Guilty until proven innocent: Parents accused of child abuse by DCFS fight to clear their names

from: bnd.com

BY GEORGE PAWLACZYK AND BETH HUNDSDORFER
News-Democrat

The Illinois Department of Children and Family Services wrongly placed more than 3,000 people on the state's official list of child abusers over a five-year period, a News-Democrat investigation found.

That's an error rate of one in four, based on more than 11,000 cases where people appealed to have their names removed from the list.

Parents and foster parents accused of child abuse or neglect can lose their reputations, their jobs, even their children.

"They're not all bad, there are good ones," Nick Brunstein said of state child abuse investigators, "but the bad ones have the power of God, and with the stroke of a pen they can ruin your life."

Brunstein and his wife, Judi, of Belleville, are former foster parents who battled the DCFS to clear their names and won, but spent thousands of dollars on legal fees and lost their children.

"We went through two years of absolute hell," Judi Brunstein said.

A review of state child abuse records by the newspaper found that more than 80,000 people were placed on the child abuse list -- called the State Central Register -- from Jan. 1, 2002, to Aug. 1, 2007. Of those, 11,473 people appealed, and 3,051, or 27 percent, won their appeals and had their names removed from the list or saw their cases tossed out due to lack of evidence.

Another 1,426 appeals were denied; 3,178 were abandoned or withdrawn by the accused; 3,289 cases were closed or dismissed through various administrative processes, and 529 appeals were pending.

While DCFS will not release copies of administrative law judges' decisions, several were obtained by the newspaper from parents who appealed.

DCFS spokesman Kendall Marlowe acknowledged that mistakes are made, but he said the vast majority of people on the State Central Register were placed there properly, and that most remain on the list for the required minimum of five years. He declined further comment.

Child abuse investigations are based on a lower standard of proof, or "credible evidence," despite a 2004 recommendation by the Illinois Supreme Court that DCFS raise the standard to "a preponderance of the evidence" -- the standard used in civil courts.

As with all court proceedings, getting to the truth can be difficult, and winning an appeal doesn't necessarily mean that in every case there was no abuse or neglect.

"A lot of what happens at these hearings is it becomes a legal process, not ... whether it happened or not, but whether enough evidence is presented," said Meryl Paniak, the DCFS' chief administrative law judge. "So does that mean some people are probably unfounded and shouldn't be? Yes. And it's the same thing with some who are indicated and probably shouldn't be."

However, attorneys who regularly represent parents at appeals hearings -- which are closed to the public -- say that many child abuse investigations are so flawed they are unreliable.

"They're supposed to be thorough. They're supposed to be fair. They're supposed to follow their own rules. And in the majority of cases where we represent people, that's not what's happening," attorney Diane Redleaf, executive director of the nonprofit Family Defense Center in Chicago, said.

"We see so many cases where the basic rules are being ignored completely by the state investigators," she said.

Critics say the child welfare agency's caseworkers, bound by a legal mandate to protect children, are too quick to turn on the very people they rely on to make the system work, mainly dedicated and loving parents, including foster and adoptive parents.

"I've told my friends not to adopt, not to foster through DCFS. They will get it in the teeth if they do," said Tom Kennedy, a Clayton, Mo., lawyer formerly based in Alton who has many Illinois clients. "On the one hand, they do a very bad job of investigating real serious cases of abuse. On the other hand, they don't know how to rule out unmerited, unwarranted claims."

A 2006 News-Democrat series "Lethal Lapses" reported that 53 children died while under DCFS' care after flawed investigations by caseworkers who did not follow their own rules.

Supporters of the system say where child abuse is suspected, caseworkers must first protect children.

"All the social workers I saw in my own research were much more afraid of leaving a child in a home where they could be harmed than they were of falsely accusing a parent," said Jennifer Reich, an assistant professor in the Department of Sociology and Criminology at the University of Denver.

In most child abuse cases there are no criminal charges, but people still need to hire a lawyer to fight the child abuser designation the state has placed on them -- even though many are poor and can't afford legal help, Kennedy said.

They also must agree to cooperate fully with state investigators --usually by accepting a state-drafted safety plan -- or risk losing their children immediately.

For that reason, many people simply choose not to fight back, parental advocates say.

"If you don't have a lawyer, you are lost," said Chicago attorney Robert Lehrer, who formerly worked as a public guardian safeguarding abused children's rights.

"DCFS is always represented by a lawyer who does nothing else. Most people don't appeal. They can't afford a lawyer and don't believe they have a chance," he said.

Sign and they'll go away

When a state official came knocking in February 2007, Nick and Judi Brunstein already had been cleared of allegations that landed them on the state's list of child abusers.

But they didn't know it yet, because their lawyer had not been notified of the hearing judge's ruling.

Nevertheless, a DCFS worker offered to return their foster care license and close the case if they signed a paper saying they were guilty of licensing violations, the couple said.

"I told her that there is no way that we are going to sign anything and admit to something we didn't do," said Nick Brunstein, a retired Army officer and Desert Storm veteran.

The oldest of the Brunsteins' three foster children -- an 11-year-old girl diagnosed as schizophrenic and bipolar -- accused the couple of physically and emotionally abusing them.

She also said the Brunsteins were being overly strict by requiring the children to do chores and homework.

The day after the caseworker's visit, the Belleville couple learned that DCFS administrative law judge Judy Heineken believed them and ordered their names removed from the child abuse list. They recently got their foster care license back.

Heineken's 25-page ruling criticized DCFS caseworkers for basic errors in the investigation and for presenting an abuse case dependent on the uncorroborated word of the 11-year-old.

The judge also chastised the agency's main expert witness, a Belleville psychologist, who didn't know the girl was schizophrenic and bipolar because she never checked her medical files.

Heineken said school officials, friends and neighbors "wholly refuted" the girl's accusations. She also noted the Brunsteins repeatedly asked DCFS to resume supplying the same mental illness medication the girl received when living with other foster parents, but the agency refused.

Fighting DCFS cost the Brunsteins $20,000 to hire a lawyer. And the three girls they hoped to adopt -- ages 2, 5 and 11 -- were taken from them and never returned.

"I don't know if you can call this a win," Nick Brunstein said. "Our savings are wiped out, and our caseworker who wanted to take our foster kids and hurt us did exactly that. No one at DCFS will be held accountable."

Today, the Brunsteins are parents again. The day before the DCFS worker came to the door, a surrogate mother delivered their daughter, Grace.

"Kids get bruises and scrapes when they play," said Judi Brunstein as she watched Grace, now 14 months old, play with toys. "We are going to be on their radar for the slightest thing. It wouldn't surprise me if some day they try to get Grace."

Advice: Abandon son

People appeal for reasons other than being on the child abuse list. Sometimes it's for more financial aid for foster and adoptive children.

Gary and Beverly Waltrip of Decatur appealed for more aid for their 13-year-old son, diagnosed as schizophrenic, bipolar and sexually aggressive with a borderline I.Q.

Data supplied by DCFS show that of 262 appeals for more money during the 2002-07 period, a judge granted 96 of them, or 37 percent.

DCFS supervisors wouldn't allow the Waltrips' 13-year-old adopted son to return home when he was taken to a Decatur area hospital after he allegedly sexually molested his older adopted brother. DCFS officials told the parents the teen's brothers and sisters could not be exposed to the youth until he received treatment and was no longer a threat to the other children.

So the Waltrips placed their other adopted son and biological children temporarily with relatives.

The Waltrips tried to get the teen into a residential treatment program, as a DCFS psychiatrist recommended. Yet for nearly two years while the family's other children lived apart and the boy's condition deteriorated, caseworkers stalled, dispensed false information and failed to provide the financial assistance necessary for residential treatment, an outraged DCFS administrative law judge wrote in 2006.

Judge Susan Wambach heard the Waltrips' request for increased services for their son during an appeals hearing. Wambach ruled in their favor and granted increased financial aid that allowed the boy to be placed in the Onarga Academy, a treatment center about an hour's drive from Decatur.

During the hearing, Wambach learned that when police detained the boy in connection with the alleged sexual molestation, a frantic Beverly Waltrip called a DCFS adoption specialist for help. The specialist advised Beverly to let the prison system take him.

"It is shocking that an employee of the department would advise an adoptive parent to request that the court system send their child to prison," Wambach wrote in her 25-page decision.

Later, the same adoption specialist was promoted to child abuse investigator. She could not be reached.

"You would think it would be us working with them to help the kids. But it's not. It was them against us," Gary Waltrip said.

Fewer protections

Often, it's the most vulnerable families that come under DCFS scrutiny.

"The brunt of the system falls on the poor ... who cannot afford to appeal," said Lehrer, the Chicago attorney.

"While they need to go after people who are guilty of serious child abuse -- sexual abuse, burns, fractures -- the truth is that these kinds of cases represent a very modest number. Most of the investigations do not involve real abuse," he said.

People who are accused of child abuse, or "indicated," and appeal don't have the same protections as in criminal proceedings and are presumed guilty until proven innocent.

And names can get out, even though the state child abuse register is closed to the public, lawyers and exonerated parents say. The list is open to social workers, police officers, school officials, even members of neighborhood park district boards.

Lehrer said that evidentiary rules at DCFS hearings, which are closed to the public, allow both sides to introduce hearsay evidence that would be banned from a criminal courtroom.

While wrongly listing parents as child abusers is "terrible," it is not the result of malice on the part of DCFS investigators, said Reich, the University of Denver sociology and criminology professor.

"I think there is in this system -- because of its low burden of proof -- a logical belief that it's easy to identify abusers and mistakes aren't going to be made, but that's not true," she said.

Challenging the systemDCFS caseworkers ordered Kim Cooper to put a fence around her yard and new locks on her doors and windows at a cost of $5,000 because her severely mentally disabled daughter kept getting out.

The single mother from Collinsville also had to agree to allow a private agency worker hired by DCFS to sleep on the couch to provide 24-hour supervision.

Caseworkers first became involved when a neighbor called to say the 13-year-old girl, who has autism, was in their swimming pool.

While Cooper was talking to a DCFS caseworker one day at her kitchen table, the teen somehow slipped past them and ran outside. Cooper and the state employee gave chase and finally caught the girl.

The fence and locks proved ineffective.

After that, Cooper refused further DCFS demands, which landed her on the state child abuse list, indicated for neglect. Cooper appealed, and a DCFS hearing judge eventually sided with her. But while Cooper waited for that ruling, caseworkers removed the girl from the home.

"They took her out of my arms," Cooper said. "I didn't know where she was."

The next day, Cooper filed an emergency petition and went to court to get her daughter back. A St. Clair County judge ordered the child's immediate return.

Cooper found her daughter in a Granite City hospital's psychiatric wing.

"She was on a mattress on the floor. There wasn't anything else in the room. It was awful," she said. "It's the most horrible thing I've ever been through."

Contact reporters George Pawlaczyk at gpawlaczyk@bnd.com or 239-2625, and Beth Hundsdorfer at bhundsdorfer@bnd.com or 239-2570.