When parents are faced with accusations that they have abused or neglected their children, they may find themselves the subject of a DCFS investigation or part of Juvenile Court proceedings. As part of this process, DCFS is allowed to take temporary custody of Illinois children, without first obtaining a court order, for a short period of time. The attorneys at Brody Brandner, Ltd. recently represented a client accusing DCFS of violating his civil rights when they took temporary custody of his children. He alleged that DCFS failed to conduct a hearing in the time provided by law, a practice that Brody Brandner, Ltd. attorneys have encountered before.
DCFS Temporary Custody
The authority to take temporary custody is reserved for emergencies where children are at imminent risk of harm. When DCFS takes custody of your children, you have certain rights. Chief among them, DCFS must schedule a hearing and bring the children before a Circuit Court judge to obtain an order for the children to be held in custody. This hearing must take place within 48 hours of DCFS taking custody of your children, excluding weekends and holidays. This time period is mandated by the Illinois Juvenile Court Act.
When DCFS violates this rule, or other rules applicable to temporary custody, you may have a recourse. If DCFS commences a temporary custody hearing after 48 hours, the judge may be required to order the children released. Even where the judge believes the children would be in danger if sent home, DCFS' violation of the 48-hour rule may nevertheless require that the children be released. If DCFS does not schedule a hearing at all, you may be able to petition the court for an injunction ordering DCFS to release the children. In certain circumstances, you may be able to sue DCFS in state or federal court for violating your civil rights.
Civil Rights Lawsuits
The Fourteenth Amendment to the United States Constitution prohibits any state from denying any person life, liberty, or property without due process. 42 U.S.C. § 1982 allows to bring a lawsuit against state employees, such as DCFS personnel, who violate that person's constitutional rights. Among those rights, according to the United States Supreme Court, are your parental rights to have custody of your children. Parents can therefore file a civil lawsuit against DCFS employees who take custody of their children where the DCFS employee did so in an unlawful or unconstitutional manner.
One client from Brody Brandner, Ltd. accused DCFS and certain employees of violating his rights. In particular, he alleged that DCFS failed to provide him with a hearing within 48 hours. Instead, he alleged, DCFS claimed that they were allowed release and immediately retake custody of the children, thereby resetting the 48-hour deadline. In response, he retained Brody Brandner, Ltd. and filed suit in McHenry County Circuit Court. This practice of releasing and retaking temporary custody (often called "protective custody" or "PC") of children is referred to by some DCFS employees as "re-PC" and is a practice that Brody Brandner, Ltd. attorneys have encountered previously, having filed a similar lawsuit against DCFS on behalf of a separate client in 2020 after DCFS took "re-PC" of her children.
Throughout the case, DCFS denied any wrongdoing and have denied the accusations against them. These matters were settled to the satisfaction of the parties.
McHenry County Attorneys with Civil Rights Experience
As one of the few (and perhaps only) McHenry County law firm that accepts civil rights cases, and with attorneys with experience in human rights, Brody Brandner, Ltd. has represented a number of clients in actions brought under 42 U.S.C. § 1983, in both state and federal court, alleging that their constitutional rights were violated by individuals at various levels of government in the State of Illinois. Accusing the government of violating your constitutional and civil rights can be a difficult and complex task, requiring experience and effective attorneys.
We pride ourselves in our ability to advocate for our clients and fight to defend their rights - both inside and outside of the courtroom. Call (815) 374-7783 to learn how we can help you with your own complex legal issue.