposed under threat, that prohibit or restrict their contacts with their children. See Order of 9/30/03 (amending class definition to include families subject to safety plans involving no contact requirements or removal from the home); Order of 4/16/04 (amending class definition to require a threat of protective custody and to exclude persons without a legal relationship to the children or spouse). For the reasons set forth below, Plaintiffs’ second motion for preliminary injunction is granted in part and denied in part as described herein.

BACKGROUND

The background facts, and a description of the DCFS procedures for investigating allegations of abuse and neglect, are more fully presented in this court’s March 30, 2001 Memorandum Opinion and Order. See Dupuy, 141 F.Supp.2d at 1092-1130. This opinion assumes the reader’s familiarity with the earlier decision and will summarize those facts here only briefly.

I. The Department of Children and Family Services

DCFS is the state agency charged by statute with the' duty of investigating allegations of child abuse and neglect. Dupuy, 141 F.Supp.2d at 1092; 325 ILCS 5/2. The Department is organized into various operational divisions, including the Division of Child Protection (“DCP”). The DCP is responsible for operating a hotline to accept calls regarding allegations of child abuse and neglect (the “DCFS Hotline”), and for investigating those allegations. Id. at 1093. Of the more than 350,000 calls placed to the Hotline each year, 65,000 are investigated. Approximately 23,000 (or 1/3) of the investigations result in “indicated” findings, meaning that the investigator has determined that credible evidence of child abuse or neglect exists. The remaining charges are deemed “unfounded,” meaning that the investigator has not found credible evidence of abuse or neglect. Id.

II. The Abuse and Neglect Investigative Process

Any person may make a report of child abuse or neglect by calling the toll-free DCFS Hotline. Certain persons whose employment brings them into frequent contact with children are considered “mandated reporters” and, thus, are required by law to make a Hotline report if they have a reasonable belief that a child may be abused or neglected. Id. at 1094; (Ill. Admin. Code tit. 89, § 300.30). If a Hotline call is deemed to be made in good faith and to meet the minimum criteria for further investigation, the Hotline operator completes a Child Abuse and Neglect Tracking System form (the “CANTS 1” form) and submits it to a local DCP office where an investigator is assigned. The investigator is responsible for conducting the investigation and for making a final determination as to whether to “indicate” or “unfound” the report. Id. at 1095.

The regulations explain that “[w]hen the investigative worker has completed all required investigative contacts and has secured appropriate physical evidence ... the investigative worker shall make a finding of Indicated or Unfounded. This determination shall be based upon whether the information gathered during the investigation and from the direct observations made by the investigative worker constitutes credible evidence of child abuse or neglect.” (Ill. Admin. Code tit. 89, § 300.110®). An investigator’s recommended determination is reviewed by his or her supervisor who has the actual authority to “indicate” or “unfound” the investigation. Dupuy, 141 F.Supp.2d at 1097. Once the recommended finding has been approved, the investigator completes a CANTS 2 Final Finding Report form and forwards it to the State Central Register (“SCR”), where it is registered in a computerized listing of information regarding allegations of abuse or neglect. Id. at 1093, 1098. DCFS regulations require that an investigation be completed within 60 days, though this time period may be extended for periods of up to 30 days upon a showing of good cause. (III. Admin. Code tit. 89, § 300.110(i)(3)(C)). Evidence at the first preliminary injunction established, however, that in actual practice, investigations often took far longer. See Dupuy, 141 F.Supp.2d at 1106-1130.

III. Safety Plans

In conjunction with investigations into child abuse and neglect, DCFS utilizes a variety of plans aimed at protecting children pending the outcome of an investigation and/or after a report has been indicated. One such plan is the Child Endangerment Risk Assessment Protocol (“CERAP”) “safety plan.” CERAP was developed in response to several high profile incidents in the early 1990s where children were seriously injured or killed shortly after DCFS became involved in their cases. (Tr. 2243-44.) In 1994, the Illinois legislature enacted Public Act 88-614, which required DCFS to develop and implement:

(1) A standardized child endangerment risk assessment protocol.

(2) Related training procedures.

(3) A standardized method for demonstration of proficiency in application of the protocol.

(4) An evaluation of the reliability and validity of the protocol.

20 ILCS 505/21(e). In response to this legislation, DCFS formed a multidisciplinary committee of external experts to oversee the development of the CERAP process, which is now set forth in Appendix G to Department Rule and Procedure 300, and in the Safety Determination Form, the Safety Plan form, and the Safety Plan Termination Agreement. (See Jt. Ex. 7, Appendix G; Jt. Ex. 5(c), CFS 1441-A; Jt. Ex. 5(e), CFS 1441; Jt. Ex. 5(f), CFS 1441-B).

A. The Safety Plan Assessment Process

The CERAP process is designed to “provide workers with a mechanism for quickly assessing the potential for moderate to severe harm immediately or in the near future and for taking quick action to protect children.” (Jt. Ex. 7, Appendix G, at 1.) A CERAP form must be completed for all children in the home of an alleged perpetrator within 48 hours of DCFS’s receipt of a Hotline call, and within 24 hours after a child protection specialist sees the alleged child victim(s). (Id. at 3; Jt. Ex. 2, Procedures, § 300.50(c).) The CERAP process requires the child protection specialist to assess whether a child is safe or unsafe, using a four-step analysis: (1) does the case present any one or more of 15 enumerated “safety factors”; (2) how does that factor relate to specific individuals; (3) are there any “family strengths and mitigating circumstances”; and (4) would the child be “safe” or “unsafe” absent implementation of a safety plan. (Jt. Ex. 7, Appendix G, at 7-15.)

1. The 15 Enumerated Safety Factors

The first step in the CERAP process is for the child protection specialist to determine whether one of 15 enumerated safety factors is present. The factors include: a household member’s behavior is violent and out of control; the caretaker has not, will not, or is unable to provide sufficient supervision to protect the child from harm; the child is fearful of people living in or frequenting the home; child sexual abuse is suspected and circumstances suggest that the child’s safety may be an immediate concern; and a paramour is the alleged or indicated perpetrator of physical abuse. There is also a general “other” category to cover safety concerns not expressly listed. The Regulations provide several examples of factors that may fall under the “other” category, including that a child’s behavior is likely to provoke the caretaker to harm the child; that persons in the household have unexplained injuries; or that the caretaker refuses to cooperate or is evasive. (Jt.Ex. 5(e), CFS 1441; Jt. Ex. 7, Appendix G, at 12.) If the investigator determines that there is “clear evidence or other cause for concern” that a factor is present, he must check the factor “yes” on the CERAP Safety Determination Form (CFS 1441); otherwise, he must check the factor “no.” (Id.)

DCFS Procedures do not define what constitutes “other cause for concern.” John Goad, former Deputy Director of the Department’s Division of Child Protection, testified that the investigator is expected to look for “a reasonably extreme version” of a listed safety factor, and must determine a factor’s existence using all of the information available from the initial report and the person who made it, as well as any additional information that may be obtained by observing and talking with the children and the family, and by observing the home environment. (Tr. 2259, 2263-64.) It appears that in practice, however, investigators do not always require a “reasonably extreme” showing and that any amount of evidence may be sufficient warrant for the investigator to check a safety factor “yes.” Deputy Director Goad conceded, for example, that investigators need neither a certain “level of evidence” nor evidence confirming that it is “more likely than not” that a safety factor is present in order to check a factor “yes.” (PX L, Goad Dep., at 27-28.)

Plaintiffs find this low standard significant, particularly because several factors by their terms require only allegations of wrongdoing and/or minimal evidence of any risk of harm to the child. Factors 11, 12, and 14, for example, direct investigators to check “yes” based solely on an allegation of abuse or neglect, even if no investigation has yet occurred or if an investigation suggests that the allegation may be untrue. (See, e.g., Jt. Ex. 5(e), CFS 1441, factor 14) (“[a] paramour is the alleged or indicated perpetrator of physical abuse”) (emphasis added); Tr. 200-01. Factors 2, 8, and 14 direct investigators to check “yes” even if there is no or only nominal evidence that the presence of the factor poses any danger of harm to a child. (See, e.g., id., factor 8) (“[c]hild is fearful of people living in or frequenting the home”; no requirement of evidence that the child be in actual danger from those people). In addition, nine of the factors (1, 2, 3, 7, 8, 10, 11, 12, and 14) do not require any evidence that a parent or caretaker (as opposed to some other “member of the household”) has engaged in any wrongful conduct. Factor 3, for example, states that “[tjhere is reasonable cause to suspect that a member of the household caused moderate to severe harm or has made a plausible threat of moderate to severe harm to the child.” (Jt.Ex. 5(e), CFS 1441.) This test is met, presumably, even where there is no evidence that the parent or caretaker is unable to ensure the safety and supervision of his or her children.

For each factor checked “yes,” the investigator is expected to explain what led to that determination. (Jt. Ex. 7, Appendix G, at 12; Tr. 2265-66.) DCFS Procedures explain, further, that “[tjhe presence of any one of the listed behaviors and/or injuries does not in and of itself mean that a child should be determined to be unsafe.” (Id. at 8.) Rather, an investigator must also consider (1) the age and developmental status of the child; (2) the mental, medical, and/or developmental status of the parent(s) or other person(s) responsible for the child’s safety (i.e., are they capable of and willing to protect the child’s safety?); (3) the type, severity, location, and/or extent of injury to a child; and (4) the intent, severity and/or duration of the behaviors directed toward the child. (Id.)

If an investigator does not check any safety factors “yes,” the CERAP process is completed without the need for further action. If, on the other hand, the investigator determines that any one of the 15 safety factors is present and checks that box “yes,” then he or she must proceed to the next step of the process.

2. Family Strengths and Mitigating Circumstances

At the next step of the CERAP process, the investigator is required to “describe any family strengths or mitigating circumstances which may serve to manage or control the safety factors.” (Jt. Ex. 7, Appendix G, at 13.) DCFS Procedures recognize that “[sjometimes the presence of a safety factor can be partially or fully controlled or eliminated by a family strength or mitigating circumstance.” (Id.) According to Appendix G, “[rjegular contact with a support person who can assure the safety of the child” is one example of such a family strength or mitigating circumstance. (Id.) Deputy Director Goad offered the additional example of a husband’s “credible]” assurance that he will remove from the home a “violent and out of control” mother who is “physically small” until she “calm[s] down.” (Goad Dep., at 55-56.) DCFS Procedures do not otherwise provide any guidance for determining either the presence of relevant family strengths or mitigating circumstances, or the proper method of balancing them against the cited safety factor(s).

The August 13, 2002 amendments to Appendix G provide that “[f]or the purpose of safety assessment, a protective effort must be made on the family’s initiative and not as the result of the worker’s suggestion in order for it to constitute mitigation.” (Jt. Ex. 7, Appendix G, at 13.) By way of example, the amendments state that in a domestic violence situation, “if the worker initiates the mother’s move to [a] shelter, it is the worker’s and not the mother’s capacity that has controlled the safety threat [so] the child is considered unsafe and the move to the shelter is considered a safety plan.” (Id.) See infra pp. 10-20 for a discussion of safety plans. In other words, a protective measure will not constitute a mitigating circumstance unless the caretaker proposes it without any prompting from a DCFS representative.

Deputy Director Goad testified that there are “probably” potential mitigating factors as to every safety factor, but of the documentation supporting imposition of a safety plan in the 92 sample cases in this litigation, 64 (or 69%) did not identify any family strengths or mitigating circumstances. (Goad Dep., at 56-57; Tr. 2667.)

3. The “Safe” or “Unsafe” Determination

If an investigator determines that a safety factor is present but controlled by a family strength or mitigating circumstance, the child must be deemed “safe,” meaning that “[t]here are no children likely to be in immediate danger of moderate to severe harm at this time” and no safety plan is necessary. (Jt.Ex. 5(e), CFS 1441.) If, however, the investigator determines that a safety factor is not controlled by a family strength or mitigating circumstance, the child must be deemed “unsafe,” meaning that “[a] safety plan must be developed and implemented or one or more children must be removed from the home because without the plan they are likely to be in immediate danger of moderate to severe harm.” (Jt.Ex. 5(e), CFS 1441) (emphasis in original). As noted, a determination of “unsafe” may be made based on the presence of only one safety factor, some of which require no or only nominal evidence that a child is in danger of harm. In addition, because investigators must complete the CERAP analysis for all children in the home of an alleged perpetrator, children who are not alleged victims of abuse or neglect are nonetheless commonly subject to safety plans. (Jt. Ex. 7, Appendix G, at 5.)

B. Creation of Safety Plans

Once an investigator finds that a child is “unsafe,” the next step is to develop a “safety plan.” Deputy Director Goad estimated that as many as 10% of investigations result in safety plans, which translates into as many as 10,000 plans per year. (Tr. 2300-01.) Safety plans are intended to be collaborative efforts between the investigator and the family. According to Deputy Director Goad, the investigator generally talks to the family about the problem that led to the “unsafe” determination and asks family members to suggest possible steps for assuring the safety of the child. (Tr. 2302.) Goad explained that the investigator is then expected to discuss the family’s ideas for a safety plan in an effort to work out mutually-agreeable terms. (Tr. 2302-03.) The evidence offered by Plaintiffs suggests, however, that in practice, investigators often make little effort to collaborate with families in implementing safety plans. Nearly every class member witness who signed a safety plan testified that the investigator simply presented a proposed plan for his/her signature with little or no discussion of the plan terms or alternatives. (Tr. 346, 470-71, 556, 562, 715, 719, 795-98, 1165-66, 1304, 1379.)

1. Plan Terms

An effective safety plan includes measures designed to control the safety factors that led to the need for a safety plan; is as minimally disruptive to the family as possible; minimizes any separation issues for family members; and relies on resources that are “immediately and realistically available” to the family. (Tr. 2283 (Goad).) The safety plan must be recorded on the Safety Plan Form (CFS 1441-A) and must include a written description of “what will be done or what actions will be taken to protect the child(ren), who will be responsible for implementing the components of the safety plan and how/who will monitor the safety plan.” (Jt. Ex. 7, Appendix G, at 15.) In addition, “[ejvery safety plan must specify the conditions under which the plan is to be terminated and an estimated time frame within which this can be expected to occur.” (Id. at 14.) The plan must “contain a time frame for implementation and continued monitoring and a contingency plan if the primary safety plan is no longer needed.” (Id.)

The terms of a safety plan vary depending on the particular case. The plans signed by class members in this case either (1) separated children from their parents, guardians, or other close relatives by removing one or more such individuals from the home, or by imposing no-contact requirements preventing children from having any contact with parents, guardians, or other close relatives; or (2) allowed children and family members to have only supervised contact with each other. Class members are individuals who signed these plans under threat that their children would otherwise be taken into protective custody. See Order of 4/16/04 (setting forth revised class definition).

Deputy Director Goad issued a directive on March 22, 2002 requiring that “all safety plans in which family members (children or adults) are relocated from their residence must be approved by the respective Child Protection or Field Service Manager.” (DCFS Inter-Office Correspondence Regarding Safety Plans dated 3/22/02.) To approve such a plan, the manager must consider (1) whether the child is genuinely unsafe; (2) whether the plan will adequately protect the child(ren) in a manner that is minimally disruptive to all family members; and (3) whether there is a reasonable and timely potential resolution to the plan. (Id.) Upon approving a safety plan that relocates a family member, the manager is directed to “track them” (presumably, the plan itself or family members subject to it) to “assure the timely and appropriate resolution of the safety plan according to the directions in Appendix G of Procedure 300.” (Id.)

2. Agreement to a Safety Plan

DCFS views all safety plans as voluntary agreements between the Department and the family. Indeed, the child’s primary caregiver and, if different, the person(s) most responsible for carrying out the plan must sign the safety plan form, which states that the person has “discussed the safety plan with the investigator/worker, ... understand^] its contents and that it is voluntary, and agree[s] to abide by the terms and conditions of the plan.” (Jt.Ex. 5(c), CFS 1441-A.) The investigator must also sign the form attesting that he or she has “discussed the attached Safety Plan and the consequences of non-compliance with the caretaker and all those who are responsible for carrying out the plan” and that he or she has agreed to “abide by the terms and conditions of the plan.” (Id.) The form provides contact numbers for both the investigator and his or her supervisor (who must approve the plan) in case a family member wants to communicate with the Department. (Tr. 2287-89.)

August 13, 2002 amendments to Appendix G reinforce the requirement that an investigator must inform a family that safety plans are voluntary:

The worker who is responsible for implementing the plan must inform the family that their cooperation with the plan is voluntary and — to the extent safely possible — must enlist the family’s participation in the development of the plan. When the plan is developed the worker must explain it to the family and must provide the family with information about the potential consequences if the plan is refused or violated. If the family refuses to accept the plan or if the plan is violated, the worker must reassess the situation, consider protective custody and/or referral to the State’s Attorney’s Office for a court order.

(Jt. Ex. 7, Appendix G, at 14.) The amendments also require investigators to notify all parents or caretakers when a safety plan ends. (Id. at 16.)

Notwithstanding these regulatory provisions, Plaintiffs insist that safety plans are coercive. They note that a stated consequence of rejecting the plan or failing to comply with it is the removal of the children from the home. The signature page of the safety plan form expressly states that “[w]e understand that failure to agree to the plan or to carry out the plan may result in a reassessment of my home and possible protective custody and/or referral to the State’s Attorney’s Office for a court order to remove my children from my home. I will then have the opportunity to plead my case in court.” (Jt.Ex. 5(c), CFS 1441-A.) Most class member witnesses testified that in addition to this written warning, investigators verbally threatened them with removal of their children if they refused to agree to a safety plan. (Tr. 347-49, 392-93, 470-71, 556, 562, 715, 719, 795-98, 1165-66, 1304, 1379.) Faced with this admittedly “tough decision,” virtually every parent or caretaker confronted with a safety plan ends up signing it. (Tr. 2311-12 (Goad); Def. Resp., at 12.) All families do, however, have the option of rejecting the plan.

DCFS procedures require investigators to give the family a copy of their safety plan form, which sets forth the restrictions imposed. There is no requirement, however, that families receive a copy of the CERAP Safety Determination Form, which details the underlying basis for the safety plan as reflected in the investigator’s assessment of the 15 safety factors. (Tr. 2290 (Goad) (though giving a CERAP form to families is not prohibited, “there is no policy that guides workers to give it to them either”).) There is no evidence that investigators or supervisors have ever given the CERAP form to family members, and none of the plaintiff witnesses in this case ever received one. In Plaintiffs’ view, “the resulting [safety plan] agreements are ones in which one of the parties (DCFS) has virtually all the information (ie., about why the child is considered ‘unsafe’ and therefore requires a safety plan), and the other party (the ‘agreeing’ family member) has none.” (PI. Mem., at 20.)

Plaintiffs find this objectionable in part because the safety plan form does not explain the legal standards and procedures DCFS must follow in order to remove a child from the home. See Abused and Neglected Child Reporting Act, 325 ILCS 5/5; Juvenile Court Act, 705 ILCS 405/2-7(1), 405/2-8, 405/2-9. Nor is there any explanation as to the type of evidence required to obtain protective or temporary custody of a child. See infra pp. 18-20. In addition, the language of the safety plan forms implies that DCFS has gathered sufficient information to take custody of a child at the time the safety plan is implemented. (See Jt. Ex. 5(c), CFS 1441-A) (“[s]afety plans are to be developed only where a decision of ‘unsafe’ has been made and workers, with supervisory approval, assess that without the plan the children) must be removed from the home”). Plaintiffs claim that, in reality, such evidence is not required in order to find a child “unsafe” pursuant to the CERAP process. DCFS Child Protection Manager Anne Gold, moreover, acknowledged at the trial that “for the cases that end up getting unfounded in [her] office, the likelihood that [DCFS] would have grounds for protective custody on the first day of the investigation is about zero.” (Tr. 2982.)

Plaintiffs also question the voluntariness of safety plans that may be implemented before an investigator has spoken with the alleged perpetrator. For example, though safety plans are generally implemented within 48 hours of a Hotline call, DCFS regulations allow for a delay of up to “7 calendar days of the receipt of the report” before the investigator is required to contact an alleged perpetrator who is “different from the parents or caretakers.” (Jt. Ex. 2, Procedures § 300.50(c)(6).) In addition, DCFS Procedures require investigators to notify, and defer to law enforcement authorities in certain types of cases, such as those involving allegations of serious physical or sexual abuse. (Id. § 300.70; Tr. 2218-19.) If the police ask DCFS investigators not to speak with an alleged perpetrator, investigators normally honor the request but, if possible, construct safety plans even without such contact. (Goad Dep., at 174; Tr. 2697 (Goad).) In some cases, moreover, mere action in conformity with a DCFS request may be deemed an “agreement” to a safety plan. Deputy Director Goad testified, for example, that if an allegedly abusive father leaves the home on his own accord, “it certainly meets the standard that we would need to meet in order to consider that an adequate plan for the child’s safety.” (Goad Dep., at 163-64.) (See also Tr. 2692 (“[t]here are circumstances where ... it may be impossible ... for the Department to obtain ... express agreement to the plan”).)

3. Duration of Safety Plans

Safety plans are intended to be temporary, “usually short-term measures” to control serious and immediate threats to a child’s safety. (Jt. Ex. 7, Appendix G, at 14; Tr. 2277 (Goad).) The August 13, 2002 amendments to Appendix G provide that safety plans must be reassessed “every five working days following the determination that any child in a family is unsafe.” (Jt. Ex. 7, Appendix G, at 4) (emphasis in original.) The assessment

must continue until either all children are assessed as being safe or all unsafe children are removed from the legal custody of their parent/caretakers. This assessment should be conducted considering the child’s safety status as if there was [sic] no safety plan (i.e., Would the child be safe WITHOUT the safety plan?).

(Id.) (emphasis in original). The amendments also instruct that safety plans “must be adequate to assure the child’s safety but as minimally disruptive to the child and family as is reasonably possible.” (Id. at 13.) In addition, “[e]very safety plan must specify the conditions under which the plan is to be terminated and an estimated time frame within which this can be expected to occur.” (Id.)

DCFS does not keep statistical data showing the actual duration of safety plans. (Tr. 2324 (Goad).) A review of the 92 safety plans in the representative sample cases (which were imposed prior to the 2002 Amendments to DCFS Appendix G) reveals that many plans have indefinite time frames, or fail to state any duration at all. By Plaintiffs’ estimation, 31 plans (33.3%) were indefinite in length. (See, e.g., SAI 8, at 28502) (alleged victim’s stepfather will move out and have “no contact” with stepdaughter “during the course of this investigation”); SAI 92, at 36157, 36159 (alleged victim’s half-brother will move out of the house and have “no unsupervised contact” with his half-sister; plan scheduled to terminate “at the discretion of treatment professional”); SAU 20, at 39869 (mother will not allow daughter “to return to father [a non-household member] until everything is cleared up as to what happened”); SAU 40, at 41317 (alleged victim is not to share a bedroom with his alleged perpetrator brother; the two siblings “must be supervised at all times by a parent until this investigation is complete”; plan termination date is “undetermined at this time”).

Plaintiffs further estimate that 53 plans (57%) did not set forth any duration at all. (See, e.g., SAI 34, at 31134 (mother will not allow son (the alleged perpetrator) to have “any contact” with his sister (the alleged victim) and he is not allowed to return home upon release from police custody; duration unspecified); SAI 81, at 35384 (alleged victim not allowed to have “any contact” with her half-brother “at any time”; duration unspecified); SAI 98, at 36690 (father of alleged victim “agreed to leave the residence”; duration unspecified).) In addition, of the 40 safety plans with stated durations of definite length, only one (.025%) was shorter than five days, and six others (20%) were longer than 20 days. (See, e.g., SAI 49, at 32708 (if alleged perpetrator not detained by police, mother will not allow him to return to the house “pending outcome of this investigation”; estimated plan duration, “2 — 3 months”); SAU 24, at 40137 (father not allowed visitation rights with his daughter “until such time as it is determined that it is safe to have them continue”; plan to be in effect for “at least 60 days”).)

Defendant argues that many of the plans chosen by Plaintiffs as representative “are not safety plans at all.” (Def. Resp., at 51.) For example, one file included a safety plan requiring no contact between the alleged perpetrator and victim (whose relationship to each other is unclear though they share a last name), but the plan was implemented after the alleged perpetrator had been arrested and taken to jail, and after a court had already imposed a bond order with the same restriction. (See SAI 21, at 29793 (“no time frame c[ould] be imposed as court intervention is necessary”); Tr. 1769.) In another file, similarly, there was a safety plan requiring no contact between the alleged victim, who lived with her aunt, and the alleged perpetrator, the aunt’s husband, but Defendant says the plan was unnecessary because the perpetrator was arrested and in jail. (SAI 62, at 33872; Tr.1959; Def. Resp., at 53.) (See also Def. Resp., at 52-54.) In still other files, DCFS implemented sexually aggressive children and youth (“SACY”) plans which are “used in cases where the child who is the subject of the plan is in foster care, and the child’s guardian is the DCFS Guardianship Administrator.” (Def. Resp., at 51.) (See SAU 2, at 38821.) Several additional files, moreover, did not involve class members. (See, e.g., SAI 12, at 28932 (alleged perpetrator is daughter of woman running an unlicensed day-care service out of her home; alleged victims are children who attended day-care at the home); SAI 38, at 31618 (alleged perpetrator is mother’s “live in boyfriend”); SAI 70, at 34522 (alleged perpetrator is mother’s paramour).)

Even assuming some of the 92 safety plans are not technically viewed as such by DCFS, it is undisputed that at least some plans are in place throughout the course of an investigation, regardless how long that may take, and that others fail to specify any duration. Indeed, Deputy Director Goad himself testified that many safety plans last at least as long as the underlying investigation into the alleged child abuse or neglect, and that even when a report is “unfounded,” a safety plan may remain in effect (presumably in accordance with its stated terms) if there are “safety issues that would make continuation of a safety plan appropriate.” (Tr. 2754 (Goad).) Prior to the August 2002 amendments, moreover, DCFS did not have any procedure requiring that families be notified when a plan had been lifted. (Jt. Ex. 7, Appendix G, at 16.)

4. Contesting Safety Plans

Once DCFS has implemented a safety plan, family members subject to the plan may ask that it be modified, or an investigator may initiate modification on his or her own. (Goad Dep., at 253-55, 259-60.) There is no formal procedure for requesting a modification, however, nor is an investigator obligated to respond to, or act upon such a request. (Id. at 259-60.) In addition, DCFS has no procedure authorizing those subject to a safety plan to contest it in any way, nor does DCFS advise family members that agreeing to the plan may result in a waiver of their right to contest it. (Id. at 227, 259; Tr. 2722 (Goad).)

5. Alternatives to Safety Plans

As noted, a family’s failure to agree to a safety plan may result in the children being removed from the home. There are two ways this may occur: (1) DCFS may take protective custody of a child pursuant to the Abused and Neglected Child Reporting Act (“ANCRA”), 325 ILCS 5/5, and the Juvenile Court Act (“JCA”), 705 ILCS 405/2-7(1), 405/2-8, 405/2-9 (discussing “temporary protective custody”); or (2) DCFS may obtain a court order granting it “temporary custody” of a child pursuant to the JCA. To take a child into protective custody without court authorization, DCFS must determine that it: “(1) ... has reason to believe that the child cannot be cared for at home or in the custody of the person responsible for the child’s welfare without endangering the child’s health or safety; and (2) there is not time to apply for a court order under the Juvenile Court Act of 1987 for temporary custody of the child.” 325 ILCS 5/5.

After taking protective custody of a child, DCFS must “promptly initiate proceedings under the Juvenile Court Act of 1987 for the continued temporary custody of the child.” Id. Under the JCA, moreover, “a minor ... taken into temporary protective custody must be brought before a judicial officer within 48 hours, exclusive of Saturdays, Sundays, and court-designated holidays, for a temporary custody hearing to determine whether he shall be further held in custody.” 705 ILCS 405/2-9(1). If there is no temporary custody hearing within the prescribed time limitations, protective custody lapses and the child must be returned to his or her home. 705 ILCS 405/2-9(3). Except in emergencies, DCFS Procedures require prior supervisory ór management authorization to take a child into protective custody. (Jt. Ex. 2, Procedures § 300.80(f).)

To obtain a temporary custody order, DCFS must file a petition for adjudication of wardship with the State’s Attorney in the county in which the child lives. (Tr. 232, 242 (Maganzini).) No such petition may be filed, however, unless the State’s Attorney “screens” the case into juvenile court (i.e., accepts the case). (Tr. 232-33.) In Cook County, Illinois, the State’s Attorney will not screen a case into court absent evidence that would, in the view of the attorney screening the case, support a judicial determination that the child should be taken into temporary custody. (Tr. 224, 241, 244.) Such evidence consists of “probable cause to believe that [a child] is abused, neglected or dependent”; that “it is a matter of immediate and urgent necessity for the safety and protection of [the child]” that he be removed from his or her parents’ care; and that the state has made “reasonable efforts ... to prevent or eliminate the necessity of removal of [the child] from his or her home, [unless] no efforts reasonably could be made to prevent or eliminate the necessity of removal.” 705 ILCS 405/2-10.

If the State’s Attorney finds insufficient evidence to screen a case into court, no petition for adjudication of wardship will be filed at that time. Instead, the State’s Attorney will issue a form entitled “Ongoing Investigation,” which provides the investigator with specific due dates for updating the State’s Attorney about the case and/or bringing it back for further screening review. The Assistant State’s Attorney completing the form may also instruct the investigator to implement or maintain a safety plan or a “care plan” while the additional information is being gathered. (See, e.g., Ex. E to Defendant’s Additional Declarations and Exhibits) (“Def.Supp.”) Defendant claims that “care plans” are the same as “safety plans,” citing the declaration of Debra Dyer, DCFS’s Chief Deputy General Counsel in the Office of Legal Services. (Ex. D to Def. Supp., ¶ 5 (noting that in approximately 40 investigations between December 2003 and October 2004, the State’s Attorney decided not to file a petition but requested that DCFS “implement or continue a safety or care plan”).) Plaintiffs dispute that safety plans are the same as care plans, but only one of the four sample Ongoing Investigation forms submitted by Defendant mentions a care plan as opposed to a safety plan. That case involved a parent attending a substance abuse treatment program. (Plaintiffs’ Response to Defendant’s Supplementation of the Record, ¶ 3; Ex. E to Def. Supp.) In any event, neither party disputes that the State’s Attorney has an “open door policy” on re-reviewing cases. (Tr. 250 (Maganzini).)

A third alternative to safety plans is a juvenile court order requiring cooperation with conditions, short of removing the child from the home, that the court deems necessary for the safety of the child (“ § 2-25 Orders”). 705 ILCS 405/2-25. To secure a § 2-25 Order, DCFS must first file a petition for adjudication of wardship with the State’s Attorney to initiate a juvenile court case. 705 ILCS 405/2-13. The court must find probable cause to believe that the child is abused or neglected, at which point the court has broad authority to enter orders requiring parents or responsible caregivers to take various steps to protect the child from harm. 705 ILCS 405/2-10(1), 405/2-25. For example, a § 2-25 Order may require parents to attend therapy or participate in other services; or forbid persons who are allegedly endangering the child, including parents and caregivers, from having any contact or unrestricted contact with the child.

Finally, although the parties do not address the matter in their briefs, the court notes Plaintiffs’ suggestion, at the hearing, that DCFS has an obligation to provide supportive services, including counseling or referrals to therapy, for parents and children in need of such services. Presumably services such as these might eliminate the need for restrictive conditions and thus constitute a fourth alternative to the imposition of safety plans.

IV. Examples of the Safety Plan Process

The court’s hearing on Plaintiffs’ second motion for preliminary injunction spanned 22 days between September 4, 2002 and January 17, 2003, and generated 3,357 pages of transcript. The following is a summary of several investigations presented at the hearing which involved the implementation of safety plans.

A. James and Susan Redlin

On June 21, 2002, DCFS investigator Patrick Homa was assigned to investigate an allegation that James Redlin was inappropriately touching his son on a Chicago Metra Railroad train. (Tr. 2336.) Specifically, another passenger on the train told Metra police that James had touched his son’s groin area; that the son had put his head in his father’s lap and rubbed his father’s groin area while the father kissed the back of his neck; and that the father had stated, “Oh, I guess you don’t want to be tickled.” (PX C, at 71003, 71011.) According to James, he was following a doctor’s advice to engage in interactive touching and speech with his son, who suffers from mild autism. (Tr. 688, 690-91, 698-99.)

Homa first contacted the reporter — a Metra police official — for details about the incident, and also attempted (unsuccessfully) to contact the passenger who had witnessed the inappropriate contact. (Tr. 2337-39, 2375-76.) He then went to the Redlin home to see the alleged victim. (Tr. 2339.) Upon arriving at the home, Homa introduced himself to James and his wife Susan, advised them of the allegations against James, and gave them the Notification of a Report of Suspected Child Abuse and/or Neglect (the “CANTS 8 form”) explaining the investigative process. (Tr. 2339-40, 2342.) Approximately 15 minutes into the interview, James requested an opportunity to consult with legal counsel. (Tr. 2341.) At that time, Homa brought up the issue of a.safety plan but, after the Redlins accused him of being rude, he left the home with the understanding that he would call the Redlins later that day after they had had a chance to speak with an attorney. (Tr. 2343-44, 2368.) Though Homa had observed the Redlins’ son during the interview, he did not speak with him at that time because he wanted to “set up an interview at the [Lake County] Children’s Advocacy Center.” (Tr. 2342-43.)

Homa called Susan around noon to let her know that he would call back with a safety plan that afternoon. (Tr. 795.) At 4:00 p.m., Homa spoke with Susan by telephone about the safety plan, which required that James not act as an independent caretaker for his son or for any other children until the case was resolved, but which did allow him supervised contact with his son. (Tr. 2345, 2359, 2372, 2460.) Susan agreed to the plan even though it effectively left the family “prisoners” in their own home because Susan, the person responsible under the terms of the plan for supervising the son, is confined to a wheelchair. (Tr. 755, 812-13.) Homa delivered a copy of the safety plan to Susan on June 22, 2000. (Tr. 797, 818-19.) The same day, the Redlins retained the law firm of Lehrer & Redleaf (counsel for Plaintiffs in this case) to represent them during the investigation. (Tr. 742, 758.)

The investigation proceeded slowly in part because the Redlins were resistant to their son being interviewed given his mild autism. (Tr. 733-34.) Between June 21 and August 16, 2000, DCFS attempted unsuccessfully to obtain permission from the Redlins to interview their son at the Lake County Children’s Advocacy Center. On at least one occasion, Homa and his supervisor went to the Redlin home to discuss the matter accompanied by a Lake County deputy sheriff, but the Redlins refused to let their son be interviewed. (Tr. 731-32.) Finally on August 16, 2000, Homa’s supervisor sent a letter to the Redlins’ attorney stating that the Division of Child Protection was recommending that the allegation against James be unfounded. (Tr. 2351; PX C, at 71014 (Worker Activity Summary dated 8/12/00, noting “no credible evidence to substantiate the alleged allegation; involved youth due to medical reason unable to be interviewed as a credible witness as described by medical professional”); PX C, at 71109.) Nevertheless, the Redlins’ attorneys advised them to continue following the safety plan until they received official notification that the plan was unfounded. (Tr. 746-47.) The State Central Register advised the Redlins on September 26, 2000 that it had unfounded the report. (PX C, at 71000.)

B. Theresa C.

Theresa C. ran a day care center at her home. On April 3, 2001, Dillon, a child who attended the day care center, fell and suffered a depressed skull fracture while in Theresa’s basement, and was taken for emergency surgery at Carl Hospital in Champaign, Illinois. On April 5, 2001, DCFS investigator Lee Boedigheimer was assigned to investigate the incident. (Tr. 591, 2468.) The next day, Boedigheimer spoke with Dr. Powell, the attending physician who saw Dillon at the hospital. Dr. Powell told Boedigheimer that Dillon had undergone surgery to relieve the pressure on his brain, to remove some blood clots, and to repair the fracture. (Tr. 2469-70.) Dr. Powell also stated that the explanation Theresa had given for Dillon’s injury when she brought him to the hospital — that he had fallen while pulling himself up on a “Diaper Genie” — was highly unlikely, though not 100 percent impossible. (Tr. 2470-71.)

Also on April 6, 2001, Boedigheimer went to Dillon’s home and observed that the entire left side of Dillon’s face was swollen and that he had a three-inch incision on the top of his head running down behind his ear. (Tr. 2471-72.) Shortly thereafter around 11:50 a.m., Boedigheimer went to Theresa’s home along with Detective Roberts of the Pontiac Police Department. (Tr. 2472.) Theresa reiterated that Dillon had fallen while trying to climb up on a Diaper Genie while she was changing her own daughter’s diaper. (Tr. 2473.) As part of the interview, Boedigheimer looked at the basement where the injury had occurred and noted a thin layer of carpeting over a cement floor. He also observed 13 or 14 children in the home, many of them under the age of two, which he believed was a violation of DCFS licensing standards for day care homes. (Tr. 2473-74.) Boedigheimer asked Theresa about the possibility of suspending her day care activities pending an investigation into Dillon’s injury. Theresa stated that she had a vacation planned in any event so the hiatus would not be a problem. (Tr. 2472-74.)

Boedigheimer went back to his office and worked with his supervisor to create some safety plan options to present to Theresa later that afternoon. When Boe-digheimer returned to Theresa’s home, he gave her a CANTS 8 letter and told her that the reporting doctor (Dr. Powell) did not believe Dillon’s injury matched her explanation for it. (Tr. 593, 2481.) Boedi-gheimer expressed some safety concerns for Theresa’s own child, who was Dillon’s age, and discussed implementing a safety plan that would require Theresa’s mother or husband to supervise her with her daughter pending the investigation. (Tr. 2482-83, 2485-86.) Theresa did not suggest any alternatives and agreed to the plan proposed by Boedigheimer. At the hearing before this court, Theresa acknowledged that she had an opportunity to read the safety plan forms (excluding the CERAP form), but that she did not in fact review them before signing. (Tr.- 560.) She also testified, however, that Boedi-gheimer told her that “if he left [without a safety plan] and I [Theresa] was alone, they could come back and take [my daughter] S. away from me.” (Tr. 562-63.)

Theresa complied with the safety plan in its entirety for about two weeks. As of April 27, 2000, the date she and her family went on vacation to Mexico, however, she no longer adhered to the requirement that she have only supervised contact with her daughter. (Tr. 566-67, 595.) Upon returning home from vacation, moreover, Theresa attempted to resume day care services in her home. When a DCFS representative made an unannounced visit and discovered that Theresa was caring for children in her home again, Theresa closed the day care and took a position as a nanny instead. (Tr. 596-98.) One year later, on May 17, 2001, Theresa learned that the investigation against her was unfounded and that the safety plan was no longer in effect. (Tr. 581, 599.) A May 21, 2001 Family Assessment Factor Worksheet Summary noted that of the three doctors consulted in the case, all reported some possibility that Theresa’s story was accurate, and one opined that Dillon’s injury was not the result of abuse. The document does not reflect when the doctors made these reports. (PX D, at 43301.) Nor is the court certain whether these reports, or some other factor, were the basis for the “unfounded” determination.

C. Stacey and Patrick D.

Patrick D. and his wife Stacey both worked at a day care center. On January 5, 2001, Karen Beckelman, an investigative supervisor with DCFS, began supervising an investigation into an allegation that Patrick had improperly touched a three-year-old child’s bottom during nap time at the center. (Tr. 1509, 1518-19.) Beckelman assigned the case to investigator Andrea Jones and, during an initial meeting, advised her to find out whether Patrick had any biological children; if so, Jones was to look into implementing a safety plan pursuant to Department practice. (Tr. 1525-26.) DCFS insists that Beckelman “did not direct Jones to implement a safety plan” but only to' “consider” it. (Def. Resp., at 29-30.) A January 5, 2001 Interview Note signed by Beckelman, however, states: “See the child at the day care. Put in a protection plan with the offender. Make sure he has no children. If he does also put in a plan in his home pending the interview.” (PX B, at 44854.)

In any event, Jones spoke with Stacey D. by telephone on January 5, 2001 and, according to Stacey, told her that, due to the Hotline complaint, Patrick had to leave the home or Jones would come and take away their children. (Tr. 470.) Without asking any questions, Stacey denied the allegations on behalf of her husband and said she planned to contact an attorney. (Tr. 472, 838-39.) On January 9, 2001, Forensic Interviewer Kristin Eby conducted a victim sensitive interview (“VSI”) of the 4-year-old alleged victim, who reported that Patrick D. had touched her in a sexual manner. (Tr. 1539; PX B, at 45010.) Both Jones, who was present during the VSI, and Beckelman, who was not, found the statement to be credible. (There is no indication whether DCFS officials consulted with Eby herself regarding the victim’s credibility.) Beckelman notified Stacey of the DCFS determination during a telephone conversation on January 10, 2001. (Tr. 1451; PX B, at 45010.) Beckelman also asked Stacey to confirm that Patrick was out of the house, and again informed her that if he was not, Beckelman would remove the children from the home. (Tr. 478.) Beckelman advised Stacey that Patrick needed to obtain a sexual “offender assessment” before he could have unsupervised contact with his own children. (Tr. 1542.) '

On January 15, 2001, Beckelman visited the D. apartment and individually spoke to each of the D. children and to Stacey and Patrick. (Tr. 484-85, 489-90.) Before leaving the apartment, Beckelman advised Stacey that the children could start seeing Patrick at church on Sunday. (Tr. 491.) Shortly thereafter on February 5, 2001, Stacey and Patrick met with Jones at a DCFS office. Jones told them that the investigation against Patrick was going to be “indicated” for “sexual molestation” of a four-year-old child and that he needed to have an offender’s assessment in order to return to the D. home. (Tr. 501-02.)

DCFS did not proceed with an administrative hearing on the charges against Patrick D. until August 8 and 15 and September 10, 2001. (PX B, at 70509.) On October 16, 2001, an administrative law judge found that the Department had failed to meet its burden of proving that Patrick had sexually molested a child or that he presented a risk of sexual harm to his own children. (Id. at 70520.) The ALJ noted that the victim’s statements about the alleged abuse were inconsistent (she first said the touching occurred “one time,” then later said it happened “every day” at naptime and lasted for “a couple hours”), and that the statements were not corroborated by any other evidence. (Id. at 70518.) Kristin Eby, who had conducted the VSI back in January, testified that the victim’s “cheerful affect and volunteering of information about abuse are not common among victims of this age.” (Id.) In addition, the evidence presented at the hearing showed that Patrick “had neither the inclination nor the opportunity to molest” the victim, given that other adults were often present in the room during naptime. (Id. at 70513, 70518.) The ALJ recommended that the indicated finding be expunged, noting that the investigation leading to the indicated report was “at a minimum sloppy, and at worst the result of a pre-ordained conclusion.” (Id. at 70517.) Plaintiffs suggest that at least some of the exculpatory information on which the ALJ relied was, or should have been, available to the investigation at the onset of the investigation. See DeLaFont v. Beckelman, 264 F.Supp.2d 650, 654 (N.D.Ill.2003) (noting allegations that during investigation, Patrick D.’s own children and eight children in the day care center denied that he touch them inappropriately; also noting allegation that DCFS failed to interview Patrick D.’s co-teacher who later proved to have pertinent, exculpatory information).

Patrick was cleared of the indicated report on December 4, 2001, and the safety plan which had left him out of his home and unable to have unsupervised contact with his children was officially lifted on December 10, 2001. (Id. at 44779.) As a result of this incident, Stacey D. and her family, represented by Lehrer & Redleaf, filed a lawsuit against several DCFS employees seeking compensatory and punitive damages relating to their actions during the investigation. (Tr. 845.)

D. Jimmy and Christine Parikh

On July 12, 2001, DCFS investigator Michelle Abernathy was assigned to investigate an allegation that Jimmy Parikh had kissed 11-year-old Deanna K. while she and her siblings were at the Parikh home under the care of Jimmy’s wife Christine. (Tr. 2538.) Abernathy spoke with Deanna’s father, who stated that though Deanna was temporarily living with him, she had previously lived with his ex-wife, Delta K. Abernathy next contacted Delta K., who advised that her daughter was a liar, that the issue had been resolved at a “family meeting,” and that she did not understand why DCFS was involved. (Tr. 2358-59.)

Nevertheless, Abernathy went to the Parikh home and advised Jimmy, Christine, and their older daughter Justine (age 25) about the allegation. The Parikhs explained that Christine had been caring for three of the K. children and stated that there had been a “family meeting” during which Deanna had not said anything about the alleged incident. (Tr. 1269, 2540.) After learning that there were two minor children living in the Parikh home, Abernathy told the Parikhs that she “would have to put a safety plan in place.” (Tr. 2541 (Abernathy).) The plan required that Christine not babysit for any of the K. children and that Jimmy move out of the home and stay with Justine, who resided outside the Parikh home, during the course of the investigation. According to Christine, who says she was “frantic” at the thought of a safety plan, Abernathy warned that if Jimmy did not move out of the house and cease all contact with the minor children living in his home, the children would be taken into DCFS custody. (Tr. 1304-05, 1309.) Abernathy explained the safety plan process and told the Parikhs that they could contact her supervisor to discuss any concerns they had regarding the plan. (Tr. 2540-42, 2547; PX H, at 44096.) Jimmy, Christine, and Justine all signed the plan and Jimmy packed a bag of clothes and left the house. (Tr. 2544.)

At some point prior to the end of July 2001, Abernathy’s supervisor modified the safety plan to allow Jimmy to have supervised contact with his own children. Abernathy learned of this modification during an unannounced visit to the home at the end of July. (Tr. 2553.) Around the same time, the Parikhs retained the law firm of Lehrer & Redleaf to represent them in the investigation. On July 26, 2001, the firm sent a letter to Abernathy’s supervisor, John Ott, requesting that the plan be modified or revoked; on August 5, 2001, Jimmy was allowed to return to the P. home. (See PX H, at 44045 (“minor resides with father and no longer goes to [the Parikh] home”).) The safety plan remained in effect at that time, however, so Christine could not leave the children alone with Jimmy. (Tr. 1327; PX H, at 730001.) Two days later on August 7, 2001, the Parikhs’ attorney notified Christine that Abernathy was recommending that the case be unfounded. Abernathy made the decision after speaking with Detective Larry Marks of the Des Plaines, Illinois police force, who told Abernathy that based on the alleged victim’s psychological reports, there might be questions regarding the validity of her statements, and he did not believe that the police department would proceed with the case. The attorney nevertheless recommended that the family continue following the safety plan until it was officially lifted on September 26, 2001. (Tr. 1331; PX H, at 730000.)

E. A.S.

A.S. is the biological mother of two sons, N. and P., and the stepmother of an 8-year-old girl, A. DCFS supervisor Linda Conti became involved with A.S. when the Hotline received a report that her older son, N., had sexually abused his younger brother, P., who was living with his maternal grandparents, the H.’s, at the time. (Tr. 1455-56, 1458-60.) Conti called A.S. on August 23, 2000 and notified her of the pending investigation but did not disclose any specific allegations so that A.S. would, in Conti’s words, “not to be able to taint the investigation.” (Tr. 1463; PX F, at 42900.) Though there were no allegations against A.S., Conti recommended that she not have any contact with P. during the investigation out of concern that A.S. might encourage her son to recant or minimize the allegation. (Tr. 1464-65.) A.S. agreed to the recommendation without mentioning that she had an order from the Circuit Court of Winnebago County granting her the right to have contact with P. following her divorce from P.’s father. Nor did A.S. mention that she was involved in a custody battle with the H.’s regarding custody of P. (Tr. 1465-66, 1489; PX F, at 43034, 43036.) .

On September 29, 2000, DCFS investigator Shalonda Cawthon called A.S. and told her that the investigation was going to be unfounded. (Tr. 1469-70; PX F, at 42923.) The investigator’s notes state that the “perp[etrator] seemed more credible than victim ... Something happened to the victim no proof it was the perp (sibling]).” (PX F, at 42921.) Cawthon nevertheless recommended that A.S. be allowed only supervised visits with P. “until the Department receives a completed assessment and recommendations from [a] psychologist.” (PX F, at 42933, Letter from S. Cawthon to A.S. of 9/29/00.) By letter dated December 18, 2000, Conti notified A.S. that she no longer needed to be supervised during her visits with P. but should resume shared custody as provided by the court custody orders. (PX F, at 43043.) It is not clear whether this decision was in fact based on a psychologist’s recommendation.

F. Debra C.

In June 2000, DCFS received a Hotline report alleging that Debra C.’s minor children were at risk of harm because two of her children had died years previously under suspicious circumstances, and a third child had almost died. (Tr. 884-85, 896.) Debra C. is the mot