Caselaw, Policies, Procedure and Best
Practices in the Intersection of Domestic
Violence and the Illinois Department of
Children and Family Services
Sara B. Block, JD
Flom Incubator Grant Recipient, Skadden Arps LLP
Family Defense Center
Illinois Parent Attorney Network Training
July 18, 2014
In the Words of a Child…
As seen in the words of a child whose mother was abused:
“I always knew she stayed for us. She endured the pain and hell to provide for my
sister and me. She feared we would end up like her--stuck, dependent . . . I cannot
comprehend how the justice system can charge a battered mother with failure to
protect and label her a "bad mother." They say a good mother is one who forgets
about her needs and desires and puts everyone before herself. Is that not what a
battered mother does . . . when she throws herself in the midst of a violent blow, or
distracts the batterer's attention by causing a divergence? Or when she lives twenty
years in a loveless marriage so the children grow up with a male figure in the
house? Or when she's raped just to have health insurance to care for a sick child?
These all seem extremely selfless to me.”
Justine A. Dunlap, Sometimes I Feel Like A Motherless Child: The Error of Pursuing
Battered Mothers for Failure to Protect, 50 Loy. L. Rev. 565, 565 (2004).
2
Presentation Objectives
Understand why the child welfare system cares about domestic
violence
Understand the “best practices” approach for child welfare
intervention with families experiencing domestic violence
Become familiar with Illinois Department of Children and
Family Services’ new rules regarding “environment injurious”
and domestic violence
Become equipped to advocate for families experiencing
domestic violence who are involved with DCFS during
investigations and Administrative Appeals of indicated findings
Presentation Overview









Meet the Jenkins Family
Domestic Violence Defined
Why Child Welfare cares about Domestic Violence
Social Science Research about children living in homes where domestic violence
occurs
Model for Child Welfare Intervention: The Greenbook
Landmark case of Nicholson
Introduction to DCFS’ new administrative rules regarding domestic violence
Using the new rules in practice: Advocacy Tips for investigations
Policy issue regarding the lack of coordinated response to children exposed to DV
Scope: Focusing on involvement with DCFS – involvement with juvenile court will
be covered by other presenters
4
The Jenkins Family
In the Jenkins family, there are three children, ages four, six and nine. Melissa
Jenkins imposed an unbreakable rule in the home: the children were forbidden
to remove their shoes at home- even when they went to bed. By making the
children keep their shoes on at all times, Melissa was preparing them to escape
from home at a moment’s notice –that is the moment her boyfriend, Gary,
became violent. Conceived carefully and practiced in much the same way
schools practice fire drills, Melissa’s plan called for the children to run next
door and alert the neighbors so they could call the police. The nine-year old,
Daniel, was to make sure he took his younger siblings out of the house with
him. That way, Melissa reasoned, the children would avoid becoming direct or
indirect targets of the violence. They would be safe from harm. Every night
after the children had gone to bed – and only after Gary had fallen harmlessly
asleep - Melissa would go to the children’s room and remove their shoes.
Despite these efforts, Melissa continued to be abused. One night, Gary was
beating Melissa. The children woke up from Gary’s shouts and Melissa’s
pleads for him to stop. With their shoes still on, Daniel gathered his siblings to
leave the house to go to the neighbors. On their way past Gary and Melissa,
Gary pushed Melissa and she fell into Daniel, causing him to fall to the ground.
Gary grabbed Melissa again. Seeing that Daniel was physically unhurt, she
instructed Daniel to go with his siblings to the neighbor’s home to call the
police. When the police arrived, the children were across the street, and
Melissa’s face had already begun to swell.
That night, Gary was arrested.
The police also called DCFS.
5
What is Domestic Violence?
6
Terminology
Although men are abused also by their partners,

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Mothers represent a greater percentage of parents involved in the DCFS (CDC, Intimate Partner
Violence: Fact Sheet 2006)
2001 study, men commit 95% of all assaults are on female spouses or girlfriends
Women are 85% of victims, and men are 15%
Non-offending parents =
Mothers who have experienced domestic violence
and
who are involved in the child welfare system
directly or indirectly because of the domestic violence
DCFS now uses this terminology too
•
“The adult victim of domestic violence, who is the nonoffending parent or caregiver…”
7
Domestic Violence is…
…is a pattern of abusive, violent, and/or
intimidating behaviors the batterer uses to
establish and maintain power and control over his
partner.
…the batterer’s choice behavior.
…a crime.
8
DCFS Definition of Domestic Violence
(89 Ill.Admin.Code 300.App B)


“The Illinois Domestic Violence Act defines domestic violence as a crime
in which physical abuse, harassment, intimidation of a dependent,
interference with personal liberty or willful deprivation [750 ILCS
60/103(1) and (3)] is perpetrated by one family or household member
against another. Family or household members include spouses, former
spouses, parents, children, stepchildren and other persons related by blood
or by present or prior marriage, persons who share or formerly shared a
common dwelling, persons who have or allegedly have a child in common,
persons who shared or allegedly share a blood relationship through a
child, persons who have or have had a dating or engagement relationship,
persons with disabilities and their personal assistants and caregivers as
defined in Section 12-4.4a of the Criminal Code of 2012 [720 ILCS 5/124.4a]. [720 ILCS 5/12-0.1]
“Intimate partner violence”
9
Forms of Abuse
10
Parallel Judicial Systems
Child Welfare Services (DCFS)
State/County Administrative
agency that is charged with
protecting the health, safety,
and welfare of children
abuse/Neglect
Provide services to families
Refer cases to Juvenile Court
Oversee foster care
Juvenile Court
Parents fighting for custody
against the State and /or
DCFS in front of a judge
Criminal Court
Prosecution and
punishment for criminal
acts
Civil Court
Parents fighting between each
other for custody
Investigate
Goal of IL Department of
Children and Family Services:
“…protect the best interest of
the child, offer protective
services in order to prevent any
further harm to the child and to
other children in the family,
stabilize the home environment
and preserve family life
whenever possible."
Civil,
yet Quasi-criminal
No right to jury trial in IL
Children may be in foster
care
Judge decides if child was
abused or neglected
Best Interest of Child
Confidential
Prosecuted
by State’s
Attorney
Police Involvement
Jury or Judge
Guilt or Acquittal
Punishment – probation,
prison
Divorce
Custody
Visitation
Child
Support
Orders of Protection
11
Your Task…
Think about a client or family you have worked with
who lived in a home with domestic violence
Keep thinking about your client as we discuss the family
of Melissa Jenkins, who has experienced domestic
violence and DCFS
Does anyone want to share a client story?
12
Why Families Experiencing Domestic Violence
Come to the Attention of DCFS
•
•
•
•
•
DV as Presenting Cause
Children witness/exposed to DV
(all of Melissa’s children)
Children become secondary
victims of DV (Melissa’s son
Daniel)
Child injured while trying to
intervene to protect mother
Targeted recipient of batterer’s
abuse (aka direct child abuse)
(batterer throws 5 day old son
onto couch)
Non-offending parent “fails to
protect” (mother hospitalized over
35 times for domestic violence,
and abuser then hurts son)
•
DV as Underlying Cause
Presenting cause is X, yet X is caused
or exacerbated by domestic violence
•
•
•
Substance Abuse
Mental Illness (mother carries
diagnosis of “Dependent Personality
Disorder”)
Medically complex child
•
•
•
Child diagnosed with “failure to thrive”
(domestic violence as a stressor for
both mother and child)
Physical abuse to child (small child
rolls onto radiator and is burned while
father abuses mother; battered mother
directly abuses child)
Past history of domestic violence,
parents separated, DCFS intervention
reestablishes contact and provides
further access to child and ex-partner
13
How Families Experiencing Domestic
Violence Come to the Attention of DCFS
•
•
•
•
Non-offending parent or neighbor calls police
•
Anecdotal Trend in IL: If police are called for a “domestic” and children are home/children called police,
police will often call DCFS (Melissa)
•
CHALLENGE non-offending parent may be deterred from calling police in the future
•
STRATEGY connect client with the domestic violence liaison in police department
Mandated reporter calls DCFS
•
Medical personnel treating mother or child for DV related injuries or non-related health issues
•
Counselor or teacher at child’s school calls based on child’s statement or observation of injuries or
concerning behavior
•
Non-offending parent’s DV counselor/service provider/shelter staff calls based on observations, statements
•
CHALLENGE for non-offending parents to engage fully in therapeutic process
•
If shelter staff calls, non-offending parent is more likely to leave shelter and return to batterer
•
STRATEGY counsel clients about risks and benefits of engaging in service so they have realistic
expectations and so trust will not be shattered if DCFS is called
Concerned friend/family member/acquaintance calls DCFS
•
CHALLENGE for non-offending parents who may already feel isolated and ashamed to reach out to
support system for help
•
STRATEGY connect clients with services, especially group counseling, while explaining the risks
above
Batterer threatens to and/or calls DCFS
•
CHALLENGE for non-offending parent to leave under threat that batterer makes to call DCFS
•
STRATEGY educate client about DCFS so client would know what to expect from and how to
respond to DCFS intervention, thus making her less fearful of batterer’s threats and deterred from
separating
14
Why the Child Welfare System Cares
15
Why the Child Welfare System is
Concerned about Domestic Violence?
Over 5.3 million instances of domestic violence occur every year
3.3 to 10 million children live in homes with this abuse
Co-Occurrence of Domestic Violence and Child Abuse
•
Studies show that children are being physically abused in approximately half of the homes where the
mother is the known victim of domestic violence
•
≠ child abuse is more likely to occur where there is DV
Domestic Violence is Linked to Fatal Child Abuse
•
DV was identified in around forty percent of families in which children died as a result of child abuse
•
≠ fatal child abuse is more likely to occur where there is DV
Children can be injured when trying to intervene to protect the non-offending parent
DV is a Risk Factor for other forms of child abuse, such as “shaken baby syndrome”
DV can co-occur with other problems that may lead to other forms of abuse or neglect (“co-morbidity”)
Children are often used as a tactic in the batterer’s abuse of the non-offending parent
80-90% of children living in homes with domestic violence are aware of the abuse
16
DCFS’ View of DV
Procedures 300, Appendix J (subject to change with new rules)

Definition of DV:
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Distinction between “Inter Partner Violence:

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The Department defines domestic violence as involving the establishment of
power and control through a pattern of coercive behaviors that include physical,
sexual, verbal, and emotional assaults perpetrated by one intimate partner
against another
Unlike a person with anger issues, domestic violence perpetrators have the
ability to stay in control of their behaviors and behave appropriately in social
settings and may not have a trigger. (Domestic Violence Practice Guide).2
Some domestic violence experts, however, include “inter-partner violence” or
“situational couple violence” as another form of domestic violence. This form
of partner violence does not contain clear power differentials
Witnessing DV:

Child exposure to domestic violence can be defined as hearing the abuse,
witnessing the violence, being abused during the event, or being used as a
manipulation tool against the adult victim (Faller, 2003).
17
DCFS’ View of DV cont…

Harm to Children:
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The effect of the children’s experience of violence may vary by type of violence
to which they are exposed
The long-term effects on children who have experienced violence in the home
are well documented in research.
Child exposure to partner violence is associated with
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Behavioral, emotional, and cognitive functioning problems
Adjustment difficulties that continue into young adulthood
Increases the risk of that child using force in future adult intimate relationships or becoming
a victim of partner violence
Internalizing negative behaviors, such as depression, withdrawal, suicidal behaviors, fears,
phobias, insomnia, bed-wetting, and low self-esteem.
More aggressive and to exhibit behavior problems in their schools and communities ranging
from temper tantrums to fights
“Domestic violence impacts children’s sense of their own safety, security, fear and dread
that it instills in them” (Report of Office of the Inspector General)
Message: DCFS presume s short term and long term harm
18
“The impact of domestic violence on
children ranges from
none to serious.”
- Linda Spears,
Vice President, Child Welfare League of America
Expert testimony in Nicholson v. Williams,
203 F. Supp.2d 153 (2002).
19
Potential Harms to Children Who
Witness Domestic Violence
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Low self-esteem
Depression, anger, fear, anxiety, hyper-vigilance
Eating and sleep disorders
Bedwetting, vomiting
Verbally and physically aggressive behaviors
Guilt, when the child believes he or she is the cause of the abuse
Poor academic performance, problems thinking and reasoning
Lack of compliance with authority
Adolescent alcohol and drug abuse, and dating violence
Jeffrey L. Edelson, In Brief: The Overlap Between Child Maltreatment and Child Abuse, (1999).
Research findings adopted into Second Circuit
20
Social science research from Edelson and
Schechter has shown:
The risks associated with exposure to
domestic violence do not, however,
manifest themselves in the same ways,
or at all, in every child.
21
Effect, if any, of Domestic Violence on a
Child Depends Upon:

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Level of violence
Degree to which child is exposed to the violence
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Other family stressors to which the child may be exposed
Unique coping skills each child has
Protective factors in child’s home
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Child’s proximity
Batterer accountability
Non-offending parent’s support system and resistance to victimblaming
Non-offending parent’s relationship to the child
Presence of parent/caregiver to mediate the intensity of
the event
22
If Exposure to Domestic Violence
Negatively Affects a Child, Relationship
with Non-Offending Parent is Critical
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Children in homes with domestic violence experience increased
trauma when removed from the non-offending parent
These harms will be significantly minimized by remaining with the
non-offending parent in a safe and stable environment
The quality of the child’s relationship with the non-offending parent
is the greatest predictor in his/her recovery from harm (Furstenberg
& Cherline, 1991)
Children can overcome these problems within a relative short time
of safety with the non-offending parent
23
Model for Child Welfare
Intervention in Families
Experiencing Domestic Violence
24
So What Should Be the Goals of
Child Welfare Intervention?
* Enable children exposed to domestic violence to live
with non-offending parent in safety and stability

Advocacy Premises:

Removal further harms children
Failing to hold offender accountable reduces safety

Indicating NOP creates barriers to stability

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Limits employment opportunities
May impact immigration relief
Deterrent for reaching out for help
25
Greenbook Model
for the Child Welfare System’s Response to Families
Experiencing Domestic Violence
In 1999, National Council of Juvenile and Family
Court Judges created:
Effective Intervention in Domestic Violence and Child
Maltreatment Cases:
Guidelines for Policy and Practice
a.k.a Greenbook
26
Core Values of Greenbook
1) Interventions should: create safety, enhance wellbeing
and provide stability for children and families
PHYSICAL SAFETY & OVERALL WELFARE are coequals
3) To ensure stability and permanency, children should
remain in the care of the non-offending parent
whenever possible
3) Creating safety for children experiencing domestic violence
is inseparable from trying to create safety for their
mothers and holding batters accountable for their
choice to abuse
4) Increase collaboration
5) Treat families with respect and dignity
27
Greenbook Research and Principles
Adopted into Landmark Case
Nicholson v. Williams
1st civil rights class action lawsuit that successfully challenged
New York City’s child welfare agency’s practice of removing
children from battered mothers for the sole reason that the
children were exposed to the domestic violence

United States District Court, In re Sharwline Nicholson, 2nd
Circuit, 2002:

Issued preliminary injunction for systematically and repeatedly
removing children from battered mother for the sole reason that the
mothers “engaged in” the domestic violence by being victims of
domestic violence
28
Nicholson continued…

Second Circuit Court of Appeals, Nicholson v. Williams, upheld the
district courts preliminary injunction


Expert testimony from authors of Greenbook, including Jeffrey Edelson
and Linda Spears and cited Greenbook best practices
Key Findings:

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

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
Children can be but are not necessarily negatively affected by witnessing
domestic violence
Exposure to domestic violence impacts children differently
Harms minimized by remaining with non-offending parent in safety
Mistake to define witnessing domestic violence as neglect
Blaming battered parent is counterproductive because she cannot control the
abusers actions
Saying that the non-offending parent “engaged in” domestic violence
mistakes the nature of her role and absolves the batterer of accountability
Desecrates fundamental precepts of justice to blame a crime on a victim
Certified three questions to be answered under NY state law
29
Nicholson continued…

NY Court of Appeals, Nicholson v. Scoppetta, 3 NY.3d 357

Definition of neglected child does not include instances in which sole
allegation is that children have been exposed to DV, but rather the
child’s physical, mental, or emotional condition has been impaired or is
in imminent danger of becoming impaired



Child exposure to DV is not presumptively neglectful
The harm must be the consequence of the parent to exercise a minimum
degree of care based on the standard of a reasonable and prudent person
in similar circumstances
Case settled in federal court before constitutional questions
could be answered
30
Methods for Realizing
Greenbook and Nicholson Core Values:

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Child Welfare Agencies and Juvenile Court:
Examine the non-offending parent’s actions in light of the domestic
violence she has experienced
Conduct individualized assessment of risk and protective factors and
engage in differential response to each family based on unique
experience and needs
Locate actual harm caused to the child and designate appropriate
perpetrator
Build internal capacity and strengthen protective factors to mitigate
the risk of removal
Remove batterer before removing children from non-offending parent
Coordinated Response:
Collaboration and consistent message to families experiencing DV
throughout all points of intervention, including service providers and
court systems
31
Domestic Violence and the Illinois
Department of Children and Family
Services
32
DV and Illinois Law


No separate abuse or neglect ground of “domestic
violence”
In the Illinois Juvenile Court Act and Illinois
Administrative Code, domestic violence is
covered by:


Abuse - “Substantial risk of physical injury (offender)
Neglect - “Environment injurious” (non-offending
parent)
33
“Environment Injurious”
In 2011, DCFS indicated 13,115 cases for
“Allegation 60- Injurious Environment,”
representing 38% of all indicated findings



Means everything and nothing at all
Based on futuristic, protracted, possible harm
Encompasses domestic violence, substance abuse,
mental health, prior harm to a sibling
34
“Environment Injurious” Reform
As of July 2014, on paper, children who have lived in homes
experiencing domestic violence now have a better chance of
remaining with non-offending parent in safety and stability
•
Allegation 10/60 has been rewritten!
• Better distinguishes “substantial risk” and “environment
injurious”
• Incorporates clearer standard (“blatant disregard”)
• Separately defines dv, substance abuse, mental health and
prior harm to a sibling
• Creates a presumption against indicating the nonoffending parent!
35
Road to Reform

Skadden Fellowship in 2007

Focus of fellowship = non-offending parents are not neglectful

First case “broccoli throwing case”
 Statutory Argument

Environment injurious was not contained in ANCRA (authorizing statute)

Legislative history revealed that the ground was contained in ANCRA prior
to 1975, it was removed in 1975 because it was inherently ambiguous, was
not added back in, even when it was added back into the Juvenile Court Act
in 1987

Trying to invalidated the most common category of neglect that DCFS uses

Routinely made these arguments in all EI appeals

Circuit court sometimes agreed, sometimes didn’t

LAF had a case that got to the IL Appellate ground but lost

Julie Q v. DCFS (2013 IL 113783)

Shared argument with FDC

A case based on substance abuse and EI

Appellate Court agreed that the EI as a ground was unauthorized because it was not
contained in ANCAR

Illinois Supreme Court Granted Cert
36
Road to Reform, cont…


Amending ANCRA
 In the meantime, DCFS went to the legislature and lobbied to get “environment
injurious” added back in with a much clearer definition

Environment injurious means that a child's environment creates a likelihood
of harm to the child's health, physical well-being or welfare and that the
likely harm to the child is the result of a blatant disregard of parent or
caretaker responsibilities [325 ILCS 5/3].
Julie Q. Ruling
 In March 2013, IL SC unanimously declared that “injurious environment” was
not an authorized ground of neglect and deemed “void” the DCFS rules and
procedures allowing for investigations and indicated findings based on this
ground
37
Road to Reform, cont…


Ashley M. v. Calica
 Family Defense Center filed class action filed on behalf of class
members who had been indicated for EI in order to compel DCFS to
comply with Julie Q.
 Relief Requested:
 Expungement
 New Rules and Procedures regarding EI
 Negotiations included presenting DCFS with version of rules and
procedures
Emergency Rulemaking in early 2014
 Initial emergency rulemaking looked similar to our proposal during
negotiations
 Two rounds of commenting on emergency rulemaking
 JCAR very receptive
38
The Current Law

Highlights
 Provides clarity in substance and structure to the differences between
substantial risk and EI
 Defines EI to comply with statute
 Real, significant and imminent likelihood of harm is the result of
the parent’s blatant disregard of parental responsibilities
 Parents did not take reasonable precautionary measures to
prevent or mitigate the risk of real, significant and imminent
likelihood of harm to the children
 Special definitions for SA, MH, prior harm to a child, and DV
 DV
 Non-offending parent is presumed to not be neglectful so long as she
took precautionary measures
39
Take a few moments to read through
the 89 Ill. Admin. Code
300.Appendix B (handout)
40
“Environment Injurious” Now
Defined


Environment injurious means that a child's environment
creates a likelihood of harm to the child's health, physical
well-being or welfare and that the likely harm to the child is
the result of a blatant disregard of parent or caretaker
responsibilities [325 ILCS 5/3].
Blatant disregard is defined as an incident where the real,
significant and imminent risk of harm would be so obvious to a
reasonable parent or caretaker that it is unlikely that a
reasonable parent or caretaker would have exposed the child
to the danger without exercising precautionary measures to
protect the child from harm [325 ILCS 5/3].
41
“Environment Injurious” Now
Defined, cont…


This allegation of harm shall also be used when there are
conditions that create a real, significant and imminent
likelihood of harm to the child's health, well-being or
welfare (i.e., domestic violence, intimidation, or a child's
participation in a criminal act) and the parent or caretaker
blatantly disregarded his/her parental responsibility by
failing to exercise reasonable precautionary measures to
prevent or mitigate the imminent risk of moderate to
severe harm.
Factors to consider in taking a report:
 The precautionary measures exercised by a parent or
caregiver to protect the child from harm.
42
“Environment Injurious” and DV




Examples of circumstances that may, though not by themselves, create a real,
significant and imminent risk of moderate to severe harm include, but are not
limited to:
…Defines DV (previously shared on Slide #9)
An incident of past or current domestic violence may qualify for an allegation of
environment injurious if the domestic violence creates a real, significant and
imminent risk of moderate to severe harm to the child's health, physical wellbeing, or welfare, and the parent or caregiver has failed to exercise reasonable
precautionary measures to prevent or mitigate the risk of harm to the child.
The adult victim of domestic violence, who is the non-offending parent or
caregiver, is presumed to not be neglectful or to have created an environment
injurious to the child so long as he or she has exercised precautionary measures
to prevent or mitigate the real, significant and imminent risk of moderate to
severe harm to the child.
43
Key “Environment Injurious” Words


Harm:
 real, significant, and imminent
 likelihood/risk of
 moderate to severe harm to
 child’s health, physical wellbeing or welfare
Precautionary Measures:
 Blatant disregard (ie created an environment injurious) if
 Failed to exercise
 Reasonable
 precautionary measures to
 prevent or mitigate harm (as defined above)
44
Framework for Advocacy




New procedures are needed
Recommend a two-part framework for assessing “environment injurious”
allegations
See Handout entitled “Two-Step Analysis for Assessing “Environment
Injurious” Allegations”
Important Elements
 Only reach Step 2, Precautionary Measures, if Step 1, Harm is met
 Expands examples of precautionary measures
 Creates separate two-part frameworks for general allegations and those
involving dv (and substance abuse, mental health and prior harm to a
sibling)
 Domestic violence analysis involves separate framework for nonoffending parent and offender
45
Take a few moments to read through
the Two-Step Analysis for Assessing
“Environment Injurious” Allegations
(handout)
46
Reform Aims to Accomplish





Being a victim of domestic violence to not make
the NOP neglectful
Accept that the majority of NOP are trying to do
right by their children
Shifting mindsets and bias
Avoid the need to minimize the domestic violence
in order to protect NOP and children
Assign accountability where appropriate and
constructive to do so
47
Advocating for a DV/DCFS
Involved Family
48
Opportunities for Advocacy

Investigation




Relationship between investigator and NOP
Safety /Safety Plan / Removal
Indicated Finding
On Administrative Appeal
All advocacy can be seen within the framework of “harm” and
“precautionary measures”
•
Real, significant, imminent likelihood of moderate to severe harm
•
Precautionary measures to prevent or mitigate real, significant,
imminent likelihood of moderate to severe harms
49
The Child Welfare Investigation
Advising and advocating for a client during the
child welfare investigation can help keep the children with
the non-offending parent in a safe and stable environment
and avoid an indicated finding:
• Establish trust and sense of collaboration toward common
goal between DCFS and non-offending parent
• Assist the non-offending parent in finding safety
• Ensure an individualized assessment of the family
• Advocate that any harm be attributed accordingly
• Focus on precautionary measures in past, present, and
future
50
Useful Resource

Contact DCFS Domestic Violence Specialist, if
necessary
•
DV Specialist can consult with investigator and
supervisor, craft safety plans, help refer to services, and
explain the significance of the DV dynamics, but is not
responsible for ultimate outcome of the investigation
51
Where We Left the
Jenkins Family…
Jenkins Family:
• Police were called after boyfriend Gary pushed
Melissa into her 9 year old son, Daniel, as Daniel
was leaving the house with his younger siblings to
call the police
• Gary was arrested
DCFS began investigating
52
Relationship between NOP and
Investigator
53
Advocacy Tip: Determine Degree of Attorney
Involvement in the Investigation
Strategize with client about attorney’s role during investigation
Options:
•
Speak directly with investigator – when? About what? Purpose?
•
Be present with client when speaking with investigator
Let client do as much talking as possible
•
•
Advise client from behind the scenes in preparation for meetings
•
PERSONAL DYNAMICS between investigator and client significantly impact the
outcome!
Some investigators will be threatened and insulted, which will impact client’s
outcome
Some will welcome the involvement and understand the client’s need for support
•
Goal of Attorney Involvement
•
Ease client’s fears
•
Ensure the proper protocols are followed
•
Ensure information is being share
•
Help develop trust between NOP and DCFS by acknowledging perspectives and
increasing empathy
•
Frame the issue in terms of “harm and “precautionary measures”
•
•
Individualized harm assessment
Focus on what she did/is doing, rather than what she did not do (ie leave)
54
Advocacy Tip: Establish Trust so Collaboration is
Possible
CHALLENGE: Inherent obstacles between DCFS and
NOPs in establishing trust and working together
STRATEGY:
 Understand the perspectives and fears of non-offending
parents when confronted by the DCFS
 Understand the priorities and expectations of DCFS
workers when facing families experiencing domestic
violence
 Engage each side in a mutual dialogue that will protect
the overall safety and welfare of the family
55
Advocacy Tip: Understand and Convey the NonOffending Parent’s Perspective

DCFS involvement is often unwanted and uninvited


The police called DCFS to Melissa’s home
DCFS may require her to confront the abuse before she is
ready

Melissa has never spoken to someone face to face about the
abuse. She has, however, anonymously called the local domestic
violence help line, who connected her with a domestic violence
agency’s hotline. Melissa has periodically called that hotline, and
through those discussions, she developed the plan that Daniel
followed the night Gary was arrested. She has not followed-up
on the agency’s invitation for counseling.
56
Advocacy Tip: Understand and Convey the NonOffending Parent’s Perspective, cont…

The non-offending parent fears that disclosing the
abuse will put her family in more danger



Gary told Melissa that if she ever told anyone about the
abuse, he would kill her. Believing that he would make
good on this threat, Melissa has kept his secret.
The non-offending parent fears that the DCFS
worker will refuse to believe that the abuse is
occurring
The non-offending parent fears that the DCFS
worker will minimize the abuse
57
Advocacy Tip: Understand and Convey the NonOffending Parent’s Perspective, cont..

The non-offending parent fears that revealing the abuse will make her look like
a “bad mother” and that she will be blamed for “staying” – whatever she says
will be used against her

For Melissa, the following quote rings true:
Remaining with a batterer is not about being stupid, masochistic, or
codependent. It is about not knowing to whom it is safe to disclose the
abuse, not knowing what can be done if the shelter is full, not knowing what
to do if the judge does not believe me, not knowing what to do if the shelter
makes me quit my job so the batterer does not follow me back, not knowing
what to do if the prosecutor does not treat my case seriously, not knowing
what to do if I have no job skills and cannot pay the rent without him, not
knowing what to do if he says he will kill me and my children if I leave him,
not knowing what to do if he says he will find me wherever I go, not
knowing whether the judge will give him custody of the children, and not
knowing how I will stay alive in the process of fleeing.
Sarah M. Buel, Family Violence and the Health Care System: Recommendations for More
Effective Intervention, 35 Hous. L. Rev 109, 118 (1998).
58
Advocacy Tip: Understand and Convey the NonOffending Parent’s Perspective, cont…
NOP Fees Defensive

The very fact that an investigation is occurring implicates a distrust of the nonoffending parent and treats her interests as adverse to her children’s

DCFS questions the mother’s ability to care for her children when she knows the
sacrifices she has made for her children.
 Although Melissa has to deal with her own traumas alone, her children are up to
date on immunizations, check-ups, and regularly attend school. Because she
works a minimum wage job, she endures punches and rapes so Gary will help
provide a roof over her children's heads, and food on their plates.

The non-offending parent fears that the steps she took to her protect her children
will be ignored or misinterpreted
 Melissa feels that she is in a Catch 22: if she explains the plan she devised to
keep the children’s shoes on until Gary falls asleep, the DCFS will imagine how
bad the abuse was and this will overshadow the significance of Melissa’s
attempts to keep her family safe under the circumstances. By taking steps to
protect her children, she acknowledged, rather than disregarded, the reality that
Gary may pose a threat to them. Yet, she did not leave.
59
Advocacy Tip: Understand and Convey the NonOffending Parent’s Perspective, cont…
The Non-Offending Parent Feels Powerless and Re-Victimized

DCFS intervention replicates the dynamics of the abuse
because DCFS has the power and control



Melissa knows that the DCFS worker can remove the children
from her and, therefore, she feels at the worker’s mercy. Gary
threatened that one day the children would be taken from her and
now she realizes it’s true.
DCFS may impose conditions on the family that further
strip her of her decision making ability
Domestic violence service providers aim to return power
and control to women who have experienced domestic
violence, but for most parents, DCFS intervention is not
an empowering experience
60
Advocacy Tip: Understand the Investigator’s
Perspective
Non-Offending Parent’s Implication
Domestic violence occurred
She engaged in domestic violence
She did not leave
A child was hurt
A child could have been hurt
She did not protect
She could not control him
She did not leave
61
Advocacy Tip: Understand the Investigator’s
Perspective
•
•
•
•
•
•
•
Mandate to protect children from harm
•
DCFS investigator’s priority is to ensure that Melissa’s children are safe
•
Safety is more tangible than children’s overall welfare and a child’s welfare is jeopardized if they are
not physically safe
Need assurance from non-offending parent that she will take steps to remove the children from the abusive
home
•
Equate safety with separation, although the most dangerous time for a battered woman is when she
separates, as Gary has threatened
Difficult to get clear sense of the abuse
•
Non-offending parent may reveal more over time and stories may seem inconsistent or incomplete
•
Batterer may deny the abuse or be absent from intervention
Domestic violence is a pattern and a cycle, which implies that it repeats
•
Separation is often a progression, so removing children from both parents may be the only way to
conclusively eliminate the risk of harm to the children
The more victimized the mother was/is, the greater the risk to the kids
•
The worse the abuse was → the more risk the children face; the more controlling the batterer is →
harder it will be for her to keep children safe
Backward looking to predict future risk
•
Melissa’s son became a secondary victim of Gary’s abuse. Melissa was not able to prevent this in the
past, so she will likely not be able to prevent such harm in the future
Bias
•
Mistrust non-offending parent’s judgment
•
Belief that most non-offending parents are not choosing the batterer over their children
62
Advocacy Tip: Bridge the Barriers In
Order to Build Trust
With Non-Offending
Parent
Utilize Empowerment
through Advocacy
Model to be a
counterweight to the
unavoidable coercive
nature of investigation
63
With Non-Offending Parent continued…





Reality = prognosis greatly depends on relationship between parent and DCFS
worker
Explain that DCFS and parent have a unified goal – safety and welfare of the
children
Have honest conversations about the significance of the actions she takes now,
such as remaining with the abuser with the children in the home
Educate about the investigative procedure, specifically addressing local child
welfare policies on domestic violence
Discuss ways of communicating effectively with the investigator
 This involves acknowledging that DCFS may force her to confront issues and
take steps before she would have taken them on her own or that make her feel
uncomfortable
 Be prepared to explain why she stayed
 Encourage her to focus her explanations on her view of what was best or
necessary for the children
 Use details!
64
With DCFS Worker





Explain that DCFS and parent have a unified goal – safety and welfare of the children
Response to “Not Leaving”

Nearly 1/3 of women remained in abusive relationships because of concern for the children

Fear of exposing children to the abuser and not being there to shield them is the single greatest
barrier to a survivor mother’s decision to separate

Quote from Greenbook:

A battered woman with children faces two sets of painful circumstances. First she has to
calculate how to protect herself and her children from physical dangers created by her
partner. However, battered mothers also confront a second set of risks, sometimes more
frightening than the first. If, for example, a woman considers separation from her partner to
protect herself and her children, where will she find housing and money to feed her family?
What will she do if her partner reports her to child protection services? What will happen
to her children’s health insurance if she leaves? Who will babysit for the children when she
has to go to work and her partner is no longer there. The second set of factors, or life
generated risks, enters into each battered woman’s calculation of her children’s safety.
Deciding to leave her abusive relationship does not guarantee the elimination of these risks.
In fact, it may bring them to the fore.
Response to “engaging in domestic violence”

A battered mother does not allow herself to be beaten

If domestic violence is occurring, by definition, she cannot control or prevent the batterer’s
choice to abuse
Ask to be present during interviews to facilitate dialogue
Don’t discourage her from getting help
65
Safety
66
What Does Safety Look Like and
Mean…
Non-Offending Parent
•
•
•
•
Safety has risks
Limited options
She has tried before
Feels that she cannot separate
DCFS Worker
• Wants to see a concrete
protective step
•
•
•
•
•
Separation
Shelter
Order of Protection
Change the locks
Criminal prosecution
67
Tool for Evaluating Safety: CERAP


Child Endangerment Risk Assessment Protocol
(CERAP): DCFS’ tool for assessing safety; used at
multiple points during an investigation
DCFS Operating Assumption:


“The Department recognizes in Procedures that the best predictor
associated with future violence is prior violence.”
DCFS Protocol:

“Therefore, whenever a child protection investigator or specialist
learns of violence in the home, they must examine whether the
situation presents a risk of future harm. This analysis is reflected
in the Child Endangerment Risk Assessment Protocol (CERAP).
Under CERAP, if violence is present in the home, the protocol
requires either a mitigating factor (e.g., abuser has left the home)
or implementation of a safety plan.”
68
Current Harm/Safety: Relevant CERAP
Factors

The following CERAP Safety Factors may be relevant when there is violence in the home:
• Any member of the household’s behavior is violent and out of control.
• Any member of the household describes or acts toward child in predominantly negative terms or has
extremely unrealistic expectations.
• 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. •Caretaker has not, will not, or is
unable to provide sufficient supervision to protect child from potentially moderate to severe harm.
• 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.
• Child is fearful of people living in or frequenting the home.
• The presence of domestic violence which affects caretaker’s ability to care for and/or protect child
from immediate, moderate to severe harm.
• Other – serious allegations with significant discrepancies or contradictions by caretaker or between
caretaker and collateral contacts.
• Other – caretaker refuses to cooperate or is evasive.
• Other – criminal behavior occurring in the presence of the child, or the child is forced to commit a crime
or engage in criminal behavior.
Fill out the CERAP for the Jenkins family or family about whom you are thinking
69
Current Harm/Safety: CERAP
Determination


If any of the CERAP Safety Factors are checked
“yes,” the worker must determine whether
sufficient family strengths mitigate the Safety
Factors.
Safety Factor Mitigation/Protective Factors

When domestic violence is present in a home, if the
non-offending caretaker takes steps, on his or her
initiative to remove the abuser from the home or to
move the children to a safe place, the Safety Factor will
be considered to have been mitigated
70
Advocacy Tip: Help Find Safety by Engage in
Options Planning That Avoids Mandates
With Non-Offending Parent
•
Discuss consequences of not making
a concrete change
•
Have her articulate her “ideal”
situation as well as a spectrum of
possibilities
•
Discuss challenges to realizing the
ideal situation or other possibilities
•
Life generated challenges
•
Fear of batterer response
•
Consider suggestions of DCFS
worker
•
Discuss safety risks
•
Have a detailed discussion about
threats abuser has made and how
he has reacted in the past
With DCFS Worker
•
Confront any misassumptions
•
•
•
•
Discuss how suggestions could put
family in more danger
•
•
•
•
•
•
Leaving is a viable solution
Ending the relationship is in the best
interest of the children
Leaving will with stop the abuse
Separation is the most dangerous time
Protective orders have risk
Explain that the non-offending parent
knows her batterer best
Allow non-offending parent to offer
suggestions
Support her suggestions and
supplement with services
Least Restrictive Alternative
71
Advocacy Tip: Support Safety Steps
with Other Resources






Housing:
 Section 8 has a priority program for child welfare involved families
 State law allowing victim of domestic violence to change locks or end
lease (Illinois Safe Homes Act)
Public aid (TANF, food stamps, medical card) and SSI
Utility assistance programs
Education
 McKinney-Vento Act if have to move
Transportation
 Bus passes
Communication
 HopeLine cellular phone recycling through Verizon Wireless
72
Risk Factors to Safety
•
•
•
•
•
•
•
•
A child injured due to domestic
violence
Batterer has threatened to hurt the
child
Batterer has struck the non-offending
parent while holding child
Child tried to intervene
Weapons were used in assault
Non-offending parent has history of
serious injuries and/or
hospitalizations
Significant substance abuse
contributes to domestic violence
Suicide threats (lethality indicator)
•
•
•
•
•
•
•
•
•
Batterer stalks the non-offending parent
and child
Batterer has committed sexual assault of
non-offending parent
Multiple family stressors
Batterer’s whereabouts are unknown
Frequent, chronic, domestic violence
assaults
Non-offending parent and children fear
the batterer
Non-offending parent and children have
no plan for protection from domestic
violence
Non-offending parent was injured
during pregnancy
Batter has made death threats or
threats of serious injury
Risk + Protective Factors = Level of Risk
73
Look at Protective Factors to Safety Risk Now
Advocacy Tip: Provide DCFS
investigator with as many protective
factors as possible




Batterer
NOP
Children
Community
(Examples from DCFS Review of New Domestic
Violence Policy)
74
Protective Factors: Perpetrator’s Resources to
Stop the Abuse













Halts the abuse of the victim or children;
Acknowledges abusive behavior as a problem;
Acknowledges responsibility for stopping the abuse;
Cooperates with current efforts to address abusive behavior;
Is aware of the negative consequences of abusive behaviors on the victim,
children, and
the batterer’s physical well-being, self-image, legal status, social relationships
and
employment;
Cooperates during the interviews;
Is committed to victim safety;
Demonstrates ability to comply with court orders and case plans;
Is respectful of limits set by victim and/or agencies;
Supports parenting efforts of adult victim;
Considers children’s best interests over parental rights.
75
Protective Factors: NOP Resources











Has the ability to plan for children’s safety;
Is willing to seek help;
Has belief in children and self;
Is resistance to the perpetrator’s victim-blaming;
Has work skills;
Use of available money, time and material goods;
Has parenting skills;
Is knowledgeable of the abuser and the situation;
Is healthy and has physical strength;
Uses safety strategies for self and children;
Has a support system
76
Protective Factors: Children Resources







Have the ability to follow safety plans;
Have a positive relationship with the adult victim,
siblings, other family members or neighbors;
Are school age;
Do not have developmental issues;
Take appropriate actions during violence;
Seek help during a domestic violence incident;
Follow instructions from the adult victim about
what to do during a domestic violence incident.
77
Protective Factors: Community
Resources










Victim advocacy/support services
Effective criminal justice response to domestic violence (e.g.,
police, prosecutors, courts, and corrections)
Effective civil and family court response to domestic violence
Welfare and social services
Health care services
Safe housing
Spiritual services
Family/friends of the victim
DHS approved partner abuse intervention programs
Substance abuse treatment
78
If present harm to children/unsafe….

Safety Plan and/or
 Removal
79
Safety Plan: An Alternative to Taking
Protecting Custody
If the Safety Factor is not mitigated, a Safety Plan must be put into place OR
Protective Custody could be taken








DCFS investigator can “suggest” that certain conditions occur during the
investigation, i.e. the parent leaves the house, the child stays with a relative,
or parent engages in substance abuse counseling, parent gets an Order of
Protection, etc.
Creating the conditions can be “collaborative” because ostensibly the NOP
is in the best position to know what the family needs and supportive
resources that are available
Safety Plans are “voluntary,” such that the parent must agree
Safety Plans are not made by a judge and therefore, investigator cannot
“require” the family to comply, but DCFS has the power to remove
children if they have concerns, especially if the Safety Plan is not being
followed
Despite being legally voluntary, Safety Plans feel coercive
Often, DCFS threatens to remove the child if the parent does not agree to
the safety plan
Safety Plans are intended to be temporary, but can often be long-lasting
Not the same “Safety Plan” that a DV advocate would create with a client
80
Safety Plan: Safety Steps

Investigator will likely want to see a concrete act
of separation







Moving out
Going to shelter
Getting an OP
Changing the locks
Ensure that the NOP feels comfortable with these
steps
Avoid placement of children with the offender
Alert the investigator to any additional safety
concerns associated with one of these steps
81
Safety Plan: Services



Investigator can and should provide NOP with
referrals to domestic violence services for her and
her children, including domestic violence
counseling
NOP willingness to engage in services is likely
dependent upon her readiness to confront the
abuse
Refusal to comply with services may lead to
increase distrust and increase the likelihood of
protective custody
82
Protective Custody

Basis: imminent harm to the child by remaining in
custody of NOP
Advocacy Tip:
• Compel the specification of the imminent harm
• Focus on safety steps taken
• Explain how the protective steps mitigate the risk factors
• Return to the social science research by Edelson and Schecter
• Any harm the child has experienced will be significantly
mitigated by living with the NOP in safety and stability
• Children who are removed from NOPs experienced
increased trauma because of the fear of the NOP’s safety
83
When are children unable to remain with NOP in safety
and stability, or when is Juvenile Court intervention
needed?

Cycle of violence is so severe that the children must be
removed in order to avoid imminent harm



Non-offending parent’s physical capability to care for
children is reduced because of injuries/hospitalizations
Other presenting issues such as substance abuse or mental
illness compromises ability to meet minimum parenting
standards


If Gary was not arrested, Gary threatened to hurt the children and
Melissa would not consider leaving
If Melissa misused alcohol as a way of coping with the abuse
Non-offending parent has “turned a blind eye” to the
welfare of her children
84
Review: Key Advocacy Tips Regarding Safety





Past history of abuse will indicate current safety risk
Safety determination are an “in the moment, as we stand” determination
 Blame is not the focus
Be realistic with client that when DCFS says jump, she says, “how high?”
 Cooperate
 Acknowledge existence of DV while highlighting her commitment to her
parental duties
NOP has to take concrete steps, even if she would not otherwise be ready
 Go to a shelter
 Move in with friends
 Change the locks
 Get an OP
 Participate in criminal prosecution
 Children can stay with a relative or friend
If steps would place family in more danger, help client articulate why or speak with
investigator directly
85
The Investigative Finding
86
The Investigative Finding
325 ILCS 5/7.12, 325 ILCS 5/11.1, 325 ILCS 5/11.2a, 325 ILCS 5/11.3
4 Possible Conclusions at the End of the Investigation:
1.
Indicated/Substantiated: credible evidence of abuse or neglect exits
2.
Unfounded/Unsubstantiated: no credible evidence of abuse or neglect
3.
Person Not Implicated: credible evidence of abuse or neglect exists but
committed by someone other than subject of investigation
4.
Undetermined: where it is not possible to initiate or complete an investigation
within 60 days despite every effort to a complete the investigation
Subjects of an investigation will receive written notice of the result of the investigation
specifying the allegations of abuse or neglect and can appeal the indicated findings
Results are retained in State Central Register = a non-public database of those who
have been the subject of CWS investigations



Permissible access to, in part, law enforcement, probation, schools, physician, licensed child
care facilities , coroner, subject of report, guardian ad litem
Mandated reporter who reported may be notified of results if notification ensures the safety of
the child
Publically disclosing information to parties not granted access to reports is a Class A
misdemeanor
87
The Investigative Finding
In layman’s terms…
 Should the NOP be indicated?
•
•
•
Was there harm to the child?
If so, did the harm rise to the level of abuse or neglect?
If so, who was responsible for creating that harm?
Advocacy Tip: Determine strategy
1)
No harm occurred
2)
Harm has not risen to level of neglect
3)
Harm has occurred, rose to the level of abuse/neglect at
hands of batterer, NOP did not “blatantly disregard
parental duties”
88
A Tool for Assessing Whether NOP should be
Indicated: The Domestic Violence Screen (handout)
Purpose of the Domestic Violence Screen, CANTS 17A/DV
•
•
Gather information about the DV that is occurring, assess harm rise to level of
abuse/neglect, assign responsibility
Tool to analyze where Allegation 10/60 has been met
Advocacy Tips:
 Provide a copy to NOP
 Speak to investigator/supervisor to ensure the DV Screen is completed
 Review questions and brainstorm answers with NOP; prepare NOP for
investigative interview


Ask to present during the interview


Provide NOP with a written list of Mitigating and Protective factors to review
before meeting
IMPORTANT to gauge the investigator’s response to determine if attorney
presence would be helpful or hurtful
Request assistance from DV Specialist if necessary
89
The Domestic Violence Screen, cont…
Evidence of Domestic Violence

Significant Indicators of Domestic Violence

Third party reports of domestic violence.

Criminal history of assault or damage to property that has been verified through
LEADs

Physical injuries to an adult (e.g., bruises, cuts, black eyes, marks on neck).

One partner seems to control everything (e.g., answers questions for the other
partner).

Observed damage to home (e.g., phone ripped from wall, holes in wall, broken doors
or furniture)

Self-reported incident or incidents of domestic violence.

One partner uses children to control what the other partner says, does or thinks

Prior or current police involvement for domestic violence.

An existing order of protection

A history of receiving domestic violence services.

Verbal Indicators

Has your partner ever tried to keep you away from your family, friends, work or
neighbors?

Has your partner ever threatened you or done something else that frightened you?

Has your partner ever pushed, slapped, punched, kicked or hurt you in other ways?
90

Has your partner ever threatened to use the children to control you in any way?
Domestic Violence Screen, cont…
Assessment and Level of Risk:
1)
Was or is there physical danger posed to the child from the batterer? (harm)
2)
Does the physical, developmental, or emotional impact of the domestic
violence on the children rise to the level of suspected abuse or neglect?
(harm)
1)
3)
4)
Real, significant, imminent likelihood of severe to moderate home
Are there strategies the adult victim has used in the past that can be supported
or strengthened to protect the children? (precautionary measures)
Has the batterer ever used or threatened to use weapons of any kind?
…
(Domestic Violence Screen looks back in time; CERAP focuses on the present)
Please fill out the Domestic Violence Screen for the
Jenkins or the family about whom you have been
thinking
91
Reminder of Legal Standard


An incident of past or current domestic violence may qualify for an
allegation of environment injurious if the domestic violence creates a
real, significant and imminent risk of moderate to severe harm to the
child's health, physical well-being, or welfare, and the parent or
caregiver has failed to exercise reasonable precautionary measures to
prevent or mitigate the risk of harm to the child.
The adult victim of domestic violence, who is the non-offending parent
or caregiver, is presumed to not be neglectful or to have created an
environment injurious to the child so long as he or she has exercised
precautionary measures to prevent or mitigate the real, significant and
.
imminent risk of moderate to severe harm to the child
Advocacy Tip: Remind investigators about the
presumption against indicating !
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Step 1: HARM
Advocacy Tip: Individualized Assessment of Harm
Rather than “One Size Fits All” Approach
Real, significant, imminent likelihood of moderate to
severe harm
•
•
•
Child Specific
Past likelihood of harm
Future harm that child could experience
•
≠ children who witness abuse will become abusers
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Level of Exposure
Level of
Involvement
Severity of abuse
Quality of
Relationship
With NonOffending Parent
Impact of
Domestic
Violence
On Children
Availability of
Support System
Physical Injury
Age
Coping Skills and
Resources
Temperament
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Assessment of Child’s Exposure to the Domestic
Violence
Gather information from non-offending parent, batterer, other witnesses,
police reports and the child
Discussion with the Child
•Does hitting or yelling occur in your family?
•Have they been hit or hurt when there is hitting or yelling?
•What happens when there is hitting or yelling in their family?
•If there is yelling, who does it?
•If there is hitting, who does it?
•What happens before the hitting starts?
•What do you do when there is hitting or yelling?
•Has anyone gotten hurt?
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Child’s Interpretation of the Experience
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Is there fighting at home?
Who does the fighting?
What do you do when there is fighting?
What do your siblings do?
What do you think causes the fighting?
How does the fighting make you feel?
Do you feel safe at home?
What do you think causes you to be afraid?
Do you think about the fighting in the family?
Do you think about it while at school or playing?
Do you have trouble sleeping at night?
What would you like to see to make your family better?
Have you talked to anyone about the fighting at home?
What happens when you do something wrong?
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Manifestation of Potential Harms
External Indications
Physical
•
Medical problems
•
Injuries or health issues related to DV
•
Health changes in recent months
•
Unexplained pains, injuries, illnesses
Emotional
•
Emotional changes – withdrawn, sad,
irritable, anxiety, nightmares
•
Bedwetting
•
Suicidal thoughts or acts
Behavioral
•
Behavioral problems at home, school or
with peer relationships
•
Used physical force or threats against
others
•
Dealing with anger in concerning ways
•
Trouble eating, sleeping, running away,
alcohol or drug abuse, sexual behavior,
cutting, harming animals, or destroying
toys
Social
•
Learning problems
•
Trouble making friends
•
Difficulty responding to adult authority
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Advocacy Tip: Conclusion of Harm
Analysis

If no real, significant,
imminent likelihood of
moderate to severe harm →
Unfound

If real, significant,
imminent likelihood of
moderate to severe harm →
Precautionary Measures
analysis
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Step 2: PRECAUTIONARY MEASURES


The parent exercise reasonable
precautionary measures to prevent
or mitigate the risk of harm to the
child.
The adult victim of domestic
violence, who is the non-offending
parent or caregiver, is presumed to
not be neglectful or to have created
an environment injurious to the child
so long as he or she has exercised
precautionary measures to prevent
or mitigate the real, significant and
imminent risk of moderate to
severe harm to the child.
Look to the Past
•Past
•Incident
•Current response
•Advocacy Tips:
•The devil is in the details
•The VAST majority of NOPs
have taken countless steps to
protect their children
• May not be immediately
apparent to NOPs because
precautionary measures have
been/part of their method of
survival
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Examples of Precautionary Measures
(not currently in DCFS rules or procedures)
General
Domestic Violence
•Attempts to stop the cause of the likelihood of
harm
•Takes steps to protect child from the likelihood
of harm
•Responds to any harm the child has
experienced
•Reaches out to support system
•Utilizes social services to address needs in the
family
•Possesses and utilizes parenting skills
•Maintains a healthy and loving relationship
with the child
•Attends to the child’s emotional,
psychological, physical, educational and
medical needs
•Meets the child’s medical, psychological and
education needs, when appropriate
•Maintains a healthy and loving parental
relationship with the child
•Provides stability – emotional, educational,
relational, financial – for the child
•Cooperates with current efforts to address
stressors or risk factors in the home
•Considers child’s best interest
•Uses knowledge about the abuser and the situation
•Uses safety strategies for herself/himself and the child
•Takes preventative measures to keep the child safe in case an incident of
domestic violence occurs (ie keeping coats and shoes near the child’s bed in
case the non-offending parent and child need to leave)
•Attempts to keep the child safe from harm during an incident of domestic
violence (ie moving to a room where the child is not; telling the child to leave
the area where the domestic violence is occurring; instructing the child to seek
outside help that the child can reasonably be expected to do; shielding the child
from witnessing the domestic violence)
•Discusses with the child a plan to maintain safety during an incident of domestic
violence
•Develops a domestic violence safety plan individually or with the assistance of an
advocate
•Physically defends herself/himself in attempt to stop the perpetrator of abuse from
harming him/her or the child
•Acknowledges the potential impact that domestic violence can have on the child
•Utilizes a support system
•Attends individual therapy or domestic violence counseling
•Seeks guidance from religious leadership
•Calls the police
•Seeks legal assistance
•Obtains or attempts to obtain an Order of Protection or to initiate other legal
proceedings
•Ceases the relationship with the perpetrator of the domestic violence
•Restricts the access of the perpetrator of domestic violence to the non-offending
parent/adult victim and child
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Concrete Ways the Non-Offending
Parent Protected Her Children











Fighting back and defying perpetrator
Not fighting back and complying with
perpetrator requests
Trying to improve relationship
Sending children away from the home
Remaining silent and not telling anyone
for fear of making it worse
Leaving to try to make things better
Returning to try to make things better
Enduring a beating to keep the batterer
from attacking the children
Moving to a less dangerous room when
being abused or to a room where children
are further away
Establishing safety plan with her children
Avoiding the perpetrator











Calling the police, seeking help from
family
Getting protective order
Going to shelter
Trying to get help for perpetrator
Dropping the protective order or
withdrawing from help
Learning to be devious to survive
Encourage perpetrator to drink so he will
pass out and not hurt anyone
Reasoning with the perpetrator and
expressing disapproval of his behavior
Having sex to placate the perpetrator
Drinking and using drugs to numb the
pain
Lying about the perpetrator’s criminal
acts or child abuse so he will not further
hurt the victim children
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Advocacy Tip: Conclusion of
Investigative Harm Analysis

Precautionary Measures →
Presumption Intact →
Unfound

No precautionary
measures→
Indicate
102
DCFS Intervention Should Focus
on…
Reducing
Risk
(safety +
wellbeing, Balance
Harms)
Mitigating
Harm to Child
(remaining with non-offending parent)
Strengthening
Protective Factors
(building capacity to maintain safety)
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Intervention for Melissa Jenkins
DCFS Assessment


Risk to children: SAFETY
 Ongoing domestic violence as
evidenced by Melissa’s approach
 No threats to hurt children
 No lethality indicators
 Children present in home when
occurring
 Daniel could have been hurt
 Other children were young
Harm to Children
 No nightmares, no bedwetting,
doing appropriately in school
 Children demonstrated bond to
Melissa


Precautionary Measures/Protective Factors

Meeting needs of children:

Melissa up to date on immunizations
and healthcare

Called Hotline for help

Melissa had a safety plan

Shoes

Instructed children to leave and call
police

Children able to follow safety plan

Melissa signed police complaint and
participated in criminal case

Melissa expressed concern for children

Strong relationship with children
Intervention

Assisted Melissa in changing locks

Referred children and Melissa to domestic
violence counseling

Accompanied Melissa to get protective
order

“Indicated” Gary but not Melissa
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On Administrative Appeal of Indicated Findings:
Arguments and Evidence

Harm


Cross examination of
investigator about the
specific manifestations of
harms that are not present
Expert witness about the
impact of the domestic
violence on the children

Precautionary Measures



NOP testimony about
protective steps
Testimony from
supportive services
Enter into evidence:



Order of Protection
New lease
Change of locks
Cross fingers that new rules lead
to better outcomes during
investigations and on appeal
105
Policy Issue
106
GOAL: Coordinated Community Response
CHALLENGE: Mixed Message – View same behavior
differently depending upon the nature of the case
STRATEGY: which forum is the most appropriate place to
try to achieve client’s objectives?
Children exposed to Domestic Violence…
DCFS/JC
NOP is at
fault
OP
NOP is a
victim
Divorce/Custody
DV is not
determinative of
custody
Criminal
Separate
offense or
aggravating
factor in
sentencing
107

DCFS/Juvenile Court: particularized harm should be needed

Message to non-offending parent


Interpretation of Roles


Non-offending parent and batterer are co-child abusers/neglecters
Effect on Children



You have done something wrong
Could be removed from non-offending parent
Non-offending parent has to vow separation and no contact with battering partner
Protective Order Court: no particularized harm needed

Message to non-offending parent


You are a victim
Interpretation of Roles




You are a victim, Respondent is the perpetrator
IL will not issue mutual protective orders
Victim cannot violate a protective order
Effect on Children


Children can be protected by virtue of living in the same home as victim – do not
need to prove any actual risk or harm
IL protective order can give a parent temporary custody but unsupervised visitation is
still common
108

Divorce/Custody/Visitation

Message to non-offending parent

The abuse to you may not be enough to prevent unsupervised contact with the children

Interpretation of Roles

Neither parent is a great option
 Non-offending parent should not have chosen to be with someone who abuses her
 Batterer might treat mom badly but that does not mean he is a threat to the children

Effect on Children: particularized harm needed

Many batterers get custody or unsupervised visits

“Ongoing abuse” is a factor in determining custody, but is not determinative

Non-offending parent must show a link between past abuse and harm to the children

Criminal Court

Message to Non-offending parent

DV is a crime

Interpretation of Roles

Victims of crime cannot be held responsible for the crime committed against them

Batterer’s actions are a violation against the People of IL, not just the complaining witness

Effect on Children: no articulated harm needed

Enhanced, Modified or Mandatory minimum penalties for committing domestic violence in
the presence of children: AK, AZ, CA, FL, HI, ID, IL, OH, Ok, OR, PR, WA

Committing domestic violence in the presence of children is a separate crime: DE, GE, UT
109
With questions, case consultation or to report
progress in your cases under the new rule, please
contact:
Sara Block
Flom Incubator Grant Fellow
Family Defense Center
847-708-7016
sbdblock@gmail.com
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