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 DUPUY v. SAMUELS, (N.D.Ill. 2005)
 BELINDA DUPUY, et al, Plaintiffs, v. BRYAN SAMUELS, Director, Illinois
 Department of Children & Family Services, in his official capacity,
 Defendant.
 No. 97 C 4199.
 United States District Court, N.D. Illinois,
 Eastern Division.
 March 9, 2005

                      MEMORANDUM OPINION AND ORDER

  REBECCA 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 expungement 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
Page 2
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
Page 3
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. ADM IN.
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. ADM IN. CODE
tit. 89, § 300.110(i)). 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,
Page 4
though this time period may be extended for periods of up to 30
days upon a showing of good cause. (ILL. ADM IN. 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
Page 5
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.[fn1] The Regulations provide several examples of
factors that may fall under the "other"
Page 6
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,
Page 7
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 "[t]here 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
"[t]he 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
Page 8
(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 "[s]ometimes 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, "[r]egular 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 "credibl[e]"
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
Page 9
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.)
Page 10

  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, "[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. at 14.)
Page 11
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
Page 12
the safety plan with the investigator/worker, . . . understand[s]
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
Page 13
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.)[fn2] 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 (i.e., about why the child is considered `unsafe'
and therefore requires a safety plan), and the other party (the
`agreeing' family member) has none." (Pl. Mem., at 20.)[fn3]

  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
Page 14
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 child(ren) 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").)
Page 15

  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
Page 16
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
Page 17
"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 unlicenced 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).)
Page 18

  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 or 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
Page 19
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 providesthe
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 rereviewing cases. (Tr. 250 (Maganzini).)
Page 20

  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
Page 21
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
Page 22
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.)[fn4] 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,
Page 23
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 Boedigheimer 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.) Boedigheimer
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
Page 24
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 Boedigheimer 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.[fn5] (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
Page 25
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"[fn6] before he could
have unsupervised contact with his own children. (Tr. 1542.)
Page 26

  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
Page 27
touch them inappropriately; also noting allegation that DCFS
failed to interview Patrick D.'s coteacher 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.)[fn7]

  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.[fn8] (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,"[fn9] and that she did not understand why DCFS was
involved. (Tr. 2358-59.)
Page 28

  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.)[fn10] 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,[fn11] 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
Page 29
to the P. home.[fn12] (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.[fn13] 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
Page 30
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 (sib[ling])." (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.[fn14] (Tr.
884-85, 896.) Debra C. is the mother of Robert (age 22), Thomas
(age 21), Joey (born May 28, 1981, died September 1981), Jennifer
(age 14), Steven (age 12), Jonathan (age 7), Jessica (age 8), and
Katie (born December 20, 1997, died March 1998). (Tr. 1136-39.)
Joey and Katie both died of sudden infant death syndrome. DCFS
and the police investigated both deaths and determined that they
were unfounded for abuse or neglect. (Tr. 1139-40.) In addition,
Thomas reportedly stopped breathing and needed to be resuscitated
when he was an infant. (PX G, at 43650, 43651.) In 1995, Debra
suffered a breakdown and was diagnosed with bipolar disorder and
depression. (Tr. 1142.)
Page 31

  DCFS supervisor Kathleen Tate interviewed Debra on June 8,
2000. Debra disclosed that she suffers from bipolar disorder, and
Tate observed that she kept various medications together in a
single bottle, which Tate found odd. (Tr. 907-08.) Tate
determined that Debra's four minor children were unsafe and
required that an older sibling come check on them "every day."
(Tr. 916-17; PX G, at 43670.) One week later on June 15, 2000,
DCFS implemented a new safety plan which provided that Debra's
father and his wife would care for Debra's four minor children
until the investigation was complete, but that Debra could have
supervised visits with them every day. (Tr. 924-25; PX G, at
16731.) That same day, DCFS investigator Eleanor Powell called
Debra to notify her of the safety plan. (Tr. 925-26; PX G, at
16593.)

  A few days later on June 18, 2000, the children went to visit
their non-custodial father, Steven, for Father's Day. Steven did
not return the children to Debra's father that night but instead
kept them in his custody. Debra notified Powell of the situation
during a telephone conversation on June 22, 2000, but Powell
indicated that there was nothing she could do because DCFS had
not placed the children with Steven. (Tr. 960, 1174-79.)

  Toward the end of July 2000, Debra retained the law firm of
Lehrer & Redleaf to represent her in the investigation. (Tr.
1229-30.) On July 26, 2000, the Department opened the case for
services[fn15] and attempted to convince Debra to accept
assistance from DCFS. (Tr. 946-50.) Specifically, the Department
suggested that Debra get a drug and alcohol assessment and a
bonding assessment, and that she continue to see her psychiatrist
and to take her medication. (Tr. 1213-15.) Debra, however, did
not believe that she needed such services and stated that she
would only be willing to accept the assistance of a babysitter
and a maid. (Tr. 1241-42.) The next day, on July 27, 2000, DCFS
attempted to "screen" the case with the State's Attorney's office
but
Page 32
the State's Attorney needed additional information from the
investigator in order to proceed, such as Debra's psychiatric
records and the medical records regarding the children who had
died. (Tr. 936-37, 981; PX G, at 16606.) Also on July 27, DCFS
attempted to take protective custody of the C. children, but they
were not at the grandfather's home when DCFS arrived with the
police. (Tr. 953-55.) Shortly thereafter on August 1, 2000,
Kathleen Tate called Daniel Romero, a paralegal with Lehrer &
Redleaf working on Debra's case, to inform him that the C.
children would be returned (presumably, by their father) to
Debra's father by August 7, 2000. (PX G, at 72541.)

  For reasons not explained in the record, DCFS voluntarily
unfounded the report against Debra on February 28, 2001. (Tr.
976; PX G, at 100257.) According to Tate, in the Department's
view, the investigation was not typical because of the nature of
the allegations, the past deaths of two of Debra's minor
children, the family dynamics, the failure of Debra's
psychiatrist to cooperate with the investigation, and the fact
that Powell went on medical leave in the middle of the
investigation. (Tr. 984-87 (Tate).) Plaintiffs disagree, arguing
that "nothing about the handling of the C. case runs contrary to
the express and acknowledged policies and practices of DCFS which
permit safety plan directives including the loss of custody of
children without notice, or any opportunity for a parent to be
heard." (Pl. Reply, at 22.)[fn16]

  G. Drs. S. and M.

  On May 12, 2000, DCFS began investigating Dr. S. and his wife
Dr. M. based on a report from a neighbor that she had observed
through the window that Dr. S was sexually abusing his
eight-year-old adopted daughter. DCFS investigator Martin Acevedo
went to the family's home but Dr. S. and Dr. M. refused to let
him interview the child. (Tr. 331-32, 335-36, PX A, at 70009.)
Instead, Acevedo spoke with Dr. S. and Dr. M. for approximately
two hours, in part explaining that he and Dr. S. needed to
develop a safety plan. Dr. S. ultimately agreed to a safety plan
requiring
Page 33
that he leave the home pending the investigation. Dr. S.
understood from Acevedo that if he refused to agree to the plan,
DCFS would take his daughter away or go to the police. (Tr. 338,
343, 346-48.)

  Dr. S. stayed at a hotel over the weekend and by May 15, 2000
had retained Diane Redleaf of the Lehrer & Redleaf law firm to
represent him. (Tr. 357, 371.) Ms. Redleaf wrote a letter to
Hebert Bashir, a DCP Supervisor, on May 15, 2000 requesting in
part that Dr. S. "may return home and remain home as long as his
wife is also present." (PX A, at 70045.) That same day, DCP
investigator Andrea Jones spoke with Ms. Redleaf and agreed to
modify the safety plan to allow Dr. S. to have supervised visits
with his daughter during the day. (Tr. 357, 371; PX A, at 70074.)
As a result, Dr. S. was able to shield his daughter from the
information that he was not sleeping at home at night; he stayed
with her until she went to sleep and then returned to the house
in the morning before she woke up. (Tr. 358.)

  On May 18, 2000, DCFS conducted a victim sensitive interview of
the daughter at the Children's Advocacy Center.[fn17] (Tr.
418; PX A, at 70022.) The next day on May 19, 2000, Jones spoke
with Ms. Redleaf and notified her that the case against Dr. S.
was being unfounded. (Tr. 358-59; PX A, at 70055.) Though the
official notification did not arrive until June 15, 2000, Dr. S.
moved back into his home on May 19, with Ms. Redleaf's
approval.[fn18] (Tr. 359-60, 376; PX A, at 70071.)

  H.E.D.

  On January 11, 2001, DCFS received a Hotline call reporting
that sixteen-year-old E.D. had molested four-year-old Q.M. while
babysitting for him approximately two years earlier. (Tr.
1414-15.)
Page 34
John Howell was assigned to investigate the allegation on behalf
of DCFS. Howell conducted a victim sensitive interview of Q.M. on
January 22, 2001. (PX I, at 44140.) Q.M. reported that E.D. "did
something bad" to him but then, in Howell's words, "shut down"
and refused to continue talking. (Id.; Tr. 1417.) Howell next
interviewed E.D. and E.D.'s mother, Mrs. D., at the family home
on January 25, 2001. According to Howell, E.D. "began to say
something which very clearly indicated that he was acknowledging
some sort of guilt, some degree of guilt in the allegation," but
his mother stopped him and spoke with him privately for a minute.
(Tr. 1428.) When E.D. and Mrs. D. returned, they told Howell that
they had contacted an attorney; the attorney never authorized
Howell to speak with E.D. after that time. (Id.)

  Before concluding his initial interview, Howell told Mrs. D.
that "a safety plan would have to be put in effect removing E.D.
from the home for the safety of his [two younger] siblings." (PX
I, at 44148 (interview notes); Tr. 1418.) The original plan
required that E.D. remain outside the home until he completed a
juvenile sex offender evaluation and any treatment recommended
pursuant to that evaluation. (Tr. 1421.) Howell told Mrs. D. that
if she did not agree to the plan, it was possible that DCFS would
take custody of the two younger children. (Tr. 1419.)

  On February 22, 2001, Howell conducted victim sensitive
interviews of E.D.'s siblings, neither of whom made any
significant disclosures. (PX I, at 44154, 44155.) During the
interviews, Mrs. D. approached Howell and asked him to modify the
safety plan. Howell, Mrs. D., and the D.s' attorney discussed a
modification and ultimately agreed that E.D. could return home
but could have no contact with younger children. In addition,
Mrs. D. was required to remain ?awake at night when the rest of
the family is sleeping, in order to supervise [E.D.] at night."
(Tr. 1422-23; PX I, at 44152, 44171(a).) The modified safety plan
remained in effect until July 2002. (PX I, at 44177.) E.D.'s case
was ultimately indicated for sexual penetration.[fn19] (Tr.
1428.)
Page 35

  I. Additional Cases

  Plaintiffs rely on the circumstances of two additional cases in
support of their motion for preliminary injunction, but do not
provide a detailed summary of either case. Plaintiffs first claim
that the March 22, 2002 directive from Deputy Director Goad,
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," was ignored in two situations. (Pl. Mem., at 32-33.) In
the first case, five-year-old I.W. lived with her mother, who had
full custody rights, but visited her father on weekends. (DCFS
Inter-Office Correspondence Regarding Safety Plans dated 3/22/02;
Tr. 3168, 3170.) When I.W.'s mother was accused of abusing her,
I.W. went to live with her father pending a DCFS investigation.
DCFS investigator Cassandra Campbell nevertheless testified that
I.W.'s October 14, 2002 safety plan did not constitute a
"relocat[ion] from [her] residence" as contemplated by the March
22 directive. It is not clear from the record whether Campbell
knew that the mother had full custody of I.W. when she
implemented the plan. (Tr. 3170, 3181 (DCFS investigator,
Cassandra Campbell).)

  Plaintiffs also point to the I.W. case as evidence that DCFS
investigators are not following the August 13, 2002 amendments to
Appendix G requiring that safety plans be reviewed every five
days. (Pl. Mem., at 33.) Specifically, there is no evidence that
DCFS conducted any five-day reviews of I.W.'s safety plan even
though it was scheduled to last "up to 60 days."[fn20] (Tr.
2989; PX T, at 45373-74.) In this second case, Plaintiffs submit
the declaration of J.J., who signed a safety plan requiring that
her husband leave their home pending a DCFS investigation into
allegations that he had abused J.J.'s children from a previous
marriage.[fn21] (Pl. Mem., at 23; Pl. Supp., at 2.) It is
Page 36
not clear whether DCFS conducted re-reviews of the plan every
five days, but as of January 2004, the plan had been in effect
for more than 75 days. (Ex. 1 to Pl. Supp.)

                               DISCUSSION

  Plaintiffs raise both substantive and procedural due process
challenges to the safety plan process, arguing that DCFS, under
threat of seizing class members' children, (1) implements safety
plans on the basis of only nominal or no evidence of actual abuse
or neglect, and (2) fails to provide any opportunity to contest
the plans. Defendant insists that the plans satisfy the
compelling public interest in controlling threats to a child's
safety during the course of a DCFS investigation, and that all
plans constitute voluntary agreements between the families and
DCFS. With the limitations described below, the court finds that
Plaintiffs are entitled to injunctive relief.

  I. Preliminary Injunction Standard

  Plaintiffs seek a preliminary injunction prohibiting Defendant,
a state official, from continuing to implement safety plans
absent sufficient evidence of abuse or neglect and an appeal
process. To obtain such relief, Plaintiffs must demonstrate (1) a
likelihood of success on the merits; (2) irreparable harm if the
preliminary injunction is denied; and (3) lack of an adequate
remedy at law. See Reid L. v. Illinois State Bd. of Ed.,
289 F.3d 1009, 1020-21 (7th Cir. 2002). When these threshold
conditions have been met, the court must consider (4) the harm
that Defendant will suffer if the injunction is granted, balanced
against the irreparable harm to the Plaintiffs if injunctive
relief is denied; and (5) the interest of, and harm to persons
not directly involved in the dispute (the public interest). Id.
at 1021.

  II. Likelihood of Success on the Merits
Page 37

  A likelihood of success on the merits of both Plaintiffs'
substantive and procedural due process claims requires some
showing of a liberty interest. The court thus first considers
whether such an interest exists in this case. The court then
addresses in turn the specific due process arguments.

  A. Protected Liberty Interest

  It is well-established that "[c]hoices about marriage, family
life, and the upbringing of children are among associational
rights the [Supreme] [C]ourt has ranked as `of basic importance
in our society,' . . . rights sheltered by the Fourteenth
Amendment against the State's unwarranted usurpation, disregard,
or disrespect." M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996)
(quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971)). As
the Seventh Circuit noted, "the right of a man and woman to
marry, and to bear and raise their children is the most
fundamental of all rights — the foundation of not just this
country, but of all civilization." Doe v. Heck, 327 F.3d 492,
517-18 (7th Cir. 2003) (quoting Brokaw v. Mercer County,
235 F.3d 1000, 1018 (7th Cir. 2000)). Similarly, children possess a
liberty interest in being raised and nurtured by their parents.
See, e.g., Santosky v. Kramer, 455 U.S. 745, 760 (1982) ("until
the state proves parental unfitness, the child and his parents
share a vital interest in preventing erroneous termination of the
natural relationship"); Heck, 327 F.3d at 518; Brokaw,
235 F.3d at 1018.

  The constitutional right to familial integrity, however, is not
absolute. Brokaw, 235 F.3d at 1019. To the contrary, this
liberty interest "is limited by the compelling governmental
interest in the protection of children — particularly where the
children need to be protected from their own parents." Id.
(quoting Croft v. Westmoreland County Children and Youth
Servs., 103 F.3d 1123, 1125 (3d Cir. 1997)). "Thus, a balance
must be reached between the fundamental right to the family unit
and the state's interest in protecting children from abuse,
especially in cases where children are
Page 38
removed from their homes." Id. With these principles in mind,
the court considers whether safety plans implicate Plaintiffs'
due process rights.

  B. Substantive Due Process

  Plaintiffs claim that safety plans violate their right to
substantive due process by depriving them of familial relations
without sufficient evidence. In Plaintiffs' view, DCFS should not
be allowed to implement a safety plan absent "some definite and
articulable evidence giving rise to a reasonable suspicion that a
child has been abused or is in imminent danger of abuse."
Brokaw, 235 F.3d at 1019 (quoting Croft, 103 F.3d at 1126).
Defendant insists that all safety plans are voluntary agreements
designed to further the public interest in protecting children
and, thus, do not require any specific evidentiary showing. As
explained below, the court finds neither party's position
entirely persuasive.

  Plaintiffs cite to several cases which purportedly demonstrate
that safety plans are unconstitutional absent "definite and
articulable evidence" of abuse or neglect. In Doe v. Heck,
327 F.3d 492 (7th Cir. 2003), child welfare authorities received a
report that a ten-year-old girl had been bruised during a
spanking at a private school. The girl told investigators that
another student, John Doe, had also been spanked by the school
principal. Id. at 500-01. Based on that report, the
investigators interviewed John at his school without his parents'
consent and "target[ed] the plaintiff parents [John Doe's
parents] as child abusers." Id. at 521. At one point in the
investigation, case worker Carla Heck left a voice mail message
for the Does stating that "if she did not hear from their
attorney within 24 hours, `the Bureau will take steps to . . .
protect the children in your home . .'" and that she was "`not
messing around anymore!'" Id. at 505-06. The child welfare
authorities never in fact removed any of the Doe children from
their home, but the Does claimed that "[t]hroughout . . the
Christmas season," they "lived in constant fear" that the
authorities would do so. Id. at 506 n. 10.
Page 39

  The Does and others filed suit, alleging in part that the
defendant child welfare authorities had violated the Does' right
to familial relations and their Fourteenth Amendment procedural
due process rights. Id. at 508. The district court granted
summary judgment to the defendants, finding that even if their
actions were unconstitutional, they were protected by qualified
immunity. Id. The Seventh Circuit reversed, however, concluding
that the defendants violated the Does' liberty interest in
familial relations by targeting them as child abusers without any
evidence that the Does themselves had ever abused their children
or that their children had ever been injured as a result of a
school spanking. Id. at 521-22. Despite the absence of any such
evidence, the defendants launched an investigation based solely
on another child's claim that John had been spanked (not injured)
by the school principal (not John's parents).

  The court concluded, similarly, that the threat to remove John
and his sister from their parents' custody violated the Does'
liberty interest in maintenance of the family unit. Id. at 524.
The court recognized that "child welfare caseworkers are often
called upon to make difficult decisions without the benefit of
extended deliberation," and that "there is, perhaps, no more
worthy object of the public's concern than preventing the most
vulnerable members of society, children of tender years, from
being physically abused." Id. at 525. On the facts presented,
however, it was not "difficult to weigh [the] state's interest in
investigating an allegation of child abuse against [the] parent
or child's right to familial relations" because "the defendants
had no basis to suspect the plaintiff parents of child abuse, and
thus had no reason to interfere with their familial relationships
in the manner described." Id.

  With one exception, the cases presented at the hearing before
this Court are distinguishable from Heck because they involve
allegations of abuse or neglect on the part of the parent or
child under investigation. Thus, unlike in Heck, the
Plaintiffs' right to familial relations here does not, in each
instance presented above, obviously outweigh the state's interest
in investigating allegations that Plaintiffs have engaged in
child abuse or neglect. The A.S. case does
Page 40
involve a mother who was not allowed to see her son for
approximately one month while DCFS investigated an allegation
that the boy had been abused by his older brother. Unlike the
Does, however, A.S. was aware of the investigation at all times
and did not object to the arrangement. Plaintiffs dispute that
A.S.'s agreement was voluntary — an argument the court addresses
infra pp. 46-54 — but the court notes that she signed the
safety plan without advising the investigator about the court
order granting her the right to have contact with her son, P.

  As noted, Plaintiffs view Brokaw as setting forth the
requirement of "definite and articulable evidence" of abuse or
neglect before a safety plan may be implemented. The plaintiff in
Brokaw alleged that certain relatives and a deputy sheriff
conspired to end his parents' marriage by filing "baseless and
scurrilous" claims of child neglect with DCFS that they believed
"would cause [the plaintiff] and his sister to be removed from
their parents' home, and in turn prompt [the father] to divorce
his wife and leave his family." 235 F.3d at 1007. At some point
after the relatives made the allegedly baseless claims of
neglect, two police officers walked into the plaintiff's home,
grabbed him and his three-year-old sister, and carried them
crying out of the home. The men did not explain what was
happening and the six-year-old plaintiff believed he was being
kidnapped and would be killed. Id. The children remained in
foster care for approximately four months before being returned
home. Id. at 1008. Upon reaching the age of majority, the
plaintiff filed a complaint, alleging in part that his relatives
and others had violated his substantive due process right to
familial relations. Id. at 1017-18. The district court
dismissed the claims for failure to state a claim or,
alternatively, based on sovereign, absolute, or qualified
immunity. Id. at 1008.

  The Seventh Circuit reversed, finding that the plaintiff had
sufficiently alleged a due process claim covering the four-month
period during which he was separated from his parents. The court
noted that the constitutional right to familial integrity must be
balanced against the state's compelling interest in protecting
children from abuse, "especially in cases where children are
removed from their homes." Id. at 1019. "In balancing these
interests, courts have recognized that
Page 41
a state has no interest in protecting children from their parents
unless it has some definite and articulable evidence giving rise
to a reasonable suspicion that a child has been abused or is in
imminent danger of abuse." Id. On a motion to dismiss, the
court lacked sufficient facts to determine whether the government
was justified in interfering with the plaintiff's familial
relations. The court also lacked sufficient facts to determine
whether any of the individual defendants were entitled to
qualified immunity. The court noted, however, that in general,
"because the balance between a child's liberty interest in
familial relations and a state's interest in protecting the child
is nebulous at best, social workers and other state actors who
cause a child's removal are entitled to qualified immunity
because the alleged constitutional violation will rarely — if
ever — be clearly established." Id. at 1023.

  Brokaw is not particularly illuminating to the extent it
involved children who were forcibly removed from their parents'
home by two men who refused to identify themselves. In this case,
Plaintiffs, all adults capable of communicating with child
welfare authorities, knew that there was an investigation pending
against them and agreed at least in form, however reluctantly, to
cooperate with the plan by removing themselves or their children
from the home. In addition, the children in Brokaw were placed
in foster care and deemed wards of the state for four months;
they did not remain with parents or relatives as in this case.
The Brokaw court did note that other courts have required
"definite and articulable evidence giving rise to a reasonable
suspicion" of abuse or neglect, but did not explain what
satisfies this requirement, particularly with respect to the
imposition of safety plans such as are at issue here.

  Plaintiffs also claim that the Supreme Court's decision in
Troxel v. Granville, 530 U.S. 57 (2000) "reinforces the
conclusion that safety plans work significant deprivations, even
when the deprivation is less extreme than removal of the child."
(Pl. Mem., at 39.) The plaintiffs in Troxel sought visitation
rights with their grandchildren under a Washington state statute
that allowed "any person" to petition for forced visitation of a
child. The children's mother wanted to limit the
Page 42
grandparents' visits to once per month, but a Washington Superior
Court granted the plaintiffs' request for greater visitation
rights as in the best interests of the children. Id. at 61-62.
The Washington Court of Appeals reversed, however, and the
Washington Supreme Court affirmed that decision, reasoning that
the Washington statute was unconstitutional because it allowed
the State to interfere with the right of parents to rear their
children without any threshold showing of harm, and because it
allowed ?any person" to seek visitation rights without
recognizing that "[p]arents have a right to limit visitation of
their children with third persons." Id. at 61-63. See WASH.
REV. CODE § 26.10.160(3) ("[a]ny person may petition the court
for visitation rights at any time . . . The court may order
visitation rights for any person when visitation may serve the
best interest of the child").

  The United States Supreme Court granted certiorari and affirmed
that the Washington statute, as applied, unconstitutionally
infringed on the mother's fundamental right to make decisions
concerning the care, custody, and control of her children. Id.
at 66-67. In reaching this conclusion, the Court found it
significant that "the [plaintiffs] did not allege, and no court
has found, that [the mother] was an unfit parent. That aspect of
the case is important, for there is a presumption that fit
parents act in the best interests of their children." Id. at
68.

  Although some of the language of Troxel is instructive, its
rationale is not directly relevant here, either. In the Supreme
Court's view, the problem "[wa]s not that the Washington Superior
Court intervened, but that when it did so, it gave no special
weight at all to [the mother's] determination of her daughters'
best interests." Id. at 69. In this case, conversely, safety
plans are imposed on parents who are under suspicion of being
unfit. Nor are questions regarding visitation rights directly
comparable to investigations into allegations of abuse or
neglect.

  In short, none of these cases supports Plaintiffs' assertion
that DCFS violates the Constitution when it implements safety
plans absent "definite and articulable evidence giving rise to a
reasonable suspicion that a child has been abused or is in
imminent danger of abuse." (Pl.
Page 43
Mem., at 43) (citing Brokaw, 235 F.3d at 1019). Indeed, none
addresses the situation presented here where a parent, legal
guardian, or child is directly accused of abuse or neglect, thus
calling into play the state's compelling interest in protecting a
child's safety. The court recognizes that safety plans impose
difficult restrictions upon families and, while they are in
effect, deprive families of their right to familial relations. To
determine whether such deprivation amounts to a constitutional
violation, however, it must be balanced against the state's
interest in protecting children. That interest is
"extraordinarily weighty." Darryl H. v. Coler, 801 F.2d 893,
902 (7th Cir. 1986). As the Seventh Circuit explained:

  The state has an obligation to prevent loss of life
  and serious injury to those members of the community
  to whom it has a very special responsibility, the
  young. As the Supreme Court remarked in Wyman v.
  James, 400 U.S. 309, 318, 91 S.Ct. 381, 386,
  27 L.E.2d 408 (1971), "There is no more worthy object of
  the public's concern."

Id. Safety plans are designed for this very purpose: to protect
children from harm during the course of a DCFS investigation.

  Plaintiffs express concern that it is not always clear that a
child is in any danger at all, such as when a child is merely
"afraid" of persons who live in or visit the home. In addition,
safety plans are often implemented even when only one of the 15
safety factors is checked "yes." (Pl. Mem., at 14 n. 8) (arguing
that 61 of the 92 safety plans in the representative cases (66%)
went into effect based on the presence of only one safety
factor). Defendant insists that "many of these so-called safety
plan cases do not involve safety plans at all," noting, for
example, that some plans imposed no contact requirements only
after an alleged perpetrator had been taken to jail and a court
had imposed the same restriction. (Def. Resp., at 52-54.)
Defendant cannot escape liability, however, by imposing
conditions on Plaintiffs and then claiming that they did not
technically constitute "safety plans."

  The court recognizes that several plans in the sample cases
were directed against nonclass members, such as paramours of the
alleged victims' mothers. The fact that some of the
Page 44
persons subject to safety plans are not class members does not
speak to the proper standard required for implementing such a
plan, however. Where an investigator has found even a single
safety factor, the court finds that it is not improper for DCFS
to err on the side of caution given the significant state
interest in protecting children from harm. Under such
circumstances, the court is satisfied that the state's interest
in protecting children through brief or temporary safety plans
outweighs Plaintiffs' right to familial relations, even upon a
mere suspicion of abuse or neglect. The opposite conclusion may
result in children being further abused or neglected during the
course of a DCFS investigation, which is what prompted the CERAP
process in the first place. (Tr. 2243-44); 20 ILCS 505/21(e).

  In the court's view, the safety plan imposed upon Drs. S. and
M. represents the type of brief deprivation that is insufficient
to trigger constitutional concerns. That plan went into effect on
May 12, 2000 and required Dr. S. to leave the home pending an
investigation into a neighbor's allegation that she had seen him
through a window abusing his adopted daughter. By May 19, 2000,
the case against Dr. S. was unfounded and he moved back into his
home. Though it is regrettable that he had to spend a week away
from his family, the court concludes that he did not suffer an
unconstitutional deprivation of his right to familial relations
as a result. On the other hand, Patrick D. was required to leave
his home on January 5, 2001 due to an allegation that he had
improperly touched another child during nap time at the day care
center where he worked. His case was "indicated" for abuse in
February 2001 but he did not receive an administrative hearing on
the charges until August 8 and 15 and September 10, 2001. On
October 16, 2001, relying at least in part on information
available to the investigation from the beginning, an ALJ
determined that the charges were unfounded and based on a
"sloppy" investigation. The safety plan was not officially
lifted, however, and he was not permitted to live with his
children (none of whom were victims of the alleged abuse) until
December 10, 2001 — nearly a year after it forced him out of his
home.
Page 45

  Even where the initial investigation supports imposition of a
safety plan, the court believes such a plan may not remain in
place indefinitely; to the contrary, at some point, the
deprivation continues long enough to implicate Plaintiffs'
liberty interests and substantive due process rights. Neither
party has provided useful insight into when this occurs.
Plaintiffs insist that a deprivation lasting even a single hour
is enough to run afoul of the Constitution. Defendant maintains
that there can never be a constitutional deprivation because
families always sign the safety plan and thereby agree to its
terms. The answer lies somewhere in between, but absent adequate
development of this issue by the parties, the court is not
prepared to draw the line. The court does find, however, that
safety plans lasting only a few hours or days do not implicate
substantive due process rights even when coupled with a threat of
protective custody. On the other hand, safety plans signed under
such a threat do implicate substantive due process rights when
they have no stated duration or an indefinite duration (e.g.,
they are in effect "during the course of this investigation" (SAI
8, at 28502) or until a date "undetermined at this time" (SAU 40,
at 41317)), at least where such plans continue for several days.

  C. Procedural Due Process

  Plaintiffs next argue that safety plans violate their
procedural due process rights because they do not provide any
opportunity to contest them. To establish that their procedural
due process rights have been violated, Plaintiffs must
demonstrate that (1) the Department deprived them of a
constitutionally protected liberty or property interest; and (2)
the deprivation occurred without due process of law. Heck,
327 F.3d at 526. Plaintiffs note that a "fundamental requirement of
due process is the opportunity to be heard." (Pl. Mem., at 44)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (internal
quotations omitted)). Though Plaintiffs recognize that
pre-deprivation process may be excused by exigent circumstances,
they also stress that "the only meaningful opportunity to invoke
the discretion of the decision maker is likely to be before the
[deprivation]
Page 46
takes effect." (Pl. Mem., at 44-45) (quoting Cleveland Bd. of
Ed. v. Loudermill, 470 U.S. 532, 543 (1985).)

  The court has already determined that safety plans that
separate children and families do deprive class members of
familial relations. In addition, it is undisputed that DCFS
provides no opportunity to contest safety plans, nor any notice
of such an opportunity. Defendant once again argues that no
process is due because safety plans are completely voluntary
agreements. According to Defendant, "[i]ndividual parents are
free to make a choice, albeit a difficult one, between protective
custody of their child and the entry of a safety plan to keep the
child safe." (Def. Resp., at 45.) While this may be true in a
formal sense, for the reasons explained below, the court does not
agree that Plaintiffs' formal acquiescence in plan terms
extinguishes their procedural due process rights.

  1. Voluntariness

  Defendant relies on Terry v. Richardson, 346 F.3d 781 (7th
Cir. 2003) and Doe v. Tullis, No. 01-2044, slip op. (C.D. Ill.
Nov. 25, 2003) in support of his assertion that all safety plans
are voluntary. The plaintiff in Terry was a non-custodial
father with rights to visit his daughter, Jaidah, pursuant to a
divorce decree. 346 F.3d at 782. The plaintiff's ex-wife
suspected that he was sexually abusing Jaidah and Jaidah
confirmed the suspicion, telling her mother that her father had
hurt her, kissed her <pee-pee,' forced her to swallow a
necklace, tried to make her kiss his <noodle,' and jammed
crayons and a pen into her anus." Id. Jaidah's mother reported
the plaintiff to the DCFS Hotline, and the next day, a DCFS
investigator called the plaintiff and left a message on his
answering machine stating that he was to "cease all visitation
and contact with [Jaidah]." Id. at 782-83. When the plaintiff
returned the investigator's call, she told him that she could not
explain the allegations over the phone and repeated that he was
not to contact Jaidah. According to the investigator, the
plaintiff responded "okay" or "I understand." Id. Two weeks
later, the
Page 47
investigator interviewed the plaintiff at his attorney's office.
At that time, she described the allegations against him and
explained the investigation process. She also reiterated that the
plaintiff was not to have any contact with Jaidah during the
investigation. The plaintiff complied because "he had learned
from `news reports and things' that ignoring DCFS instructions
could lead to termination of his parental rights or Jaidah's
placement in a foster home." Id. at 783-84.

  After more than a year of proceedings, a court found that
Jaidah had been abused, but not by the plaintiff, who was cleared
of the allegations. The plaintiff filed suit against the
investigator for violating his and Jaidah's due process rights
and a jury found in favor of the plaintiff and his daughter.
Id. at 784. In reversing that decision, the Seventh Circuit
first determined that the plaintiff's deprivation, which
ultimately amounted to losing just a single day of visitation,
was minor compared with the state's substantial interest in
protecting children from sexual abuse. Id. at 786. The court
found it significant that the investigator did not try to sever
the plaintiff's parental rights or remove Jaidah from his
custody. Id. In addition, "a reasonable person with the
resources available to [the plaintiff] would not have left [the
investigator's] authority unquestioned," and could have refused
to comply with the investigator's instruction. Id. at 785, 787.
"Given the interests at stake, the options available to [the
plaintiff] were enough to guard against erroneous interference
with his rights." Id. at 787.

  Terry is distinguishable from this case in several respects
and does not, in this court's view, establish that safety plans
are by definition voluntary. First, the investigator in Terry
never threatened to put Jaidah in protective custody; rather, the
plaintiff merely "heard on television that disobeying DCFS
caseworkers could spell the end of his parental rights or lead to
foster care for Jaidah." Id. at 785. In this case, conversely,
all class members were threatened that their children would be
placed in protective custody if they refused to accept a safety
plan. In addition, the plaintiff in Terry lost only a single
day of visitation with his daughter, whereas most of the
Plaintiffs
Page 48
in this case lost physical custody of, or contact with children
and family members for several months. Significantly, many of the
safety plans had indefinite or unstated durations.

  Defendant next points to Doe v. Tullis, in which DCFS
investigated plaintiff John Doe after receiving a Hotline report
that he had sexually abused a child while he was babysitting for
her one night. Slip op., at 2-3. The investigator interviewed the
alleged victim and her sibling; the victim's mother; the hospital
pediatrician who examined the victim and reported the abuse; and
the pediatric social worker at the hospital. Id. at 3. The
investigator also interviewed three of the Does' own children and
one of their neighbors. Before speaking with John's wife, Jane
Doe, the investigator and her supervisor discussed a possible
safety plan for the family. After interviewing Jane, the
investigator drafted a safety plan that required John to live
outside the home and prevented him from having any unsupervised
contact with his children "until we were further along in our
investigation." Id. at 4. The investigator explained that
violating the safety plan could result in the children being
removed from the home. According to the investigator, Jane agreed
to the plan. Id. at 4-5.

  Five days later, Jane signed a second safety plan with the
following terms: "Jane Doe will allow [John Doe] no contact
whatsoever with any children who are younger than eighteen; John
Doe will not be in the home without approved supervision at any
time when younger children are home; and in order for the plan to
terminate, John Doe must obtain a sex offender assessment and
follow any recommendations, and all safety factors must be
resolved as determined by DCFS, with regard to the sexual abuse."
Id. at 6. After the report against John was indicated, Jane and
John signed (in the presence of their attorney) a third safety
plan adding, in part, that (1) John could not live in, spend the
night in, or be in the home "any time other than approved
visiting time," (2) "CPI will continue to monitor the plan until
the case is complete," and (3) "violation of the plan will result
in protective custody of the Doe children." Id. at 6-7. The
investigator believed that the plan was to remain in effect until
she completed her investigation approximately two months later,
but she
Page 49
did not notify the Does or their attorney that the plan was no
longer in effect after that date. Id. at 7. John appealed the
indicated finding; there is no indication as to whether his
request for expungement succeeded. Id. at 21.

  The Does filed suit against the investigator and her supervisor
alleging violations of their constitutional rights. The Does
first claimed that the defendants violated their right to
familial relations by threatening to remove the Doe children from
their parents' custody. Id. at 12. The court agreed that
"threatening to remove children from their parents' custody
violates the right to familial relations when the state has no
reason to suspect that the parents are abusing the children."
Id. at 13 (citing Heck, 327 F.3d at 524). The court found no
such threat in that case, however, because the investigator
merely "provided an alternative to removal when she told Jane Doe
that she could take the children to stay with friends or family."
In the court's view, "[r]equiring Jane Doe and the Doe children
to stay with family and friends is not the equivalent of
threatening to remove the children." Id. In reaching this
conclusion, the court noted that "[a] safety plan is an optional
and less disruptive alternative to either removing a child from
his home based on a court order or removing a child and then
seeking a court order." Id. at 14. According to the court,
informing parents of the legal alternatives available to the
Department, including removal of the children prior to a court
order in exigent circumstances or pursuant to a court order, does
not automatically constitute a threat sufficient to deprive
parents of their constitutional rights. Id. The court denied
summary judgment on the claim, however, based on a factual
dispute as to whether the investigator had "repeatedly threatened
to take the children away." Id.

  The Does also claimed that the defendants violated John Doe's
procedural due process rights by separating him from his children
for more than seven months without an adequate investigation or a
hearing. Id. at 15, 19. The court agreed that "[h]ad [the
investigator] indeed failed to perform an investigation before
instituting the safety plan, her decision would have failed to
satisfy the `reasonable suspicion' standard established in
Brokaw." Id. at 17. Before instituting
Page 50
the first safety plan, however, the investigator "had already
performed substantial investigation," including interviewing the
alleged victim, her mother and sibling; the pediatrician who
reported the alleged abuse; a pediatric social worker; Jane Doe
and three of her children; and one of the Does' neighbors. Id.
at 16-17.

  As for the hearing, the court first determined that the Does
voluntarily agreed to the conditions and terms of the safety
plan. Id. at 20. The court rejected the Does' argument that
they were forced to sign the plan, finding that "[k]nowing the
possible legal consequences of failing to participate in a safety
plan [i.e., having your children taken away] does not render
involuntary one['s] agreement to participate." Id. at 20 n. 4.
The court distinguished safety plans from the forcible removal of
children from the home, noting that safety plans "provide an
alternative way, based on the parents' cooperation, for the state
to ensure the children's safety while allowing them to remain in
their home." Id. at 22. The Does "always had the right to
contact DCFS to determine when or how the safety plan might be
ended . . ., bring a suit in state court, or simply refuse to
comply with the safety plan, which would have led to judicial
intervention if DCFS intended to continue to keep John Doe
separated from his children." Id. The Does failed to
demonstrate that the hearing John received in seeking to expunge
the indicated finding was inadequate, leading the court to
conclude that John was not denied procedural due process. Id.
at 21, 23.

  The court is not persuaded that Tullis, an unreported
decision from another district court, conclusively establishes
the voluntariness of all safety plans. Though the Tullis court
found no automatic threat when DCFS notifies parents that their
children may be removed from the home absent a safety plan, it
nonetheless denied summary judgment because questions of fact
existed as to whether the investigator had "repeatedly threatened
to take the children away." Id. at 14. All of the class members
in this case were in fact threatened explicitly or implicitly
with protective custody unless they agreed to a safety plan,
which arguably adds a coercive element to the "agreement"
process. In addition, unlike in Tullis, it is not clear that
DCFS "substantially
Page 51
investigated" the allegations against all Plaintiffs in this case
prior to implementing a safety plan. In the Stacey and Patrick D.
case, for example, the DCFS supervisor advised the assigned
investigator to "put in a plan" at Patrick's home if he had small
children, before anyone had actually spoken with the D. family or
the alleged victim. (Tr. 1525-26; PX B, at 44854.)

  Finally, the plaintiffs in Tullis failed to show that the
expungement hearing provided inadequate process even though the
proceeding did not address the conditions of the safety plan.
Id. at 21, 23. Not all investigations, however, result in an
"indicated" report or any opportunity for an expungement hearing.
In addition, while the Tullis court noted that safety plans
require the cooperation of parents and family members, it failed
to address how "repeated[] threat[s] to take the children away"
may affect a family's decision in that regard.

  Both parties ask the court to consider the "totality of the
circumstances" in assessing whether safety plans are voluntary,
drawing by analogy from the criminal law on consent to a police
search. (Pl. Mem., at 49; Def. Resp., at 48) (citing Schneckloth
v. Bustamonte, 412 U.S. 218, 227 (1973).) Plaintiffs argue that
relevant factors include (1) whether DCFS makes any
misrepresentations in securing agreement to the plan; (2) whether
agreement to a plan is knowing and voluntary; (3) whether a class
member had access to legal counsel or other advice; (4) the
circumstances surrounding DCFS' request for agreement, including
any time pressure and the state of mind of the class member; and
(5) the relative power, authority, knowledge, and sophistication
of the parties. (Pl. Mem., at 53-54.) Defendant insists that
"knowledge of the right to withhold consent is not a prerequisite
to proving that consent to a search was given." (Def. Resp., at
48) (citing Schneckloth, 412 U.S. at 227) ("[w]hile knowledge
of the right to refuse consent is one factor to be taken into
account, the government need not establish such knowledge as the
sine qua non of an effective consent.") Defendant also argues
that

  under the current DCFS structure, and after
  administering the CERAP protocol, the "threat" to
  remove the children unless a safety plan is agreed
  upon would not be baseless or empty, rather it would
  be analogous to the Constitutionally permissible
Page 52
  consent search situation in which the police threaten
  "in good faith" to get a warrant to search.

(Id. at 49.)

  As noted earlier, the court agrees that there is clearly an
element of choice to the safety plan process in that Plaintiffs
at all times remain free to reject a plan. Moreover, some
families may affirmatively welcome a safety plan.[fn22] For
example, a mother who learns that her spouse may be sexually
abusing her child may be relieved that DCFS agrees that her
husband should leave the home pending an investigation.[fn23]
Nevertheless, we are faced here with a situation where DCFS
investigators threatened to take away Plaintiffs' children if
they refused to accept a safety plan, without affording any
procedure for contesting that plan or its terms. Plaintiffs claim
that the threat is found in the language of the Safety Plan Form
itself, which states 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
Page 53
my home." (Jt. Ex. 5(c), CFS 1441-A; Pl. Mem., at 50-51.) This
language may not by itself constitute a threat of actual removal,
as it merely notifies Plaintiffs of what "may" or "possibl[y]"
will happen should a family choose to reject a plan. Indeed, the
same paragraph expressly represents that agreement to a plan is
voluntary. (Id.) See also Tullis, slip. op., at 20 n. 4.
("[k]nowing the possible legal consequences of failing to
participate in a safety plan [i.e., having your children taken
away] does not render involuntary one['s] agreement to
participate").

  More troubling, however, is the fact that most class member
witnesses testified at the hearing that the investigator assigned
to their cases did more than just notify them of their options;
instead, the investigator affirmatively threatened to take away
Plaintiffs' children unless they agreed to a safety plan. When an
investigator expressly or implicitly conveys that failure to
accept a plan will result in the removal of the children for more
than a brief or temporary period of time, it constitutes a threat
sufficient to deem the family's agreement coerced, and to
implicate due process rights. Significantly, Defendant has not
identified a single family that, faced with such an express or
implied threat of protective custody, chose to reject the plan.

  As for Defendant's suggestion that the threat to remove
children from the home is analogous to a police officer's threat
to obtain a search warrant, the court is unpersuaded. If a
criminal suspect declines to consent to a search, law enforcement
officials may well be able to conduct a search in any event
without consent, but only after obtaining a warrant from a court.
If, however, a family declines to consent to a safety plan, DCFS
can take protective custody of their children without first
obtaining a court order. The protective custody would then
trigger court process and a hearing within 48 hours, but the
ability to take the children first and obtain court approval
later distinguishes DCFS procedures from those in the criminal
context. Moreover, seizure of one's children, even for 48 hours,
is arguably more intrusive than searching one's home.

  Plaintiffs devote significant attention to arguing that they
did not knowingly and intelligently waive their due process
rights by signing the safety plans. (Pl. Mem., at 55-62.) The
court
Page 54
recognizes that DCFS procedures do not mandate that investigators
explain the actual requirements for taking a child into
protective custody or the available options for contesting such
action. In addition, families faced with the choice between
entering a safety plan or losing their children may not be
capable of making an informed, rational decision, or seek the
advice of an attorney. Nevertheless, the court need not decide
whether or to what extent this or the other factors may also
figure into the voluntariness assessment. It is sufficient that
agreement to the plans at issue here was secured in a coercive
manner under the investigator's express or implied threat of
protective custody lasting more than a brief or temporary period
of time.

  2. Process Due

  Having determined that safety plans effect a constitutional
deprivation when combined with an express or implied threat of
protective custody that is more than brief or temporary, the
court next considers what process is due to class members who
sign such plans. The parties agree that Mathews v. Eldridge,
424 U.S. 319 (1976) guides this analysis:

  Our prior decisions indicate that identification of
  the specific dictates of due process generally
  requires consideration of three distinct factors:
  first, the private interest that will be affected by
  the official action; second, the risk of an erroneous
  deprivation of such interest through the procedures
  used, and the probable value, if any, of additional
  or substitute procedural safeguards; and, finally,
  the government's interest, including the function
  involved and the fiscal and administrative burdens
  that the additional or substitute procedural
  requirement would entail.

Id. at 334-35.

  It is undisputed that Plaintiffs have a "fundamental" liberty
interest in familial relations. Troxel, 530 U.S. at 65 ("the
interest of parents in the care, custody, and control of their
children . . . is perhaps the oldest of the fundamental liberty
interests recognized by this Court"). It is also undisputed that
child safety is an important state interest. Darryl H.,
801 F.2d at 902 ("[t]he state has an obligation to prevent loss of
life and serious injury to those members of the community to whom
it has a very special responsibility, the young"). The relevant
inquiry thus turns on the risk
Page 55
of an erroneous deprivation of Plaintiffs' interest in familial
relations under existing DCFS procedures, and the probable value
of additional or substitute procedural safeguards. Mathews,
424 U.S. at 334-35. On this issue, the balance weighs decidedly in
Plaintiffs' favor: DCFS has no procedure whatsoever for families
to contest safety plans. Defendant insists that "each
circumstance is unique," and that "[t]he case law is clear and
the facts are overwhelmingly illustrative of the singularity and
distinctiveness of each case." (Def. Resp., at 54.) The fact that
individual circumstances are unique does not, however, support
the conclusion that no family members are entitled to a procedure
to contest safety plans.

  To be sure, some cases involving safety plans result in
"indicated" reports. Nevertheless, the liberty interest in
familial relations is so great that even a small risk of
erroneous deprivation must be addressed in some fashion. Indeed,
DCFS's own expert, Dr. Mark Testa, agreed that the availability
of procedures to contest a safety plan would not alter the
effectiveness of the CERAP process. (Tr. 2829-30.) Defense expert
Dr. Carl Bell also opined that if DCFS is unable to work out an
acceptable safety plan with a family because, for instance, the
investigator failed to consider family strengths and mitigating
circumstances, "there ought to be — that family should have some
sort of a review[,] something in place so that that could be
corrected." (Tr. 2021-22.) In the court's view, it would not be
difficult for DCFS to develop a simple and inexpensive procedure
for Plaintiffs to seek review of safety plans. To the extent DCFS
is correct that there is a degree of voluntariness in all of the
plans — and some plans are in fact entirely voluntary — there
presumably will be no request or need for review in a large
proportion of the cases.

  Neither party addresses the nature of the procedures required,
and the court declines to fashion a remedy unilaterally.
Nonetheless, the court offers the following observations. To the
extent safety plans serve as less intrusive alternatives to
protective custody, it cannot be the case that class members are
entitled to equal or greater remedies than those provided under
the Abused and Neglected Child Reporting Act and the Juvenile
Court Act. Those statutes require a hearing
Page 56
before a judicial officer within 48 hours of the child's removal
from the home, a time frame too restrictive for the safety plan
context.[fn24] In addition, it seems to this court that
making families wait an entire month before giving them an
opportunity to contest a plan may be excessive. Indeed, the
August 2002 amendments (which were not in place during most of
the episodes described above) recognize the importance of
vigilantly monitoring safety plans by requiring re-review every
five days. It is not clear that investigators are complying with
this directive, or that any such re-review constitutes a
meaningful reconsideration of a plan or its terms. (See, e.g.,
I.W. case) (Tr. 2989; PX T, at 45373-74) (no evidence that DCFS
conducted any five-day reviews of safety plan with a stated
duration of "up to 60 days.") In any event, DCFS itself concedes
that safety plans are intended to be short-term measures, and
that limitation must be considered in determining what
constitutes a reasonable time to contest a plan. Finally, though
this case addresses only safety plans secured by threat of
protective custody, the parties should not overlook the
importance of uniformity in the safety plan process, even when a
family's agreement to a plan is entirely voluntary.

  III. Irreparable Harm/Balancing of Harm/Public Interest

  Defendant barely addresses the question of irreparable harm,
arguing primarily that Plaintiffs are wrong to suggest that the
liberty interest in familial relations is "virtually absolute."
(Def. Resp., at 54.) In support of this argument, Defendant cites
a 1987 case from the Eighth Circuit Court of Appeals, which
states that

  parental liberty interest in keeping the family unit
  intact is not a clearly established right in the
  context of reasonable suspicion that parents may be
  abusing their children. If law enforcement personnel
  who have at least arguable probable cause
Page 57
  to believe that adults have been molesting children
  are not entitled to reasonable belief that the adults
  may pose a danger to their own children, then the law
  was (and is) not clearly established on this point.

Myers v. Morris, 810 F.2d 1437, 1463 (8th Cir. 1987). The
plaintiffs in Myers had been charged by the county attorney
with criminal sexual activity involving one or more minor
children. They alleged, among other things, that the county
prosecutor, county sheriff's deputies, and others caused them to
suffer loss of liberty and alienation of affection by arresting
the plaintiffs without probable cause and then removing minor
children from their homes on "police holds" after the arrests.
Id. at 1444.

  The quoted language above appears in the court's discussion of
whether the sheriff's deputies were entitled to qualified
immunity from suit. The plaintiffs challenged "the summary
removal of children before attempts were made to substantiate
incriminating statements of other children through normal
investigative techniques." Id. at 1462. The sheriff's deputies
were entitled to qualified immunity on such claims if there was a
"legitimate question" as to the legality of summarily separating
children from parents who had been accused of criminal acts
towards others. Id. The court found there was such a legitimate
question given that "other children had described abuse by the
arrested persons upon their own children." Id. at 1463. Thus,
the sheriff's deputies were qualifiedly immune from further
litigation. Id.

  The court does not see how Myers is instructive in assessing
the balance of hardships between the parties. Plaintiffs have
presented ample evidence that they suffered emotional and
psychological injury as a result of safety plans lasting for more
than a brief or temporary period of time. (Pl. Mem., at 62-77.)
The court recognizes the importance of the state's interest in
protecting children from harm, but concludes that this interest
does not outweigh the irreparable harm (1) to individuals whose
lives are disrupted by safety plans which require family members
to live outside the home or which restrict contact between family
members for an indefinite or unstated duration; and (2) to
individuals who, under an express or implied threat of protective
custody, sign safety
Page 58
plans lasting more than a brief or temporary period of time, but
have no available means of contesting those plans.

  IV. Mandatory or Prohibitory Injunction

  Plaintiffs argue that the court should enter an injunction
prohibiting DCFS from implementing safety plans that violate
their constitutional rights, "not one that imposes or directs
defendant to erect a new administrative scheme for putting safety
plans into effect, or permitting class members to contest them."
(Pl. Mem., at 85) (citing Association of Community Organizations
for Reform Now v. Edgar, 56 F.3d 791, 798 (7th Cir. 1995))
(affirming injunction requiring state to comply with "motor
voter" law, but finding "no occasion for the entry of a
complicated decree that treats the state as an outlaw and
requires it to do even more than the `motor voter' law
requires"). In Plaintiffs' view, "neither DCFS (nor the state
courts, for that matter) need devise or erect any new remedial
structures in order to ensure the provision of such protections:
the protections are already in the Juvenile Court Act, and class
members may avail themselves of these protections in ordinary
course." (Pl. Mem., at 86.) Defendant makes no response to this
argument.

  The court nevertheless disagrees with Plaintiffs' contention
that the appropriate remedy here is simply to enjoin safety plans
and mandate compliance with the procedures available under the
Juvenile Court Act. The JCA provides for court review only when a
child is taken into protective custody, not when DCFS implements
a safety plan, and as explained earlier, the court does not
believe that all safety plans trigger constitutional concerns as
a matter of course. Nevertheless, Plaintiffs are entitled to some
opportunity to review restrictions placed on their contacts with
their children. Further, the court notes its belief that persons
subject to safety plans are entitled to immediate notice of the
basis on which the investigator has determined such a plan is
necessary, as well as notice of the expected duration of such a
plan and an explanation of the process and schedule for seeking
review of restrictions imposed by the plan. As for what those
procedures
Page 59
should entail, the court, having found a constitutional violation
in this case, now defers to DCFS to fashion an appropriate remedy
consistent with this opinion. See Massey v. Helman,
35 F. Supp. 2d 1110, 1115 (C.D. Ill. 1999) (citing Bush v. Lucas,
462 U.S. 367 (1983)) ("the [Supreme] Court has deferred to the legislature
to fashion appropriate remedies for constitutional violations").
The court suggests that in developing these procedures, DCFS
consider whether the procedures adopted for child care workers in
Dupuy I may be altered or enhanced to address the safety plans
at issue here. See Dupuy v. McDonald, No. 97 C 4199, 2003 WL
21557911 (N.D. Ill. July 10, 2003). DCFS is also invited to
explain the degree to which the 2002 amendments may address
concerns raised by this opinion.

                               CONCLUSION

  For the reasons stated above, Plaintiffs' motion for a
preliminary injunction (Doc. Nos. 488-1, 488-2) is granted in
part and denied in part. The court agrees that Plaintiffs are
entitled to injunctive relief, but declines to categorically
enjoin safety plans. DCFS has sixty (60) days to develop
constitutionally adequate procedures consistent with this
opinion.

[fn1] The complete list of factors is as follows:

  1. Any member of the household's behavior is violent
  and out of control.

  2. Any member of the household describes or acts
  toward child in predominantly negative terms or has
  extremely unrealistic expectations.

  3. There 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.

  4. There is reason to believe that the family is
  about to flee or refuse access to the child, and/or
  the child's whereabouts cannot be ascertained.

  5. Caretaker has not, will not, or is unable to
  provide sufficient supervision to protect child from
  potentially moderate to severe harm.

  6. Caretaker has not, or is unable to meet the
  child's medical care needs that may result in
  moderate to severe health care problems if left
  unattended.

  7. Any member of the household has previously or may
  have previously abused or neglected a child, and the
  severity of the maltreatment, or the caretaker's or
  other adult's response to the prior incident,
  suggests that child safety may be an urgent and
  immediate concern.

  8. Child is fearful of people living in or
  frequenting the home.

  9. Caretaker has not, or is unable to meet the
  child's immediate needs for food, clothing, and/or
  shelter; the child's physical living conditions are
  hazardous and may cause moderate to severe harm.

  10. Child sexual abuse is suspected and circumstances
  suggest that the child['s] safety may be an immediate
  concern.

  11. Any member of the household's alleged or observed
  drug or alcohol abuse may seriously affect his/her
  ability to supervise, protect, or care for the child.

  12. Any member of the household's alleged or observed
  physical/mental illness or developmental disability
  may seriously affect his/her ability to supervise,
  protect or care for the child.

  13. The presence of domestic violence which affects
  caretaker's ability to care for and/or protect child
  from imminent, moderate to severe harm.

  14. A paramour is the alleged or indicated
  perpetrator of physical abuse.

  15. Other (specify).

(Jt. Ex. 5(e), CFS 1441.)

[fn2] Defendant's Memorandum of Law in Opposition to Plaintiffs'
Motion for a Second Preliminary Injunction is cited as "Def.
Resp., at ___."

[fn3] Plaintiffs' Post-Trial Memorandum in Support of their
Amended Motion for a Second Preliminary Injunction is cited as
"Pl. Mem., at ___."

[fn4] The court is uncertain why this recommendation was made,
but speculates that perhaps the Metra passenger who witnessed the
alleged inappropriate touching did not cooperate further with the
investigation. It is at least curious that the Redlins' refusal
to submit their son for an interview should militate in favor of
dismissal of the charges.

[fn5] The parties do not indicate how Theresa learned this
information on May 17, 2001. On May 21, 2001, however,
Boedigheimer sent Theresa a letter notifying her of the unfounded
decision. (PX D, at 43400.)

[fn6] DCFS referred Patrick to Latino Family Services, P.C. for
his "psychosexual assessment and follow-up treatment
recommendations." (PX B, at 44980.)

[fn7] See DeLaFont v. Beckelman, 264 F. Supp. 2d 650 (N.D. Ill.
2003) (dismissing several individual defendants from the case for
lack of personal involvement in the alleged deprivations, but
denying motion to dismiss claims that remaining three defendants
violated plaintiffs' constitutional right to family autonomy and
that two defendants deprived Patrick D. of his job without due
process); DeLaFont v. Beckelman, No. 02 C 5448, 2003 WL
21294741 (N.D. Ill. June 3, 2003) (denying motions to
reconsider); DeLaFont v. Beckelman, No. 02 C 5448, 2003 WL
22239726 (N.D. Ill. Sept. 29, 2003) (denying plaintiffs' motion
to reinstate one of the previouslydismissed defendants).

[fn8] It does not appear that there is any family relationship
between the Parikhs and the K.'s.

[fn9] It is not clear from the record who called the family
meeting, who attended it, or when it took place.

[fn10] Presumably this was not the same "family meeting" at
which, according to Delta K., the matter has been resolved.

[fn11] In addition to Justine, the Parikhs had four other
children: Emmie (age 27), Jason (age 22), Elissa (age 6), and
George (age 3). (Tr. 1269.) At the time of the alleged incident,
only Jason, Elissa, and George were living in the Parikh home.
(Tr. 1270, 1272, 1276.)

[fn12] The parties do not indicate who decided that Jimmy could
return home or how or when the Parikhs were notified of the
decision.

[fn13] It is not clear how Detective Marks became involved in the
case.

[fn14] It is not clear what event triggered the Hotline call.

[fn15] Deputy Director Goad testified that "[i]n more serious
cases we open in-home protective services cases, which means that
we assign a DCFS worker, sometimes called an intact worker, to
work with the family." (Tr. 2234.) Kathleen Tate testified that
"once [a] case was opened for services then the intact family
worker would go out [to see the family] weekly." (Tr. 917.)

[fn16] Plaintiffs' Reply Memorandum in Support of their Amended
Motion for a Second Preliminary Injunction is cited as "Pl.
Reply, at ___."

[fn17] The name of the person who conducted the interview and the
corresponding notes are illegible.

[fn18] Dr. S. retained separate counsel to represent him in a
criminal investigation into his alleged misconduct. That
investigation did not result in any criminal charges being filed.
(Tr. 359.)

[fn19] The record does not reflect when E.D.'s case was
indicated.

[fn20] Plaintiffs do not indicate the actual duration of I.W.'s
safety plan.

[fn21] Plaintiffs also submit the declaration of S.T., who signed
a safety plan requiring that her paramour leave their home while
DCFS investigated allegations that he was sexually abusing S.T.'s
children from a previous marriage. (Ex. 2 to Plaintiffs' Motion
to Supplement Record in Support of Both their Second Preliminary
Injunction Motion and their Motion to Amend the Class Definition
(hereinafter "Pl. Supp.") S.T. is not a member of the class,
however, because she has no legal relationship with the man
required to leave the home. (See Order of 4/16/04.)

[fn22] Plaintiffs themselves reviewed several cases "in which
they thought it likely that the class member's agreement to the
plan was not coerced because a class member parent: (1) had
agreed with DCFS that the alleged perpetrator class member was
likely to be guilty of the alleged abuse; (2) had a concern
(independent of any representations by DCFS) as to the merits of
the allegations against the alleged perpetrator, regarding the
safety of the children in the home if the perpetrator was not
subject to restrictive conditions regarding his access to the
children; and (3) had already taken the action of removing the
perpetrator from the home, prior to and independently of any
request an investigator had made as part of a proposed safety
plan." (Pl. Mem., at 47 n. 22.)

[fn23] Plaintiffs insist that this is irrelevant, at least for
purposes of substantive due process rights, because "DCFS may not
constitutionally effect what would otherwise be an
unconstitutional deprivation of one parent's rights simply by
gaining the agreement (even the voluntary agreement) to the
deprivation by the other parent." (Pl. Mem., at 42) (citing
Stanley v. Illinois, 405 U.S. 645 (1972) (state denied unwed
father equal protection of the law by declaring his children
wards of the state upon their mother's death and presuming that
he was an unfit parent without first giving him a hearing on the
issue); Wooley v. City of Baton Rouge, 211 F.3d 913, 923-24
(5th Cir. 2000) ("[w]hen a biological parent com[es] forward to
participate in the rearing of [her] child, [her] interest in
personal contact with [her] child acquires substantial protection
under the due process clause") (internal quotations omitted)).
Assuming this is true, as explained earlier, the court concludes
that where there is evidence of a safety concern, the state's
interest in ensuring the safety of children by imposing a
temporary safety plan outweighs a parent's liberty interest in
caring for and associating with the child, at least for a brief
period.

[fn24] Plaintiffs' suggestion, in a footnote, that DCFS should be
required to provide a hearing before implementing a safety plan
except in exigent circumstances, is not consistent with this
opinion. Nor is the court confident that three days is an
appropriate length of time within which to conduct a hearing.
(Pl. Mem., at 87 n. 30) (citing Jordan by Jordan v. Jackson,
15 F.3d 333, 351 (4th Cir. 1994).) The Jordan court merely
approved, as an "outer limit," a 65-hour delay between protective
custody of a child and a hearing before a judicial officer.