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Appellate court finds judge abused discretion; reverses, vacates contempt rulings against DCFS Director Smith, but doesn’t let agency off hook

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* Background is here if you need it. From the First District Appellate Court with an opinion authored by Justice Joy Cunningham and Justices Hoffman and Delort concurring…

This consolidated appeal of 10 cases arises from the circuit court of Cook County’s orders finding the appellant, Marc D. Smith, who is the director of the Department of Children and Family Services (DCFS), in indirect civil contempt of court. The contempt finding was imposed on Director Smith for not finding appropriate placements for each of the minors in question as ordered by the trial court. This court granted motions to consolidate the cases on appeal because of the similar fact patterns, arguments, and findings by the trial court in each of the cases. Each case is directed against Director Smith in his official capacity. The Office of the Public Guardian of Cook County filed petitions for rules to show cause on behalf of each of the minors in these consolidated cases. The Office of the Public Guardian of Cook County asserted that Director Smith and DCFS did not find appropriate placements for the minors in either a residential treatment center or a specialized foster home as ordered by the trial court. After the issuance of a rule to show cause and a contempt hearing conducted by the trial court, the trial court found Director Smith in indirect civil contempt of court for failing to place each of the minors in appropriate placements as ordered by the court. As a result of the trial court’s contempt finding, Director Smith was initially fined $1000 per day by the trial court. In order to purge the contempt finding and its consequences in each case, the trial court ordered that each minor in the specific case before the court be placed in an appropriate setting.

On appeal, Director Smith argues that the circuit court erred by (1) finding that he should be held in indirect civil contempt in each minor’s case; (2) alternatively finding that the consent decree entered in B.H. v. Smith, 88-C-5599 (N.D. Ill. 1997), an unrelated case, did not bar the court from finding him in contempt; and (3) finding that the Integrated Care Center at Aunt Martha’s (ICC) was not an appropriate placement for the minors in question and therefore did not purge the contempt finding imposed upon him.

For the following reasons, we reverse the judgments of the circuit court of Cook County.

The court then goes over all of the consolidated appeals and the numerous, often failed, efforts made by DCFS employees to place kids in appropriate settings.

* Back to the opinion…

In the cases before us, there are no disputes amongst the parties that DCFS did not comply with the trial court’s orders to place each of the minors in an appropriate residential treatment center or specialized foster home, based on the recommended level of care needed by the minor, by a date certain imposed by the court. Therefore, a primafacie case was made in each case that Director Smith did not comply with the trial court’s orders. The parties dispute, however, whether Director Smith and DCFS were unable, through no fault of their own, to place each minor in an appropriate residential facility or foster home in accordance with the court’s orders. Thus, the parties disagree regarding whether Director Smith met his burden of proving his inability to comply with the court’s placement orders within the given time parameters.

Director Smith claims he made every possible effort to place the minors appropriately in accordance with the court’s orders but circumstances beyond his and DCFS’s control prevented the appropriate placements within the time mandated by the trial court’s orders. For example, he cites the unwillingness of various residential treatment centers to take some of the minors, such as R.A. On the other hand, the GAL and the amicus curiae brief focus their arguments on various methods that were not employed by DCFS to secure appropriate placements for the minors in accordance with the trial court’s orders. They argue vigorously that there were other avenues available to DCFS to secure appropriate placements for the minors, yet DCFS continued to employ ineffective methods that it should have known would fail.

Because we believe R.A.’s situation is illustrative of the main issues and arguments regarding whether DCFS and Director Smith’s actions were willful and disregarded the trial court’s order, we focus our analysis of this issue on R.A.’s particular situation. We note, also, that the trial court specifically found that Director Smith had “ignored’ the trial court’s orders in the majority of the cases in which the court made a contempt finding. […]

As explained, the record shows that while DCFS’s efforts were clearly ineffective, the trial court’s orders were not ignored. Accordingly, the court’s ruling that its orders were ignored, thereby resulting in a finding of indirect civil contempt by Director Smith, was erroneous. […]

Further, it should be noted that R.A., like each of the minors in question, presented with very complicated histories, personal circumstances, and specific treatment plans. It was, therefore, appropriate for the trial court to address Director Smith’s argument regarding whether he was able to comply with the trial court’s orders. The trial court did not entertain any such consideration, however.

While we recognize that the court could reasonably have been frustrated by the pace of Director Smith and DCFS in finding appropriate placements for the minors, the record belies the trial court’s written finding that Director Smith and DCFS “ignored” the court’s orders. On the contrary, the record bespeaks a great deal of activity by DCFS following each court order, notwithstanding that the activity was, at times, seemingly inefficient and clearly ineffective. Notwithstanding, that activity shows that DCFS made efforts to comply with the court’s order to place each minor by a date certain prior to the trial court’s contempt finding. We note that in L.R.’s case, for example, DCFS did follow up with a residential treatment center to offer services to make the placement feasible for L.R. That residential treatment center still declined L.R., so that effort was fruitless. Although the effort failed to amount to L.R. being appropriately placed, it cannot be said that Director Smith “ignored” the trial court’s order in that case as the court found in its contempt ruling. […]

The only activity that the trial court could consider in determining whether there was compliance with its orders was the activity of Director Smith and DCFS after the date of the entry of the court’s orders for appropriate placement of each minor. Therefore, any arguments regarding how Director Smith and DCFS handled the placements of the minors before the placement orders are irrelevant to a finding of contempt in each of these consolidated cases. […]

While it does not appear that DCFS and Director Smith demonstrated a sense of urgency to find appropriate placements for the minors, clearly some efforts were made. Although we do not condone DCFS’s repetitive use of the same ineffective methods to place minors in these cases, we cannot say, in light of the record in each of these cases, that Director Smith ignored the trial court’s orders to find appropriate placement for the minors. Further, the trial court gave no consideration to DCFS’s ability to comply within the specified time imposed the complexity of these cases, the resources available, and the time parameters imposed by the trial court, it would have been appropriate for the court to consider DCFS’s argument regarding its inability to comply. Accordingly, we find that the trial court abused its discretion in entering findings of indirect civil contempt against Director Smith in each of these consolidated cases. […]

Nevertheless, although we acknowledge that DCFS and Director Smith did make some efforts to comply with the placement orders, those efforts fell woefully short of expectations. DCFS is tasked with providing for some of the state’s most vulnerable youth, who present a wide range of significant challenges. The fact that some of the minors were hospitalized beyond medical necessity or left in inappropriate placements for months, or even over a year in some instances, is absolutely unacceptable. While the trial court erred in the methods it employed to coerce Director Smith into action in these cases, it is clear that the trial court was attempting to address a serious, widespread problem. We note that the trial court ultimately achieved its goal of having all the minors at issue placed in appropriate settings. Thus, the ultimate goal was achieved. […]

CONCLUSION

For the foregoing reasons, we reverse the judgments of the circuit court of Cook County in each of the consolidated cases addressed in this opinion, except in appeal Nos. 1-22-0233 and 1-22-0540, where we vacate the judgments.

Thoughts?

…Adding… From DCFS…

“We are pleased that the Appellate Court found the contempt orders were erroneous. As the Appellate Court described, DCFS has been actively working to secure clinically appropriate placements for these children. Based on the record of DCFS’ actions, the Appellate Court found it was an abuse of the trial court’s discretion to hold the agency in contempt. DCFS will continue working closely with the trial court to ensure children are placed as quickly as possible in clinically appropriate settings, as we have done with each of the youth cited in the contempt orders. After years of neglect by prior administrations and staffing challenges worsened by a global health pandemic, DCFS has, under the current leadership, continually added therapeutic beds to ensure that children with medically complex conditions and behavioral challenges are placed in the appropriate settings.”

Background:
This administration’s efforts are showing demonstrable results. DCFS has dramatically reduced the number of children who are “beyond medical necessity.” Today, the number of youth who are “beyond medical necessity” is down by more than 80 percent.

Key takeaways from the ruling:

“The court’s ruling that its orders were ignored, thereby resulting in a finding of indirect civil contempt by Director Smith, was erroneous.” (page 42)

“In each case, the trial court held Director Smith in indirect civil contempt while also acknowledging that DCFS actively engaged in trying to find appropriate placements for the minors. At times, the court commented on the activity in which DCFS was engaged in trying to secure appropriate placements for the minors. The trial court, nonetheless found that Director Smith was in contempt for failing to comply with the court’s placement orders, opining that DCFS had ‘ignored’ the trial court’s orders. Such a ruling was inconsistent with the record.” (page 42)

“We find that the trial court abused its discretion in entering findings of indirect civil contempt against Director Smith in each of these consolidated cases.” (page 45)

posted by Rich Miller
Wednesday, Nov 30, 22 @ 11:42 am

Comments

== Thoughts? ==

The Appellate Court just laid out a road map for DCFS to avoid future citations. Even if you know it won’t work, do something to show the agency tried.

On the other hand, the Appellate Court also laid out a road map in how to tighten up future findings and orders from lower courts.

I imagine future placement orders will be much more specific in both desired results and reporting back to the courts. I could see a frustrated Judge ordering weekly or even daily status reports.

Comment by RNUG Wednesday, Nov 30, 22 @ 11:57 am
When Patrick Murphy was Cook County Public Guardian he often clashed with DCFS so it seems like he brings a lot of personal baggage. Maybe he shouldn’t be assigned to its cases. He also wrote an op-ed recently blasting CPS which seems questionable for a sitting judge.

Comment by Big Dipper Wednesday, Nov 30, 22 @ 12:11 pm
This is only a win personally for Director Marc Smith.

Governor Pritzker still owns these repetitive failures of his administration to carry out the mission of DCFS and has yet to put forward anything that resembles a plan that would address these issues with expedience.

Comment by Candy Dogood Wednesday, Nov 30, 22 @ 12:21 pm
Agree Candy Dogood.
Spending taxpayers money on defending Director Smith makes little sense.
These are our children. We need to attend to their issues without the need to defend Smith in Court.
Hat tip to the Circuit Court Judge and the Public Guardian for addressing the needs of these children. I hope they follow the path of protecting these kids.

Comment by Back to the Future Wednesday, Nov 30, 22 @ 12:38 pm
Back to the Future, when an appellate court says that a circuit court abused its discretion, that means no reasonable judge would have done what was done here. So hat tip to the appellate court for reining in a rogue judge. Just because DCFS can do better doesn’t mean that a judge can act like this.

Comment by Big Dipper Wednesday, Nov 30, 22 @ 12:42 pm
I’ve had this exact fight with the OPG in Cook County before years ago (and have had versions of this fight in front of this particular judge). Unless or until DCFS has the funding and a specific mandate to operate their own residential or specialized facilities, this will keep happening. Stomping your feet in front of a judge won’t change that.

DCFS can only work with the resources they have.

Comment by Former DCFS Wednesday, Nov 30, 22 @ 12:53 pm
agree with Big Dipper. the judge is the headline. Murphy is acting way beyond his capacity as a judge. If he really wants to help, he can step down, and take a job creating more places for kids to go. it is feast or famine in juvenile justice. don’t house kids who are dangerous, why can’t you find places for kids to be treated. the biggest issue is that there are more and more of these kids who need various kinds of help. it’s very sad.

Comment by Amalia Wednesday, Nov 30, 22 @ 1:09 pm
This is a loss for the children who have been unable to escape DCFS’ incompetence. This ruling only prolongs the ongoing abuse these children face, when the department fails to complete its basic responsibility of locating an appropriate placement. Sadly, in our state and within our child welfare system the best method to motivate the department was to have a judge hold the Director of the department in contempt for failing to provide relief to abused children. I hate to think about what happens to these kids now.

Comment by Kyle Hillman, NASW Illinois Wednesday, Nov 30, 22 @ 1:09 pm
Appreciate the comments of Big Dipper and particularly Former DCFS.
The Public Guardian brought an action regarding these children, facts were put into evidence and an a Court Order was entered that Director Smith violated. In this set of cases it appears to me that this set of Appellate Judges agreed with the facts the Judge ruled on, but frankly ruled against the interests of Illinois citizens and particularly the interests of these children. Quite simple the court orders that were appealed by Pritzker and Smith only suggested that Smith should do his job. He did not do his job.
Hopefully the Public Guardian and this Circuit Court Judge will continue to put the interests of these children over the excuses of Pritzker and Smith.

Comment by Back to the Future Wednesday, Nov 30, 22 @ 1:10 pm
The fact that some of the minors were hospitalized beyond medical necessity or left in inappropriate placements for months, or even over a year in some instances, is absolutely unacceptable…

…but, we’re not gonna hold him accountable.

Comment by UGH Wednesday, Nov 30, 22 @ 1:17 pm
DCFS was established as a child protection system. We dismantled any semblance of a mental health system in Illinois, especially for children. DCFS has become he default children’s mental health system and is not equipped to be that. DCFS needs to reform and do much better by families, but this is not all on them.

Comment by Proud Wednesday, Nov 30, 22 @ 1:22 pm
==facts were put into evidence==

Actually the appellate court held that the circuit court refused to hear the pertinent facts — why DCFS could not comply with his orders.

Comment by Big Dipper Wednesday, Nov 30, 22 @ 1:31 pm
Usually agree with Amalia, but I think this set of facts is more about Smith and the Pritzker Administration than the Judge or the Public Guardian.
The Circuit Court Judge entered a Court Order. If Smith thought the Court Order was inappropriate he could of appealed it at the time it was entered. He chose to ignore the Court Order and put himself in a position to be held in contempt.
The children had every right to apply to a court to address the abuse they were suffering. Where else are these children supposed to go when they are abused by a state employee?

Comment by Back to the Future Wednesday, Nov 30, 22 @ 1:32 pm
I don’t understand many of these comments. Does upholding these contempt rulings get DCFS any closer to solving these issues? Does it somehow facilitate the agency doing the impossible in some circumstances? Sure doesn’t seem that way to me. The solution appears to be more resources and a more specific mandate. But we’ve spent the better part of the last decade just yelling at whoever is in charge of the agency or the governor’s mansion to just fix it, do the impossible. Makes no sense

Comment by SWIL_Voter Wednesday, Nov 30, 22 @ 1:32 pm
==Governor Pritzker still owns these repetitive failures of his administration to carry out the mission of DCFS and has yet to put forward anything that resembles a plan that would address these issues with expedience.==

I represented parties against DCFS in the 70s and represented DCFS in the 80s. You can substitute the name of any Governor from at least that time period on. If you want a true statement you should substitute the name the People of the State of Illinois. Funding has never been adequate.

Comment by Bigtwich Wednesday, Nov 30, 22 @ 1:55 pm
I worry how much time and resources DCFS had to spend on this appeal…not sure this is accomplishing what the Public Guardian wants to accomplish.

Comment by NIU Grad Wednesday, Nov 30, 22 @ 2:21 pm
=[Smith] chose to ignore the Court Order =

The Appellate Court specifically found that Smith did NOT ignore the court order.

” . . . the record shows that while DCFS’s efforts were clearly ineffective, the trial court’s orders were not ignored. “

Comment by JoanP Wednesday, Nov 30, 22 @ 2:48 pm
== If Smith thought the Court Order was inappropriate he could of appealed it at the time it was entered==

Wrong. With narrow exceptions you can’t appeal nonfinal orders and juvenile cases go on for years. That’s why parties sometimes use friendly contempt to make it appealable.

Comment by Big Dipper Wednesday, Nov 30, 22 @ 2:56 pm
Agree with NIU Grad about the waste of taxpayers money on appealing the contempt citations against Smith, but disagree that the Public Guardian is responsible for the cost of the appeal. Smith and Pritzker had a choice of helping these children or appealing. They took my money and your money and used it to appeal.
IMHO the Public Guardian stepped up for these children. Case by case the Guardian tried to get Smith and Pritzker to do their jobs. A lot of, if not most lawyers, that take cases to trial have lost or won in the Appellate Courts.
I suspect that this lawyer will not back off representing children that are being abused in the state system- at least I hope they won’t back off.
Law is sometimes a slow moving process. These children need an advocate. Thinking the Public Guardian and this Judge are on the right side of Justice. Might be time to reassess the approach after this wrongfully decided Appellate Court decision and try to get some Justice for the next child abused by the system. In the end the wronged party is not the system or Pritzker or Smith but the plaintiff children in these cases.

Comment by Back to the Future Wednesday, Nov 30, 22 @ 2:56 pm
I think some of you are missing the fact that there is nowhere to place some of these children. If you have solutions I’m sure people are all ears. You can’t just say “do it.” From what it seems they tried to do it. If the state needs to spend boatloads more money on developing placements then it needs to do so. But I’m not sure all of the money in the world is going to be able to create the type of places where some of these kids can be placed.

Comment by Demoralized Wednesday, Nov 30, 22 @ 3:29 pm
In no way is this a defense of DCFS, but where do you place a non adult, with severe anger management issues, and a history of violence? How do you find (and pay) persons willing to endure this treatment while attempting to treat these folks? How do you pay for the maintenance of the home that will be continually damaged/destroyed by these behaviors? DCFS and PG can only work with what is available. The reason it isn’t available or a priority: These folks don’t vote.

Comment by Papa2008 Wednesday, Nov 30, 22 @ 3:33 pm
reading this it’s pretty clear DCFS does a lot of work to place these kids. what are they supposed to do when the kids are rejected multiple times? what are they supposed to do when there are no beds for kids with extreme needs ANYWHERE in the entire country? the press pops were great for the public guardian, but maybe he should be focused on working with the department to find the appropriate place for kids instead of dragging them into court every week? just a thought.

Comment by LOL Wednesday, Nov 30, 22 @ 3:50 pm
Years ago DCFS opted to privatize casework services. There are obviously still DCFS caseworkers (as well as private agency caseworkers) but the actual service providers are contractors. The level of care some children need is extremely high and if there is no agency providing those services, there is no one for DCFS to contract with. Maybe it is time for DCFS to re-consider the direct provision of services - at least when children that they are legally responsible for are languishing in inappropriate placements, it is time for DCFS to change how it does business.

And this is not just a DCFS problem. School districts sometimes need residential placements and sometimes families. Talk to anyone who works with schools or non-DCFS involved families with complex child needs and they will tell you about the same problem - the child needs the placement but the placement doesn’t exist.

Comment by Anon for this Wednesday, Nov 30, 22 @ 5:12 pm
I think it’s important to point out that DCFS has failed to hire the many hundreds of positions it been authorized to hire from the legislature.

DCFS has been given resources. Governor JB Pritzker has failed to utilize all of the resources he has been granted.

The staffing problems cascade into every area of the agency and every part of placements and investigations.

Comment by Candy Dogood Wednesday, Nov 30, 22 @ 6:23 pm
I’m a fan of JB but this issue at DCFS and other agencies show a lack of attention to the details of governing. He needs to get a handle on these things through his DGs and directors. Perhaps reorganizing how services are delivered would be a fantastic accomplishment for a second term? Think modern, better, and faster, perhaps cheaper (or not, where appropriate). DCFS, IDOT, medicaid, universities are all ripe subjects.

Comment by Jibba Wednesday, Nov 30, 22 @ 10:06 pm
- Jibba-

Better, faster, cheaper is how we got in this mess. As others have noted, DCFS is basically just a contracting / outsourcing agency … and has been for decades.

It’s time for DCFS / Mental Health to get back in the business of operating a Children’s Orphanage / Metal Health Center as a placement site of last resort. Maybe repurpose one of the Juvinal Correction Facilities as such a center?

Comment by RNUG Friday, Dec 2, 22 @ 9:03 am