Thomas More Society's Response For Illinois Catholic Charities' MEMORANDUM IN OPPOSITION TO DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT

IN THE CIRCUIT COURT FOR THE SEVENTH JUDICIAL CIRCUIT
SANGAMON COUNTY, ILLINOIS

CATHOLIC CHARITIES OF THE DIOCESE )
OF SPRINGFIELD-IN-ILLINOIS, an Illinois )
non-profit corporation, et al., )
) Case No. 2011 MR 254
Plaintiffs, ) Hon. John Schmidt
) Presiding Judge
vs. )
)
STATE OF ILLINOIS, et al., )
)
Defendants, )
)
SUSAN TONE PIERCE, et al., )
)
Intervening Defendants. )

NOTICE OF FILING

TO: Deborah L. Barnes, Esq.
Assistant Attorney General
500 South Second Street
Springfield, IL 62706
Tel. 217-782-5819
Fax 217-524-5091
Attorney for Defendants
Brent D. Stratton, Esq.
Chief Deputy Atty General
100 W. Randolph St., Ste.10-100
Chicago, IL 60601
Tel. 312-814-6234
Fax 312-814-1436
Attorney for Defendants

Harvey Grossman, Esq.
Roger Baldwin Fdn. Of
ACLU, Inc.
180 N. Michigan Ave.
Suite 2300
Chicago, IL 60601
Tel. 312-201-9740
Fax 312-288-5225
One of Attorneys for
Intervening Defendants

Please take notice that on the 15
th
of August, 2011, the undersigned counsel for Plaintiffs
herein caused to be filed with the Clerk of the above Court the following papers: Plaintiffs
Memo in Opposition to Defendants Cross Motion for Summary Judgment; Plaintiffs Memo of
Law in Opposition to Intervenors Motion to Dismiss Their Second Amended Complaint or, in
the Alternative, for Summary Judgment; Patricia Foxs Fourth Declaration; Glenn Van Curas
Third Declaration; Anthony Riordans Declaration; Gary Huelsmanns Second Declaration;
Steve Roachs Third Declaration; Lynda Lower-Sharps Declaration; Monsignor Michael
Bolands Declaration; Jimmy Lagos Declaration; Michele Martins Declaration; Sister Lea
Stefancoveas Declaration. Copies of all of the foregoing court papers are served on you
herewith.
____________________________________
One of the Attorneys for Plaintiffs
1 of 3 Case No. 2011 MR 254

Of Counsel:
Thomas Brejcha
Peter Breen
Thomas More Society,
A public interest law firm
29 South LaSalle Street Suite 440
Chicago, IL 60603
Tel. 312-782-1680
Fax 312-782-1887
ARDC # 0288446
Attorney for all Plaintiffs

Bradley E. Huff
Richard Wilderson
Graham & Graham, Ltd.
1201 South Eighth Street
Tel. 217-523-4569
Fax 217-523-4656
Attorneys for Catholic Charities for
the Diocese of Springfield in Illinois

Patricia Gibson
Chancellor & Diocesan Counsel
Diocese of Peoria
Spalding Pastoral Center
419 NE Madison Avenue
Peoria, IL 61603
Tel. 309-671-1550
Fax 309-671-1576
Attorney for Catholic Charities
for the Diocese of Peoria

James C. Byrne
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828
for the Diocese of Joliet, Inc.

David Wells
Catherine A. Schroeder
Thompson Coburn LLP
One US Bank Plaza
2 of 3 Case No. 2011 MR 254

St. Louis, MO 63101-1611
Tel. 314-552-7500
Fax 314-552-7000
Attorneys for Catholic Social
Services for Southern Illinois,
Diocese of Belleville

CERTIFICATE OF SERVICE

Thomas Brejcha hereby certifies that he is one of the attorneys for the plaintiffs herein
and that he caused copies of the foregoing Notice of Filing to be served on all persons listed on
the attached Service List by electronic delivery from tbrejcha@thomasmoresociety.org to the
ascertainable email addresses of all said persons and/or by telefax to said persons telefax
addresses of record, and also by first class mail in envelopes property addressed, bearing U.S.
first class postage prepaid, and depositing same in the U.S. mail chute at 29 So. LaSalle St., Suite
440, Chicago, IL 60603, this 15
th
day of August, 2011.

___________________________________

3 of 3 Case No. 2011 MR 254


non-profit corporation, CATHOLIC CHARI- )
TIES OF THE DIOCESE OF PEORIA, an )
Illinois non-profit corporation, CATHOLIC )
CHARITIES OF THE DIOCESE OF JOLIET, )
INC., an Illinois non-profit corporation, and )
CATHOLIC SOCIAL SERVICES OF SO. )
ILLINOIS, DIOCESE OF BELLEVILLE, an ) Case No. 2011 MR 25
Illinois non-profit corporation, )
vs. ) Judge Presiding
)
STATE OF ILLINOIS, LISA MADIGAN, in )
her official capacity as the Attorney General )
of the State of Illinois, ERWIN McEWEN, )
in his official capacity as Director of the Dept )
of Children & Family Services, State of Illinois, )
the DEPARTMENT OF CHILDREN & FAM- )
ILY SERVICES, State of Illinois, ROCCO J. )
CLAPSS in his official capacity as Director of the)
Department of Human Rights, State of Illinois, )
and the DEPARTMENT OF HUMAN RIGHTS, )
State of Illinois, )
Defendants. )
and )

SUSAN TONE PIERCE, as Next Friend and on )
Behalf of a certified class of all current and )
Future foster children in custody of DCFS in )
B.H. v. McEwen, No. 88 cv 5589 (N.D.Ill. 1988); )
SARAH RIDDLE and KATHERINE )
WESEMAN, )
Intervenors. )
______________________________________________________________________________

PLAINTIFFS MEMORANDUM IN OPPOSITION TO
DEFENDANTS CROSS MOTION FOR SUMMARY JUDGMENT

Preliminary

Defendants cross motion for summary judgment largely rehashes the same failed legal
1

arguments which they raised last month in objecting to plaintiffs motion for preliminary
injunction. Although partly re-packaged and dressed up in new glossy rhetoric, those worn
arguments should fare no better now than when this Court rejected them over a month ago. The
material facts at the storm center of this entire lawsuit remain undisputed, indeed beyond any
genuine dispute. Those facts warrant a summary judgment for plaintiffs, as a matter of law.
The most glaring example of defendants new slants and spins on the incontrovertible
facts of record here the same facts that have been before the Court from the inception of this
case touches the core of plaintiffs case. Defendants are now trying to trump up a claim that
the parties were in a dispute over the terms of the parties proposed new Fiscal Year (FY)
2012 child welfare services contracts, which arose when plaintiffs unilaterally tried to dictate
new terms to the defendant, Department of Children & Family Services (DCFS), which DCFS
could not, and would not, accept. Defendants claim that plaintiffs insisted that DCFS engage in
illegal discrimination. DCFS refused and, as a result, there was no meeting of the minds
between the parties (e.g., Def. Memo, pp. 2, 30 fn. 13). Summing up, defendants assert that no
case states that under Illinois law, freedom to contract is the freedom to demand a contract from
the state on ones own unilateral terms (id.).
But all this is mere spin. The plain truth is that, after some four decades of contractual
relations, defendants suddenly refused to enter into another contract with plaintiffs for FY 2012
for an illegal reason. Plaintiffs were thus debarred, declared ineligible for any future contract
with the State of Illinois, without prior notice or an opportunity for hearing, on the expressly
stated ground that they were violating the Illinois Religious Freedom Protection and Civil Union
Act a reason devoid of legal basis in Illinois law.
Defendants themselves admit it is not disputed that the contracts at issue are entered into
2

annually upon the start of each fiscal year (id., p. 30). Moreover, [t]hese contracts are not
competitively bid, as they are purchase of care contracts, which are exempt from the
Procurement Code under 30 ILCS 500/1-10(b)(3) (id., p. 4, fn. 1), and DCFS has the authority
to enter into these contracts (id., p. 4). On pp. 4-5 of their Memorandum, defendants quote
paragraphs 4.12 and 4.14 of the fiscal year 2011 contracts, each of which required the contractor
i.e., the plaintiffs to comply with all applicable federal, state, and local laws, etc. and were
subject to the laws and rules of the State of Illinois, etc. (id., pp. 4-5). Then defendants
concede, as they must, that:
7. Proposed contracts for fiscal year 2012 contain the same language as set out in
Paragraph six, above. (id., p. 5).

That is, there was no clash between the parties over the terms of the new 2012 contracts,
let alone any unilateral demand by plaintiffs that the State of Illinois agree to some new or
variant terms! On the contrary, it was DCFS which sent the proposed new contracts for FY 2012
to each of the plaintiffs, which each of the plaintiffs then executed and returned to DCFS, and in
relevant parts those new FY 2012 contracts contained the same terms as the 2011 contracts
terms that repeated the boilerplate commitment by DCFSs contractors to comply with all of the
applicable Illinois laws. Plaintiffs agreed to those terms, signing them just as the defendants
proposed them, without changing a single word or phrase!
What the parties really are disputing, therefore, is not any newly, let alone unilaterally
dictated contract terms, but rather what DCFSs standard term, requiring compliance with the
applicable Illinois laws, means for plaintiffs, who claim 1) they are not bound by that law, and 2)
they are exempt from compliance with that law, namely, the Illinois Religious Freedom
Protection and Civil Union Act. What is squarely presented here, therefore, are clear cut
questions of law. Are plaintiffs bound, and if so, are they exempt?
3

Similarly, the Attorney General is now enforcing the Illinois Human Rights Act, from
which plaintiffs also are exempt.
Moreover, both of those Illinois laws may not be enforced against plaintiffs by reason of
a third Illinois law, namely, the Illinois Religious Freedom Restoration Act.
Thus this case is a classic candidate for entry of a series of declaratory judgments over (1)
the meaning of agreed contract terms, which commit the contracting party to comply with the
applicable Illinois laws, and (2) the parties conflicting interpretation of the three Illinois laws, as
to whether they bind plaintiffs, exempt the plaintiffs, or are precluded from application to
plaintiffs.
The July 8, 2011, letters which DCFS sent to all four plaintiffs (Def. Memo, p. 6, par. 12,
fn. 3 & accompanying text, Exh. 2) made explicit that it was the parties different interpretations
of law that proved decisive, and no other consideration. Thus DCFS Director McEwen wrote to
each plaintiff that DCFS would not countersign the 2012 contracts only because plaintiffs made
it clear that they do not intend to comply with the Illinois Religious Freedom and Civil
Union Act, 750 ILCS 75/1 et seq. [which] applies to foster care and adoption services. As a
result, DCFS would insist on transitioning cases to other providers. Defendants are bound by
that sole stated reason for declaring an end to the parties ongoing contractual relationship, either
as a matter of estoppels or pursuant to Illinois mend the hold doctrine, as described by Judge
Posner in Harbor Ins. Co. v. Continental Bank N.A., 922 F.2d 357, 362-63 (7
th
Cir. 1990). It is
too late for defendants to conjure up new or other grounds as their stated basis for trying to eject
plaintiffs, which number among their best performers, from Illinois child welfare system.
Plaintiffs were denied any notice or hearing at which to counter this unilateral,
precipitate, arbitrary, capricious, and illegal action by defendants.
4

Defendants also now argue as if to hand plaintiffs a consolation prize that plaintiffs
had been licensed as private child welfare agencies under the provisions of 225 ILCS 10/2.08,
and continue as such because those licenses to provide child welfare services have not been
removed, nor has the [DCFS] given them notice that their licenses will be terminated if they do
not hold contracts with the agency (id., p. 4, 2). But that fact weighs heavily in favor of
plaintiffs claim, for why should they be so summarily dismissed from eligibility for further
contractual services rendered to DCFS and the children and families they serve. Indeed, it was
shortly before the defendants decision to declare plaintiffs ineligible for further service contracts
when plaintiffs licenses were renewed and those renewals were effective for multiple years
into the future. These renewals were based upon plaintiffs very positive evaluations and
reviews on the part of DCFS, which ranked plaintiffs among the highest rated performers in
terms of quality of service and achievement of permanency results, as compared to all other
Illinois child welfare agencies providing foster care and adoption services.
But defendants omit mention of the fact that any proposal to remove plaintiffs licenses
tacitly conceded to constitute a property interest fully deserving of due process protections
would have triggered an elaborate regulatory scheme mandating notice and hearing. See, 89 Ill.
Adm. Code 383.85 et seq. Yet while defendants do not, as they could not, legally take away
plaintiffs licenses without prior notice and opportunity for hearing (especially given plaintiffs
exemplary performance), the use of those licenses effectively would be frustrated, if not wholly
thwarted, by DCFSs illegal refusal to enter into new contracts with plaintiffs, without basis in
law. Why so? Because if DCFS ceases the referral of new cases to plaintiffs (as it tried to do
even after this Court entered its preliminary injunction nunc pro tunc as of July 12, 2011),
plaintiffs who receive new children [for placement with foster parents] to replace children
5

[they] move to permanency, and [who] rely on the steady flow of new children to maintain a
consistent staffing level and to budget for [their] operations, could no longer stay in business.
See, Plaintiffs Motion To Clarify The Preliminary Injunction, etc. filed shortly after July 12th,
plus accompanying Second Declarations of Steven Roach, quoted supra, Patricia Fox, and Glenn
Van Cura). Compare, Balmoral Racing Club v. Illinois Racing Bd., 151 Ill.2d 367, 405-06
(1992)(every racing license creates a property interest because [w]ithout racing, a racetrack
becomes useless [r]acing is the business of the racetrack this interest in maintaining an
occupation makes Balmorals interest in retraining a license a property interest which cannot be
denied without affording due process). Similarly a child welfare agency license to handle foster
care and adoption cases would be useless absent the ongoing referral of new cases by DCFS,
and also has been held to constitute a property interest, deserving of due process protections.
Easter House v. Felder, 910 F.2d 1387, 1395, 1408 (7
th
Cir. 1990)(we conclude that Easter
House had a property interest in the renewal of its license).
Defendants renewed effort to deny that plaintiffs have any legally protected interest
warranting due process protection on the part of this Court founders anew on the shoals of the
Illinois Supreme Courts decision in Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill.2d 540,
546-47 (1977), not to mention Buetell v. Walker, 59 Ill.2d 146, 151-52 (1974), and the host of
other precedents cited in Bio-Medical, supra, not to mention Easter House, supra, dealing
specifically with a child welfare agency license.
Defendants citation and discussion of the Polyvend litigation (Def. Memo, p. 27) proves
this beyond peradventure. Defendants argue that in Polyvend, Inc. v. Puckorius, 77 Ill.2d 287
(1979), the court rejected the similar claim of a license plate manufacturer that was denied a
contract with the State of Illinois after several years of having such a contract. The Supreme
6

Court stated clearly that simply [b]eing awarded the contract in a given year did not give rise to
any right or interest in future State contracts, which were entirely independent matters. Id. at
298. The court found that standing is an issue equally pertinent to the present controversy,
quoting from Perkins v. Lukens Steel Co., 310 UI.S. 113, 127 (1940).
But this ignores the thrust of what our Illinois Supreme Court said in Polyvend, which
fully supports plaintiffs in this case. Thus the Court said the following in that case, clearly
distinguishing Bio-Medical in a way that proves that plaintiffs in this case have an even stronger
claim to due process protection than did the plaintiff in Bio-Medical:
This right to continuing participation in an ongoing program, which was
recognized as a protectable legal right by the court, arose by virtue of the fact that the
plaintiff had participated in the Medicaid program for approximately eight years
prior to the decision of the Director to suspend. The program was a continuing one,
not requiring annual competitive bids, in direct contrast with the present case,
where plaintiff was not a participant in an ongoing, continuous program. Rather,
there was simply an annual invitation to bid and a resulting annual award of the license
plate contract. Being awarded the contract in a given year did not give rise to any right or
interest in future State contracts, which were entirely independent matters. While
plaintiff may have had an abstract concern in being awarded the 1979 license plate
contract, it certainly did not have a legally protectable property interest and, absent such
an interest, a prospective government contractors bid does not trigger due process
safeguards. (77 Ill.2d at 298)(emphasis supplied).

In light of these authorities, Bio-Medical, Polyvend, Buetell, and Easter House, as well as
the many cases cited in these precedents, it is indeed free from doubt and an eminent candidate
for summary judgment that plaintiffs four decade long ongoing, non-bid contractual relationship
with DCFS a relationship which had flourished to the parties mutual benefit, and for the
benefit of many thousands of Illinois children and families gave rise to a legally protected
interest on plaintiffs part, as a matter of law. If the plaintiffs mere approximately eight
years prior tenure in the Medicaid program warranted due process protection in Bio-Medical,
then it is a fortiori that plaintiffs after four decades deserve such protection here!
7

It is all too clear, therefore, that if plaintiffs were deemed ineligible for, or debarred
from, state contracts by the defendants on patently illegal grounds, or if they reached that
decision without timely notice or opportunity for hearing, as plaintiffs have argued, then this
Court is fully empowered to declare it to be so, upon the undisputed facts at bar. Moreover, this
Court should not hesitate to fashion a remedy tailored to the exigencies of this case, barring
defendants from continuing to give effect to that illegal decision. That is a far cry from
unilaterally dictating, or forcing, contract terms upon a sovereign State, but rather enforcing
the laws of the sovereign against those guilty of having violated them.
We now address some of the more particularly notable misstatements and errors in the
defendants cross motion for summary judgment, relying in the main and incorporating by
reference our extensive legal argument on many pertinent points in our multiple other
submissions in this case.
I. DEFENDANTS MISSTATE OR DISTORT MANY UNDISPUTED
FACTS OR RIP THEM FROM THEIR CONTEXT

We already have addressed many of the spins contained in the defendants list of
undisputed facts, which sought to divert the Courts focus on the plain and simple facts, as
pled in the Second Amended & Supplemental Verified Complaint (whose averments are for the
most part uncontradicted on the record), that the parties dispute was over questions of law,
which were incorporated into contract terms, barring contractors such as plaintiffs from failures
to comply with the applicable law. As plaintiffs argue extensively that they are fully in
compliance with law, there is no evidence on the basis of which defendants may properly brand
plaintiffs as guilty of discrimination. That is a legal conclusion, not an undisputed fact.
Indeed, it is the pivotal question in this case. Observance of religious practice in fulfillment of
ones mission as a sectarian adoption agency is a legally protected exercise of religion,
8

indeed it is a civil right and a civil liberty deserving of legal protection, and not condemnation as
illegal discrimination. Here, the shoe is really on the other foot. The State of Illinois seems
insistent on failing to follow its own laws.
Plaintiffs actual religious practice in discharge of their mission to serve the needs of
vulnerable Illinois children and families a mission that is both secular and sacred on the part of
plaintiffs is delineated in detail in additional declarations submitted, together with this
responsive memorandum as well as the plaintiffs memorandum responsive to the intervenors
motion, by Steven Roach, Patricia Fox, Glenn Van Cura, and Gary Huelsmann. Plaintiffs note
here only that the greater percentage of their cases involve relative placements, which are made
by DCFS, and not by plaintiffs themselves, and when those placements are made, whether to
traditionally configured households or to others, plaintiffs handle them as the childs interest in
securing a stable family placement is then paramount.
Repeatedly, defendants insist that plaintiffs have stated that they do not intend to
comply with Illinois law (e.g., Def. Memo, p. 6, 13). That, of course, is a distortion of
plaintiffs position which has always been, and remains, that they are indeed fully in compliance
with the applicable Illinois law, including inter alia the Religious Freedom Protection and Civil
Union Act, 750 ILCS 75/1 et seq.).
The defendants version of the March 8, 2011, letter sent to each plaintiff by the Illinois
Attorney Generals Office, is inaccurate. That letter, printed verbatim in the Verified Second
Amended & Supplemental Complaint (Verified 2d Am. & Suppl. Compl., 11, p. 15, & Exh. B),
does not merely announce an investigation, but sets forth an official, hard position of the
Attorney Generals Office on which she has insisted, through her Deputy and counsel herein
to the effect that Catholic Charities has requirements for potential foster or adoptive parents that
9

are not required by Illinois law or that it refuses to provide services to potential foster or
adoptive parents in violation of Illinois law. The letter goes on to articulate an interpretation of
the Illinois Human Rights Act as applicable to plaintiffs and as having been violated by
plaintiffs, insofar as they, for example, refuse to provide services based on the marital status
or sexual orientation of a potential foster or adoptive parent. There is nothing iffy about the
position espoused in that letter. Thus it indeed hangs the proverbial Sword of Damocles over
plaintiffs heads and casts a shadow over their provision of foster care and adoption services,
even though it is clear that they are not covered by the Human Rights Act. As the letter states
that the Office has received notice of violations on the part of plaintiffs, it is utterly clear that it
constitutes a threat of a statewide prosecution under the pattern or practice provisions of the
Human Rights Act, contrary to law. Plaintiffs thus disagree that this letter may be brushed off as
a mere investigatory letter. It is rather a throwing down of the gantlet, a precursor to imminent
litigation. Defendants undisputed facts also omit that the Human Rights Act itself may be
invoked to put plaintiffs in default, based on their allegedly failing to respond to the request for
information and documents plaintiffs indeed responded, but having chosen rather to respond
by putting the issue of statutory application to them vel non before this Court, by way of
complaint for declaratory judgment.
As for the Illinois Department of Human Rights, whether they have received a charge or
a complaint against any plaintiff is beside the point, given the Attorney Generals interest in
pursuing a statewide pattern or practice prosecution of the plaintiffs under the Human Rights
Act, which would preempt any individual charge being entertained. As for no enforcement
action having been taken (Def. Memo, p. 8, 19), the defendant Department and its head,
defendant Claps, are part of the Executive Branch, and work for the Governor, who has been
10

outspoken in his embrace of defendants position in this litigation, addressing this case at a press
conference the day before plaintiffs appeared before this Court seeking emergency injunctive
relief, insisting, We have a law in Illinois. Were not going back, as reported in the State
Journal-Register, and available online at SJ-R.COM (http://www.sj-r.com/top-
stories/x910597699/Quinn-defends-civil-unions-law-in-adoption-dispute). These remarks were
widely circulated and reported throughout Illinois (e.g., an item in the News-Gazette, serving
East Central Illinois, online at http://www.news-gazette.com/opinions/editorials/2011-07-
15/mistake-bar-religious-group.html). Mr. Claps appeared with the Governor at Millenium Park
in Chicago, on June 1, 2011, when the Religious Freedom Protection and Civil Union Act first
took effect, when many civil union couples registered their new relationships, as proclaimed on
the Department of Human Rights website. (http://www.state.il.us/dhr/news_rel/contents.htm &
http://www2.illinois.gov/gov/Pages/CivilUnionCeremony.aspx). No doubt these public
statements by the Governor and this publicity by his Department head, defendant Clapss, signals
an enforcement policy by IDHR against plaintiffs as surely as statements by Governor
Blagojevich signaled to Illinois pharmacists that he would prosecute any pharmacist who refused
on conscientious religious grounds not to stock or dispense Plan B, and yet the Illinois Supreme
Court ruled in Morr-Fitz, Inc. v. Blagojevich, 231 Ill.2d 474, 488-89 (2008), that the mere
existence of a claim, assertion or challenge to plaintiffs legal interests which casts doubt,
insecurity, and uncertainty upon plaintiffs rights or status, damages plaintiffs pecuniary or
material interests and establishes a condition of justiciability, citing Alternate Fuels, 215 Ill.2d
at 231. Thus defendants strong public statements and gestures, within this overall context,
clearly constitute an imminently threatened enforcement action against plaintiffs justifying
plaintiffs joining them as defendants in this declaratory judgment action.
11

II. SOVEREIGN IMMUNITY IS NO BAR TO RELIEF FOR PLAINTIFFS

Defendants further distort the facts by claiming under III, p. 8, that plaintiffs demand a
ruling from this Court compelling the State of Illinois to enter into new contracts with the
plaintiffs. Plaintiffs do seek declaratory judgments, and a negative or prohibitory injunction, or
order of prohibition, but not issuance of any mandatory injunction.
Whether sovereign immunity bars this relief is a question of law to be decided by this
Court. The short answer was supplied by the Supreme Court in Bio-Medical Laboratories v.
Trainer, supra, 68 Ill.2d at 548:
A challenge is also made on the grounds that plaintiffs action is barred by the
doctrine of sovereign immunity. It is argued that, in essence, this action is one against the
State, seeking to have it continue to do business with plaintiff. Plaintiff is not attempting
to enforce a present claim against the State but rather seeks to enjoin the defendant from
taking actions in excess of his delegated authority and in violation of plaintiffs
protectable legal interests. Such a suit does not contravene the immunity prohibition
[citations omitted].

Here, defendants now admit, as they must, that plaintiffs have repeatedly alleged that the
defendant officials have exceeded the bounds of their authority, under Illinois law, in taking the
threats and enforcement actions and other steps complained of herein (Def. Memo, p. 9).
Curiously, however, they say that no allegation established that any named state officials
exceeded their authority or acted illegally (id.) an assertion with which we differ rather
sharply, and as against which we urge the entirety of our case and supporting evidence so far
adduced herein. But also they say that our allegations are unsupported by fact (id.) to which
we say, again, that our submissions prove the contrary, and amply so.
The Illinois Human Rights Act does not apply to sectarian adoption agencies such as
plaintiffs (see, Plaintiffs Verified 2d Am. & Suppl. Compl., Count I, and Pls. Memo in Spt. of
Mot. for Summ. Judgmt., Argument I, pp. 20 et seq.). Therefore, the Attorney Generals
12

assertion to the contrary, and her actions taken pursuant to that assertion, are in excess of her
statutory authority. Also, defendants IDHRs and Director Clapss threatened enforcement is
equally ultra vires and in excess of his authority (id.). Similarly, as the Religious Freedom
Protection and Civil Union Act does not restrict plaintiffs action, and deems them exempt
insofar as they engage in religious practices, proves that defendants McEwen and DCFS acted
in excess of their authority in declaring plaintiffs ineligible to contract with the State of Illinois
and DCFS owing to their alleged non-compliance with that Act, when in fact they do comply
therewith (see, Pls. Verified 2d Am. & Suppl. Compl., Count II, and Pls. Memo in Spt. of Mot.
for Summ. Judgmt., Argument II, pp. 24 et seq.). Furthermore, all these officials are acting in
excess of their powers in ignoring the Illinois Religious Freedom Restoration Act (see, Pls.
Verified 2d Am. & Suppl. Compl., Count III, and Pls. Memo in Spt. of Mot. for Summ. Judgmt.,
Argument III, pp. 28 et seq.).
That sovereign immunity affords no shelter to these defendants is proved absolutely by
the decision of the Appellate Court, First District, in In re V.H., 197 Ill.App.3d 52, 58 (1
st
Dist.
1990), where the Court said that the legislature has imposed on DCFS the duty to provide social
services to certain children, etc. as there is a protectable liberty interest which requires DCFS
to provide minimally adequate care and treatment of children in its custody, and accordingly the
trial court property enjoined respondents from taking actions in excess of their delegated
authority and in violation of petitioners protectable liberty interests, and that such a ruling does
not contravene the immunity prohibition, citing, inter alia, Bio-Medical Laboratories, supra.
III. JUSTICIABILITY AFFORDS NO BAR TO COUNT I OF PLAINTIFFS
VERIFIED SECOND AMENDED & SUPPLEMENTAL COMPLAINT

Defendants argument against Count I is pegged on a vain objection to justiciability on
the false premise that there is no case or controversy as to whether or not the plaintiffs qualify
13

as places of public accommodation under the Human Rights Act, so that they would be held
subject to that Acts proscriptions against marital status and sexual orientation discrimination and
in violation thereof (Def. Memo, pp. 12-14).
Here, plaintiffs stand on their verified allegations (Verified 2d Am. & Suppl. Compl.,
3-12, describing the three actual controversies at bar, 8-20, addressing issues of
justiciability) and as well upon their memorandum supporting their cross motion for summary
judgment (Memo in Spt. of Pls. Mot. for Summ. Jdgmt., pp. 4-10).
Indeed, plaintiffs submit, with respect, that this case is eminently justiciable as while
plaintiffs were threatened when they filed this lawsuit, since then the state agencies and officials
have been outspokenly hostile and critical of their legal position, from the Governor on down,
and the defendant DCFS actually cut the thread that held the Sword of Damocles dangling over
their heads, declaring them abruptly, arbitrarily and capriciously ineligible for any ongoing
contractual relationship with the State. That the Attorney General intends to proceed against
them under the Illinois Human Rights Act is all too menacing, and when this Court asked
counsel for defendants if indeed the Attorney General was willing to back off, defense counsel
answered that she was no authorized to say so. Since then, the silence has been deafening,
except for defendants having appealed the Courts preliminary injunction, pressing a cross
motion for summary judgment, and otherwise defending this case with the utmost vigor.
Furthermore, the claim that Count I is not justiciable is especially feeble in light of the
Illinois Supreme Courts ruling in Bd. of Trustees of Southern Illinois Univ. v. Dept of Human
Rights, 159 Ill.2d 2067, 211 (1994), in which the Illinois Department of Human Rights (IDHR),
also a defendant herein, was the target of a writ of prohibition, barring its further conduct of
nothing more or less than an investigation of the plaintiff in that case. This was held to be an
14

adjudicatory proceeding, carried on ultra vires, and without statutory warrant. Defendants
argument that an investigation is not an enforcement action (Def. Memo, p. 14) simply cannot
be squared with this governing Supreme Court precedent. Here, too, the Attorney Generals
pattern or practice investigation of the plaintiffs is all the more an unwarranted imposition that
the IDHRs investigation of SIU. It is no less ultra vires than the investigation conducted by
IDHR itself. The Attorney Generals investigatory powers are more draconian, if anything, as
they range statewide, and thus the concomitant burden on plaintiffs is all that much greater. As
plaintiff S.I.U. prevailed in that case, a fortiori plaintiffs should prevail herein on Count I.
Finally, we take issue with the Defendants denial that paragraph twenty-six of the
Verified Second Amended & Supplemental Complaint is untrue (Def. Memo, p. 13). That
allegation was to the effect that the Attorney Generals Office charged that defendants were
bound by the public accommodations provisions of the Human Rights Act. A fair reading of
the letter (Exh. B to the Verified 2d Am. & Suppl. Compl.) could support no other conclusion! If
plaintiffs did not qualify as places of public accommodation, then their activities in connection
with foster care and adoption wouldnt be covered at all by the Human Rights Act, as only such
places of public accommodation are subject to its non-discrimination prohibitions. Thats
precisely the thrust of Count I, namely, that plaintiffs are not so covered, and therefore, they are
not subject to those prohibitions, nor to the Attorney Generals delegated powers to conduct
statewide investigations of pattern or practice violations of the Illinois Human Rights Act.
IV. THE EXEMPTING LANGUAGE IN THE RELIGIOUS FREEDOM PRO-
TECTION AND CIVIL UNION ACT APPLIES TO PLAINTIFFS

Defendants argument against Count II of the Verified Amended & Supplemental
Complaint is rather astonishing to plaintiffs. They would, in effect, rip the first sentence of 750
ILCS 75/15 right out of the Act, reducing the scope and effect of that provision to its second
15

sentence, focused on officiating at civil union ceremonies. That is in the teeth of settled
precedent with respect to construction of Illinois statutes, as urged in Argument II of our
memorandum in support of plaintiffs cross motion for summary judgment (Pls. Memo in Spt. of
Pls. Mot. for Summ. Judgmt., II, pp. 24-28). Senator Koehlers words may not be brushed aside,
as defendants urge (Def. Memo, p. 16) as he is not merely a single legislator, but rather the
sponsor of the legislation! There is utterly nothing throughout the entire legislative history of
this Act that is contrary to, let alone negates what Senator Koehler said in response to the explicit
questions posed to him, as the bills sponsor, by Senator Haine. This was not, furthermore, any
sort of blanket exemption (Def. Memo, p. 17), but rather one that was sought and adopted in
recognition that religious bodies have played a vital, indeed indispensable role in providing
foster care and adoption, as well as other social services, for the benefit of vulnerable and needy
Illinois young people and families.
Otherwise, plaintiffs stand on their prior submissions except for one final note. It is
notable that defendants wear horse blinders in referring to this statute, calling it repeatedly the
Civil Union Act (e.g., Def. Memo, passim), except on rare occasions (e.g., id., p. 14). Its title
puts the horse before the cart, as it is the Religious Freedom Protection and Civil Union Act.
Defendants prefer the cart, sans the horse a tactic that only reflects an unwillingness on the part
of the State of Illinois defendants herein to abide by this law, in its entirety.
V. PLAINTIFFS EXERCISE OF RELIGION IS PROTECTED BY THE
ILLINOIS RELIGIOUS FREEDOM RESTORATION ACT

Here, plaintiffs elect for the most part of stand on their prior submissions, which have
been extensive, including their Verified Second Amended & Supplemental Complaint, Count III,
1-47, their memorandum in support of their cross motion for summary judgment, Argument
III, pp. 28-37, and their memorandum in opposition to the intervenors motion to dismiss their
16

second amended verified complaint or, in the alternative, for summary judgment, Argument VII,
especially the subsection addressing The Illinois Religious Freedom Restoration Act.
Plaintiffs note, for the present, only that the Defendants seem insistent that their actions were not
coercive in any respect toward plaintiffs in the exercise of their religious faith (Def. Memo, pp.
22, 23, etc.). Quite the contrary, DCFS effectively has given plaintiffs a choice that could not
be any more coercive in terms of having to betray ones faith or comply with the secular
sovereigns decree. Weve addressed the legal authorities, including the Fifth District Appellate
Court ruling in the case of Diggs v. Snyder, 333 Ill.App. 3d 189, 195 (2002), at length elsewhere
(referred to, supra).
Finally, conspicuous by its absence is any response that defendants have to offer with
respect to the Federal Executive Order and its explicit protections for faith-based social services
providers and provisions for referral procedures (Verified 2d Am. & Suppl. Compl., Ct. III, 47
& Exh. C). If referral procedures are provided in compliance with federal directives for those
who wish to avoid religious-inspired social service agencies, how could defendants justify their
disapproval for those who cherish religion-based conscientious objections? Wouldnt that
qualify as discriminatory?
VI. SUMMARY JUDGMENT SHOULD BE GRANTED ON PLAINTIFFS
DUE PROCESS CLAIMS ASSERTED IN COUNT IV

As weve argued at length already (supra, pp. 5-8) and elsewhere (Verified 2d Am. &
Suppl. Compl., Count IV 1-61, pp. 42-46; Pls. Memo in Spt. Pls. Mot. Summ. Judgmt.,
Argument IV, pp. 37-40; and Pls. Memo in Oppos. to Intervenors Mot. to Dismiss or, in the
Alternative, for Summ. Jdgmt., Argument VII).
Nothing more need to said about plaintiffs legally protected interest, whose deprivation
is subject to both substantive and procedural due process protections. The Bio-Medical Labora-
17

tories decision of our Supreme Court has withstood the test of time, and if that Medicaid
plaintiffs eight year contractual relationship with the State warranted protection, then plaintiffs
entitlement to protection seems solidly grounded in Illinois jurisprudence. Defendants desperate
resort to reliance on the Polyvend decision of the Supreme Court (supra, pp. 7-8) confirms that
Bio-Medical squarely applies here, as explicated by the high Court in Polyvend.
Defendants silence on the matter of procedural due process protection speaks volumes.
Given that there is a clear property interest at stake (not to mention the liberty interest bound up
with Illinois statutory protection, couched in the Religious Freedom Restoration Act, for the
exercise of religion), surely more process was due than was afforded to the plaintiffs here,
which amounted to zero process. Indeed, defendants timing suggested an effort to cut off
plaintiffs effort to seek emergency relief from this Court, given the late delivery of Mr.
McEwens letter Friday afternoon, just after emergency motion papers had been served, noticing
a hearing the following Tuesday when this Court had made time available to counsel for such a
hearing on this case.
Defendants say nothing about the minimal guarantees that the Supreme Court ruled in
Balmoral Racing Club, Inc. v. Illinois Racing Bd., 151 Ill.2d 367, 408 (1992), must always be
provided, namely, reasonable notice, the right to examine witnesses, to testify, to present
witnesses, and to be represented by counsel (Pl. Memo in Spt. of Mot. for Summ. Jdgmt.,
Argument IV, p. 39).
VII. THIS COURT SHOULD GRANT PLAINTIFFS A PERMANENT DECREE
OF INJUNCTION, BARRING DEFENDANTS REFUSAL TO DEAL
WITH PLAINTIFFS FOR ILLEGAL REASONS

Defendants say nothing about the relief for which plaintiffs have prayed, except to argue
against granting plaintiffs any relief. Therefore, there is nothing to contradict our allegations and
18

arguments about irreparable harm or adequate of legal remedies, only about plaintiffs clearly
ascertainable right to relief.
On the latter score, plaintiffs respectfully urge that they have demonstrated a right to
relief on multiple counts of their Verified Second Amended & Supplemental Complaint. The
jurisprudence here in Illinois fully supports plaintiffs contention that they have a legally
protected interest, and its deprivation was in utter defiance of Illinois law on several grounds.
That deprivation has now been temporarily remedied, triggering defendants interlocutory
appeal. A permanent injunction decree should be entered, without any further delay, in
accordance with law and in furtherance of justice.
If plaintiffs were deemed ineligible for, or debarred from, state contracts by the
defendants on illegal grounds, or if they reached that decision without timely notice or
opportunity for hearing, as plaintiffs contend, the Court is fully empowered to declare it to be so,
and it should fashion a remedy tailored to the exigencies of this case, barring defendants from
continuing to give effect to that illegal decision. That is not unilaterally dictating, or forcing,
contract terms upon a sovereign state, but rather enforcing the laws of the sovereign against those
guilty of having violated them.
CONCLUSION
Plaintiffs pray that the Court will grant their motion for summary judgment, deny the
defendants cross motion for summary judgment, enter a permanent injunction decree as sought
in plaintiffs motion, and grant them all other relief to which they may be entitled on the
premises in accordance with law.
Of Counsel: __________________________________________
Thomas Brejcha One of the Attorneys for Plaintiffs
Peter Breen
19

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Bradley E. Huff
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Patricia Gibson
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James C. Byrne
Spesia & Ayers
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20

21


______________________________________________________________________________
CATHOLIC CHARITIES OF THE DIOCESE OF )
SPRINGFIELD-IN-ILLINOIS, an Illinois non-profit)
corporation, CATHOLIC CHARITIES OF THE )
DIOCESE OF PEORIA, an Illinois non-profit )
corporation, CATHOLIC CHARITIES OF THE )
DIOCESE OF JOLIET, INC., an Illinois non-profit )
corporation, and CATHOLIC SOCIAL SERVICES )
OF ILLINOIS, INC., an Illinois non-profit )
corporation, )
)
Plaintiffs, ) Case No. 11-MR-254
)
vs. ) Hon. John Schmidt,
) Judge Presiding
STATE OF ILLINOIS, LISA MADIGAN, in her )
official capacity as the Attorney General )
of the State of Illinois, ERWIN McEWEN, in his )
official capacity as Director of the Department of )
Children & Family Services, State of Illinois, and )
the DEPARTMENT OF CHILDREN & FAMILY )
SERVICES, State of Illinois, ROCCO J. CLAPPS, )
in his official capacity as Director of the )
Department of Human Rights, State of Illinois, )
and the DEPARTMENT OF HUMAN RIGHTS, )
)
Defendants, and )
)
behalf of a certified class of all current and future )
foster children in custody of DCFS in a federal )
case titled B.H. v McEwen, No. 88 CV 5589 )
(N.D. Ill. 1988); SARAH RIDDLE, and )
KATHERINE WESEMAN, )
)
PLAINTIFFS MEMORANDUM OF LAW IN OPPOSITION TO INTERVENORS
MOTION TO DISMISS THEIR SECOND AMENDED COMPLAINT OR,
IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
2
ARGUMENT
I.
NONE OF THE INTERVENORS HAS STANDING TO OPPOSE THE RELIEF
RELIEF PLAINTIFFS SEEK AGAINST DEFENDANTS IN THIS CASE.
Intervenors are a couple who have entered into a civil union Katherine Weseman and
Sarah Riddle and the appointed next friend of the class of foster children certified in B.H. v.
McEwen, No. 88 C 5589 (N.D. Ill.), Susan Tone Pierce. None of the intervenors has standing to
oppose the relief plaintiffs seek against defendants in this case.
The Civil Union Couple
In their declarations, Ms. Weseman and Ms. Riddle aver that they want children in the
future and intend in the future to seek to become licensed foster parents in Illinois and in
having a state ward placed in our home for foster care and possibly adoption. Weseman Decl.
2; Riddle Decl. 2 (emphasis added). Neither Ms. Weseman nor Ms. Riddle, however, is
presently licensed as a foster parent; neither is presently seeking to become licensed as a foster
parent; neither has expressed a present intention to have a state ward placed in their home;
neither is presently planning to adopt a child; and neither gives any indication of when in the
future they may seek to be licensed as a foster parent or adopt a child in foster care. Based on
their declarations, it is entirely speculative whether Ms. Weseman and Ms. Riddle will ever seek
to be licensed as foster parents, have a state ward placed in their home or adopt a foster child
who has been placed in their home. Their averments fail to establish their standing to oppose the
relief plaintiffs seek against defendants in this case.
To possess standing, a person claiming that she has been or would be injured by
Nothing in plaintiffs policies and practices would prevent Ms. Weseman and Ms.
1
Riddle from being licensed as foster parents through DCFS directly or through other social
service agencies, from having a foster child placed in their care or from adopting a foster child in
their care.
3
the actions of another must demonstrate an injury in fact, that is, the injury must be,
first, distinct and palpable, second, fairly traceable to [another persons] actions, and,
third, substantially likely to be prevented or redressed by the grant of the requested
relief, in this case, an order dismissing plaintiffs action or entering summary judgment
in favor of the intervenors. City of Carbondale v. Marion, 210 Ill.App.3d 870, 873 (5th
Dist. 1991). With respect to the first requirement, a party does not have standing merely
by asserting some future or speculative injury that may come to pass at some future
date. DiSanto v. Warrenville, 59 Ill.App.3d 931, 936 (2d Dist. 1978). That precisely
describes the injury Ms. Weseman and Ms. Riddle have alleged in their declarations.
Here, Ms. Weseman and Ms. Riddle oppose the relief plaintiffs have sought
against defendants based upon an utterly conjectural, hypothetical possibility of future
harm their inability to be licensed as foster parents and to adopt. But, as noted above,
1
neither Ms. Weseman nor Ms. Riddle is licensed as a foster parent, neither seeks to be
licensed as a foster parent and neither is even contemplating adopting a child in foster
care. The alleged injury which they claim they would suffer if plaintiffs prevail in this
case is simply too remote and speculative to support their standing in this case.
In Roe v. Wade, 410 U.S. 113 (1973), a married couple, John and Mary Doe, along with a
physician (Dr. Hallford) and an unmarried pregnant woman (Jane Roe), sought to challenge the
4
Texas statutes prohibiting abortion except to save the life of the mother. The Court held that
Jane Roe had standing, but that Dr. Hallford and the Does did not. 410 U.S. at 123-29. John and
Mary Doe were a childless couple. Mary Doe had been advised by her physician to avoid
pregnancy. On medical advice, she had discontinued taking birth control pills. Although she
was not pregnant, Mary Doe feared that she might become pregnant if did not use contraception,
forcing her and her husband to make a choice between refraining from having normal sexual
relations or possibly endangering her health if she became pregnant. In the latter event, she and
her husband might want to obtain an abortion that would be illegal under Texas law. The Court
found that the Does alleged injury rested on a speculative chain of events that might or might
not ever materialize possible future contraceptive failure, possible future pregnancy, possible
future unpreparedness for parenthood, and possible future impairment of health. Id. at 128.
Any one or more of these several possibilities may not take place and all may not combine. Id.
The bare allegation of so indirect an injury is [not] sufficient to present an actual case or
controversy. Id. Accordingly, the Court affirmed the dismissal of their complaint. Id. at 113.
So, too, in the case at bar, the mere possibility that Ms. Weseman and Ms. Riddle might,
at some indeterminate time in the future, apply to be licensed as foster parents (and possibly
pursue an adoption of a child placed in their care) falls far short of giving them standing to
oppose the relief plaintiffs seek in this case where neither has expressed a present intention of
applying to become a foster parent or adopting a child in foster care. Accordingly, their motion
to dismiss or, in the alternative, for summary judgment, should be denied for lack of standing.
The Next Friend
The next friend of the plaintiff class of foster children certified in B.H. v McEwen,
Which may explain why a search of Illinois Supreme Court and Appellate Court
2
databases discloses no reported state case in which Ms. Pierce has sued or intervened (or sought
to intervene) in the more than twenty years since she was appointed as successor next friend.
Rule 17(c)(2) provides, in relevant part:
3
(1) With a Representative. The following representatives may sue or
defend on behalf of a minor or an incompetent person: (A) a general guardian; (B)
a committee; (C) a conservator; or (D) a like fiduciary.
(2) Without a Representative. A minor or an incompetent person who
does not have a duly appointed representative may sue by a next friend or by a
guardian ad litem. The court must appoint a guardian ad litem or issue another
appropriate order to protect a minor or incompetent person who is unrepresented
in an action.
5
Susan Tone Pierce, also lacks standing to oppose the relief plaintiffs seek against defendants.
Ms. Pierce was appointed next friend of the plaintiff class on November 7, 1990, as successor
to the first next friend appointed to represent members of the certified class. Pierce Decl. 6.
In her declaration, Ms. Pierce identifies no authority in her appointment that would allow her to
step into an unrelated state case and ask that the complaint be dismissed or, in the alternative,
that summary judgment be granted in her favor, on the basis that the relief requested by plaintiffs,
if granted, would conflict with the consent decree originally entered in B.H. on December 20,
1991, and subsequently modified in various respects, see Pierce Decl. Exhibit A (Restated
Consent Decree of July 15, 1997). Nor does such authority appear in the order of appointment
2
itself. See Pierce Decl. Exhibit B (Order of Nov. 7, 1990).
In federal civil practice, a next friend may sue or defend on behalf of a minor or
incompetent person pursuant to Rule 17(c)(2) of the Federal Rules of Civil Procedure. A child
3
who does not have a guardian or appointed representative may sue through a next friend, or
guardian ad litem appointed by the district court. T.W. by Enk v. Brophy, 124 F.3d 893, 895 (7th
6
Cir. 1997). See also Bryan A. Garner, A DICTIONARY OF MODERN LEGAL USAGE (1990) (next
friend, guardian ad litem and prochein ami all noted as synonyms). The terms next friend
and guardian ad litem are essentially interchangeable, although the former is customarily used
when the child is the plaintiff and the latter when the child is the defendant. T.W. by Enk, 124
F.3d at 895. Thus, both the courts and Rule 17(c)(2) distinguish between a general representative
(guardians and appointed representatives) on the one hand, and a special representative
(guardians ad litem and next friends) on the other.
As next friend of the certified class of children in foster care in Illinois, Ms. Pierce has
been given no roving commission to right whatever wrongs she may believe her class has
suffered or may suffer from the conduct of others. Rather, her authority is limited to, and is
essentially the same as, a guardian ad litem, that is, a guardian with respect to a particular case.
That is confirmed by an examination of the consent decree itself, which expressly denies her (or
anyone else) authority to enforce the decree outside of the federal court retaining jurisdiction of
the case. Paragraph 3 of the Restated Consent Decree provides, in relevant part: Nor shall
this Decree create any right enforceable in any proceeding other than this case. Emphasis
added. That, however, is precisely what Ms. Pierce is attempting to do, i.e., she is trying to
enforce, in another proceeding (the one at bar), a right purportedly created by the consent decree
entered in the federal class action. If Ms. Pierce believes that the relief plaintiffs seek would
violate the terms of the consent decree, she is free to initiate whatever proceedings she deems
appropriate in the federal court retaining jurisdiction of the case, as the decree itself envisions
(par. 3 recognizes the courts power to enforce the terms of this decree). Under the terms of
As the next friend herself acknowledges: If there is any question about whether the
4
case [brought by plaintiffs against defendants] presents a conflict with the [consent] decree, it
should be resolved by the federal court. Intervenors Memorandum at 7 (emphasis added).
For the reasons set forth in Argument IV, infra, this policy does not prevent anyone in a
5
cohabiting relationship from becoming a foster parent or adopting.
7
the consent decree, that is her only option.
4
II.
THE RELIEF REQUESTED BY THE NEXT FRIEND IS BARRED BY LACHES
Assuming that Ms. Pierce has standing to oppose the relief plaintiffs seek in this action,
the relief she asks for in this case dismissal of plaintiffs complaint or summary judgment is
barred by the doctrine of laches. As previously noted, Ms. Pierce was appointed as next friend
of the plaintiff class certified in B.H. v. McEwen on November 7, 1990, more than a year before
the original consent decree was entered in B.H. on December 20, 1991. Pierce Decl. 4, 6 &
Exhibit A (Restated Consent Decree). At all times since her appointment (and long before
then), it has been the policy of Catholic Charities, on the basis of sincerely-held religious belief
regarding the morality of cohabitation, not to accept foster parent applications from unmarried
persons who are cohabiting (regardless of their sexual orientation) and not to process adoptions
of unrelated children by cohabiting persons (regardless of their sexual orientation). See [xxx
Decl.] Yet, despite the direct conflict[] this policy supposedly creates with the terms of the
5
consent decree, and the actual harm this policy allegedly inflicts upon children in foster care,
see Pierce Decl. 7, the next friend has taken no action in almost twenty years to challenge
DCFSs relationship with plaintiffs or their suitability to act as social service agencies offering
foster care and adoption services. Her attempt to do so at this late stage is barred by laches.
In addition, [f]or laches to apply, a plaintiff must have knowledge of his right, yet fail
6
to assert it in a timely manner. Sundance Homes, 195 Ill.2d at 270. Given that Ms. Pierce has
been the next friend of children in foster care Illinois for more than twenty years and may be
charged with a thorough and comprehensive knowledge of the foster care system in Illinois, that
requirement is clearly met in this case.
8
The Illinois Supreme Court has explained,
Laches is an equitable doctrine which precludes the assertion of a
claim by a litigant whose unreasonable delay in raising that claim
has prejudiced the opposing party. The doctrine is grounded in the
equitable notion that courts are reluctant to come to the aid of a
party who has knowingly slept on his rights to the detriment of the
opposing party.
Tully v. State, 143 Ill.2d 425, 432 (1991) (citations omitted). The doctrine of laches may be
applied to actions at law, as well as in equity, Sundance Homes, Inc. v. County of DuPage, 195
Ill.2d 257, 271 (2001), and may be raised against relief sought via a complaint or cross-
complaint, Tully, 143 Ill.2d at 432. In order to find that laches applies, two elements are
necessary: first, a lack of diligence by the party asserting the claim, and, second, prejudice to
the opposing party resulting from the delay. Tully, 143 Ill.2d at 432. Both elements are present
here.
6
First, it would be an understatement to suggest that the appointed next friend in B.H. v.
McEwen has failed to assert in a prompt, diligent manner her claim that the practices of
Catholic Charities adversely affect the interests of the children in their care and violate the terms
of the consent decree when, for almost twenty years since the consent decree was entered on
December 20, 1991, Ms. Pierce has taken no steps to sue Catholic Charities or DCFS or
otherwise enforce the terms of the consent decree against Catholic Charities or DCFS, either in
federal court or state court (assuming that she has the authority to sue in state court). Ms. Pierce
This point is elaborated in Argument V, infra.
7
9
has not merely slept on [her] rights, Tully, she has been a veritable Rip van Winkle. It is a little
late in the day for Ms. Pierce to trot out a parade of horribles that will ensue if plaintiffs prevail
in their action, see Intervenors Memorandum 10-13 (purporting to identify how the interests of
children in foster care would be harmed [i]f Catholic Charities are allowed to continue to
discriminate as foster care agencies) (emphasis added), when the relief plaintiffs seek is nothing
other than the restoration of the status quo ante, specifically, being allowed to continue to offer
their vital social services on the same terms that they have for far more than the twenty years Ms.
Pierce has been the next friend of the plaintiff class of children in foster care. First Fox Decl.
9, 12; First Huelsmann Decl. 3; First Roach Decl. 19; First Van Cura Decl. 3.Apart from
the issue of laches, it may be asked whether, given that plaintiffs do not ask for any relief in this
case other than being able to do what they have been doing for decades, the failure of Ms. Pierce
to prove (or even allege) past harms does not undermine her bare assertion of future harms.
7
Second, the prejudice to plaintiffs from the next friends failure to assert her claim
against plaintiffs is obvious and profound. For the twenty years the consent decree in B.H. v.
McEwen has been in force, Catholic Charities has provided foster care and adoption services to
thousands of children in foster care in Illinois recruiting foster parents, processing their
applications, placing children in stable homes, facilitating adoptions and building the staff and
resources necessary to provide those services to Illinoisans from all walks of life. To allow Ms.
Pierce to force Catholic Charities out of the social services it has provided in this area for
decades at this late date would severely prejudice plaintiffs. Accordingly, the relief she asks for
in this case should be denied.
10
III.
THE RELIEF PLAINTIFFS SEEK IN THIS CASE IS NOT BARRED BY THE
FEDERAL CONSENT DECREE ENTERED IN B.H. v. McEWEN.
Ms. Pierce has moved this Court to dismiss plaintiffs action as an impermissible
collateral attack on the federal consent decree entered in B.H. v. McEwen, No. 88 C 5589 (N.D.
Ill.). Intervenors Motion, 5, 6; Memorandum at 5-8. As authority for her motion, intervenors
cite 2-619(a)(1) of the Code of Civil Procedure. Motion at 2; Memorandum at 4. Assuming
that intervenors have standing and that the relief the next friend seeks is not barred by the
doctrine of laches, plaintiffs respond that neither 2-619(a)(1) nor any other subsection of 2-
619(a) authorizes dismissal of plaintiffs action on the ground asserted by intervenors.
Section 2-619(a)(1) provides that, on motion of a defendant, an action may be
involuntarily dismissed if the court does not have jurisdiction of the subject matter of the
action. 735 ILCS 5/2-619(a)(1). Curiously, neither in their motion nor in their supporting
memorandum have intervenors either quoted this language or cited any cases construing it.
Given the language and interpretation of 2-619(a)(1), that is not surprising.
The presence or absence of subject matter jurisdiction is determined from the nature of
the case and the relief sought. Russell v. Kinney Contractors, Inc., 342 Ill.App.3d 666, 670 (5th
Dist. 2003) (citation omitted). Illinois circuit courts are courts of general jurisdiction having
original jurisdiction over all justiciable controversies (Ill. Const. 1970, art. VI, 9), except (1)
cases over which the federal courts have exclusive jurisdiction . . . , (2) matters committed to
administrative tribunals (see Ill. Const. 1980, art. VI, 9), and (3) those matters committed by
the Illinois Constitution to the exclusive original jurisdiction of the Illinois Supreme Court (Ill.
That distinguishes the only other Illinois authority cited by intervenors, Kellerman v.
8
MCI Communications, 112 Ill.2d 428, 447-48 (1986) (recognizing that comity is one of the
factors a court should consider in staying a case between the same parties under 2-619(a)(3)).
11
Const. 1970 art. VI, 9). Russell, 342 Ill.App.3d at 670-71 (case citation omitted). See also
Cohen v. McDonalds Corp., 347 Ill.App.3d 627, 632-33 (1st Dist. 2004) (following Russell).
Plaintiffs action against defendants falls into none of these categories, and intervenors do not
suggest otherwise. Accordingly, there is no basis to dismiss plaintiffs action under 2-619(a)(1).
Intervenors cite two cases in which Illinois state court actions were dismissed because of
the pendency of the litigation in B.H., Memorandum at 8, citing In re M.K., 284 Ill.App.3d 449
(1st Dist. 1996), and Katherine M. v. Ryder, 254 Ill.App.3d 479 (1st Dist. 1993), but in both
cases the dismissal was based on 2-619(a)(3), not 2-619(a)(1). Section 2-619(a)(3) allows, in
the discretion of the circuit court, see People ex rel. Dept of Public Aid v. Santos, 92 Ill.2d 120,
125 (1982), an action to be involuntarily dismissed on the defendants motion on the ground that
there is another action pending between the same parties for the same cause. 735 ILCS 5/2-
619(a)(3) (emphasis added). In both In re M.K. and Katherine M., the state court actions were
brought by certain minors in the custody of DCFS (a subclass of the plaintiff class in B.H. v.
McEwen) against DCFS officials (the Director of DCFS was the defendant in B.H.), raising
issues that were subsumed within the federal litigation. In other words, the actions involved the
same parties for the same cause. Section 2-619(a)(3) provides no basis for dismissing the
8
present action (and intervenors have not alleged otherwise) because plaintiffs herein were not
parties to the litigation in B.H. v. McEwen and the cause whether DCFS may refuse to renew
plaintiffs contracts because of their invocation of their free exercise rights under Illinois law is
entirely different. Apart from 2-619(a)(1), the only provision cited by intervenors, and 2-
Intervenors have not sought to dismiss plaintiffs action under 2-619(a)(4), relating to
9
prior judgments, perhaps because they realize the inapplicability of that section. Section 2-
619(a)(4) codifies the doctrines of res judicata and collateral estoppel. Yorulmazoglu v. Lake
Forest Hospital, 359 Ill.App.3d 554, 558 (1st Dist. 2005). Neither of those doctrines applies, of
course, because, first, there was no final judgment in B.H., only the entry of a consent decree,
and, second, plaintiffs were not parties to the litigation.
Neither in In re M.K. nor Katherine M. was the state action dismissed on the ground
10
that it constituted an impermissible collateral attack on a federal consent decree.
Although resort to the judicial process, rather than relying upon the political process, to
11
remedy the ills sought to be corrected by the consent decree in B.H. has been severely criticized
by the Seventh Circuit, see B.H. v. McDonald, 49 F.3d 294, 301-04 (7th Cir. 1995) (Easterbrook,
12
619(a)(3), cited in In re M.K. and Katherine M., intervenors have failed to identify, directly or
indirectly, any other statutory basis for dismissing plaintiffs complaint.
9
Intervenors, plaintiffs note, cite no Illinois case in which a state court action was
dismissed on the basis that it was an impermissible collateral attack on a federal consent
decree. And, in a case decided by the United States Supreme Court not cited by intervenors, the
10
Court expressly rejected the collateral attack doctrine intervenors press upon this Court.
In Martin v. Wilks, 490 U.S. 755 (1989), the Supreme Court held that a group of white
firefighters could sue Birmingham, Alabama, for reverse discrimination, notwithstanding the fact
that the discrimination in question had been mandated by a federal consent decree in earlier
litigation to which the firefighters had not been made parties. The defendants in the action
brought by the firefighters argued that because respondents [the firefighters] failed to timely
intervene in the initial proceedings, their current challenge to actions taken under the consent
decree constitutes an impermissible collateral attack on the decree, Martin, 490 U.S. at 762,
precisely the same argument intervenors make here (i.e., that if plaintiffs objected to the terms of
the federal consent decree, they should have sought to intervene in that case). The defendants
11
J., joined by Goodwin, concurring) (objecting to using the judiciary to fashion a remedy that
properly belongs to the legislature, but noting that no one has asked us to restore this subject to
the peoples representatives), plaintiffs support, not oppose, the remedial measures required by
the decree.
Both intervenors (Memorandum at 7) and the principal case on which they rely, Indiana
12
Dept of Environmental Management v. Conard, 614 N.E.2d 916, 922 (Ind. 1993), cited Marino.
The Seventh Circuit, as the Court noted, had held otherwise. Martin, 490 U.S. at 762 n. 3, citing
Dunn v. Carey, 808 F.2d 555, 559-560 (7th Cir. 1986) (allowing collateral attacks on consent
decrees by non-parties).
13
argued that respondents were aware that the underlying suit might affect them, and if they chose
to pass up an opportunity to intervene, they should not be permitted to later litigate the issues in a
new action. Id. Although the Court acknowledged that the great majority of the federal
courts of appeals had approved of this position, id. at 762 & n. 3 (citing, inter alia, Marino v.
Ortiz, 806 F.2d 1144, 1146-47 (2d Cir. 1986), affd by an equally divided Court, 484 U.S. 301
(1988)), the Court agreed with the contrary view expressed by the Eleventh Circuit in Martin.
12
The Supreme Court began its analysis by noting that it is agreed as a principle of
general application in Anglo-American jurisprudence that one is not bound by a judgment in
personam in a litigation in which he is not designated as a party or to which he has not been
made a party by service of process. Martin, 490 U.S. at 761, quoting Hansberry v. Lee, 311
U.S. 32, 40 (1940). The law does not impose upon any person absolutely entitled to a hearing
the burden of voluntary intervention in a suit to which he is a stranger. . . . Unless duly
summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment
recovered therein will not affect his legal rights. Id. at 763, quoting Chase National Bank v.
Norwalk, 291 U.S. 431, 441 (1934). That is also the case under the Federal Rules of Civil
Procedure, i.e., a party seeking a judgment binding on another cannot obligation that person to
14
intervene; he must be joined. Id., citing Rule 24 of the Federal Rules of Civil Procedure
(governing intervention). Rule 24 does not require anyone to seek intervention as of right or by
permission. Id. (nor, of course, does the Illinois statute on intervention, 735 ILCS 5/2-408,
which is based on Rule 24). Potential parties are subjected to the jurisdiction of the court and
bound by a judgment or decree by [j]oinder as a party [under Rule 19], rather than knowledge
of a lawsuit and an opportunity to intervene. Martin, 490 U.S. at 765. Again, the same is true
under Illinois law, see 735 ILCS 5/2-404 through 2-407 (joinder provisions).
The parties to a lawsuit presumably know better than anyone else the nature and
scope of relief sought in the action, and at whose expense such relief might be
granted. It makes sense, therefore, to place on them a burden of bringing in
additional parties where such a step is indicated, rather than placing on potential
additional parties a duty to intervene when they acquire knowledge of the lawsuit.
The linchpin of the impermissible collateral attack doctrine the attribution of
preclusive effect to a failure to intervene is therefore quite inconsistent with
Rule 19 and Rule 24.
Martin, 490 U.S. at 765 (emphasis added).
The Supreme Court has recently reaffirmed the rule against nonparty preclusion.
Taylor v. Sturgell, 128 S.Ct. 2161,2172 (2008) (citing, inter alia, Martin v. Wilks). The Court
has recognized certain limited exceptions to the rule. Id. at 2172-73 (if a person agrees to be
bound by the determination of issues in an action between others, if there is a pre-existing
substantive legal relationship between the person to be bound and a party to the judgment, in
properly conducted class actions in which a member of the class may be bound by a judgment
because she was adequately represented by someone with the same interests who [wa]s a party,
if the nonparty assumed control over the litigation in which that judgment was rendered, if a
party to the litigation seeks to avoid its preclusive effect by relitigating through a proxy, and
Plaintiffs do not concede that their action in any way undermines the consent decree
13
issued in B.H. v. McEwen. See Argument IV, infra. Entirely apart from the Supreme Courts
decision in Martin v. Wilks, that distinguishes the authorities cited by intervenors. Intervenors
Memorandum at 5-8 citing, Indiana Dept of Environmental Management v. Conard, 614 N.E.2d
916, 921-22 (Ind. 1993) (third parties claims, if allowed, would have conflicted with federal
consent decree setting PCB levels); Huston v. Mercedes-Benz USA, LLC., 2011 WL 2446608
(West Virginia) (members of certified class who did not opt out of a federal class action
settlement could not collaterally attack decree in state court); In re N.Y. State Commr of
Corrections v. Gulotta, 598 N.Y.S.2d 547, 549 (App. Div. 1993) (in state court proceeding, the
Commissioner of Correction sought to end immediately the practice of double-celling of
inmates contrary to the terms of a federal consent decree that allowed the practice to be phased
out over time); Indiana Public Interest Research Group v. City of Bloomington, 501 N.E.2d 476
(Ind. Ct. App. 1987) (plaintiffs state action sought to challenge the procedures leading up to a
federal consent decree). Citing Martin v. Wilks, Gulotta recognized that in general, a nonparty
to litigation is not precluded from challenging a consent decree, but found it appropriate it to
preclude the [Commissioner] from litigating this claim in an independent State court, since [he]
was served with process in the Federal action and was a party to the litigation for several years
before being dismissed from the action. 598 N.Y.S.2d at 549-50. Other cases cited by
intervenors did not involve federal consent decrees, but were actual judgments determining the
rights and responsibilities of the parties. See Black and White Children of the Pontiac School
System v. School District of the City of Pontiac, 464 F.2d 1030, 1030 (6th Cir. 1972) (federal
action seeking to modify desegregation decree was an improper collateral attack on the decree);
Burns v. Board of School Commissioners of the City of Indianapolis, 437 F.2d 1143, 1144 (7th
Cir. 1971) (state court action brought by public teachers challenging provisions of federal court
judgment determining teacher assignments was properly removed to federal court). Also
distinguishable is State of Washington v. Washington Commercial Passenger Fishing Vessel
Assn, 443 U.S. 658, 695 (1979) (State-law prohibition against compliance with the District
Courts decree cannot survive the command of the Supremacy Clause). The relief sought by
plaintiffs cannot be characterized as a state-law prohibition in conflict with a court judgment.
15
in certain circumstances in which a special statutory scheme . . . expressly foreclos[es]
successive litigation by nonlitigants) (citations and internal quotation marks omitted). See also
Martin, 490 U.S. at 762 n. 2 (noting exceptions). None of those exceptions applies here.
In light of the Supreme Courts rejection of the impermissible collateral attack doctrine
in Martin v. Wilks, the authorities upon which intervenors rely in support of their argument that
plaintiffs action must be dismissed are entitled to no force or weight. Accordingly, plaintiffs
action is not barred by the consent decree entered in B.H. v. McEwen. Nor is that decree a
13
As the consent decree itself provides. See Restated Consent Decree, 3: Nor shall
14
this Decree create any right enforceable in any proceeding other than this case.
16
judicial precedent that must be followed under principles of stare decisis.
Consent decrees, as the product of settlement negotiations between the parties and not the
result of a final adjudication of the merits, are not judicial precedents that must be followed
under principles of stare decisis, Stare decisis applies only to legal issues that were actually
decided in a prior action, Beacon Oil Co. v. OLeary, 71 F.3d 391, 395 (Fed. Cir. 1995), and
issues underlying a consent judgment generally are neither actually litigated nor essential to the
judgment. La Preferida v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 906 (7th Cir. 1990).
See also United States v. Allegheny-Ludlum Industries, Inc. 517 F.2d 826, 845-46 n. 21 (5th Cir.
1975) (same); County of Orange v. Air California, 799 F.2d 535, 538-39 (9th Cir. 1986) (same).
The way in which a consent judgment or consent decree resolves, between the parties, a dispute
over a legal issue is not a ruling on the merits of the legal issue that . . . becomes precedent
applicable to any other proceedings under the law of stare decisis . . . . Langton v. Hogan, 71
F.3d 930, 935 (1st Cir. 1995) (emphasis in original). The leading treatise on federal practice and
14
procedure explains why consent decrees (or judgments) are not binding precedents:
Consent judgments entered upon settlement by the parties may assume
forms that range from simple orders of dismissal with or without prejudice to
detailed decrees. . . . If there is a judgment in some form, the central
characteristic of a consent judgment is that the court has not actually resolved the
substance of the issues presented. To be sure, in various circumstances judicial
approval of a consent judgment may require careful scrutiny of its fairness in light
of the probable outcome on the merits. . . . However close the examination may
be, the fact remains that it does not involve contest or decision on the merits. Any
findings made as part of the approval process go to the reasonableness of the
settlement, not the merits of the dispute. The judgment results not from
adjudication but from a basically contractual agreement of the parties.
17
18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure: Jurisdiction and Related Matters 2d 4443, at 255-57 (2d ed. 2002) (emphasis
added).
The Seventh Circuit has held that in determining whether a proposed consent decree is
lawful, fair, reasonable, and adequate, the district court should refrain from resolving the
merits of the controversy or making a precise determination of the parties respective legal
rights. E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir. 1985). And in the
consent decree adopted in B.H. v. McEwen, the district court did not resolve[] the merits of the
controversy or mak[e] a precise determination of the parties respective legal rights. The decree
expressly notes: This Decree is the result of a compromise and settlement and is not a
determination of liability. Nothing herein shall be considered an admission of fault of any kind
by defendant, nor shall anything herein be considered a reflection of any weakness of proof by
plaintiffs. Restated Consent Decree, p. 5.
The Supreme Court has recognized that it is the agreement of the parties, rather than the
force of law upon which the complaint was originally based, that creates the obligations
embodied in consent decrees. Intl Assn of Firefighters, supra, 478 U.S. at 522. [C]onsent
decrees . . . are not true adjudications of the underlying issues, Lipsky v. Commonwealth United
Corp., 551 F.2d 887, 893-94 (2d Cir. 1976), and their precedential value is nil. In re A. Cardi
Construction Co., Inc., 154 B.R. 403, 406 (D. R.I. 1993). Nevertheless, while plaintiffs are not
bound by the consent decree in B.H. v McEwen, and that decree is not a judicial precedent that
this Court is required to follow, their policies and practices are entirely consonant with the decree
and with the best interests of the children in foster care Illinois.
Because neither Ms. Weseman nor Ms. Riddle is currently licensed as a foster parent
15
and because neither has expressed a present intention of becoming licensed, neither has standing
to oppose the relief plaintiffs seek in this action. See Argument I, supra. Accordingly, it is
unnecessary to address arguments in their memorandum that relate to the rights of foster parents.
Intervenors Memorandum at 20-27. Plaintiffs note, however, that nothing in their policies
declining, on the basis of sincerely-held religious beliefs, to process the foster parent applications
of persons who are cohabiting outside of marriage, prevents Ms. Weseman and Ms. Riddle from
being licensed as foster parents, either though DCFS directly or through another private agency.
First Fox Decl. 9; Third Fox Decl. 12; Second Huelsmann Decl. 9; Riordan Decl. 9; Third
Roach Decl. 9; Third Van Cura Decl. 9. In any event, as the Seventh Circuit has recognized,
Illinois law confers no liberty interest on foster parents to a relationship with a foster child. . . .
Dupuy v. Samuels, 397 F.3d 493, 513 (7th Cir. 2005), citing Procopio v. Johnson, 994 F.2d 325,
330 (7th Cir. 1993).
18
IV.
THE RELIEF PLAINTIFFS SEEK IN THIS CASE IS CONSISTENT WITH
THE BEST INTERESTS OF CHILDREN IN FOSTER CARE IN ILLINOIS.
Plaintiffs are not bound by the terms of the consent decree entered in B.H. v. McEwen.
(see Argument III, supra), nor are they state actors for purposes of determining whether they
are subject to the constitutional constraints that bind the State (see Argument VI, infra). But,
contra intervenors, see Memorandum at 15-20, their policies and practices are wholly consistent
with and, indeed, promote, the best interests of children in foster care in Illinois.
15
The overarching objective of the foster child care system is to achieve permanency for the
children in foster care, Lago Decl. 5, 7 & Exhibits B, D, which objective is, in the first
instance, reunification with the childs family or, if that is not possible, adoption. And the two
most critical factors in successful foster care child placements and eventual permanency are, as
explained below, stability in placement and continuity of services from the assigned caseworker.
First, contrary to the understanding of the intervenors, see Memorandum at 17-18, and their
affiants, see Brodzinsky Aff. 26, Shaver Aff. 14, 16, 17, plaintiffs never seek to remove a
19
child from a foster home, once the child has been placed in the home, without the consent of the
foster parent(s), for reasons relating to the marital status or sexual orientation of the foster
parent(s). First Fox Decl. 9; Third Fox Decl. 13, 14; First Huelsmann Decl. 3; Second
Huelsmann Decl. 6, 12; Riordan Decl. 6, 12; Third Roach Decl. 6, 12; Third Van Cura
Decl. 6, 12. Second, although, in certain circumstances, plaintiffs may transfer the license of a
foster parent to another agency, plaintiffs never transfer the case of a foster child to another
agency for reasons relating to the marital status or sexual orientation of the foster parent(s).
Third Fox Decl. 13, 14; Second Huelsmann Decl. 10, 11; Riordan Decl. 10, 11; Third
Roach Decl. 10, 11; Third Van Cura Decl. 10, 11. This assures continuity of services
through the caseworker assigned to the case. Once again, intervenors do not apparently
understand this policy and practice. See Memorandum at 19, citing Brodzinsky Aff. 27. In the
event a placement with a relative or traditional foster caregiver is disrupted, plaintiffs make every
effort to find another appropriate relative caregiver, and will work with that relative caregiver to
obtain a foster care license. Second Huelsmann Decl. 7; Riordan Decl. 7; Third Roach Decl.
7; Third Van Cura Decl. 7. The Brodzinsky and Shaver declarations should be stricken or
disregarded, for the defects in their allegations are legion: their conclusions that are speculative
and otherwise lacking in foundation; the declarants lack of documentary evidence to support their
opinions and conclusions; and, the declarants lack personal knowledge of the facts necessary to
make their allegations (including with regard to plaintiffs practices). S.C.R. 191(a).
With respect to adoption, plaintiffs will assist relative caregivers in all cases in which a
court determines that it is in the childs best interest to be adopted by the relative caregiver.
Second Huelsmann Decl. 8; Riordan Decl. 8; Third Roach Decl. 8; Third Van Cura Decl.
20
8. In cases in which a traditional caregiver has entered into a cohabiting relationship or a civil
union and a court determines that it is in the childs best interest to be adopted by the
caregiver(s), plaintiffs continue to provide foster care services to the child and foster family, and
arrange with DCFS or another provider agency to complete the adoption process. Second
Huelsmann Decl. 13; Riordan Decl. 13; Third Roach Decl. 13; Third Van Cura Decl. 13.
Intervenors argue, however, that plaintiffs policies and practices are not in the best
interests of children in foster care. They state that childrens physical, psychological, social,
academic, moral, and spiritual adjustment do not depend on the type of family they grow up in
(i.e., family structure) but rather with the quality of parenting they receive and the resources
available to them. Memorandum at 15, citing Brodzinsky Aff. 22. That statement, of course,
necessarily implies that the best interests of a child may be served as well by placement in the
home of a married couple or a single person who is not cohabiting as in the home of a cohabiting
couple or a couple who have entered into a civil union, an implication plaintiffs accept.
Intervenors argue further that [c]hild welfare decision-making that categorically
excludes prospective foster or adoptive parents based solely or primarily on their family structure
rather than on their parenting competence, resources, and supports is inconsistent with accepted
professional judgment and practices and the best interests of children, and that [t]here is no
rational basis for categorically excluding gay and male lesbian individuals and couples from
adopting or fostering children . . . . Id., citing Brodzinsky Aff. 20, 22. Plaintiffs policies and
practices not to process foster parent applications from persons who are cohabiting outside of
marriage, however, do not categorically exclude such persons from adopting or fostering
children. They may be licensed through other private adoption agencies or by DCFS directly,
By going to the following website, prospective foster parents can locate all of the foster
16
parent agencies in their county: http://www.fosterkidsareourkids.org/how-i-can-help?
By the same token, as the Casey Field Office Mental Health Study (CFOMH) reveals,
17
some youth who identified as gay, lesbian, bisexual, transgender, or questioning (LGBTQ) may
not be comfortable in being placed in a foster home with a LGBTQ person. See Executive
Summary: Mental Health, Ethnicity, Sexuality, and Spirituality Among Youth in Foster Care,
Findings from the Casey Field Office Mental Health Study (attached) (reporting finding that less
than half of youth who identified as LGBTQ reported feeling moderately or very comfortable
being placed in a foster home with an LGBTQ person).
21
become foster parents and, if they choose and are otherwise appropriate parents, adopt the
children in their care. Third Fox Decl. 5, 7, 11; Fourth Fox Decl. 3; Second Huelsmann
Decl. 14; Riordan Decl. 14; Third Roach Decl. 14; Third Van Cura Decl. 14. Intervenors
suggestion that plaintiffs policy and practice of referring such applicants to DCFS or other
agencies only delays the timeliness of placement for chose children for whom the agency is
already responsible, thereby increasing the adjustment risk for these youngsters,
Memorandum at 18, citing Brodzinsky Aff. 27, is entirely speculative. Moreover, it ignores the
obvious point that, in view of plaintiffs longstanding policy and practice with regard to
cohabiting applicants, such applicants would not likely approach plaintiffs for licensing in the
first instance, thus avoiding the delays of which intervenors complain.
16
Intervenors observe that, in light of their unique resources and strengths, many gays
and lesbians . . . may make them a best interest placement for a particular child . . .
Memorandum at 16, citing Brodzinsky Aff. 23-25. But nothing in plaintiffs policies and
17
practices prevents either cohabiting gays and lesbians or same-sex couples who have entered
into civil union from having a foster child placed with them through DCFS or another private
agency. Second Huelsmann Decl. 9; Riordan Decl. 9; Third Roach Decl. 9; Third Van Cura
22
Decl. 9. Moreover, licensing of foster parents is not the Illinois State Lottery in which one can
improve the odds or enhance ones marginal chances of winning by buying more tickets.
An individual or a couple (in the case of persons who are married or in a civil union) can be
licensed through only one agency at a time, whether it is one of plaintiffs agencies, another
private agency (or DCFS). Fourth Fox Decl. 3. If a non-relative placement comes up and it is
the turn of the agency through which one has been licensed to find an appropriate placement,
individuals and couples licensed through that agency (including cohabiting gays and lesbians or
same-sex couples who have entered into a civil union) will be considered if they live in the
appropriate geographic area. Fourth Fox Decl. 3.
Intervenors also emphasize that foster children who are lesbian, gay, bisexual,
transgender or questioning (LGBTQ) require services from agencies prepared to understand and
respond to their needs in a sensitive, respectful, and LGBTQ-affirmative matter. Memorandum
at 19, citing DCFS Procedures 302, Appendix K(H)(4) (mandating that its agencies [m]ake
every effort to ensure that LGBTQ youth are placed in gay-affirming environments that respect
the youths right to self-determination. Of course, foster parents (whether single or married)
who are not gay, lesbian, bisexual, transgender or questioning may be quite as capable of
respect[ing] the youths right to self-determination as a cohabiting person or a couple who have
entered into a civil union. Plaintiffs own policies and practices accord with Appendix K. See,
e.g., Fourth Fox Decl. 9.
In their memorandum and supporting affidavits, intervenors appear to misapprehend both
how the foster child care system operates and plaintiffs own policies and practices. Intervenors
suggest that, for some children, the best interest placement may be with an excluded couple, for
23
example with a relative with whom the child has an established relationship. Memorandum at
16, citing Brodzinsky Aff. 25. What intervenors do not appear to understand, however, is that
placements with relatives is done by DCFS directly, not plaintiffs or other private adoption
agencies. Second Huelsmann Decl. 3; Riordan Decl. 3; Third Roach Decl. 3; Third Van
Cura Decl. 3. Neither plaintiffs nor any other adoption agency make that placement. Moreover,
plaintiffs work closely with all relative caregivers to obtain a foster care license from DCFS.
Fourth Fox Decl. 5; Second Huelsmann Decl. 4; Riordan Decl. 4; Third Roach Decl. 4;
Third Van Cura Decl. 4. Indeed, DCFSs own most recent ranking reveals that Catholic
Charities of Peoria has a achieved a licensed percentage of 68.9%, compared to state average of
58.01%, a score of 57.7% for Mr. Shavers agency, and a score of 46.1% for DCFS for relative
foster caregivers. Fourth Fox Decl. 5 and Exhibit B attached to declaration.
Intervenors also suggest that [a]nother best placement may be with [a] couple who lives
in the childs community; placement in a different community would disrupt the childs
education and social relationships, the services and resources currently being received, and
visitation and reunification efforts with the birth family. Memorandum at 16, citing Brodzinsky
Aff. 26. Again, intervenors fail to understand how the placement system operates. The first
choice in any placement is with a relative. Fourth Fox Decl. 3 If placement with a relative is
not possible, the next priority is with a foster family which lives in the same community as the
child, preferably in the same school district. Id. That could be a family (or individual) licensed
through plaintiffs or any other private agency (or a family or individual licensed directly by
DCFS). Except in the case of a relative placement, DCFS will not place a child in a foster
family in a different community unless there is no appropriate foster family available in the
24
childs own community. Id. The selection of the community where the child will be placed
(based on the foregoing considerations) is made by DCFS, not plaintiffs or other private
adoption agencies. Id.
Intervenors and their affiants assert that the relief plaintiffs request in this case, which is
nothing other than being allowed to continue to operate in the future as they have in the past,
would likely cause harm to children in foster care in Illinois. Those assertions cannot be
reconciled with the exceptionally high ratings the plaintiffs have received from DCFS and
independent accrediting agencies (e.g.,the Council on Accreditation) with respect to their foster
care and adoption services. First Fox Decl. 2, 6; Third Fox Decl. 15; Fourth Fox Decl. 6;
First Huelsmann Decl. 6, 8-13; First Roach Decl. 2; First Van Cura Decl. 2, 8; Lago Decl.
6 & Exhibit C. Moreover, the foregoing review demonstrates why plaintiffs policies and
practices do not compromise or jeopardize the best interests of children in foster care. Indeed,
those policies and practices are entirely consistent with those interests. But of far greater
importance than intervenors speculation about the future is the reality of the past and the
present. The policies and practices of which intervenors complain are not new they have been
plaintiffs policies and practices for decades, going back to their first contracts with DCFS almost
forty years ago and even before then. First Fox Decl. 5; First Huelsmann Decl. 12; First
Roach Decl. 5; First Van Cura Decl. 14. Conspicuous by its absence from intervenors
memorandum and their supporting affidavits is any allegation, much less proof, of the harms
plaintiffs policies and practices have caused children in foster care over the past forty years.
Where are the harms? Where is the evidence, statistical or even anecdotal, of actual, as opposed
to imaginary, injury? Where are the lawsuits by or on behalf of foster children, any foster
25
children, against plaintiffs? The complete and utter absence of proof of harm to foster children
attributable to plaintiffs policies and practices regarding cohabitation is striking. If those
policies and practices have not resulted in any ascertainable harm in the last forty years, they are
not likely to do so in the next forty years.
V.
THE RELIEF SOUGHT BY THE INTERVENORS WOULD CAUSE
INCALCULABLE HARM TO CHILDREN IN FOSTER CARE IN ILLINOIS.
The relief sought by the intervenors, dismissal of plaintiffs complaint or, in the
alternative, summary judgment in their favor, would violate, not vindicate, the terms of the
consent decree entered in B.H. v. McEwen. and would cause incalculable harm to children in
foster care in Illinois. That is because the relief intervenors ask of this Court, if granted, would
effectively exclude plaintiffs from being able to provide the critical social services foster care
and adoption services that they have provided to the people of Illinois for decades. That, in
turn, would inevitably and unavoidably result in massive disruption of services and have a
devastating impact on thousands of children who are presently in foster homes licensed through
plaintiffs and would severely compromise services to children who will come into the foster care
system in the future..
The Restated Consent Decree, entered on July 15, 1997, set forth, as its sole purpose,
to assure that DCFS provides children with at least minimally adequate care. Pierce Decl.,
Exhibit A (Restated Consent Decree), 4. Plaintiffs wholeheartedly endorse that purpose.
To that end, DCFS has the responsibility under the consent decree to create and maintain a
system which assures children are treated in conformity with the following standards of care:
26
a. Children shall be free from foreseeable and preventable physical harm.
b. Children shall receive at least minimally adequate food, shelter and
clothing.
c. Children shall receive at least minimally adequate health care.
d. Children shall receive mental health care adequate to address their
serious mental health needs.
e. Children shall be free from unreasonable and unnecessary intrusions by
DCFS upon their emotional and psychological well being.
f. Children shall receive at least minimally adequate training, education
and services to enable them to secure their physical safety, freedom from
emotional harm, and minimally adequate food, clothing, shelter, health and mental
health care.
Id. Plaintiffs endorse those standards of care and follow them in their practices.
In order to order to effectuate the purpose of the consent decree and the foregoing
standards of care, the decree requires DCFS to create and maintain a system which:
a. provides that children will be timely and stably placed in safe and
appropriate living arrangements;
b. provides that reasonable efforts, as determined based on individual
circumstances (including consideration of whether no efforts would be
reasonable) shall be made to prevent removal of children from their homes and
stably to reunite children with their parents, where appropriate and consistent with
the best interests of the child;
27
c. provides that if children are not to be reunited with their parents, DCFS
shall promptly identify and take the steps within its power to achieve permanency
for the child in the least restrictive setting possible;
d. provides for the prompt identification of the medical, mental health and
developmental needs of children;
e. provides timely access to adequate medical, mental health and
developmental services;
f. provides that while in DCFS custody children receive a public education
of a kind and equality comparable to other children not in DCFS custody;
g. provides that while in DCFS custody children receive such services and
training as necessary to permit them to function in the least restrictive and most
homelike setting possible; and
h. provides that children receive adequate services to assist in the
transition to adulthood.
Id. 5. Plaintiffs concur in these requirements and follow them in their own practices.
To ensure that DCFS creates and maintains the system mandated by the consent decree,
the decree imposes specific requirements relating to a range of functions, including Protective
Services and Initial Assessment, 7-12, Screenings and Assessments for Children, 13-14,
Case Plans and Permanency Goals, 15-19, Administrative Case Reviews, 20-24, Case
Staffing and Management, 25-32, Placement and Other Services, 33-38, Case Record
and Information Systems, 39- 41, Health Care, 42-44, Education, 45-49,
Adoption, 50-54, Licensing, 55-56, Training, 57-58, Quality Assurance, 59-
28
63, and Monitoring and Implementation, 64-71.
With respect to Placement and Other Services, which focuses on foster care, the decree
requires DCFS to develop a sufficient number of placement and other resources of sufficient
quality and variety to meet its obligations under [the] decree. 37. The resource development
portion of the plans must provide for, inter alia:
Recruitment of sufficient numbers of foster homes to provide children
with safe placements consistent with paragraph 34a [referring to the best interests
and special needs of the child];
Retention of foster parents in the system, including the provision of
adequate foster parent training, adequate compensation for foster parents
(reflective of the cost of caring for children), and adequate support services
sufficient to sustain foster placements and provide children in foster placement
with adequate care
Development of sufficient numbers of therapeutic and specialized foster
homes to permit DCFS to provide appropriate placements for special needs
children, including the development of expertise among the foster parent
population . . . .
37a-c.
With respect to Adoption, the decree requires DCFS to promulgate revisions to its
policies, procedures and protocols . . to reduce delays in identifying children for adoption
achieving termination of parental rights; identifying and approving adoptive families; and
finalizing adoptions. 50a. DCFS is also required to develop and implement a program to
29
intensify its efforts to recruit adoptive parents and foster parents who wish to become adoptive
parents, including adoptive parents whose racial, ethnic and cultural backgrounds are similar to
those of children needing adoption. 52a. Adoptive placement recruitment efforts shall
include, where appropriate, public and private agencies and community groups. Id.
Given the purpose of, standards of care imposed by and general requirements and specific
policies mandated in, the consent decree, it should be immediately apparent that forcing plaintiffs
to abandon the foster care and adoption services they have provided for decades to the people of
Illinois would undermine, not build upon, the consent decree, and would cause incalculable and
permanent harm to children in foster care in Illinois. Both the litigation in B.H. v. McEwen and
independent studies demonstrate that the two most critical factors in successful foster care child
placements and eventual permanency (either reunification with the childs family or, if that is not
possible, adoption) are stability in placement and continuity of services.
With respect to the first factor, stability of placement, a collaborative study among Casey
Family Programs, the Harvard Medical School, the University of Michigan, the State of
Washington Office of Childrens Administrative Research, the University of Washington and the
State of Oregon Department of Human Resources, concludes that, [w]hile the effect of multiple
placements on child and adult functioning has not been established definitively because some
studies have found negative effects while others have not . . ., the more recent research in this
area is documenting serious negative effects. Foster Care Alumni Studies, Why Should the
Child Welfare Field Focus on Minimizing Placement Change as Part of Permanency Planning
for Children? (2007) (attached) at 7. Stability in placement minimize[s] child pain and
trauma, lessen[s] child attachment, behavior and mental health disorders, decrease[s] school
30
mobility and increase[s] academic achievement, maximize[s] continuity in services,
decrease[s] foster parent stress, and lower[s] program costs and increase[s] the likelihood that a
child will establish an enduring positive relationship with a caring adult. Id. at 3-5.
Stability in placement ultimately will be affected by the size of the pool of available
foster parents. Some foster parents currently licensed through Catholic Charities may not be
willing to continue to have foster children placed with them through other agencies. Plaintiffs
have established strong relationships with their foster parents and some or even many of them
may not be willing to continue (with new placements) under the aegis of another agency. Third
Fox Decl. 12; First Huelsmann Decl. 2; Lower-Sharp Decl. 6; Teckenbrock Decl. 3(d);
Wilhoit Decl. 3. At the same time, if plaintiffs are no longer providing their foster care
services, they will not longer be recruiting foster parents, as they do now. Lower-Sharp Decl.
2-5. That will reduce the numbers of persons who are willing to become foster parents in the
future and, by extension, adoptive parents for those children in foster care for whom reunification
with their own family is not possible. But stability in placement will be more immediately and
dramatically affected by the discontinuity in services provided to them, as shown below.
With respect to the second factor, continuity of services, a study of children in private
foster care agencies in Milwaukee County conducted by, among others, Jess McDonald, former
Director of DCFS, revealed a stunning statistical correlation between continuity of services (the
same caseworker) and achieving the goal of permanency. Of the 679 foster children who
achieved permanency in the period from January 2003 to September 2004, 74.5% had only one
caseworker, 17.5% had two, 5.2% had three and 2.7% had four or more. Connie Flower, Jess
McDonald and Michael Sumski, Review of Turnover in Milwaukee County Private Agency Child
Other studies confirm this association between continuity of services and success in
18
achieving permanency. See, e.g., C. Potter & S. Klein-Rothschild, Getting home on time:
Predicting timely permanency for young children, CHILD WELFARE, 81(2), 123-150 (2002).
Of the more than 15,000 children currently in foster care in Illinois, approximately
19
2,500 (15%) have been placed in foster homes through plaintiffs agencies. First Fox Decl. 5,
14; First Huelsmann Decl. 12; First Roach Decl. 8; First Van Cura Decl. 14. Among
children in foster care in the 89 downstate counties of Illinois, that percentage rises to 25%.
Third Fox. Decl. 15.
31
Welfare Ongoing Case Management Staff (Jan. 2005) (attached) at pp. 3-4, 24. The striking
18
drop off in achieving permanency for foster children who had two caseworkers (17.5%),
compared to those who had only one (74.5%), proves beyond question that a change in the
agency providing foster care services to a child in care, which would result from plaintiffs having
to cease their operations, and the concomitant change in caseworkers, which would be inevitable,
would have a dramatic and devastating impact on the welfare of children in foster care in Illinois.
Given the number of children who are currently placed in foster homes through
plaintiffs, the impact on the physical, psychological, emotional and developmental health of
19
these children, their success in school and their moral and spiritual welfare, would be
devastating. First Fox Decl. 5, 10, 14; First Huelsmann Decl. 4, 12; First Roach Decl.
20, 24; First Van Cura Decl. 12, 16. These concerns cannot be airbrushed away by blithe
assurances (Shaver Aff. 19-24) that there will be aseamless transition from plaintiffs
agencies to other providers by virtue of plaintiffs caseworkers going to work for new providers.
Third Fox Decl. 15; Fourth Fox Decl. 10-18; First Huelsmann Decl. 4. That was not the
experience when Chicago Catholic Charities stopped providing foster care services four years
ago, and it would not be the experience if that situation arose again.
When Catholic Charities of the Archdiocese of Chicago ended its foster care services in
32
2007 (because it was unable to obtain cost effective liability insurance), approximately 900 foster
care cases had to be transferred to DCFS and other private agencies. Boland Decl. 3-6. The
transitioning of those cases was in no way a seamless process. Id. 7. During the transition,
foster children lost their primary caseworker causing further emotional distress for our
children. Id. 8. The children also were forced to sever their relationships with their treating
therapists and counselors when they were transferred to other agencies. Id. Losing the care
and support of their agency personnel is especially traumatic to children who have been abused
and neglected. Id. As a result of Catholic Charities of the Chicago Archdiocese ceasing
operations, some of the children were transferred to an agency which closed less than two years
later, forcing the kids to face the same turmoil of loss and transition all over again. Id. 9. See
also Fourth Fox Decl. 13 (identifying multiple discontinuities in foster care and supporting
services when an agency goes out of business or ceases operations); First Huelsmann Decl. 7,
14 (same).
DCFS has recognized that [t]he transfer of childrens cases and foster parent licences
can have a detrimental impact on the childrens services and permanency. Licensing Standards
for Foster Family Homes, Subchapter E, 402.4(e)(2)(D)(I). Unfortunately, that concern is not
purely academic. DCFSs Inspector General has acknowledged the reality of the problem when
one agency goes out of business and hands off its cases to another. In her January 2005 Report
to the Governor and the General Assembly, Denise Kane, Ph.D., Inspector General of DCFS,
reported on an appalling case in which the police found a three-year old boy chained to his bed
by the neck during a raid of his foster home. Report at 171. Following the discovery, the
Department [DCFS} learned [that] the home had exceeded its licensed capacity for foster
33
children and [that] neither of the two private agencies that were supervising children in the home
was ware of the others involvement with the family. Id. The DCFS investigation revealed that
four months after the three-year old boy and his seven-year old sister were placed in the home of
a non-relative by a private foster care agency, the private agency permanently closed,
necessitating the immediate transfer of all cases. Id. The Inspector General explained what
happened:
In such instances, the Departments case assignment unit distributes cases to
other public and private organizations on a rotating basis, utilizing a computer
program that weighs the factors of a childs case against organizational attributes
and appropriateness to determine where cases should be directed. In this instance,
however the then-Director of the Department ordered all 59 of the agencys cases
involving non-relative foster children to be transferred to a single private agency,
although the Department had research demonstrating the strain a large influx of
cases has on a agencys ability to provide effective services. Although the second
private agency had recently requested expansion of its contract with the
Department, by accepting the transfers, the seconds agencys total number of
non-relative foster care cases grew from 31 to 85, increasing the second agencys
caseload by 174% in one day. Department contracts are awarded to private
agencies based on a performance-based system that identifies achieving
permanency for children as the ultimate goal. Because the second agency had
successfully met its past permanency goals, the cases were transferred without an
evaluation of other performance measures utilized by the Department.
Id. (emphasis added).
Thus, although defendant DCFS itself is in possession of research demonstrating the
strain a large influx of cases has on a agencys ability to provide effective services, that is
precisely what DCFS, along with the intervenors, is proposing by opposing the relief plaintiffs
seek in this case. And it wont be a few dozen cases, it will be thousands. Fourth Fox Decl.
15, 18. And what appears to be DCFSs normal policy when a private agency ceases operations
to distribute the cases to other agencies on a rotating basis obviously and indisputably
34
aggravates the problem of caseworker turnover with respect to the cases transferred to other
agencies. Fourth Fox Decl. 13. A caseworker can work for only one agency at a time; she
cannot bi-locate and work for two (or more) agencies at the same time. But even assuming that
some, or even most, of the caseworkers employed by plaintiffs transitioned to other agencies
and stayed with their cases, the lives of hundreds of children in foster care in Illinois would be
disrupted, achieving permanency for those children would be delayed and some children would
be placed at risk of harm. First Fox Decl. 10; Fourth Fox Decl. 14, 17; First Huelsmann
Decl. 14; First Roach Decl. 24; First Van Cura Decl. 16, 23. Intervenors may be sanguine
about such an outcome; plaintiffs cannot be.
More than twenty years ago, in an early stage of the litigation in B.H. v. McEwen, Judge
Grady observed that [c]hildren are by their nature in a developmental phase of their lives and
their exposure to traumatic experiences can have an indelible effect upon their emotional and
psychological development . . . B.H. v. Johnson, 751 F.Supp. 1387, 1395 (N.D. Ill. 1989). By
virtue of the positions they have taken in this case, intervenors and defendants appear to be
perfectly willing to place the foster children of Illinois in harms way by disrupting placements
and undermining continuity of services. Plaintiffs are not, which is why they brought this action.
VI.
AS PRIVATE CHARITABLE ORGANIZATIONS,
PLAINTIFFS ARE NOT STATE ACTORS.
The intervenors claim that plaintiffs are state actors starts with a false premise and drives
to a conclusion wholly inconsistent with controlling precedent from the United States Supreme
Court. As demonstrated below, the facts of the matter establish that Illinois purchases certain
See, e.g., Intervenors Memorandum at 10 & n.9 (Catholic Charities engaged in a
20
traditionally exclusive public function because the placement of abused and neglected children
who were removed from their homes has been historically exclusively within control of the
state.); id at 11 (removal and placement).
35
foster care and adoption-related services from plaintiffs in order to facilitate a process that
Illinois (not plaintiffs) operates, and this dispute concerns plaintiffs decades-long practice of
declining, on sincerely-held religious grounds, to perform a very discrete category of those
services, specifically, processing applications for traditional (nonrelative) foster parent licenses
from persons who, at the time they approach one of plaintiffs agencies, are cohabiting, and
processing adoptions by such couples of children who are not related to them. Moreover, the
Supreme Court has consistently held that a private party does not become a state actor by
providing services to the State, even where, as here, the State purchases services in an area where
the State itself operates and where, as here, the area of activity is alleged to be highly regulated.
For the same reasons, this Court should find that plaintiffs do not become state actors merely
because they perform adoption-related services (including processing foster care license
applications) for Illinois.
As noted above, intervenors argument that plaintiffs are state actors starts with a false
premise, more specifically, that plaintiffs are exercising the authority of removal of children from
their natural home and of placement in foster care. The initial characterization of the activity at
20
issue is vitally important to the proper resolution of intervenors claims because, as they
acknowledge, whether private conduct involves state action is a necessarily fact-bound
inquiry, that turns on whether there is such a close nexus between the State and the challenged
action that seemingly private behavior may be fairly treated as that of the State itself.
Brentwood Academy v. Tennessee Secondary School Athletic Assoc., 531 U.S. 288, 295, 298
36
(2001) . As Brentwood indicates, the Supreme Court has consistently emphasized that
determining the precise activity said to cause the constitutional violation is a critical first step in
the state action inquiry. See Brentwood, 531 U.S. at 295 (noting a private entity can be said to
have engaged in state action only when it can be said that the State is responsible for the specific
conduct of which the plaintiff complains); see also, Am. Mfrs. Mut. Ins. Co. v Sullivan, 526 U.S.
40, 51 (1991) (noting that the state actor inquiry begins by identifying the specific conduct of
which the plaintiff complains) (internal citations omitted); Blum v. Yaretsky, 457 U.S. 991,
1003-04 (1982) (Faithful adherence to the state action requirement . . . requires careful
attention to the gravamen of the plaintiffs complaint. . . . [C]onstitutional standards are invoked
only when it can be said that the State is responsible for the specific conduct of which plaintiff
complains). Accordingly, this Court must focus on the specific conduct at issue in this
litigation when determining whether the private action of plaintiffs is fairly attributable to the
State of Illinois.
The facts belie intervenors claim that plaintiffs conduct at issue here is state action
because the case does not concern plaintiffs exercise of the power to remove children from their
natural home and to place them in foster care. For one thing, it is the State of Illinois, not
plaintiffs, that licenses persons who wish to become foster parents (and possibly later adopt those
children), as intervenors concede. See Intervenors Memo at p. 12 n. 12. It is the State that
makes the decision to place children in foster care based upon its criteria. Fourth Fox Decl. 3
(describing how DCFS determines placement based on via computer match based on
geographical propinquity of childs current place of residence and that of potential foster
parents.); id. Exhibit A at 22 (contract language specifying that [a]gencies are expected to place
And in fact any decision to remove a child may be appealed to DCFS. Fourth Fox
21
Decl. 4.
37
children in the home that is identified by CAPU [the Case Assignment Placement Unit of DCFS]
as the target home. The Department will monitor child placements to ensure that children are
placed in the appropriate target homes.). And plaintiffs do not move a child based on
cohabitation, belying any allegation that movement of a child between foster homes provides a
basis for a claim that plaintiffs, acting for the State, are violating the right claimed. See
Huelsmann Decl. 6, 7, 13; Riordan Decl. 6, 7, 13; Roach Decl. 6, 7, 13.
21
The role of plaintiffs actually at issue here is not licensing, removal from the natural
home, or even placement in foster care it is providing assistance to persons seeking licensure or
traditional (nonrelative) placements. Under its contracts, Illinois purchases certain services from
plaintiffs to aid the State in the operation of its foster care and adoption system, and this
controversy arises from the declination, on sincerely-held religious grounds, to provide assistance
in traditional (nonrelative) licensing or traditional (nonrelative, nonsibling) placement to persons
who are cohabiting at the time they ask plaintiffs for assistance. See Huelsmann Decl. 10-12;
Riordan Decl. 10-12; Roach Decl. 10-12. Put simply, this litigation does not concern either
the grant of the foster parent license, placement of children in foster care or removal of children
from the home. This litigation does concern a very discrete category of the assistance that
plaintiffs provide to persons interested in becoming foster parents and (possibly) adoptive
parents.
The precise question presented is whether plaintiffs provision of assistance to persons
interested in securing a foster parent license from the State (or securing a placement, if already
licensed) is properly characterized as state action. The answer to that question is simple: No.
See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-158 (1978); (noting that
22
while many functions have been traditionally performed by governments, very few have been
exclusively reserved to the State.) (internal citations omitted).
38
The reasons for that answer are straightforward: (1) providing assistance in the foster parent and
adoption process is not traditionally an exclusive public function; (2) the mere fact that Illinois
contracts with plaintiffs to provide the services does not create a relationship that rises to the
level of state action; and (3) the mere fact that the provision of foster care is highly regulated, as
intervenors emphasize, is insufficient to support a finding of state action.
Intervenors cannot show state action based on the role that plaintiffs play in assisting
persons interested in obtaining licensure or a placement on the theory this is a traditional and
exclusive state function. For example, in Rendell-Baker v. Kohn, 457 U.S. 830 (1982), plaintiffs
filed suit arguing that a private corporation providing education to maladjusted high school
students pursuant to contracts with the State violated their due process rights when it fired them.
In support of the claim that the private corporations were engaged in state action the plaintiffs
advanced a number of arguments, the one most pertinent here was the claim that the school is a
state actor because it performs a public function. Rendell-Baker, 457 U.S. at 842. The Court
rejected this claim, explaining that the question is whether the function performed has been
traditionally the exclusive prerogative of the State. Instead, the Court found that the
22
education of maladjusted students was not an exclusive function and noted [t]hat a private entity
performs a function which serves the public does not make its acts state action. Rendell-Baker,
457 U.S. at 842; see also San Francisco Arts & Athletics v. United States Olympic Committee,
483 U.S. 522, 544 (1987) (The fact that a private entity performs a function which serves the
public does not make its acts [governmental] action) (internal citations omitted). Just as the
39
Court declined to find education was an exclusive governmental function, it has refused to find
that the provision of nursing home care was an exclusive state function, noting that simply
because the State had authority to appropriate for the care of the needy did not make private
caregivers state actors, see, Blum v. Yaretsky, 457 U.S. 991, 1011-12 (1982), and it has refused to
find that the administration of workers compensation benefits required by state law was an
exclusive public function. See American Manufacturers Mutual Insurance Co. v. Sullivan, 526
U.S. 40, 55-57 (1999).
Seen in this light, intervenors argument cannot bear the weight assigned. As they
concede, the State of Illinois has been removing children from their natural homes and finding
private individuals and agencies to care for them since its inception, first through courts
exercising an ancient equitable jurisdiction, and with increasing intensity through executive
branch departments like DCFS acting in conjunction with the courts. See Intervenors Memo at
10 & n. 9. But the point is that the State of Illinois still does so. See Memo at 11 & n.10; Fourth
Fox Decl. 4. At issue here is the role that private charitable organizations play in facilitating
the States foster care program by assisting persons who are interested in licensure or placement
to complete the procedures that Illinois has enacted to determine if interested persons qualify.
Intervenors provide no evidence to support their implicit claim that helping persons
interested in adoption pursue licensure or placement has traditionally been an exclusive function
of the State. The only evidence on the point shows that plaintiffs have been providing adoption
services for about 100 years and foster care services for about 90 years. See Huelsmann Decl.
2; Riordan Decl. 2; Roach Decl. 2; Exhibits to Stefancova Decl., Letter of Bishop Edmund
M. Dunne, Bishop of Peoria to Parish Priests, August 27, 1927 (making an appeal for Catholic
40
Charities on behalf of the orphans at Guardian Angel Asylum and noting we shall have three
active workers to attend to court duties, examine individual cases and especially the character of
those seeking to adopt children from the orphanage, and visit regularly those in adoption or
temporarily placed in homes); Letter of Bishop Edmund M. Dunne to Parish Priests September
16, 1928 (noting the Orphanage must not b regarded as a haven for delinquents, nor an asylum
for the feeble-minded, but as a clearing house in which dependent children are detained only until
suitable Catholic homes can be found for them.). See also Lago Decl. 6 & Exhibit C. Indeed,
even if this case concerned placement, placement itself is not a traditional and exclusive state
function. See Lago Decl. Ex. E (History of Catholic Social Services) at 879 (noting that [i]n
1923, the Juvenile Court Act was amended to empower the Juvenile Court to commit children to
the guardianship of duly accredited child placing agencies such as the Catholic Home Bureau.);
id. at 881 (noting that in 1969 all guardianship orders were transferred from private agencies to
the Illinois Department of Children and Family Services.). The Tenth Circuit has refused to
find assistance in placement was a traditional and exclusive function of the State precisely
because private agencies continue to assist private persons with the adoption process. See
Johnson v. Rodriguez, 293 F.3d 1196, 1203 (10th Cir. 2002).
Intervenors effort to make the assistance at issue a traditional and exclusive public
function based on a trilateral relationship misses the mark entirely for the same reason. In
Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816 (2009), the Seventh Circuit used the
trilateral relationship (the Supreme Court has never used the term trilateral relationship in
this context), as a shorthand term in its examination of West v. Adkins, 487 U.S. 42 (1988), which
turned on the States duty to provide medical care to persons in its custody and its decision to
In fact, the constitution requires very little from a state with regard to its foster children.
23
B.H. v. Johnson, 715 F. Supp. 1387, 1398 & fn. 6 (N.D. Ill. 1989)(limiting best interests to
only apply to a substantive due process claim to be free from arbitrary intrusions upon their
physical and emotional well-being while directly or indirectly in state custody, and to be
provided with adequate food, shelter, clothing, medical care, and minimally adequate training to
secure these basic constitutional rights) and 49 F.3d 294 (7 Cir. 1995) (Beyond insisting that
th
the state not deliberately make things worse, the Constitution is silent.)(2-judge concurrence).
41
fulfill that duty by hiring a doctor, drawing the doctor into the relationship between the State and
the person held in custody. Id. at 826.
As demonstrated above, the service actually at issue here is assistance to persons
cohabiting at the time they seek the assistance of Catholic Charities with respect to licensure or
placement. See Huelsmann Decl. 10-12; Riordan Decl. 10-12; Roach Decl. 10-12.
As the Seventh Circuit has recognized, these potential foster parents have no constitutionally
protected interest in a relationship with a foster child. See, e.g., Dupuy v. Samuels, 397 F.3d 493,
513 (7th Cir. 2005). So any notion that the assistance plaintiffs might render to persons is state
action because the State uses plaintiffs to perform a constitutional duty falters at the outset; the
reason is simple: the State does not have a duty to the person interested in licensure or placement
and, a fortiori, neither do plaintiffs.
23
In the same vein, intervenors effort to make out state action under the sufficiently close
nexus test must be rejected. Here, too, the argument focuses upon the relationship between the
State, ward, and agency providing assistance to the child pursuant to contracts with the State.
See Memo at 12 (Catholic Charities have a close relationship with the state and the foster
children.). But again, the only service at issue is assistance to persons who are applying to
the State of Illinois for licensure or placement, not the services plaintiffs provide to children once
they have been placed by the State pursuant to their contracts with the State. Apart from that,
For the reasons given above, the cases cited by intervenors are inapposite. Wilder v.
24
Bernstein, 848 F.2d 1338 (2d Cir. 1988) concerned a settlement and the States duty to its ward,
but did not decide the state action point). Norfleet v. Arkansas Department of Human Services,
989 F.2d 289 (8th Cir. 1993) did not decide whether a foster parent is a state actor, while
intervenors concede they are not. See Memo at 11, n. 10. Taylor v. Ledbetter, 818 F.2d 791
(11th Cir. 1987) does not turn on the state action point. Nicini v. Morra, 212 F.3d 798 (3rd Cir.
2000) concerns the States duty to the foster child, not whether a private agency is a state actor.
Estate of Earl v. Doud, 1997 WL 255506 (E.D.Pa. 1997) is inapposite because it concerns care
rendered by a foster agency, not assistance to potential foster parents as does LeBlanc v. State of
Florida, 2011 WL 1150374 (M.D. FL 2011), which holds based on nothing more than boilerplate
prefatory language in state law. Lethbridge v. Lula Belle Stewart Center, 2007 WL 2713733
(E.D. MI 2007), Donlan v. Ridge, 58 F.Supp.2d 604 (E.D. Pa. 1999), Harris v. Lehigh County
Office of Children & Youth Services, 418 F. Supp. 2d 643 (E.D. Pa. 2005), and D.B. v. City of
Philadelphia, 2008 WL 4565891 (E.D. Pa. 2008), all concern placement by the agencies, not the
assistance with application or placement at issue here.
42
intervenors argument rests on the fact that licensure and placement in Illinois is highly regulated.
Id. & n.12. But it is fundamental that private activity does not become state action, merely
because it takes place in an area subject to intensive regulation. See, e.g., Rendell-Baker, 457
U.S. at 839-40 (heavy reliance on government funding and involvement of government in certain
operational decisions was not sufficient to convert decisions of private company into those of the
State); Blum, 457 U.S. at 1007-1011 (rejecting claim that nursing homes providing care to
patients under Medicare program on grounds that although it is apparent that nursing homes in
New York are extensively regulated, the mere fact that a business is subject to state regulation
does not by itself convert its action into that of the State for the purposes of the Fourteenth
Amendment.); Jackson v. Metropolitan Edison Co., 418 U.S. 345 (1974) (public utilities
provision of essential utility service not state action by virtue of intensive regulation by State);
Amer. Manuf. Ins, 526 U.S. at 51-52 (private insurers administration of state-mandated workers
compensation plan was not state action by virtue of extensive state regulation of the private
activity.).
24
43
There is one final reason why the declination of plaintiffs to provide assistance to persons
who are cohabitating at the time they seek licensure or placement is not state action. As the
Supreme Court has consistently emphasized, the heart of the state action inquiry is whether the
alleged violation is fairly attributable to the State, Rendell-Baker, 457 U.S. at 838, and that
[w]hat is fairly attributable is a matter of normative judgment, and the criteria lack rigid
simplicity. Brentwood Academy, 531 U.S. at 295-96
Here, plaintiffs declination to provide a very small and discrete portion of activities the
State seeks to purchase via contract is simply not fairly attributable to the State in any
meaningful sense. The Adoption Center of Illinois ensures that persons whom plaintiffs cannot
help, consistent with its religious faith, can secure assistance from such agencies. See
Huelsmann Decl. 17; Riordan Decl. 17; Roach Decl. 17; Van Cura Decl. 17. As
intervenors papers make plain, other private agencies do provide assistance with respect to
licensure or placement to persons who are cohabiting. See Shaver Decl. 18. Given that the
State of Illinois has purchased services from private agencies that are willing and able to provide
assistance to persons who are cohabiting when they seek a license to become foster parents or to
adopt, there is no meaningful sense in which plaintiffs declination to do so on the basis of its
religious beliefs is fairly attributable to the State of Illinois.
For all these reasons, including the element of basic fairness at the heart of the state
action inquiry, the Court should find that plaintiffs are not state actors.
VII.
PLAINTIFFS ARE ENTITLED TO RELY UPON THEIR STATUTORY EXEMPTIONS
AND RIGHTS OF FREE EXERCISE OF RELIGION.
44
Based upon the Catholic Churchs traditional teaching regarding the morality of
cohabitation outside of marriage, plaintiffs have sincerely-held religious objections to accepting
foster care applications from persons who are cohabiting, whether within the formal construct of
a civil union or without, and to processing adoptions of unrelated children by cohabiting persons,
First Fox Decl. 8; Third Fox Decl. 2, 5, 7; First Huelsmann Decl. 2; First Roach Decl. 4,
13; First Van Cura Decl. 3. When cohabiting persons present themselves to one of plaintiffs
agencies inquiring about become licensed foster parents, they are respectfully and immediately
informed that plaintiffs are unable to accept and process their applications and referred
elsewhere. Fox First Decl. 8, 9; Fox Third Decl. 7; First Huelsmann Decl. 2,16; Second
Huelsmann Decl. 9; Riordan Decl. 9; Third Roach Decl. 9; First Van Cura Decl. 3;
Second Van Cura Decl. 9.
Intervenors argue that plaintiffs may not rely upon their statutory exemptions and rights
of free exercise of religion in declining to process applications for foster care licenses from
cohabiting persons or couples who have entered into a civil union. Memorandum at 27-44.
Intervenors have misread and misinterpreted the statutes. Intervenors initially contend that, as
state actors, Catholic Charities cannot assert defenses based on religion . . . . Memorandum
at 27-29. That contention is addressed in the preceding argument (Argument VII) and does not
require further elaboration.
The Illinois Religious Freedom Protection and Civil Union Act
Intervenors next contend that Catholic Charities are not exempted from the Civil Union
Act. Memorandum at 29-35. Intervenors contention is largely answered in the memorandum
of law plaintiffs filed on August 8, 2011, in support of their motion for summary judgment.
45
Plaintiffs refer the Court to Argument II in that memorandum (pp. 24-28). Here, plaintiffs make
a few additional points: First, intervenors fail to address plaintiffs observation (made in each of
their complaints, as well as in their memorandum) that the Illinois Religious Freedom Protection
and Civil Union Act (which intervenors refer to as the Civil Union Act, Memorandum at 29)
imposes no duties or obligations on plaintiffs. Section 20 of the Act provides:
Protections, obligations, and responsibilities. A party to a civil union is entitled to the
same legal obligations, responsibilities, protections, and benefits as are afforded or
recognized by the law of Illinois to spouses, whether they derive from statute,
administrative rule, policy, common law, or any other source of civil or criminal law.
750 ILCS 75/20.
The legal obligations, responsibilities, protections, and benefits that must be extended
to couples in civil unions under the Act are only those afforded or recognized by the law of
Illinois to spouses . . . . Obviously, the law of Illinois is determined by the General Assembly,
not the plaintiffs. Only the State can determine what obligations, responsibilities, protections,
and benefits are attendant to spouses and, therefore, to [a] party in a civil union, as provided
by the Act. With respect to foster care and adoption, persons who have entered in a civil union
have the same benefit, under the law, as married couples to become foster parents and/or
adoptive parents. Plaintiffs policies and practices do not deny them access to that benefit.
Second, even assuming that, notwithstanding the limited scope of 20, plaintiffs policies
and practices otherwise fall within the coverage of the Act, 15 provides them with a religious
exemption. Section 15 provides:
Nothing in this Act shall interfere with or regulate the religious practice of any religious
body. Any religious body, Indian Nation or Tribe or Native Group is free to choose
whether or not to solemnize or officiate a civil union.
46
750 ILCS 75/15.
Intervenors claim that 15 only applies to solemnization of civil unions. Memorandum
at 29-30. That, of course, is to read the first sentence out of the statute. If the General Assembly
had intended 15 to have the limited meaning ascribed to it by intervenors, it would have
enacted only the second sentence. But that is not what the Legislature did. Section 15 must be
read as a whole, construed so as to give effect to every word, clause, and sentence, and must
not be read . . . so as to render any part superfluous or meaningless. Kraft, Inc. v. Edgar, 138
Ill.2d 178, 189 (1990). The legislative history, in the exchange between Senator Haine and
Senator Koehler, set forth in plaintiffs memorandum (p. 26) confirms this reading.
Intervenors also claim that, in offering foster care and adoption services, plaintiffs are not
a religious body engaged in a religious practice. Memorandum at 30-33. Plaintiffs are under
the ultimate control of the ordinary (the bishop) of their respective diocese. First Fox Decl.
2,5; First Huelsmann Decl. 2; First Roach Decl. 4, 5; First Van Cura Decl. 3, 4. Thus,
they qualify as religious bod[ies]. Moreover, their foster care and adoption services are
motivated by their religious identity and informed by their religious beliefs, which, apropos of
the issues in this case, includes the belief that cohabitation between unmarried persons is
immoral. Intervenors understanding that the activity in which one engages must be intrinsically
religious in nature or somehow necessary to ones religious beliefs (Memorandum at 31-33)
to qualify as a religious practice under 15 of the Act is mistaken, as the legislative history of
the Act reveals. Plaintiffs Memorandum at 27. Intervenors take issue with plaintiffs reliance
upon the legislative history (Memorandum at 33-35), but the exchange between Senator Haine
and Senator Koehler speaks for itself, and certainly is more probative of the Legislatures intent
Although, in interpreting language in a bill that may be unclear or ambiguous,
25
statements by the sponsor are not controlling, Kunkel v. Walton, 179 Ill.2d 519, 536 (1977),
such statements may be of particular help in understanding legislative intent. Rivard v. Chicago
Fire Fighters Union, Local No. 2, 122 Ill.2d 303, 310 (1988).
47
than intervenors reliance upon the interpretation of entirely different, unrelated statutes. In
25
addition to the legislative history set forth in plaintiffs memorandum filed in support of their
motion for summary judgment, other statements of the sponsors and proponents of the bill shed
light on the scope of 15.
The Senate sponsor, Senator Koehler, stated that the bill [e]xpressly . . . states that
nothing in this Act shall interfere with or regulate the religious practices of any religious body
and it protects the freedom of religious bodies to choose whether or not to solemnize civil
unions. Senate Tr. at 47 (Dec. 1. 2010) (emphasis added). This statement obviously recognizes
that 15 has two purposes, not one, and that it is not limited to the solemnization of civil unions.
That was underscored by remarks from Senator Schoenberg, also a supporter of the bill, referring
generally to religious exemptions in legislation: But we, over time, have taken measures to
strengthen and protect not just individual religious freedoms, but institutional religious freedoms,
so that people can practice their faith, so that institutions do not violate their religious missions.
Senate Tr. at 67 (Dec. 1, 2010) (emphasis added). He continued, We not only make certain that
people can function according to their religious practices and values in the workplace and theyre
protected by law, we dont make religious institutions do things which run contrary to their
theology. Id. (emphasis added). Specifically addressing the bill, Senator Hutchinson, another
supporter, stated, This bill . . . . protects the rights of religious institutions to continue to
practice their faith according to their own tenets and their own laws. Senate Tr. at 77 (Dec. 1,
2010). Responding to a question as to whether church organizations would have to offer
In plaintiffs memorandum in support of their motion for summary judgment (p.26), the
26
citation to Representative Langs remarks was inadvertently given as p. 4, instead of p. 24.
48
benefits to the partner of someone in a civil union, Senator Koehler noted that religious
organizations are specifically exempt in the Human Rights Act as employers, and this does not
pertain to religious organizations in any way. Senate Tr. at 49-50 (Dec. 1. 2010) (emphasis
added). He reiterated that response later in the debate. Id. at 72-73. And in the House, Rep.
Lang, another supporter, responding to religious objections to the bill, stated: Now, I know
therell be people who will vote against this on religious grounds even though the Bill says not,
specifically prohibits using this in any way that impacts on religion. House Tr. at 24 (Nov. 30,
2010) (emphasis added).
26
The legislative debate over the Illinois Religious Freedom Protection and Civil Union Act
leaves little doubt that the religious practice exemption set forth therein ( 15) was intended to
have a broad scope and is not limited to the solemnization of civil unions.
The Illinois Human Rights Act
Intervenors contend further that the anti-discrimination provisions of the Human Rights
Act apply to plaintiffs. Memorandum at 35-39. That contention is manifestly mistaken, as
shown in plaintiffs memorandum in support of their motion for summary judgment (at pp. 20-
24). To recapitulate, when the Human Rights Act was amended in 2007, the general definition of
place of public accommodation was deleted and an extensive, but non-exhaustive, list of
places of public accommodations was added. Under the 2007 the amendment, 5-101(A)(12)
now defines a place of public accommodation to include, inter alia, a senior citizen center,
homeless shelter, food bank, non-sectarian adoption agency, or other social service center
establishment . . . . 775 ILCS 5/5-101(A)(12) (emphasis added). Intervenors do not seriously
Intervenors argument that the implied exemption, if it exists, must be narrowly limited
27
to plaintiffs adoption services, as opposed to the foster care services they provide, Memorandum
at 38-39, must be rejected. The foster care services plaintiffs offer are integrally related to their
adoption services and cannot be separated so that the latter, but not the former, are considered
exempt under the law Intervenors alternative argument that, as state actors, plaintiffs may not
assert an exemption under 5-101(A)(12), id. at 35-36, is answered in Argument VI, supra.
49
dispute that plaintiffs are sectarian (i.e., religiously-based) adoption agencies. Instead, they note
that the list of places of public accommodation was not meant to be exhaustive, but only
illustrative. Based upon that observation, intervenors argue that plaintiffs necessarily fall within
the scope of the Human Rights Act because the services they offer are similar to those offered by
non-sectarian adoption agenc[ies] who are covered by the Act. Memorandum at 37-38. If this
reading of the language were correct, then there was no reason for the Legislature to limit the
words adoption agency with the adjective non-sectarian. But of course it is not correct.
Intervenors also ignore the legislative history of the 2007 amendment which reveals, as set forth
in plaintiffs memorandum (pp. 23-24), that the language of 5-101(A)(12) was amended during
the course of the bills journey through the legislature. Originally, 5-101(A)(12) was not
limited to non-sectarian adoption agencies, but covered any adoption agency, without
exception (precisely what intervenors claim it means now). Section 5-101(A)(12), however, was
changed intto its present form in the Senate by Floor Amendment No. 4 which, as its proponent,
Senator Cullerton said, exempts as places of public accommodation . . . sectarian adoption
agencies. Senate Tr. at 36-37 (May 10,2007) (emphasis added). As adoption agencies,
plaintiffs are exempt from the scope of the Human Rights Acts regulation of place[s] of public
accommodation.
27
The Illinois Religious Freedom Restoration Act
Finally, intervenors contend that plaintiffs may not avail themselves of the protections
50
accorded by the Illinois Religious Freedom Restoration Act. First, intervenors argue that in order
to claim that one has been substantially burden[ed] in the exercise of religion, a person must
demonstrate that the government action prevents him from engaging in conduct or having a
religious experience that his faith mandates. Memorandum at 39, quoting Diggs v. Snyder,
333 Ill.App.3d 189, 195 (5th Dist. 2002), quoting Stefanow v. McFadden, 103 F.3d 1466, 1471
(9th Cir. 1996) (emphasis supplied). Because, in intervenors opinion, operating a foster care
agency is not mandated by plaintiffs religion, they have failed fail to make this threshold
showing. Memorandum at 39-40. Intervenors are mistaken.
In their memorandum in support of their summary judgment motion (p. 29 n.2), plaintiffs
noted that the holding from Diggs quoted by the intervenors is at odds with the definition of
exercise of religion in the Act as an act or refusal to act that is substantially motivated by
religious belief, whether or not the religious exercise is compulsory or central to a larger system
of religious belief, 775 ILCS 35/5 (emphasis added), a definition, plaintiffs emphasize, that the
Fifth District never quoted or cited in its opinion. Clearly, under the unambiguous definition in
the Act, it is not necessary to demonstrate that the act or refusal to act is compelled by ones
religious beliefs. It is sufficient if the act or refusal to act is substantially motivated by
religious belief. There is no dispute that plaintiffs policy of not accepting applications for
foster care licenses from cohabiting persons is firmly rooted in and substantially motivated by
their religious belief regarding the morality of cohabitation.
Other language in Diggs, however, suggests a broader meaning of substantial burden.
The Fifth District described the hallmark of a substantial burden on ones free exercise as the
presentation of a coercive choice of either abandoning ones religious convictions or [not]
51
complying with the government regulation. 333 Ill.App.3d at 195. That description is apt.
Plaintiffs have been given a choice by DCFS either abandon their religious convictions
regarding the morality of cohabitation and accept foster parent applications from persons who are
cohabiting, or give up the opportunity to contract with DCFS to provide their foster care and
adoption services to the children and families of Illinois. Federal cases interpreting the undefined
term substantial burden in the federal Religious Land Use & Institutionalized Persons Act
(RLUIPA), 42 U.S.C. 2000cc et seq., are consistent with plaintiffs reading of the same
undefined term in the Illinois Act. See Plaintiffs Memorandum (p. 29).
Second, intervenors argue that even if plaintiffs exercise of religion is substantially
burdened by the DCFS requirement that they process foster parent applications from persons
who are cohabiting persons who are not married to each other, that burden is fully justified by
compelling state interests which cannot be furthered by any less restrictive means. Memorandum
at 41-44. That argument also fails.
Intervenors identify as their first compelling interest the States interest in the largest
pool of potential foster parents possible. Memorandum at 41. Plaintiffs agree that the State has
such an interest, but that interest would be subverted, not advanced, by forcing plaintiffs to cease
operations. In that event, the pool of potential foster parents would shrink, not swell, because
some foster parents would drop out of the system if their services cannot be provided through
plaintiffs. As plaintiffs demonstrated in Argument V, supra, some foster parents currently
licensed through plaintiffs agencies may not be willing to continue to have foster children placed
with them through other agencies. Third Fox Decl. 12; First Huelsmann Decl. 2; Lower-
Sharp Decl. 6; Teckenbrock Decl. 3(d); Wilhoit Decl. 3. At the same time, if plaintiffs are
The analysis is the same under both equal protection guarantees. See General Motors
28
Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill.2d 1, 31 (2007) (in applying an
equal protection analysis, we apply the same standard under both the United States Constitution
and the Illinois Constitution).
52
no longer providing their foster care services, then, obviously, they will no longer be recruiting
foster parents. Lower-Sharp Decl. 2-5. The inevitable result would be fewer foster families in
the system. Thus, banishing plaintiffs from the field would not bring more cohabiting or civil
union couples into the stadium because they can already enter through another gate.
As their second compelling interest, intervenors identify the States interest in
preventing discrimination. Memorandum at 43. Intervenors, however, fail to cite any cases
demonstrating that the State has a compelling interest in eradicating discrimination against
persons who cohabit, which does not describe a class at all, much less one like race or sex or
some other immutable characteristic. Moreover, the exclusion of sectarian adoption agencies
from the scope of the Human Rights Acts application to places of public accommodation, supra,
undermines the foundation of any argument that the State has a compelling interest in
eradicating discrimination against cohabiting persons. See Brief of Amicus Curiae Evangelical
Child and Family Agency in Support of Plaintiffs Motion for Summary Judgment 15. Indeed,
although plaintiffs are not subject to the constitutional constraints that bind the State (see
Argument VI, supra), Illinois courts have held that a legal distinction based on cohabitation does
not violate state or federal equal protection principles.
28
For example, in determining what is in the best interests of a child, the law may take into
account whether a person is cohabiting with another person (of the same or the opposite sex).
Illinois courts have consistently held that [a]n intimate cohabitation relationship of a parent, be
it heterosexual, homosexual or lesbian in nature, is a proper factor to be considered by the trial
53
court in making a custody determination. In re Marriage of Diehl, 221 Ill.App.3d 410, 426 (2d
Dist. 1991), citing In re Marriage of Thompson, 96 Ill.2d 67, 78-79 (1983), Jarrett v. Jarrett, 78
Ill.2d 337, 344-45 (1979), In re Marriage of Fahy, 208 Ill.App.3d 677, 688-90 (1st Dist. 1991),
and In re Marriage of Williams, 205 Ill.App.3d 613, 618-20 (3rd Dist. 1990). In Diehl, the
Appellate Court, Second District, rejected the mothers argument that the trial court had engaged
in unconstitutional sexual orientation discrimination by considering [her] alleged lesbian
relationship in awarding custody of her daughter to her ex-husband, the father. 221 Ill.App.3d
at 426. Citing the Illinois Supreme Courts decisions in Thompson and Jarrett, the Appellate
Court held that a cohabitation relationship of a parent is a relevant factor to be considered by the
court in making a custody determination which factor applies to any cohabitation relationship.
Id. (emphasis in original). Such an approach, the court noted, is sexual orientation neutral, in
that any such relationship is considered to be a relevant factor regardless of the relationships
sexual orientation. Id. (emphasis in original). Because a trial courts consideration of a
cohabitation relationship of a parent as a relevant factor in a custody proceeding applies equally
regardless of the sexual orientation of the relationship, such consideration does not violate either
the state or federal guarantee of equal protection. Id. at 428. And, even treating plaintiffs as
state actors, neither does their refusal to accept foster parent applications from cohabiting
persons who, plaintiffs emphasize, may be licensed by DCFS directly or through other agencies.
In any event, intervenors have failed to demonstrate that the State has a compelling interest in
preventing discrimination against persons who cohabit.
Intervenors have failed to identify a compelling state interest that would be served by
forcing plaintiffs to cease their foster care and adoption operations. Nor have they shown that the
54
means chosen to further their asserted compelling interest in preventing discrimination is the
least restrictive possible, as required by the Act. An alternative to forcing plaintiffs to cease
operations would be to continue to allow them to refer applicants who cohabit (or who are in
civil unions) to DCFS or other agencies. Contrary to intervenors suggestion (Memorandum at
44), such a practice would not violate the Human Rights Act because, as sectarian adoption
agencies, plaintiffs are exempt from the anti-discrimination provisions of that Act.
55
CONCLUSION
For the foregoing reasons, plaintiffs respectfully request that this Honorable Court
deny intervenors motion to dismiss or, the alternative for summary judgment.
Respectfully submitted,
Of Counsel: __________________________________________
Thomas Brejcha One of the Attorneys for Plaintiffs
Peter Breen
Chicago, IL 60603
ARDC #0288446
Tel. 312-782-1680
Fax 312-782-1887
ARDC # 0288446
Bradley E. Huff
Richard Wilderson
Tel. 217-523-4569
Fax 217-523-4656
Patricia Gibson
Diocese of Peoria
Peoria, IL 61603
Tel. 309-671-1550
Fax 309-671-1576
James C. Byrne
56
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828
David Wells
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101-1611
Tel. 314-552-7500
Fax 314-552-7000

A collaborative study among Casey Family Programs ~ Harvard Medical School ~ University of Michigan
State of Washington Office of Childrens Administration Research ~ University of Washington
State of Oregon Department of Human Services

Why Should the Child Welfare Field Focus on Minimizing
Placement Change as Part of Permanency Planning for
Children?

Presentation for the California Permanency Conference March 20-21, 2007. Peter Pecora,
Ph.D. is Senior Director of Research Services with Casey Family Programs and Professor at the
School of Social Work, University of Washington.

Mailing Address: Casey Family Programs, 1300 Dexter Avenue North, Third Floor Seattle,
Washington 98109-3547. Phone: (206) 270.4936. Website: http://www:Casey.org/research

Acknowledgements: Special thanks to Jason Williams and Mary Herrick for their contributions to this
literature review, and the foster care alumni and staff who shared their life stories and many lessons with
us.

Adapted from: Herrick, M., Williams, J., Pecora, P.J., Downs, C. & White, J. (in preparation). Placement
Instability in Child Welfare and its Implications for the Functioning of Foster Care Alumni. Seattle, WA:
Casey Family Programs.

Study Co-Principal Investigators: Peter Pecora, Ph.D., Ronald Kessler, Ph.D., A. Chris Downs, Ph.D.,
Diana English, Ph.D., James White, Ph.D. and Steven Heeringa, Ph.D.

Study Coordinators: Kirk OBrien, Ph.D.; .Jason Williams, M.A., Project Staff: Carol Brandford,
M.S.W., Anne Havalchak, M.P.A., Eva Hiripi, M.S., Catherine Roller White, M. A., and Tamera Wiggins,
B.Sc. Hons.

Introduction
In the U.S. nationally, many infants and adolescents are placed in foster care as
a refuge for a few months while their birth parents improve their functioning or their living
situation. However, about 50% of youth leaving foster care in the United States have
spent one year or more in care (U.S. Department of Health and Human Services, 2006).
Wilson (2000) found that 63% of youth in Washington state foster care had one or two
placements, while 77% of the youth in Jamess (2004) California study had three or
more placements. These variations illustrate the need to account for the amount of time
spent in care when comparing the number of placements across samples.
Similarly, the number of placements varies widely across alumni and across
agency sub-samples. For example, in one study of three child welfare agencies (two
states and one voluntary agency), about one-third (31.9%) of the alumni experienced
three or fewer placements, but an equal percentage (32.3%) experienced 8 or more
placements throughout their child welfare career.
1
While over one-half of the sample had
5 or fewer placements (including one-fifth with only one or two placements), slightly
more than one-fifth had 10 or more placements. The cumulative percent line in Figure 1
indicates that approximately 95% of the sample had 15 or fewer placements, while the
remaining 5% had as many as 31 placements (Pecora, Kessler, Williams et al.
forthcoming).
2

The experiences of these children while in care have important ramifications for their
development and for identifying ways to improve permanency planning. This handout will
provide five reasons why a focus on minimizing placement change should be a vital aspect of
permanency planning.

1
For more information about the methods and outcomes of this study, see Pecora, Kessler, Williams et al. (2005,
2006).
2
Because Casey alumni spent more time in foster care, they had significantly more placements than the
state alumni (an average of 7 for Casey versus 6 for the State). Some placements for the Casey alumni
occurred while in State care, as the time between the first out-of-home placement and entry into Casey
averaged 3.5 years (median=2.3 years). Almost one-third of Casey alumni (32.9%) were in placement for
4 years or more before entering Casey. Over the childs entire time in foster care, youth in the Casey
system had more stability as measured by placements per year. Alumni averaged 1.2 placements per
year, with the Casey alumni having a rate one third lower than that of the State alumni. Accordingly, when
placement change rate was trichotomized, a smaller percentage of Casey alumni were in the group with a
high rate (defined here as 1.23 or more placement changes per year. This means that, within a system
designed to provide stability, nearly half of the State sample and one-quarter of the Casey sample
experienced an average of nearly five placements every four years (Pecora, Kessler, Williams et al.
forthcoming).

2
Figure 1. Distribution of the Number of Placements Experienced by the Northwest Foster Care
Alumni, With Cumulative Percent and Range Groupings.

0
10
20
30
40
50
60
70
80
90
100
1 2 3 4 5 6 7 8 9 10111213141516171819202122232425262728293031
number of placements
n
u
m
b
e
r

o
f

a
l
u
m
n
i
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
p
e
r
c
e
n
t

o
f

s
a
m
p
l
e

Source: Pecora, P. J., Kessler, R. C., Williams, J., Downs, A. C., English, D., & White, J. &
OBrien, K. (Forthcoming). What works in foster care? Oxford, England: Oxford University Press.

1. Minimize Child Pain and Trauma
First, children entering out-of-home care undergo enormous changes. Apart from being
separated from their family, many of these children are not able to maintain relationships with
friends and community members (Johnson, Yoken, & Voss, 1995). Changing homes because of
placement disruption compounds the immeasurable sense of loss these children must face by
leaving behind relationships again and again. Festingers (1983) landmark study of 277 alumni
of care, entitled No One Ever Asked Us, revealed that most alumni experienced placement
changes as unsettling and confusing. When rating their perception of foster care, the alumnis
satisfaction was inversely correlated with the number of placements they had experienced.
More research is needed that builds on the personal perspectives of the youth in care (Unrau,
2007).
3

2. Lessen Child Attachment, Behavior and Mental Health Disorders
Wulczyn and Cogan (2002, p. 2) cited an important child development-related reason:
Multiple placements are thought to have a pernicious impact on the development of attachment
to primary caregivers, an early developmental milestone thought to be essential for the
achievement of later developmental tasks (e.g. Lieberman, 1987; Provence, 1989; Fahlberg,
1991). While the concept of child and adolescent attachment to adults is not an exact science
and we have much to learn about helping children build new positive attachments, many youth
and foster care alumni have commented on how important it is to minimize placement change
and to be placed with siblings as a placement stabilizing strategy (Leathers, 2005, Herrick &
Piccus, 2005).
In addition, various researchers have found that multiple placements may lead to child
behavior problems (Newton, Litrownik & Landsverk, 2000), and mental health problems (Rutter
& Sroufe, 2000).
3
Indeed, Ryan & Testa (2004) found that these changes were linked with
decreased school performance and delinquent behavior of males, and Pecora, Williams,
Kessler et al. (2003) found that lower placement change was associated with foster care alumni
success in a sample of 20-51 year old alumni.

3. Decrease School Mobility and Increase Academic Achievement
While many child welfare staff and some new state laws try to minimize school change
when a placement changes, in too many situations the child is forced to change schools. School
mobility has been implicated as a clear risk factor for dropout (Rumberger & Larson, 1998;
Rumberger, 2003). David Kerbow's (1996) longitudinal study of school mobility in Chicago found
that it acted as both an individual and school level risk factor for low achievement. Highly mobile
students fell almost a year behind in achievement by sixth grade. Non-mobile students in
schools with high mobility rates were half a year behind by sixth grade. While the highest

3
Barber and Defrabbrio (2004) in a study in Australia found that most children in foster care display improvements in
their psychological adjustment while in care. Surprisingly, these improvements can occur despite frequent
placement disruption during the first eight months in care. Beyond the eight-month point, however, placement
disruption is associated with psychological deterioration. The basic explanation for this finding concerns change in
the reasons for placement move up to and beyond the eight-month point. Many children change placement in the
first eight months for positive reasons, such as to get closer to their families or to go to a better school. Beyond the
eight month point, however, those children who continue moving tend to do so because their foster placements
break down. In other words, the concentration of difficult or distressed children is greater among those who move
around for more than eight months than among those who move around for eight months or less (Knott, & Barber,
2004).

4
mobility rates (31%) were among children of single parent families, it is notable that the second
highest rate (25%) was observed for children in households with no biological parent present
(Stone, 2007). But the relationship among these variables is complex:
Given the deleterious impacts of school mobility, many have questioned to what
extent this may be a particular problem with foster children (Conger &
Finkelstein, 2003). The relationship between placement transfers and several
academic outcomes has been discussed above. Two recent studies control for
both placement and school transfers on selected academic outcomes. Conger
and Rebeck's (2001) study actually found increases in attendance after school
transfers. School transfers were unrelated to reading achievement, but had a
small negative effect on mathematics achievement. A stronger predictor of
school achievement was school attendance. Burley and Halpern (2001) found
that school transfers were negatively related to test scores for third and sixth
grade students, but not ninth graders (not controlling for prior school performance
and attendance) and high school completion. These results suggest that nature
and quality of school transfers matters, that school transfers may have different
relationships with different academic outcomes and, not surprisingly, that
attendance loss may at least partially explain negative effects of school transfers
among foster youth (Stone, 2007, p. 154).

4. Maximize Continuity in Services, Decrease Foster Parent Stress, and Lower
Program Costs
Placement changes disrupt services provision, stress foster parents (thereby lowering
retention rates), take up precious worker time, and create administrative-related disruptions.
Because we know so little about what causes placement change, the field is less able to predict
and therefore prevent them. And yet the dynamics of these changes are important for other
reasons. For example, adolescents who were placed alone after a history of joint sibling
placements were at greater risk for placement disruption than those who were placed with a
consistent number of siblings while in foster care. This association was mediated by a weaker
sense of integration and belonging in the foster home among youth placed alone with a history
of sibling placements (Leathers, 2005).

5. Increase the Likelihood that a Child Will Establish an Enduring Positive
Relationship with a Caring Adult
Clearly, the more stability a child has, the more likely it is that the child will be able to
establish a stronger and more varied network of social support and enduring relationships with
adults who care about him or her.

5
To Increase Permanency Planning Success We Must Understand Placement
Change Dynamics
James (2004) made a major contribution to this area by finding that child behavior
problems, while significant, constituted the reason for a placement change in only 19.7% of the
situations, as contrasted with system or policy-related reasons (70%) such as a move to a
short-term or long-term care facility, move to be placed with a sibling or relative, group home
closure, move to be closer to a relative or certain school (p. 612). Note that even some of these
system or policy-related reasons actually stem from what might be thought of as sound
practice decisions to help a child reach a more permanent or developmentally enhancing living
situation.
A recent study of frequent movers in Kentucky foster care, found that those who were
at higher risk of four or more moves were females between the ages of 12-15, young black
males, children coming into car because of sexual abuse and child behavior problems, prior
psychiatric hospitalization, and those who moved quickly from their first placement (especially
for behavior reasons or need for special services (Huebner, 2007). Some of these factors were
also identified in a meta-analysis of placement disruption research by Oosterman, Schuengel,
Slot, Bullens & Doreleijers (2007): (a) older age at placement, (b) behavior problems, (c) prior
placement in residential treatment, and (d) number of previous placements. Protective factors
that would lower the risk of placement change include:
Quality of foster parent caregiving
Foster parent motivation
Ability of foster parents to address the
behavioral and emotional needs of the
children
Family resources

Foster parents who welcome and accept the
child in times of distress, which encourages
more secure child attachment
Support from relatives Support from caseworkers

Worker Change is an Important Factor
Worker change may be one of the factors that also drives placement instability because
of disruptions in foster parent and child support. Most importantly, we have growing evidence
that it significantly hurts a childs ability to find a permanent home. There are many examples of
where poor worker retention has an impact on program effectiveness. Some dramatic data were
recently released from some private agencies in Milwaukee county that showcase how turnover
of ongoing case managers does impact permanency for children. For 659 children who entered
care in from January 1, 2003 through September of 2004 in Milwaukee County, and exited to
permanency within the same time period, increases in the number of worker changes lessened
6
the chance of permanency achievement. Children entering care during the time period who had
only one worker achieved permanency in 74.5% of the cases. As the number of case managers
increased the percentage of children achieving permanency substantially dropped, ranging from
17.5% for children who had two case managers to a low of 0.1% for those children who had six
or seven case managers.
4
(See Figure 2). Potter and Klein-Rothschild (2002) also showed that
the fewer workers a child has, the more likely he/she is to be reunified. Staff turnover remains a
real problem, and it has major consequences for children and parents in child welfare.

Conclusion
While the effect of multiple placements on child and adult functioning has not been
established definitively because some studies have found negative effects while others have not
(e.g., Proch & Tabor, 1985), the more recent research in this area is documenting serious
negative effects. As this review has illustrated, there are many reasons why child welfare
practitioners have been concerned with placement change in out-of-home care for decades,
including a long history of research in Great Britain (e.g., Schofield, Thoburn, Howell & Dickens,
2005). The challenge today is implementing proven strategies for increasing placement stability
at the same time that we help children achieve permanency in a culturally appropriate way, and
which meets their unique developmental needs.

Figure 2. Fewer Changes in Caseworkers Increases the Chances of Permanency for Children
a

a
Data reported represents 679 children who entered care in calendar year 2003 through September 2004 and exited
within the same time period. Data reported to review staff by the Bureau of Milwaukee Child Welfare. Source:
Flower, C. McDonald, J. & Sumski, M. (2005). Review of turnover in Milwaukee county private agency child

4
One study design limitation was that the researchers did not control for length of stay in foster care.
7
welfare ongoing case management staff. Milwaukee, WI: Milwaukee County Department of Social Services
(Mimeograph), p. 27.
References
Barber, J., & Delfabbro, P. (2004). Children in foster care. New York: Routledge.
Burley, M., & Halpern, M. (2001). Educational attainment of foster youth: Achievement and graduation
outcomes for children in state care. Olympia, Washington: Washington State Institute for Public
Policy, Document # 01113901.
Burley, M., & Halpern, M. (2001). Educational attainment of foster youth: Achievement and graduation
outcomes for children in state care. Olympia, Washington: Washington State Institute for Public
Policy, Document # 01113901.
Conger, D. & Rebeck, A., (2001). How children's foster care experiences affect their education. New
York, New York: New York City Administration for Children's Services and Vera Institute of
Justice.
Conger, D., & Finkelstein, M. (2003). Foster care and school mobility. Journal of Negro Education, 72(1),
97103.
Fahlberg, V. (1991). A child's journey through placement. Indianapolis, IN: Perspectives Press.
Flower, C. McDonald, J. & Sumski, M. (2005). Review of turnover in Milwaukee county private agency
child welfare ongoing case management staff. Milwaukee, WI: Milwaukee County Department of
Social Services (Mimeograph)
Herrick , M.A. & Piccus, W. (2005). Sibling connections: The importance of nurturing sibling bonds in the
foster care system. Children and Youth Services Review, 27, 845-861.
Herrick, M., Williams, J., Pecora, PJ., Downs, C. & White, J. (in preparation). Placement Instability in
Child Welfare and its Implications for the Functioning of Foster Care Alumni. Seattle, WA: Casey
Family Programs.
Huebner, R. (2007). Descriptors, predictors and outcomes of placement stability. Presentation at the
Casey-CWLA Outcomes Benchmarking Roundtable, Washington, D.C., March 1, 2007.
James, S. (2004). Why do foster care placements disrupt? An investigation of reasons for placement
change in foster care. The Social Service Review; Dec., 601-627.
Kerbow, D. (1996). Patterns of urban student mobility and local school reform. Journal of Education for
Students Placed at Risk, 1(2), 147169.
Knott, T., & Barber, J. (2004). Do placement stability and parental visiting lead to better outcomes for
children in foster care? Implications from the Australian Tracking Study. CECW Information Sheet
#19. Toronto, ON, Canada: Faculty of Social Work, University of Toronto. Retrieved [date] from
http://www.cecwcepb. ca/DocsEng/FosterCareStudy19E.pdf
Leathers, S.J. (2005). Separation from siblings: Associations with placement adaptation and outcomes
among adolescents in long-term foster care. Children and Youth Services Review, 27, 793 819.
Lieberman, A. (1987). Separation in infancy and toddlerhood: Contributions of attachment theory and
psychoanalysis. In J. Bloom-Fleschbach & S. Bloom-Fleschbach (Eds.), The psychology of
separation and loss: Perspectives on development, life transitions, and clinical practice (pp. 109-
135. San Francisco, CA: Jossey-Bass.
Newton, R.R., Litrownik, A.J., & Landsverk, J.A. (2000). Children and youth in foster care: Disentangling
the relationship between problem behaviors and number of placements. Child Abuse and
Neglect, 24, 1363-1374.
Oosterman, M., Schuengel, C., Slot, N.W., Bullens, R.A.R., & Doreleijers, T.A.H. (2007). Disruptions in
foster care: A review and meta-analysis. Children and Youth Services Review, 29 (1), 53-76.
8
Pecora, P.J., Kessler, R. C., Hiripi, E., OBrien, K., White, C.R., Williams, J., Hiripi, E., English, D. &
White, J., & Herrick, M.A. (2006). Educational and employment outcomes of adults formerly were
placed in foster care: Results from the Northwest Foster Care Alumni Study. Child and Youth
Services Review, 28, 1459-1481. Online version available at http://www.sciencedirect.com
Pecora, P.J., Williams, J., Kessler, R.J., Downs, A.C., OBrien, K. Hiripi, E., & Morello, S. (2003).
Assessing the Effects of Foster Care: Early Results from the Casey National Alumni Study.
Seattle, WA: Casey Family Programs. Website: http://www.casey.org
Pecora, P. J., Kessler, R. K., Williams, J., OBrien, K., Downs, A. C., English, D., White, C.R., Hiripi, E.,
Wiggins, T. & Holmes, K. (2005). Improving family foster care: Findings from the Northwest
Foster Care Alumni Study. Seattle, WA: Casey Family Programs. www.casey.org
Potter, C. & Klein-Rothschild, S. (2002). Getting home on time: Predicting timely permanency for young
children. Child Welfare, 81(2), 123-150).
Proch, K. & Taber, M. (1985). Placement disruption: A review of research. Children and Youth Services
Review, 7, 309-320
Provence, S. (1989). Infants in institutions revisited. Zero to Three, 9(4), 1-4.
Rumberger, R. (2003). The causes and consequences of student mobility. Journal of Negro Education,
72, 621.
Rumberger, R., & Larson, K. A. (1998). Student mobility and the increased risk of high school dropout.
American Journal of Education, 107, 135.
Rutter, M., & Sroufe, L. A. (2000). Developmental psychopathology: Concepts and challenges.
Development and Psychopathology, 12, 265-296
Ryan, J., & Testa, M. (2004). Child maltreatment and juvenile delinquency: Investigating the role of
placement and placement instability. Champaign-Urbana, IL: University of Illinois at Urbana-
Champaign School of Social Work, Children and Family Research Center.
Schofield, G., Thoburn, J., Howell, D. & Dickens, J. (2005).The search for stability and permanence:
Modelling the pathways of long-stay looked after children. British Journal of Social Work,
Advance Access - published August 15, 2005.
Stone, S. (2007). Child maltreatment, out-of-home placement and academic vulnerability: A fifteen-year
review of evidence and future directions. Children and Youth Services Review 29, 139161.
Unrau, Y.A. (2007). Research on placement moves: Seeking the perspectives of foster children. Children
and Youth Services Review, 29 (1), 122-137.
U.S. Department of Health and Human Services, Administration for Children and Families, Childrens
Bureau. (2006). The AFCARS report No. 13: Preliminary FY 2005 estimates as of September
2006. Washington DC: U.S. Department of Health and Human Services, 2005. Downloaded
November 7, 2006 from
http://www.acf.hhs.gov/programs/cb/stats research/afcars/tar/report13.htm
Wulczyn, F., Cogan, J.P. & Harden, B.J. (2002) Placement stability and movement trajectories. Chicago:
University of Chicago, Chapin Hall Center for Children.

9
Executive Summary | Mental Health, Ethnicity, Sexuality,
and Spirituality Among Youth in Foster Care
Findings from the Casey Field Office Mental Health Study
Revised July 23, 2007. Compiled by Catherine Roller White, MA, Anne Havalchak, MPA, Lovie Jackson,
MSW, Kirk OBrien, PhD, and Peter J. Pecora, PhD.
For more information please contact Research Services at Casey Family Programs, 1300 Dexter Avenue
North, Floor 3, Seattle, WA 98109-3547. www.casey.org
Acknowledgments: Research Services staff would like to thank the many youth who participated in this
study and Casey feld offce staff for their help in introducing the study to participants. We appreciate the
assistance of Vivian Nix-Early and Paul DiLorenzo in developing spirituality questions and interpretation of
results; Caitlin Ryan, Gary Mallon, and the Casey LGBTQ Leadership Team for consultation regarding the
development of gender identity and sexual orientation questions; and the Casey Constituent Research Ad-
visory Committee and numerous Casey staff for their input on the survey and interpretation of results. We
also appreciate the work of Jenny Bandyk and Nancy Gebler at the University of Michigan for coordinating
the data collection, as well as the interviewers for their dedication and fexibility.
2007 Casey Family Programs
2007 Casey Fam||y Programs | 1
MENTAL HEALTH
Despite difculties endured related to child mal-
treatment, removal from their biological families,
and placement in foster care, most youth were
doing well in terms of their current mental health.
Mental health diagnoses were assessed using the
Composite International Diagnostic Interview
(CIDI), a standardized instrument administered
by interviewers that provides lifetime and past-year
mental health diagnoses. Findings are summarized
below:
Most youth (64.2%) had no mental health
diagnosis in the past year. While less than two in
fve youth (36.7%) had no lifetime mental health
diagnosis, the percent of youth with no past-year
diagnosis (64.2%) was much higher. In fact, the
percent of youth with no past-year mental health
diagnosis was similar to that of youth in the
general population (63.8%).
Rates of nine lifetime mental health disorders
(of 21 assessed) were signifcantly higher among
youth in care than among youth in the general
population. Rates of two lifetime mental health
disorders were higher among youth in the general
population than among youth in care, and rates
were similar for ten diagnoses. Youth in the cur-
rent study had particularly high lifetime rates of

attention-defcit hyperactivity disorder (ADHD;
15.1% compared to 4.5% in the general popu-
lation), conduct disorder (20.7% compared
to 7.0%), major depressive disorder (19.0%
compared to 11.9%), and post-traumatic stress
disorder (PTSD; 13.4% compared to 5.2%).
Females experienced signifcantly higher rates
of several internalizing mental health disorders
compared to males. Controlling for demograph-
ics and foster care experiences, females had
signifcantly higher rates of lifetime and past-year
major depressive episode, lifetime panic attack,
and lifetime and past-year PTSD. Te lifetime
rate of PTSD among females, for example, was
21.4% compared to 5.1% for males. For some
of these disorders, this is similar to what is found
in the general population.
1
Females were more
likely to have two or more past-year diagnoses
than males.
Rates of mental health disorders among youth
currently in care were signifcantly lower than
among alumni of care. Comparison data from
the Northwest Alumni Study, a study of 479
alumni age 2033, indicated that alumni of care
had signifcantly higher rates of mental health
disorders for almost all lifetime and past-year
Study Overview
The Casey Field Offce Mental Health Study (CFOMH) focused on the mental health of youth receiving
foster care services from Casey Family Programs (Casey). In addition, the study explored the areas of ethnic
identity, gender identity and sexual orientation, and spirituality. The study surveyed 188 youth between age
14 and 17 who were receiving foster care services at one of eight Casey feld offces (located in the states
of Arizona, California, Idaho, Texas, and Washington). Trained interviewers from the University of Michigans
Survey Research Center conducted in-person interviews between August 2006 and November 2006. The
response rate was 88.7%. Participants were 51.1% females and 67.7% youth of color, and the average age
was 16.1 years.
Findings
2 | Menta| Hea|th Study
diagnoses assessed.
2
Tere were no disorders for
which youth currently in care had higher rates
than alumni.
ETHNI C I DENTI TY
Exploratory questions examined youths percep-
tions of their ethnic identity, including their devel-
opment of ethnic identity while in foster care and
experiences with discrimination.
Youth felt that they had opportunities to devel-
op their ethnic identity in foster care, but most
wanted to learn more. Many youth (57.3%)
felt that they had opportunities to develop their
ethnic identity while in foster care, but most
(69.3%) said they wished they could learn more
about their ethnic background. Tere were sig-
nifcant diferences by ethnic group, with black
and Hispanic/Latino youth endorsing both
statements to a greater degree than white youth.
Several Hispanic/Latino youth commented on
the difculty of maintaining their Spanish lan-
guage skills while in foster care.
Although youth reported relatively low levels
of experiences of discrimination, diferences
existed by racial/ethnic group. A scale was cre-
ated to measure experiences of discrimination to
assess personal encounters with racism, such as
unfair treatment at school, experiencing verbal
harassment, and experiencing violence. Black
youth reported signifcantly more experiences
of discrimination based on race/ethnicity than
Hispanic/Latino youth or white youth.
About three in four youth reported having
at least one caregiver of the same race/ethnic
group as themselves at the time of the interview,
but signifcant diferences existed by group.
Te percent of youth with at least one caregiver
of the same race/ethnic group as the youth was
86.5% for white youth, 81.1% for black youth,
and 45.0% for Hispanic/Latino youth.
About half of youth believed that it was im-

portant to have foster parents of the same
racial/ethnic group as themselves. Just over half
of youth (51.0%) somewhat or strongly agreed
with the statement, Having foster parents of
the same race or ethnicity is important to me.
Tere were signifcant diferences by racial/eth-
nic group, with black youth endorsing it to
the greatest degree (69.8%), followed by His-
panic/Latino youth (50.4%) and white youth
(27.5%).
GENDER I DENTI TY AND SEXUAL ORI ENTATI ON
Youth were asked questions related to gender iden-
tity and sexual orientation. Youth who identifed
as gay, lesbian, bisexual, transgender, or question-
ing (LGBTQ) were asked additional questions
about their experiences and unique needs in foster
care.
Ten youth (5.4%) identifed their sexual orien-
tation as gay, lesbian, bisexual, or questioning.
No youth identifed as transgender. Almost one
in eight youth (11.5%) reported having ques-
tioned their sexual orientation at some point in
their lives.
Most youth reported feeling comfortable
around youth who are LGBTQ, but fewer
reported feeling comfortable living in a foster
home with an LGBTQ person. Nearly two-
thirds of youth (65.8%) said that they felt mod-
erately or very comfortable around other youth
who are LGBTQ, and nearly three in fve youth
(57.7%) said that they had an LGBTQ friend.
Fewer (45.9%) reported feeling moderately or
very comfortable being placed in a foster home
with an LGBTQ person, however.
Few LGBTQ youth reported having experienced
discrimination because of their sexual orien-
tation. Although a high percentage of youth
(including heterosexual youth) had witnessed or

heard of discrimination towards LGBTQ youth
based on their gender identity or sexual orienta-
tion, such as unfair treatment in school or verbal
harassment, most of the 10 youth in this study
who identifed as lesbian, gay, bisexual, or ques-
tioning had not personally experienced discrimi-
nation. All LGBTQ youth felt the need to hide
their sexual orientation at some point, however,
and many said that was because they feared not
being accepted.
SPI RI TUALI TY
Youth were asked to share their spiritual beliefs,
how they feel about spirituality, and what activities
they participate in that they consider spiritual.
Te vast majority of youth (94.6%) said they
believe in God, a Creator, or a Higher Power.
Tis is similar to the rate found among ado-
lescents in the general population (95%).
3
Te
most commonly reported descriptions of God/
Creator/Higher Power were Creator (77.9%),
Love (71.7%), and Protector (55.5%).
Most youth participated in spiritual activities

on a regular basis and considered those activi-
ties helpful. About one in four youth (24.9%)
participated in spiritual activities two or more
times per week, slightly less than one in fve
(18.7%) participated once a week, and one in
four (24.1%) participated one to three times
per month. More than four in fve (82.5%) said
that spiritual activities helped them in their daily
lives.
Youth employed a variety of coping mecha-
nisms when something bad or tragic happened
in their lives. Te most commonly endorsed
coping mechanisms include spending time
alone (67.4%), praying (58.9%), sharing the
problem with someone (55.9%), writing in a
journal or diary (35.5%), or doing something
creative (33.2%). Potentially harmful coping
mechanisms were endorsed to a lesser degree:
not eating enough (12.5%), eating too much
(9.4%), getting aggressive (7.2%), using alcohol
or drugs (5.0%), and hurting oneself in some
way (2.0%).
Policy, Program, and Research Recommendations

MENTAL HEALTH
1. Regularly screen youth in foster care for mental
health disorders and provide efective mental
health treatment to youth who need it.
Results indicated that a high number of youth
have struggled with certain disorders during
their lifetime. Discreet screenings should be
administered regularly to all youth in care, and
full assessments should be provided to those who
need them. Te Warning Signs Project, which
was developed for use by parents, educators, and
health professionals, is an example of a quick
screener for emotional and behavioral problems
among children and youth.
4
Additionally, the
Peabody Treatment Progress Battery provides
a cohesive set of short, reliable instruments to
assess clinical processes and mental health out-
comes for youth between age 11 and 18.
5
2. Pay particular attention to internalizing disor-
ders among female youth in care.
Females were signifcantly more likely to have
internalizing disorders, including depression,
panic attack, and PTSD. Social workers need to
pay particular attention to these types of disor-
ders when working with female youth.
3. Explore why lifetime rates of diagnoses were
higher than past-year diagnoses for many
disorders.
Although youth in foster care may have had
numerous mental health disorders in the past,
many are not currently struggling with a mental
health disorder. It may be that the lives of these
youth have stabilized since their placement
with Casey, given the nurturing and protective
environment of their foster families, or it may
be due to other factors. Future research should
compare when initial placements were made
and when recovery occurred to identify factors
associated with recovery.
4. Provide training on mental health disorders to
foster parents and social workers.
Social workers and families can assist children
and youth in grieving, developing relationships
with other people, and strengthening their per-
sonal identity through programs such as the 3-
5-7 Model, which helps prepare for permanency
in a family.
6
Training in behavior management,
through the Oregon Multidimensional Treat-
ment Foster Care model for example, may be
most efective in helping foster parents work
with youth who have behavioral problems.
7
5. Empower youth and foster parents to advocate
for mental health services.
Empowered and informed youth can more
efectively advocate for mental health services.
Additionally, well-trained foster parents and
social workers are able to discern typical from
atypical adolescent behavior, and can be allies in
ensuring that youth receive mental health treat-
ment when needed.
8

6. Help youth in care and alumni of care who are
doing well to keep doing well.
Nearly two in three youth in the current study
and about half of the alumni in the Northwest
Alumni Study had no past-year mental health
diagnosis. Support (in the form of extracurricu-
lar activities, mentors, etc.) should be provided
to these youth and alumni to help them con-
tinue to do well.
7. Ensure that alumni of foster care have access to
efective mental health services.
For many mental health diagnoses, rates among
alumni in the Northwest Study were three to
fve times those of youth in the current study,
suggesting that alumni of foster care may be
more at risk for mental health problems than
youth still in care. Alumni of foster care need
access to efective mental health services, such
as those available through the Chafee Medicaid
waiverperhaps to an even greater degree than
youth still in care. Many youth who are leav-
ing care go through difcult experiences as they
leave care, such as joblessness and homelessness.
Support services to help stabilize educational,
vocational, and economic aspects of their lives
could improve the mental health of alumni.
8. Replicate the current study among youth served
in public agencies.
Te current study interviewed youth served
through Casey, whose experiences may be sig-
nifcantly diferent from those of youth served
in public agencies. As such, the fndings report-
ed here may not be generalizable to the national
population of youth in foster care.
ETHNI C I DENTI TY
1. Ensure that youth in foster care have multiple
opportunities to explore and develop their
ethnic identity.
Tis research highlights the importance of
ensuring that all youth in foster care are ofered
opportunities to develop their ethnic identity.
Discovering and promoting ways to nurture
positive ethnic identity development of youth
in foster care could provide them with a means
to cope with challenges in their lives (such as
the trauma associated with child maltreatment,
frequent placement and/or school changes, and
discrimination experienced in the broader social
environment). In particular, youth should be
provided with skills to address racial and ethnic
discrimination.
2. Recruit foster parents of diverse racial and
ethnic backgrounds.
Less than half of Hispanic/Latino youth report-
ed being currently placed with a foster parent
of the same race/ethnicity. To better refect the
population of youth in foster care, recruitment
of foster parents should focus on people of
diverse racial and ethnic backgrounds. Addi-
tionally, it would be benefcial to youth to have
mentors from diverse backgrounds for when
the race/ethnicity of the foster parent does not
match that of the youth.
3. Provide training on ethnic identity develop-
ment to foster parents and staf.
Teach foster parents, social workers, teachers,
and mental health practitioners how to ex-
plore their own ethnic identity and awareness
of prejudices so they can create a supportive
environment for the youth to engage in simi-
lar exploration. Foster parent training should
include curriculum on diverse identities and
healthy identity development, and efective
communication with children and adolescents.
Social workers can encourage foster families to
engage youth in nonjudgmental conversations
about youths ethnic and cultural identity.
9
4. Conduct studies on American Indian and
Alaska Native youth and Asian American and
Pacifc Islander youth in care to examine their
unique needs and experiences in foster care.
Te sample size in the current study was far too
small to be able to draw any conclusions about
American Indian and Alaska Native youth or
Asian American and Pacifc Islander youth in
foster care. Future studies should include a suf-
fcient sample size of youth in these groups to
thoroughly examine their mental health, ethnic
identity, gender identity and sexual orientation,
and spirituality. Survey questions may need to
be reviewed to ensure that they are culturally
appropriate for each group.
GENDER I DENTI TY AND SEXUAL ORI ENTATI ON
1. Ensure that all youth in care feel accepted
whatever their sexual orientation or gender
identity may be.
All of the LGBTQ youth felt the need to hide
their sexual orientation at some point, and
many said that was because they feared not be-
ing accepted. Tis illustrates how important it
is for foster care agencies, social workers, foster
parents, and all other important people in a
youths life to make their acceptance of a youths
sexual orientation or gender identity clear. Tis
can be done in part through staf and foster
parent training, choosing appropriate foster care
placements, and using physical ofce space to
display supportive LGBTQ-friendly statements.
2. Teach all youth to accept and support LGBTQ
youth.
Organizations such as the Safe Schools Co-
alition and Parents, Families and Friends of
Lesbians and Gays (PFLAG) ofer materials and
resources that are helpful in educating all youth
to be supportive of LGBTQ youth. Addition-
ally, student organizations such as the Gay-
Straight Alliance (GSA) encourage acceptance
of LGBTQ students by peers and staf and can
advocate for school policies that are supportive
of LGBTQ students.
3. Conduct further research on LGBTQ youth in
foster care to document their experiences and
identify how they can be supported in the child
welfare system.
More extensive research should be conducted
on LGBTQ youth in foster care. An in-depth
study should be done with a larger sample to
more deeply investigate their experiences and
needs in the foster care system, specifcally
focusing on the unique challenges that these
youth may face. Additionally, some of the fnd-
ings from this exploratory study invite further
investigation, such as why many youth reported
being comfortable around LGBTQ peers, but
not feeling comfortable being placed in a home
with them.
SPI RI TUALI TY
1. Purposefully inquire about spirituality, reli-
gion, and culture.
Social workers and other direct-service staf
can build knowledge of diverse spiritual prac-
tices, religious beliefs and norms, and cultural
backgrounds. Assessment tools that incorpo-
rate these aspects of spirituality can be helpful
for learning more about individual youth and
their families of origin, and also for improving
the match between youth, foster families, and
potential mentors.
2. Integrate spirituality into casework.
Agencies and social workers should be equipped
to support youth who fnd spirituality help-
ful. Spiritual resources should be developed
and referrals and supports should be ofered to
youth in the same manner as are other supports
and services. Because of the diversity of beliefs
and practices, social workers can be trained to
encourage foster families to engage youth in
nonjudgmental conversations about youths
spiritual and religious backgrounds.
3. Help youth experience spiritual activities
positively.
Youth should be supported by workers and fos-
ter families to continue, and perhaps increase,
their participation in communities that share
their spiritual and religious values and beliefs.
Youth should also be encouraged to engage
in coping mechanisms and other activities
that they fnd helpful for reducing stress and
understanding their life experiences. It is also
important for social workers to consider what
supports and resources a young person might
need to participate in spiritual activities as often
as they wish. Tis may include assistance with
transportation, which was cited as a barrier to
involvement.
Conclusion
Most youth in this study were doing well despite struggles they have endured related to maltreatment as
children, removal from their biological families, and placement in foster care. In fact, rates of most past-year
mental health diagnoses among youth in this study were similar to those found in the general population of
adolescents, although lifetime rates were higher for many disorders. This suggests that placement into foster
care may provide a nurturing, stable environment which allows youth to recover from mental health disorders.
As documented in the Northwest Alumni Study and other studies, however, the high rates of mental health
disorders among alumni of foster care strongly suggest that youth preparing to leave care and young adults
who have left care need more support.
Exploratory results presented related to ethnic identity, gender identity and sexual orientation, and spirituality
suggest that these are important areas in the lives of many youth in foster care. To better understand these
areas, standardized scales should be developed in studies with larger sample sizes. In the meantime, the
implementation of policy and program recommendations included in the current study may beneft youth cur-
rently in care.
ENDNOTES
1 National Institute of Mental Health. (2006). The numbers count: Mental disorders in America. NIH Publication No.
06-4584. Retrieved February 6, 2006, from http://www.nimh.nih.gov/publicat/numbers.cfm#KesslerPrevalence#
KesslerPrevalence.
2 Pecora, P. J., Kessler, R. C., Williams, J., OBrien, K., Downs, A. C., English, D., et al. (2005). Improving Family
Foster Care: Findings from the Northwest Foster Care Alumni Study. Seattle, WA: Casey Family Programs.
3 See Cotton, S., Zebracki, K., Rosenthal, S. L., Tsevat, J., & Drotar, D. (2006). Religion/spirituality and adolescent
health outcomes: A review. Journal of Adolescent Health, 38(4), 472-480. Pearce, M. J., Little, T. D., & Perez, J.
E. (2003). Religiousness and depressive symptoms among adolescents. Journal of Clinical Child and Adolescent
Psychology,32(2), 267-276.
4 See Jensen, P., Bornemann, T., Costello, E. J., Friedman, R., Kessler, R., Spencer, S., et al. (undated). The Warn-
ing Signs Project: A toolkit to help parents, educators and health professionals identify children at behavioral and
emotional risk. New York: Center for the Advancement of Childrens Mental Health at Columbia University.
5 For information about the Peabody Treatment Progress Battery (PTPB), visit the PTPB Web site at
peabody.vanderbilt.edu/ptpb.xml.
6 The 3-5-7 Model consists of three components: completing three tasks (e.g., developing an understanding of
ones life events), answering fve questions (e.g., What happened to me? to explore loss), and using seven ele-
ments that are considered critical to preparing children for permanency (e.g., creating a safe space for the child to
go through the process). See Henry, D. L. (2005). The 3-5-7 Model: Preparing children for permanency. Children
and Youth Services Review, 27, 197-212.
7 Chamberlain, P. (2003). The Oregon Multidimensional Treatment Foster Care model: Features, outcomes, and
progress in dissemination. Cognitive and Behavioral Practice, 10(4), 303-312.
8 For training materials to help caregivers and youth advocate regarding mental health, visit the Reach Institute
(Resource for Advancing Childrens Health) Web site at www.reachinstitute.net.
9 See www.casey.org/Resources/Projects/REI/ for training materials related to ethnic identity development in foster
care.
1300 Dexter Ave N, Floor 3
Seattle, Washington 98109
www.casey.org
311. 1-3030-07
Review of Turnover in Milwaukee County
Private Agency Child Welfare Ongoing Case
Management Staff
January, 2005
Connie Flower
Jess McDonald
Michael Sumski
1
EXECUTIVE SUMMARY
The review of turnover of ongoing case managers in the private agencies providing foster care and
safety services for the Bureau of Milwaukee Child Welfare(BMCW) revealed that turnover of staff
remains problematic, impacts negatively the permanency outcomes of children in the system, and
has high costs to the agencies and the system. Contributing factors to the problem include low salary
and benefits; perceived low regard for the work of ongoing staff, and of them specifically; inadequate
training and career opportunities; and an organizational and system culture that is perceived to be
unsupportive and punitive.
Major strategies recommended for addressing this problem include establishing a salary and benefit
package for ongoing staff that reflects that of the BMCW intake and assessment staff, requiring full
social work certification for all staff, upgrading training programs, targeting staff recruitment
activities and the development of stronger agency based quality improvement programs.
A major concern expressed is that under current plans the BMCW will place the foster care and
safety services out to bid increasing the potential for additional staff turnover. Another concern is
the potential that case transfers will be used to realign caseloads when the BMCW moves from five
to three sites. It is recommended that the BMCW provide assurances that all current ongoing and
safety staff be guaranteed employment with the successful bidders and that no case transfers will
be used to realign site boundaries. Case transfers have the same effect on clients as do turnover - a
delay in permanency.
This report hopefully provides the parties and stakeholders in the Milwaukee County child welfare
system with some alternative strategies to address this critical problem of case worker turnover.
2
Review of Turnover of Milwaukee County
Private Agency Child Welfare Case Management Staff
High turnover is a national issue that impacts performance of child welfare systems and, most
importantly, the outcomes of children and families who come in contact with those systems. A
Government Accounting Office (GAO) study highlighted the relationship between critical child
welfare functions impacting the achievement of positive outcomes and workforce as they relate to
the Child and Family Service Review (CFSR). The report identifies that high turnover is related to
low salaries, high caseloads, limited supervision, insufficient training and concerns about personal
safety. A 2003 Annie E. Casey Foundation report estimated that annual turnover in Child Welfare
was approximately 20%. The Bureau of Milwaukee Child Welfare (BMCW) experiences turnover
rates ranging from less than 10% to 67% depending on the service area.
The Governors Office of Wisconsin, being aware of the enormity of the issue and the potential
consequences to children and families, requested an initial short-term inquiry to examine the issue
of turnover within the BMCW. Upon early exploration it was determined that turnover rates for
Intake and Assessment staff, private agency adoption staff, and foster care (licensing) staff were all
under 10%. Conversely, ongoing case management staff all employed by private agencies experienced
a 34% to 67% turnover in 2003 and 2004. The BMCW views this as a major issue and was also
identified in a January, 2000 report by the Wisconsin Council on Children and Families, Inc.
(WCCF) entitled From the Front Lines: Milwaukees Child Welfare Community Speaks Out. It is also
a concern of the private agencies, the Juvenile Court of Milwaukee County, and Childrens Rights,
attorneys for the plaintiffs covered by the settlement agreement. The settlement agreement and the
BMCWs operational plan identify goals, targets, strategies, and monitoring expectations concerning
the problem of ongoing case manager turnover.
Given the magnitude of turnover in ongoing case management, the inquiry was primarily limited to
this area of service delivery as it directly impacts a broader scope of outcomes related to safety,
permanency, and child and family well being. While Milwaukee County experiences some of the
national conditions contributing to turnover identified in the GAO workforce report, in addition to
others identified during the inquiry, it has the opportunity to address the problem with reasonable
steps.
THE REVIEW
The review determined that four critical questions required exploration.
Is turnover of ongoing case managers a continuing problem in Milwaukee County?
Does turnover of ongoing case managers impact permanency for children?
What are the costs associated with case manager turnover?
What are the various factors contributing to turnover?
3
Exploring each of these would be critical to determining the ultimate impact of turnover as well as
informing any considered strategies to address the issue.
To illuminate this inquiry information was gleaned through various mechanisms consisting of the
following:
Interviews with private agency chief executive officers (CEOs) and other identified
management staff
Interviews with critical state leadership of the BMCW
Interviews with the BMCWs program evaluation managers (PEMs)
Interviews with Judges and staff of the Milwaukee Juvenile Court
Interviews with the University of Milwaukee training partners
Meetings with the Workforce and Recruitment Workgroups
Eight private agency focus groups involving 57 (26%) ongoing case managers and 28
(62%) supervisors
Administration and compilation of Employee Environment Surveys
Agency Management Surveys encompassing staffing, caseloads, recruitment and
retention data, and quality improvement activities related to turnover
BMCW data and reports
The BMCW is data and information rich, particularly in the area of program evaluation. Bureau
management has itself, in partnership with the private agencies, begun to address the issue of
turnover through the formulation of the Workforce Workgroup and the Recruitment Sub-Committee.
While various efforts to monitor and improve turnover have begun, the fruition of these efforts has
not yet been realized as the first critical question is explored.
Critical Questions
Is turnover of ongoing case managers a continuing problem in Milwaukee County?
Evidence suggests this remains a serious problem, as suggested by the high turnover rates of 34% to
67% in 2003 and 2004. One of the most important factors in achieving positive outcomes for
children and families is consistency and continuity of case managers. This may most aptly be
illustrated by a comment contained in the WCCF report, which highlighted a comment by a worker
who indicated they were a childs tenth worker within a five-year period. At that time the child did
not want to know the workers name and instead elected to refer to the worker as Number Ten.
Changes in case managers force clients to start over with new workers often resulting in a lack of
trust and delays in moving ahead with required service plan activities to achieve permanency. In
addition, worker changes may result in delays in court hearings producing docket delays as cases are
rescheduled.
Between January and September 2004 clients served in Milwaukee County ongoing services, foster
care, experienced significant worker turnover. Over 40% of the family cases served by the five sites
4
had more than one worker in the nine-month period (Site 1 = 38%, Site 2 = 43%, Site 3 = 45%, Site
4 = 41%, and Site = 48%). Of the 2899 children who remained in the Bureaus care at the end of
September 2004, 40% had more than one worker.
Does turnover of ongoing case managers impact permanency for children?
For those children who entered care in calendar year 2003 through September of 2004 and exited to
permanency within the same time period, increases in the number of worker changes were
correlated to lessening the chance of permanency achievement (See Graph Below). Children entering
care during the time period who had only one worker achieved permanency in 74.5% of the cases.
As the number of case managers increased the percentage of children achieving permanency
substantially dropped, ranging from 17.5%, having two case managers to a low of 0.1% having six
and seven case managers.
Fewer Changes in Caseworkers Increases the Chances of Permanency for
Children
Data reported represents 679 children who entered care in calendar year 2003 through September 2004 and exited
within the same time period. Data reported to review staff by the Bureau of Milwaukee Child Welfare.
Another measure of this problem is reflected by the high percentage of ongoing workers who have
been on-the-job for less than twelve months (Site 3 and 5 - formally IFPI at 63 of 94 = 67%, Site 1
and 2 - WCSN at 41 of 81 = 50.6%, and Site 4 - LaCausa at 15 of 44 = 34%).
Turnover remains a real problem and it has client related implications.
What are the costs associated with this high turnover of case managers?
5
The cost of case manager turnover goes beyond the negative impact on clients. Those impacts delay
permanencies for children in foster care and result in unnecessary foster care expenditures. The
Bureau and the partner private agencies experience direct costs as a result of turnover. The U.S.
Department of Labor (DOL) estimates the cost of employee turnover to be approximately one-third
of their annual salary. This includes cashing out benefits, additional recruitment costs, investing in
training new staff, and other related costs. Loss in productivity is not included in the DOL estimate,
but may translate into agencies experiencing holdbacks or penalties should their quantitative
performance fall below acceptable levels. A raw estimate of the cost of turnover of ongoing case
managers who have left LaCausa, IFPI (now WCSN), and WCSN in the last eighteen months exceeds
$1.4 million. Since the agencies are required to maintain caseloads at a given level, replacing exiting
case management staff must occur. This high turnover results in morale problems and potential
deficient budgets.
What are some of the factors contributing to turnover?
The focus groups highlighted some of the factors they saw as contributing to worker turnover.
Additionally, the results of the Employee Environment Survey, administered to all eight focus
groups prior to their participation in the group, provided additional information (See Appendix A, pg.
12 Results). The survey, developed and tested by the Gallup organization, has been used widely
to determine workers satisfaction. This survey has been used in Illinois for a similar purpose. While
not having the opportunity to talk to workers who recently left the agencies, we were able to review
some exit interview information provided by two of the agencies in their completed agency surveys.
Twenty-six percent of ongoing case managers participated in the focus groups and 62% of the
supervisors participated. Each of the five case manager groups was agency/site specific and was
composed of only case managers. The three groups of supervisors were agency specific and
composed of on-going case management supervisors. Additionally, two safety supervisors
participated. Each focus group of on-going case managers was comprised of individuals with different
educational backgrounds. Each group was comprised of an equal number of individuals having 6
months or less experience and three years or more experience.While the supervisor groups had a mix
of educational backgrounds and lengths of service, half had been employed more than three years and
the remainder less. Given the size and demographics of the groups, including a wide array of ages,
it is felt that the group attendees were representative of the staff currently on-board and those who
recently exited.
Some of the themes surfacing across the focus groups as contributing to turnover and dissatisfaction
included the following: low salaries and infrequent and inadequate salary adjustments; risk of
violence; lack of professional regard, particularly from the Juvenile Court; lack of a career ladder
within the organization; inadequate training; and lack of support. These observations align with those
identified in national studies on turnover, including the GAO report on the child welfare workforce.
6
Salary Concerns: The starting salary for ongoing staff is less than that offered state
BMCW staff performing similar, yet time limited, duties such as Intake and Assessment (IA)
staff. IA staff start at $31,825 annually while ongoing staff at LaCausa start at $30,171, IFPI
(now WCSN) staff started at $27,000, and WCSN staff start at $27,789. This difference becomes
more disparate with tenure since the private agencies do not offer salary adjustments
comparable to the BMCW.
Professional Regard: Ongoing staff is apparently largely not certified as social workers as
is the BMCW IA staff. The requirement for use of certified staff, although part of the
contract, is routinely waived at the request of the private agencies. In two focus groups, of
26 staff, only three were certified and only four others were working on their certification.
Four sites comprised of 200 ongoing case managers provided data that indicates only 33
(16.5%) are certified. Of the 167 non-certified staff, the information indicates that 161 (96%)
have degrees (social work, psychology, sociology, criminal justice, and related human service)
that qualify them for basic certification consideration as a social worker through the
Department of Regulation and Licensing. Staff in the focus groups saw no value in
certification as there would be no salary adjustment should they obtain certification.
Additionally, several groups perceived an added liability should they be certified. They also
reported that the court does not view them as professionals, instead referring to them as lay
people. While several focus group participants indicated that the recent meetings with the
Juvenile Court Judges have improved relationships they report continued difficulty with
staff from the District Attorneys Office. Certification, or lack of it, may contribute to this
opinion by key stakeholders.
Training: Reviews of the CFSRs suggest that states perform better when they have strong
training programs. Some staff reported that previously offered intensive court training was
no longer available. This training was viewed by participants as very helpful. Several focus
groups identified that staff have been sent to court prior to attending court training. Case
manager groups indicated that they would like to have more in-depth training occur during
their respective core training. Many indicated that the basic knowledge relayed in the core
training were concepts and topics they covered in their degree programs. The training was
perceived by many as overviews of topics and desired more directly linked content such as
hands-on WiSACWIS training with real cases, accessing hard services, and completing actual
paperwork using a mock case. Instead, new workers reported they spend most of their time
asking how to execute these functions after attending training. Supervisors had various levels
of knowledge regarding their core training, with some not even aware that there was a core
training. Supervisors echoed the concern of case managers regarding the lack of depth to the
topics and described them more as overviews. Supervisors reported that it is sometimes
difficult to incorporate what they learn into practice because they are so busy ensuring
compliance. Staff report that many of the on-going trainings are repetitive. They added that
the training that they wanted or needed to attend was often so full they could not get in. Staff
7
also reflected concerns about balancing their work with training, answering pages and phone
messages during breaks, lunch, and after training sessions. They also voiced concerns that
if away for an extended training other workers may not make the same efforts to cover cases
and see clients on their caseloads. This was a similar concern when going on vacation.
The availability of support for advanced degree education for ongoing staff appears to be
limited. The GAO study reported that in Kentucky and California, two of the states they
visited and reviewed, more then 80% of the students utilizing Title IV-E funded stipends
remained with their respective child welfare agencies after their contractual employment
obligations had expired. In a Texas study 67% of staff with a social work degree were still
working for the agency five years later. Of those people who had a social work degree and
also held an internship in the social service agency prior to working there, the retention rate
was even higher - 87%. When queried regarding the use of social work interns in their
organizations both supervisors and staff reported that such internships were not usually
available and they believed it was due to issues regarding client confidentiality. While this
may or may not be the case, various studies support the utilization of internships within an
organization to foster future and long-term employment within a child welfare agency.
Organizational Culture Issues: The private agencies involved in ongoing and safety
services appear to be autonomous in name only. They report, for example, being instructed
not to use their letterhead in certain communications, and one was told not to develop its
own mission statement. Bureau administration reported being unaware of these restrictions
except that letterhead must reflect the organizations connection to the Bureau in certain legal
communiqus. What seems apparent is a disconnect in communications. Staff, including
supervisors, reported that there was little autonomy between their agencys day-to-day
function and the span of control of the Bureau. Three case management focus groups
reported that both internal and external communication often comes in the form of memos,
often without clear explanations as to why certain management decisions were made or why
changes in practice are implemented. Staff all reported that policy was available on-line but
qualified this statement by adding that they have been told not to rely on it as it is out-of-
date. Communication between and among the BMCW, ongoing case managers, and their
management is sometimes confused and staff report they do not feel anyone can defend them
when things go wrong.
The CEOs believe they have almost no ability to address emerging needs, given the rigid
nature of the budget/contract, while Bureau management indicates they have met with agency
management, when requested, to discuss alternative programming and funding strategies.
Despite this divergent information, what remains is still a perception that the contract is
inflexible. While financial penalties may be imposed for performance failures, few, if any
incentives reward exceptional performance. This issue is complicated even more by the
history of agency changes during the last several years. The CEOs feel they have no ability
to address salary issues given these constraints.
8
The Bureau requires an agency to have a quality assurance plan according to the contract.
The PEMs report that this is actually required when an agency is out of compliance and
then takes the form of a corrective action plan verses a defined Quality Assurance
(QA)/Quality Improvement (QI) Plan relating to their unique service arrays. What appears
to be lacking is an overall Bureau Quality Assurance and Quality Improvement Plan that
overarches and provides continuity with similar individual private agencies plans contracted
to provide the various services of adoption, foster care (licensing), safety, and ongoing
services. Staff from several agencies indicated being involved in workgroups and other
activities which were directly involved in using quality assurance information to improve
performance, e.g. the BMCWs workforce and recruitment workgroups, policy committees,
etc. On the other hand, staff reported that if issues are raised which require the Bureaus
response; they usually do not obtain a response. They reported a better response when the
issue was internal to the agency. However, in groups from one agency, they reported not
completing the most recent satisfaction surveys, because they had not received feedback
from prior satisfaction surveys . Defining communications and a feedback loop is a key
element contained in an agency QA/QI plan, and assists in identifying organizational identity
and its relationship to other partners.
Recruitment and Employment Screening: Hiring the right staff is crucial to retaining
staff. Research indicates that individuals with degrees unrelated to social work do not stay
as long in their positions as those with social work or related degrees. The vast majority of
case mangers in all the focus groups reported that neither their interview nor the job
description they received gave them an accurate picture of what the job entailed. Many were
drawn to working with children and families but were unaware that the majority of their time
would be spent completing paperwork. The majority of recent college graduates in the focus
group reported the position as being entry level in the field of social work.
Supervisors routinely reported that there is no structured interview process for case
managers, e.g. standardized questions, and questions posed do not routinely query the
interviewee relative to the competencies necessary to perform child welfare work. Several
accrediting bodies of child welfare agencies including the Council On Accreditation (COA),
the largest accreditor of child welfare agencies, have established human resource standards
that address the need for standardized and competency based interviews in addition to job
previews or the ability to speak to senior staff in similar positions.
Possible Strategies: Addressing Ongoing Case Manager Turnover
The initial strategies we would recommend are fairly basic. Hire the right staff, pay them a fair
salary and train and support them the right way. All the evidence points to this as the right
direction. Unfortunately, the right strategies often seem out of reach or too costly. In this case the
evidence strongly suggests that not addressing this issue costs more than leaving it alone, both in
human and financial terms. The following are our suggested steps. They are viewed as a package
rather than a menu from which one might select one step, perhaps a necessary step but by itself not
9
a sufficient step.
1. The inadequate salary and benefits of ongoing staff are a significant factor in ongoing staffs
job satisfaction and probably contribute to the higher than desirable worker turnover. The
salary levels are below those offered BMCW IA staff. The salary and benefits for ongoing
staff should be adjusted to reflect a benefits package similar to that offered by the BMCW.
The private agencies are responsible for the benefits packages offered their employees and
as such should make appropriate adjustments as soon as is possible. Noting the perceived
and real rigidity of the ongoing services contracts, the BMCW should grant the private
agencies permission to reallocate resources in order to achieve this change. These conditions
should be included in the required terms and conditions of the request for proposals for
ongoing and safety services that are soon to be let. Costs associated with implementing these
conditions should be recognized as allowable. (See Appendix-B, pg. 18 Example Salary
Approach)
2. Steps should be taken immediately to improve the professionalism of the ongoing workforce.
Ongoing staff should be required to be certified social workers as is required of BMCW IA
staff. This step should be required under the terms and conditions of the proposed RFPs.
Steps have to be taken to achieve this over a reasonable, but not unlimited, period of time.
The private agencies should begin immediate discussions with the various schools of social
work to build pipeline programs designed to bring BSW and MSW graduates into their
employ. The BMCW should make Title IV-E resources available to the private agencies,
perhaps through the training partnership, in order to assist private agencies.
3. Training programs should be intensely reviewed in order to ensure staff is prepared to take
on the difficult work of ongoing services. We would suggest the immediate development of
a training academy that supports training teams housing new employees. These new
employees would receive six months of intensive training, both theoretical and hands on.
Included in this training would be intensive court training. Court training should be
immediately restored and be required of all current and new staff. The private agencies could
build this training effort independent of the BMCW since they would be paying salaries of
staff in training. Ownership of the training effort by the private agencies with the training
partnership is still a Title IV-E reimbursable activity although at a lower rate of federal
financial participation than if offered solely to public employees.
Two additional strategies must also be considered. One, ensuring that staff hired are the most viable
candidates to be retained. The other to provide some relief to the issues related to organizational
culture, improving communication and rectifying misconceptions.
1. Partial or fully standardized competency based interviews should be instituted, including the
addition of job previews. A lack of clearly defined competencies impacts the selection
process of new staff. While several agencies reported a waiting list of potential employees,
none indicated that candidate competencies had been defined nor have questions been
10
formulated which inquire into these areas. Using information obtained from exit interviews
may also assist in formulating questions. Acknowledging the trends identified through this
process of information gathering may inform questions which can assist candidate selection
to help reduce preventable turnover. Providing opportunities to preview the job can help to
ensure that perspective hires have a better understanding upon which to make their hiring
decision. Currently, the Bureaus workgroup on workforce and recruitment has identified
some of the contributors to turnover as well as formulating recruitment strategies. What must
accompany this is a more reliable selection process that screens out potential hires accurately
and clearly provides a pool of applicants that display the most viable competencies, thus
increasing the odds of retaining staff.
2. Individual agency and Bureau Quality Assurance and Quality Improvement Plans should be
developed and implemented. Currently, the BMCW has multiple mechanism of program
monitoring as do the individual agencies, including multiple performance improvement plans
and quality improvement activities which occur within multiple workgroups, committees,
and internal and external reviews (e.g.. the Partnership Counsel - planning on conducting
focus groups, the Workforce Workgroup - working on retention and recruitment, the
Wingspread Conferences relating to the Chapin Hall study of the BMCW, etc). These
activities and others all enhance the knowledge base regarding the agencies performance and
its strengths and opportunities. Given the breadth of activities, formulating a concise plan
supports clear communications of findings and plans for improvement. The plan can clearly
define activities related to risk management, program evaluation and review, and consumer,
employee, and stakeholder input and satisfaction. It can ensure that staffs, at all levels, have
the opportunity to participate and with that participation have a responsibility to
communicate with their agency staff. It can effectively serve as a template within which
feedback loops can be identified and closed, both internally within the agency, and externally
between the agency and the Bureau, thus enhancing the overall satisfaction level of staff.
Additional Considerations
A number of other issues contribute to the complexity of any resolution of this issue.
The BMCWs intent to place these services out to bid increases the possibility of higher turnover.
One CEO reports that staff already are anxious over their future. The Courts will expect higher
turnover and potential backlogs from caseload transfers, which, we understand, happened once
before. Private agencies cannot guarantee staff they have employment since they do not know the
outcome of the process. The BMCW might be able to address this issue but only if they guarantee
all current staff that they will be employed by any succeeding agency. This too would have to be
a term of the RFPs and contracts.
11
Private agencies have an obligation to address these issues independently of the BMCW. The
ongoing staff are their employees and they should be protected and developed by the private agency
leadership.
The BMCW is reviewing their contracts for ways to make them more outcomes based. Although
there are no simple solutions, it is recommended that there be a greater focus on outcomes for
children and families. Such a focus might lead to discussions about obstacles to reunification and
adoption. The privates view the contracts as micromanagement and compliance oriented. The terms
of the contracts are specific in nature and focus on important issues required by the settlement
agreement. Shifting to an outcome based contract will require identifying client based outcomes. This
will require a conversation between all the stakeholders prior to the cementing them into specific
contract terms.
.
A Lot of Good Work is Being Done Here So Solve This and Move On.
There is so much good work going on by hundreds of very committed individuals that there should
be reason to celebrate the improvements. There are communications issues that every large system
experiences. Solve these issues by sitting down with the advocates and private agencies as full
partners in changing the child welfare system. There is richness here in Milwaukee County and you
need to tap it.
The opportunity to resolve the issue of case worker turnover is more positive in Milwaukee County
than perhaps any other jurisdiction in the country. Caseloads are already at reasonable levels. The
Governor is committed to addressing the issue. The court settlement requires the issue to be
resolved. Strategies as discussed in this paper exist to resolve this issue. The cost of not resolving
this issue is enormous in terms of permanency for children and families. The cost to resolve the
issue is reasonable and affordable given the resources committed to the system. The time to act is
now.
12
Appendix A
Results of the Employee Environment Survey with
Correlations to Focus Group Information
The Employee Environment Survey was administered to all focus group members prior to
commencement of each group. Fifty-seven (57) ongoing case managers and 28 supervisors completed
surveys, respectively 26% and 62% of all ongoing case managers and their supervisors.
The survey was developed and tested by the Gallup Organization and was integral in Marcus
Buckingham and Curt Coffmans in-depth study of over 80,000 managers selected on their ability
of turning each employees talent into performance. The survey measures employee engagement and
has proven to be highly predictive of retention, productivity, and other business outcomes. The
survey, composed of 12 questions (see next page), addresses four hierarchical elements that
contribute to a recurring sense of achievement. These are:
What do I get? (Questions 1 &2)
What do I give? (Questions 3-6)
Do I belong here? (Questions 7-10)
How can we all grow? (Questions 11 & 12)
Each of the 12 questions is responded to on a 6-point scale, ranging from Disagree Very Much to
Agree Very Much. Responses of Agree Moderately (4) and Agree Very Much (5), indicate a
high level of engagement, being fully involved and positive toward work, while scores below a four
are not engaged or actively disengaged. Organization managers should strive to have 90% of their
employees rate all questions in the moderately to very much agree categories
The following pages provide aggregate data for ongoing case managers and supervisors from the five
sites, indicating the percent of response reflecting a high level of engagement (moderate to very much
agree) and the percentage falling below that threshold. The final section of this appendix correlates
some of the available focus group information to each question, provides a comparison between the
responses of case managers and supervisors, draws some additional correlations to available research;
and compares certain queries.
13
Employee Environment Survey
Aggregate Results - Supervisors
Disagree
Very
Much
Disagree
Moderately
Disagree
Slightly
Agree
Slightly
Agree
Moderately
Agree Very
Much
1. I know what is expected of
me at work.
11% 89%
2. I have the materials and
equipment I need in order to
do my work right.
29% 71%
3. At work, I have the
opportunity to do what I do
best every day.
25% 75%
4. In the last seven days, I have
received praise or
recognition for doing good
work.
71% 29%
5. My supervisor seems to care
about me as a person.
36% 64%
6. There is someone at work
who encourages my
development.
55% 45%
7. At work, my opinion seems
to count.
43% 57%
8. The mission/purpose of this
organization makes me feel
my job is important.
25% 75%
9. My co-workers/peers are
committed to doing quality
work.
32% 68%
10. I have a friend at work.
25% 75%
11. In the last six months,
someone has talked to me
about my progress.
33% 67%
12. This last year, I have been
provided with opportunities
to learn and grow.
37% 63%
14
Employee Environment Survey
Aggregate Results - Ongoing Case Managers
Disagree
Very
Much
Disagree
Moderately
Disagree
Slightly
Agree
Slightly
Agree
Moderately
Agree Very
Much
1. I know what is expected of
me at work.
14% 86%
2. I have the materials and
equipment I need in order to
do my work right.
28% 72%
3. At work, I have the
opportunity to do what I do
best every day.
53% 47%
4. In the last seven days, I have
received praise or
recognition for doing good
work.
53% 47%
5. My supervisor seems to care
about me as a person.
25% 75%
6. There is someone at work
who encourages my
development.
35% 65%
7. At work, my opinion seems
to count.
67% 33%
8. The mission/purpose of this
organization makes me feel
my job is important.
45.5% 54.5%
9. My co-workers/peers are
committed to doing quality
work.
47% 53%
10. I have a friend at work.
2% 98%
11. In the last six months,
someone has talked to me
about my progress.
36% 64%
12. This last year, I have been
provided with opportunities
to learn and grow.
35% 65%
Correlation of Focus Group Information to Survey Results
15
Question 1 - I know what is expected of me at work - This question was similarly rated by both
supervisors and case managers, both nearly achieving 90% in the moderate to very much agree
category (supervisors 89% and case managers 86%). Focus group participants indicated they knew
what their supervisors and mangers expectations were, although many of them indicated that at the
point of employment as a case manager the expectations of the job were not entirely clear.
Question 2 - I have the material and equipment I need in order to do my work right - Slightly over
70% of supervisors and case managers rated this in the moderate to very much agree category
(supervisors 71% and case managers 72%). While focus group members did not raise any specific
concerns regarding access to supplies or equipment, participants from three sites indicated that the
facilities are often dirty and ill maintained. Two sites identified that having an agency car and cell
phones would be beneficial, helping in defraying their out-of-pocket expenses as well as giving them
a mechanism to obtain assistance while in the field.
Question 3 - At work, I have the opportunity to do what I do best every day - The response between
supervisors and case managers was more disparate on this question. In rating the categories of
moderate to very much agree category, 75% rated it in one of these two categories while only 47%
of case managers rated it in one of the two categories. This seems to correlate to statements in focus
groups from case managers who indicated that the job they are currently performing was not what
they expected to be. That instead of spending the majority of their time working with children and
families it is being spent on paperwork, staffings and court.
Question 4 - In the last seven days, I have received praise or recognition for doing good work -
Twenty-nine (29%) of supervisors and 46% of case managers rated this in the moderate to very
much agree category. Many case managers in the focus group reported that their supervisors were
supportive, available, and provided supervision. Staff at several sites indicated they are located on
a different floor than their supervisor or in a part of the office that is not in proximity to their
supervisor or other team members. Case managers and supervisors indicate that due to the focus on
compliance interactions with their superiors usually focus on what needs to be done rather than on
what has been done - thus lessening the opportunity to recognize good work.
Question 5 - My supervisor/manager seems to care about me as a person - This question scored
higher then number 4 for both case managers and supervisors. Moderate to very much agree
responses were at the level of 64% for supervisors and 75% for case managers. Once again this seems
to coincide with the responses from both case managers and supervisors in the focus groups, both
of whom indicated that their superiors were usually supportive, available, and provided flexibility
which help to offset personal demands of the job.
Question 6 - There is someone at work who encourages my development - Forty -five percent of
supervisors and 65% of case managers were moderately or very much in agreement with this
16
statement. For case managers there was an exact correlation to Question 12 - This last year, I have
been provided opportunities to learn and grow. For supervisors this was not the case with 63%
rating question 12 in the moderate to very in agreement. Case management staff reported in the focus
groups that the majority of supervisors make them aware of training opportunities. While many
supervisors indicated they were aware of core training and other training prospects, some had no
knowledge of the core training existence. Both reported that there were some opportunities available
to pursue advance degrees, but these were limited. The lower rating associated to question 6 for
supervisors may also be due to the nature of supervisor and manager communication which was
characterized as often focusing on assuring compliance activities which may decrease the probability
of discussing professional development.
Question 7 - At work, my opinion seems to count - Only one-third (33%) of case managers and 57%
of supervisors are moderately or very much in agreement. While a few focus group participants
indicated that they have participated in work groups and committees formulated to improve various
aspects of their individual agency or the BMCW, many were unaware of these groups or the
outcomes. Some staff reported that they have been instructed not to raise issues in some meetings
in order to preclude any possible repercussions. Staff report raising issues which need resolution
either within their agency or at the Bureau. They indicate they are more apt to receive a response
when the responsibility for resolution lies within their agency versus when it lies with the Bureau.
Some staff report participating in satisfaction surveys, but have elected not to participate in future
ones as they heard nothing from the past ones.
Question 8 - The mission/purpose of the organization makes me feel my job is important -. Three-
quarters (75%) of supervisors and slightly over one-half (54%) of case mangers fell within the
desired category for this query. Supervisors in the focus groups reported a high level of
understanding of their role and responsibility in the organization. Over 70% have been with their
respective agencies for more than two years and 57% more than three years. Seventy-one percent
hold either M.S.W. degree or advance degree in a related Human Service field. These results involving
tenure of staff and educational level parallel the findings of Dickinsons and Perrys 1998 research
that notes that relevant education appears to solidify organizational commitment and ultimately is
a predictor of retention. Approximately one-half (49%) of the case mangers participating in the focus
groups have been employed for two years or less. Of those, 54% were employed for six months or
less. Research has shown that individuals who are highly committed to their organization will be less
likely to think about leaving. Additionally, the link between commitment and turnover may be
strongest early in the career. At this stage the importance of the job may be influenced by being given
challenging and interesting jobs (See question 3), receiving suitable training and development (See
question 12), the perception of career opportunities, and receiving both formal and informal career
management support (See questions 6 and 11). Each of the cited questions received moderately to
very much in agreement response rates ranging from a low of 45% to 65%, which may contribute to
the lower response rate to question 8. Case management staff and supervisors both reported that a
career ladder and opportunities for advancement were extremely limited. Additionally, the external
perception of the organization by stakeholders and the community may also influence the level of
17
importance that staff feel regarding their jobs. While the vast majority of focus group participant felt
that the work of their organizations was important, they acknowledge that perceptions of court
personnel, negative media coverage, and some perceptions of their own families causes stress;
detracting from their efforts which results in them second guessing their job choice.
Question 9 - My co-workers/peers are committed to doing quality work - Fifty-three percent of case
managers and 68% of supervisors agreed moderately or very much to this statement. This question
aids in determining if staff perceive that their colleagues operate within a similar value system relative
to their work. Staff are more likely to remain employed in organizations that compliment those
systems. Focus group participants provided limited information that might inform the level of
response. One group did cite that they were sometimes concerned about the quality of coverage for
their caseload when going to extended training sessions or on vacation.
Question 10 - I have a friend at work - Case managers very much or moderately agreed to this at a
level of 98%, while supervisors responded at a 75% level. This query combined with items seven
through nine helps to illuminate the level of the staffs connection to the organization. Organizations
that provide an environment that supports peer connections is in a better position to improve
retention rates
Question 11 - In the last six months, someone has talked to me about my progress - Over 60% of
both supervisors and case mangers agreed moderately or very much (Supervisors - 63% and Case
Manager -65%). Both groups of staff reported that regular supervision does occur, as do evaluations.
It was expressed that in some cases the focus tends to be on compliance activities, rather than
professional development.
The results of the survey, combined with the focus group information, suggest that there are
numerous opportunities to build on the areas of strengths identified by the data. While only one
question exceeded a level of 90% many were above 70%. These are clearly opportunities to build
upon. While others fell below 70% and might be considered to be deficit areas, building on the
strengths may provide a domino effect on the other areas. These questions are built on a hierarchy
and as first areas improve subsequent areas will also be impacted.
18
Appendix B
Example of Salary Schedule Approach that Encourages
Staff Retention and Professionalization
A major challenge to solving the ongoing case manager turnover problem is to establish a salary and
benefits package that encourages staff to stay in this pressure laden and critical job. A common
theme in focus groups reflected that salary issues were a major concern of staff. Additionally,
national reviews of child welfare workforce turnover report inadequate salaries as being a major
contributor to the problem. Often the problem is viewed as intractable due largely to the cost of
proposed remedies. Failure to address the salary issues, which contribute significantly to turnover,
actually results in higher costs due to the poor and more costly performance of the child welfare
system. Such is the case in Milwaukee County.
A major consideration in the salary discussion is the apparent inequity, or disparity; between the
salaries of private agency ongoing case managers and Bureau of Milwaukee County (BMCW) Intake
and Assessment staff who perform similar direct service responsibilities. This BMCW staff to
private agency staff salary comparison in Milwaukee County is the fairest way to describe the
market for salaries and appropriate parameters for salary basis solutions. Comparison with private
agency salaries in other parts of the Midwest and the country are not appropriate comparisons to
be used in resolving the Milwaukee County problem. Comparing low private agency salaries in other
jurisdictions with Milwaukee County private agency ongoing staff salaries will reflect only that
private agencies probably pay staff low wages everywhere.
Balancing Outcome or Performance Based Salary Structures
with Guaranteed Step and Merit Systems
It is increasingly popular to suggest outcome or performance based salary structures in lieu of more
traditional step and merit systems, which essentially guarantee annual increases based upon a payroll
plan. The problem with outcome-based systems may be that there is often little agreement about
the basis for measurement of employee performance. In addition, much of the resources necessary
to achieve outcomes in child welfare settings are beyond the control of the caseworker. Effective
substance abuse services and housing resources are two of the most critical resources necessary to
successful reunification of families in the child welfare system. These resources are seldom sufficient
and almost never under the control of the child welfare system. However, without these services
child welfare caseworkers are unlikely to be able to achieve reunifications. They find they cannot
meet, in this example, expectations for performance because they do not have access to appropriate
services.
Another problem in framing outcome-based systems is the tendency to confuse activities with
19
outcomes. The BMCW expects that case managers see children in foster care every month. This
is an expectation of the court settlement agreement and a matter of state policy. It is tightly
monitored and sanctioned by BMCW. It is for many a classic example of an outcome measure when
it is actually an activity measure. A case manager with a reasonable caseload, also required by the
BMCW, should be expected to achieve this visitation requirement in order to qualify for a
satisfactory performance evaluation. The worker who achieves higher than expected performance
for permanencies, adoptions or reunifications, is achieving client-based outcomes and should be
rewarded accordingly.
The BMCW may want to encourage a broader discussion of client based outcomes for the
Milwaukee County child welfare system as a basis for establishing a performance/outcome based
contracting system for services to children in foster care. Once there is agreement on outcomes a
discussion about obstacles to achieving the outcomes can be held resulting in strategies to address
barriers to permanencies. It is critical that the BMCW actually be able to measure the outcomes in
a way so that agencies and the BMCW agree on actual performance.
Private agencies under a performance structure could conceivably pass through the reward for
performance to employees in some fair manner. Since a bonus for performance most likely will be
a one time payment agencies will find it necessary to structure internal rewards accordingly. It is in
this regard that outcome or performance based structures fail. They do not attend to the
infrastructure necessary to achieving performance. This may suggest that a blended step and
outcome based salary system may be most desirable.
The step system is often viewed as archaic and oppositional to performance. This concern is
actually a management issue rather than a salary issue. Failure to manage the workforce, including
addressing necessary infrastructure needs, leads to poor performance.
The step system allows employees to forecast their future within the respective agency. It suggests
the relative rewards for tenure, academic achievement and professional certification. It provides a
framework for salary growth, assuming satisfactory performance. It can recognize required advanced
degrees and reward employees who achieve advanced degrees such as a Masters in Social Work. It
also can reward receipt of preferred, actually required, certifications such as certified social worker.
The trick for child welfare systems is how to structure a salary system that encourages staff to stay,
perform and grow all in the context of ever increasing pressures to achieve more and better outcomes
for children and families. It is especially important when you consider that the caseworker is the
vehicle for achieving outcomes.
Principles for a Possible Milwaukee County Private Agency
Ongoing Case Managers Salary Structure
20
The primary purpose of our effort is to identify causes of case manager turnover and strategies that
might be pursued to improve this condition. The most important step to be taken is to address
salary inequity in Milwaukee County. The following principles, or strategies, are laid out as the
basis for this alternative salary proposal. Salary levels should reflect BMCW salary levels for IA
staff as a basis for addressing fundamental issues of inequity between staff who perform similar
functions.
1. Salary levels value length of service, or experience, and satisfactory performance.
2. Salary levels value certification of staff as required by the BMCW and as expressed in
Wisconsin state law and regulation for certified social workers. This step is critical to
professionalization of the workforce.
3. Salary levels assume agencies will hire BA and MA level candidates who can qualify as
certified social workers.
4. Salary levels recognize the current composition of the ongoing workforce and are structured
to encourage staff to achieve advanced professional degrees and certification. It does, at a
minimum, grandfather the current workforce.
5. The specific steps provide a future framework for staff who desires to remain in a casework
role.
6. A specific outcome based reward system could be built on top of such a structure providing
additional incentives for outstanding performance.
These principles, or strategies, of a salary system are intended to address the fundamental issue of
workforce turnover. If this problem is not resolved, attempts to achieve improved performance will
fail as the workforce continues to cycle through the Milwaukee County child welfare system.
Details of a Proposed Salary Plan for Private Agency
Ongoing Case Managers
Following is a framework for a step based salary schedule that recognizes tenure, satisfactory
performance, professional degrees and certification. It is intended as a platform upon which various
performance based incentives could be built. The details are as follows. (See - Sample pg. 21)
1. It creates four levels of professional staff: level one (1) for BA, non-certified but approved
staff; level two (2) for BA and certified staff; level three (3) for MA, non-certified but
approved staff and level four (4) for MA and certified staff. The entry- level salary reflects
21
but does not mirror BMCW salary for IA staff. Entry level for BMCW IA staff is $31,825.25
per year. Advanced workers qualify for an annual salary of $37,239.48. Both positions
require certification as a social worker. Steps 3 and 4 reflect the certification requirements.
2. The salary schedule is laid out for a ten (10) year period in order to give staff a sense of their
future should they decide to commit to the agency and the child welfare mission. A primary
purpose of the schedule is to indicate to staff the future of compensation for their effort and
how choices they make in advancing professionally will benefit them.
3. The schedule assumes that any changes, such as annual cost of living adjustments or
performance bonuses, would be built on top of the step system.
4. The schedule builds in annual adjustments reflecting tenure but favoring certified positions,
steps 2 and 4. The adjustment for steps 1 and 3 is 3.5% annually. The adjustment for steps
2 and 4 is 4% annually.
The use of a step salary approach is very compatible with performance approaches in that the step
system helps stabilize the workforce while permitting incentive approaches to be built on the basic
platform. Implementing such a system in an existing system will have initial costs but may well be
offset by savings due to reduced turnover costs and increased performance.
SAMPLE SALARY SCHEDULE
(DISCUSSION USE ONLY)
Length of
Service
Level 1 Level 2 Level 3 Level 4
Start $30,000 $33,000 $33,000 $38,000
One Year $31,050 $34,320 $34,155 $39,520
Two Years $32,137 $35,698 $35,350 $41,100
Three Years $33,262 $37,120 $36,587 $42,744
Four Years $34,426 $38,605 $37,868 $44,454
Five Years $35,630 $40,149 $39,193 $46,232
Six Years $36,878 $41,755 $40,565 $48,081
Seven Years $38,168 $43,425 $41,985 $50,004
Eight Years $39,504 $45,162 $43,454 $52,005
Nine Years $40,887 $46,968 $44,975 $54,085
Ten Years $42,318 $48,847 $46,549 $56,248
The Sample salary schedule presented above is meant to facilitate discussion around the
framework identified in items 1-4 above. It is similar in many respects to the Illinois Department of
22
Children and Family Services (IDCFS) salary schedule for child welfare staff, except that the IDCFS
salary range is higher. That systems schedule acknowledges both education and tenure. Certification
is not included as a salary track as all Illinois child welfare staff (public and private) must be certified
by IDCFS in order to practice, and therefore is a condition of employment. Two child welfare titles
exist in IDCFS as follows: Child Welfare Specialist - Entry level position requires a BSW, MSW, or
related Human Service Degree with no experience. Salary schedule provides yearly increases through
eight years, with a salary range of $37,728 - $55,740. Child Welfare Advanced Specialist Requires
and MSW and two years of IDCFS experience. Salary schedule provides yearly increases through
eight years, with a salary range of $39,708 - $59,196.
Each of the four levels included in the Sample salary schedule provide for yearly increases up to
ten years of continuous employment within the same level. The ranges are as follows:
Level I Uncertified BA Staff - $30,000 - $42,318
Level II Certified BA Staff - $33,000 - $48,847
Level III Uncertified MA Staff - $33,000 - $46,549
Level IV Certified $38,000 - $56,248
Potential Impact of Utilizing the
Sample - Discussion Only Step Salary System
The discussion only step based salary schedule demonstrated above has a cost of implementation,
as would any salary solution. It is, however, an increasingly important strategy to address this
critical problem. Recently the governor of Texas announced a $349 million child protection reform
initiative designed to respond to a number of child protection tragedies. A key problem was worker
turnover. The Texas initiative includes a $5,000 salary adjustment for all CPS employees in order
to bring their salary base closer to other professions such as teachers. Addressing the salary issue
is the most fundamental step in managing the turnover issue.
A review of the educational backgrounds and experience of private agency staff suggests that almost
all staff could eventually qualify for state certification as social workers. Currently very few of the
over 200 ongoing and safety staff have received certification. If you assume that the workforce is
all certified, either at the BA or MA level, you could calculate an outside, or maximum, cost of
implementing the schedule.
Recognizing that WCSN and IFPI have merged we have consolidated the analysis for this new
agency. WCSN has 198 and La Causa 49 of the 247 ongoing and safety staff. The total cost of
moving current employees to level 2 and level 4, reflecting certified BA and MA staff, and placing
them at the appropriate step level reflecting their length of service would cost $1,904,359 on an
annual basis. This does not include adjustments for supervisors, an absolutely necessary step to
take.
23
There is an interesting distribution of the costs when you consider impact by agency. La Causa has
20% of the ongoing workforce, a higher average salary and lower workforce turnover. La Causas
cost of implementation is $184,781 total and $3771 per employee. This may reflect steps the
agency has already taken to enrich salaries. WCSNs cost of implementation is $1,719,578 total and
$8684 per employee. This probably reflects the higher turnover of the workforce of this agency,
especially at IFPI, and lower salaries across the board.
This scenario assumes that the agencies adopt this specific schedule and all staff qualifies for the
certified levels. It does not consider the internal savings that are realized from a reduction in
turnover. The payout of benefits or cashing out of earned time, etc. would partially offset the cost
of implementation. In addition, it is possible that not all staff would qualify for the certification
level. This would result in a somewhat lower cost. The cost is estimated at the highest level in order
to determine feasibility. This schedule and its cost do appear to be within the parameters of the
resources indicated by DFCS child welfare leadership to be available to address this critical problem.
There exists an interesting potential conflict of public policy goals in the effort to resolve the
turnover problem. The BMCW is placing ongoing services out to bid under an RFP with one
objective being to reduce costs. There also is the expectation under the settlement agreement that
worker turnover be reduced. This expectation is appropriately tied to the belief that turnover
interferes with successful performance of responsibilities to children and families and negatively
impacts performance on their behalf.
The RFP process may place La Causa at a competitive disadvantage because they have a higher
salary base per ongoing staff than WCSN. The BMCW should consider requiring successful bidders
to have a salary and benefits plan that is reasonably related to that of the BMCW. It is important
that the successful bidder not be successful at the expense of the staff that does the work. This
proposal only illustrates how the BMCW might address this concern. However they proceed, the
RFP will seriously impact the workforce turnover issue. Hopefully there will be a positive effort.
24
Fewer Changes In Caseworkers Increases the Chances of
Permanency for Children
Children Entering and Exiting Care to Permanency from January 1, 2003 through September 2004 (N=679)
Data reported represents 679 children entering and exiting to permanency from January 1, 2003 through
September 2004. Data reported to review staff by the Bureau of Milwaukee Child Welfare.
25
26
Fewer Changes in Caseworkers Increases the Chances of
Permanency for Children
Children Entering and Exiting Care to Permanency, from January 1, 2004
through September 2004, Who Experienced Worker Changes
September 2004. Data reported to review staff by the Bureau of Milwaukee Child Welfare.
1 of 12 Case No. 2011 MR 254

) Case No. 2011 MR 254
) Presiding Judge
vs. )
)
)
Defendants, )
)
)

FOURTH DECLARATION OF PATRICIA FOX
The undersigned, pursuant to 735 ILCS 5/1-109, declares that she is an adult over the age
of 18 and is competent to testify to the following matters if called as a witness:
(1) I am currently the Chief Executive Officer for Catholic Charities of the Diocese of
Peoria. My professional career in child welfare began in 1983 and I have been working in the
child welfare field now for 28 years. I have first-hand experience as a foster care caseworker,
licensing worker, casework supervisor, licensing supervisor, trainer and administrator. My
experience in Illinois child welfare has given me the privilege of being involved in various joint
initiatives with the Department of Children and Family Services (DCFS), including supervising a
Family Reunification Program and developing a non-categorical foster care delivery model. My
experience working for a Purchase of Service (POS) agency contracting with DCFS has also
allowed me the opportunity to participate in the state Child Welfare Advisory Committee
2 of 12 Case No. 2011 MR 254
(CWAC), a legislatively sanctioned advisory forum to DCFS on programmatic, contract and
implementation issues concerning the provision of child welfare services in Illinois. I have
served on the Child Welfare Advisory Council and Steering Committee since 2005, and as a
member of the CWAC Infrastructure Subcommittee since 1999. Through my participation in
CWAC, I was involved in: the design of the first performance based contracting model for foster
care for downstate Illinois; providing input regarding a series of program plans for Traditional,
Home of Relative and Specialized foster care; developing the concept for the current
computerized referral process that identifies available foster homes close to a childs school or
home of parent (CAPU); providing feedback on previous and current performance indicator
matrices used to measure and compare agency performance; and partnering in the recent and
ongoing initiative to license relative foster caregivers.
(2) This declaration responds to the affidavit of Michael Shaver.
(3) Paragraph 6 of Mr. Shavers affidavit, in which he purports to address how foster
homes are identified for children when they are first placed in foster care, does not include a
description of the current system used by DCFS to identify an appropriate foster caregiver for
children removed from their home of parent. This process is described thoroughly in the
contracts DCFS has with each foster care Purchase of Service (POS) agency and is attached as
Exhibit A. DCFSs first preference for placement of a foster child is in the home of a relative, if
one can be located and is available and appropriate. Otherwise, in an effort to keep children
placed in foster care in their own communities, schools and near other support networks, and to
encourage frequent contact with their parents, Illinois has implemented a unique system for
identifying available foster homes. This approach also assures that regardless of whether a
3 of 12 Case No. 2011 MR 254
potential foster home applicant is licensed directly by DCFS or the license application is
processed by one of the many other licensed child welfare agencies, the licensed foster caregivers
all go into the same pool of diverse foster caregivers available to all children who enter foster
care. Placement options for a given child are then determined by the foster homes geographical
proximity to the childs school and home of parent, the number of children the home is licensed
for and the preferences of the foster caregiver. The computer that identifies the best potential
placement option is blind to sexual orientation or marital status of the licensed foster caregiver.
All licensed foster caregivers end up in one pool regardless of what agency processes their
license and supervises the home. This allows for each child coming in to foster care to benefit
from the diverse pool of all homes regardless of what agency processed the license. A caregiver
may be licensed with only one agency (or DCFS) at a time.
(4) In 7 of his affidavit, Mr. Shaver notes, DCFS delegates its authority and duties to
private agencies, but retains guardianship of those children and the ultimate authority to make
certain decisions regarding the care of the child such as the power to consent to psychiatric
treatment for the child. The scope of decisions that as guardian DCFS retains is worth noting
and also includes the decision to open a case and take a child into protective custody; approval
for case transfers to DCFS or between POS agencies; approval for placement in residential
settings, group homes, specialized foster care or independent living/transitional living; licensure
of foster caregivers; waivers of licensing standards; approval to expand the licensed capacity of a
foster caregiver; placement clearance for all placements of children in a foster home; and final
approval on all relative placements.
(5) In 10 of his affidavit, Mr. Shaver notes research overwhelmingly confirms that
4 of 12 Case No. 2011 MR 254
relative placements are most often in the best interests of the child because of the family bond
and the familiarity, which can mitigate the trauma of removal. He goes on to describe the
recent efforts in Illinois to license relative foster caregivers. The most recent ranking sheet
distributed by DCFS, dated July 2011, which notes licensing performance for all foster care
agencies and DCFS regions, is evidence of the commitment by Catholic Charities of the Diocese
of Peoria to license all relative foster caregivers (see Exhibit B). This chart shows that Catholic
Charities Peoria has achieved a licensed percentage of 68.9% compared to a state average of
58.01%, a score of 57.7% for Mr. Shavers agency, and a score of 46.1% for DCFS. Catholic
Charities licenses all relatives, including those relatives who are cohabiting. We have licensed
323 relative foster caregivers since February of 2009, and to my knowledge, this is more than any
other agency in the state of Illinois.
(6) In 1 of his affidavit, Mr. Shaver comments on the fact that DCFS holds his agency
accountable for performance, including the stability of placements and success in moving
children to permanent homes. He states, DCFS always reserves the right to transfer cases or
even our entire caseload if we do not live up to our obligations. As the childs guardian, DCFS
does, in fact, have the right, responsibility, and authority to act in childrens best interest and hold
all POS agencies, including Catholic Charities, accountable for performance and positive
outcomes for children. DCFS has never had cause to exercise their right to terminate Catholic
Charities foster care contracts due to performance issues, and, in fact, has praised our
performance in achieving positive outcomes for the children in our care. Catholic Charities has
competently and consistently met the contractual obligations and exceeded performance
benchmarks set by the Department.
5 of 12 Case No. 2011 MR 254
(7) In 4 of his affidavit, Mr. Shaver presents grossly misinformed assumptions about
Catholic Charities policies and practices. His observations and predictions are based on a false
assumption that Catholic Charities does not serve children placed with relatives that are
cohabiting or in a civil union. Mr. Shaver lays out misleading scenarios such as the agency
would return the case to DCFS, or the child would be removed from the relative home or the
agency would be unwilling to license the foster caregiver. None of this is true, and all of these
scenarios are irrelevant as Catholic Charities has no such policies in regards to relative foster
caregivers. We serve children referred to us by DCFS in accordance with DCFS policy and
procedure. DCFS is the guardian of the child. We make all subsequent decisions based first
and foremost on each childs best interest. We have never declined a relative referral because
the relative was in a cohabiting relationship, and we work closely with all relative caregivers to
obtain a Foster Care License with the DCFS.
(8) In 16 of his affidavit, Mr. Shaver again presents scenarios that do not apply in this
case, such as moving a child who had developed a strong bond with a foster caregiver, or
transferring the case to another agency.disrupting important relationships between the
caseworker and the child and foster caregiver. To reiterate, once a child is referred to Catholic
Charities we make all decisions in the best interest of the child, we recognize that DCFS is the
guardian of the child, and follow DCFS rule and procedure and guidelines for best interest. This
means we have never moved a child from a single foster home as a result of the foster caregiver
entering into a cohabiting relationship or a civil union. Decisions to move a child are made with
great care due to attachment, stability, continuity of schools, continuity of other significant
relationships and permanency. Catholic Charities follows all DCFS Rule and Procedures when
6 of 12 Case No. 2011 MR 254
moving a child from a foster home. This means Catholic Charities does not initiate a move from
a foster caregiver unless there is a risk of harm or another presenting issue of best interest (such
as placement with a relative or sibling, or foster caregivers inability to support the permanency
plan for child). DCFS which has the final decision making authority if a foster parent chooses to
appeal a decision made by a POS agency to move a child. Catholic Charities would never act in
such a way as to disrupt a stable placement for a child, risk a childs safety, or not cooperate in a
plan that was in the childs best interest. We have a longstanding history of working with DCFS
and assuring the best interest of the child guides all decisions.
(9) In 18 of his affidavit, Mr. Shaver raises the question of services to LGBTQ
(lesbian/gay/bisexual/transgender/questioning) youth. DCFS has never expressed any concerns
with respect to Catholic Charities service provision to lesbian, gay, bisexual, transgender and
questioning youth. Our policies require professional master level staff to adhere to our agency
code of ethics as well as codes of their specific professional ethics including, but not limited to,
National Association of Social Workers (NASW), American Counseling Association (APA) or
American Association of Marriage and Family Therapy (AAMFT). Our masters and bachelors
level Foster Care staff are licensed by the state and governed by the Code of Ethics for Child
Welfare Professionals. All of our Foster Care staff must follow DCFS Policy and Procedure.
DCFS Rule 302, Appendix K was implemented to guide staff in working with lesbian, gay,
bisexual, transgender and questioning youth. This Rule established DCFS LGBTQ Clinical
Consultants to assist staff in providing and accessing services to our LGBTQ clients, and
established guidelines to protect the privacy of our LGBTQ clients, ensure their safety and
well-being, and guide placement decisions based on the caregivers capacity to meet the unique
7 of 12 Case No. 2011 MR 254
and diverse needs of each youth. Our policy to refer interested, potential foster caregivers who
are cohabiting to other local agencies is not based on sexual orientation and applies to both
same-sex and opposite--sex couples.
(10) In 19 to 24 of his affidavit, Mr. Shaver provides examples purporting to allay
concerns regarding the disruption in case services that would occur with the transfer of more than
2,000 children and their families served by the four Catholic Charities spread over 89 counties in
downstate Illinois. He states With appropriate planning, private agency caseloads can be
transferred with minimal disruption. But nowhere in his affidavit does Mr. Shaver claim that it
would be in the best interest of children and families to transition these cases to other agencies.
(11) In 19 of his affidavit, Mr. Shaver cites a situation in 2001 in which Family Link
closed unexpectedly. Certainly, DCFS would have had no choice but to act in the best interest
of children and immediately assign those cases to other agencies. Mr. Shaver states that DCFS
focused on getting other agencies to cover all of the children with minimal disruption. He
does not state, however, there was no disruption at all to the helping relationships between foster
care professionals and these children, their parents, and their foster caregivers; or that progress
toward permanency was not delayed due to the transition. He states, In 72 hours they had
established the agencies to assume responsibility. This overlooks the fact that when these cases
were assigned to new agencies, new workers had to piece together what was happening on these
cases and start from scratch in establishing helping relationships and engaging these families.
(12) In 20 of his affidavit, Mr. Shaver notes another transition from DCFS Cook South
region. He states, The Director looked at performance and, based on the regions position at
the bottom of the performance indicators, ordered the transfer of some 600-700 cases. This is
8 of 12 Case No. 2011 MR 254
not the case with Catholic Charities agencies which have consistently performed well on
performance indicators established by the State. This current situation is quite different from the
DCFS Cook South situation where the Director made a decision based on what he believed to be
in the best interest of those children, and based on poor performance authorized a transition that
did mean caseworker and supervisor changes for 600-700 children and families.
(13) In 21 of his affidavit, Mr. Shaver discusses the transfer of cases in 2007 when
Catholic Charities Chicago was unable to obtain cost effective liability insurance for its foster
care program. According to the resume he submitted to the court, Mr. Shaver was not employed
by DCFS at this time; and, therefore, he would not have first-hand knowledge of any of the cases,
except perhaps cases that were transferred to the agency that employed him at the time. DCFS,
however, did share reports regarding the distribution of these cases with the CWAC
Infrastructure Committee of which I was a member, and those reports showed the vast amount of
these cases were absorbed into existing DCFS worker caseloads and the remaining cases were
distributed to various agencies. The deposition of Monsignor Michael Boland submitted to this
Court speaks directly to this transition and the fact that, despite extensive planning with DCFS
and other private agency providers, the transitioning of these cases was in no way a seamless
process. Foster children lost their primary caseworkers, counselors, and therapists; some foster
caregivers discontinued their service in this capacity, eliminating valuable resources for children;
and some of the children were transferred to agencies that closed their foster care program less
than a year later and they were forced to face the same turmoil all over again. In my experience,
factors that affect foster home stability include the level of support and responsiveness a foster
caregiver perceives they have from the agency. The foster parents ability and willingness to
9 of 12 Case No. 2011 MR 254
handle a difficult situation is often directly linked to the amount of trust they have that the
caseworker and agency will support them, keep commitments, and help them get the resources
they need. If a transition disrupts a productive working relationship where a foster caregiver
feels treated as a valuable member of the team, it can affect their decision to continue foster
caregiving in the future.
(14) In 22 of his affidavit, Mr. Shaver addresses the fact that agencies would not likely
have the existing workforce capacity to absorb transitioned cases without hiring some of the
already licensed staff from the prior agencys workforce. Hiring such staff may be an option
in certain situations, but it does not prevent service disruption for children and families served
and would still entail transitioning cases unnecessarily from one worker to another, including
changing assigned supervisors.
(15) In 23 of his affidavit, Mr. Shaver addresses the recent Rockford Catholic Charities
closure of its foster care program and the transition to the Youth Services Bureau of Illinois
Valley. He was not employed by DCFS or either of the POS agencies involved in the transition
and, therefore, does not have first-hand knowledge of what was involved in arranging for or
making this transition. Neither Mr. Shaver nor anyone else can guarantee that a similar solution
will come to fruition for the more than 2,000 children currently served by the four Catholic
Charities spread across 89 counties. What the situation in Rockford demonstrates, however, is
just how concerned about minimizing the impact of such a transition both DCFS and Catholic
Charities of Rockford were, and that they purposely avoided previous models of transitioning
agency caseloads.
(16) As noted in Mr. Shavers affidavit, there are occasions where a wholesale
10 of 12 Case No. 2011 MR 254
distribution of cases from one agency to other agencies has, apparently, been unavoidable. But
no one will dispute the fact that best practice in child welfare demands that we limit unnecessary
transitions whenever possible unless it is clearly in the best interest of that particular child.
Child Welfare research supports this and DCFS has clear policy, procedure, protocols and
performance expectations that emphasize the importance of placement stability, address the
importance of minimizing worker turnover and preventing unnecessary case transfers, and
require DCFS approval and specific actions to reduce the associated risks when case transfers
must occur.
(17) In my own child welfare experience as a caseworker, caseworker supervisor and
foster care program administrator, I have seen specific cases where a worker or agency transition
delayed permanency in a case or put a child at risk of harm. Quality child welfare agencies work
purposely to reduce worker turnover and prevent unnecessary case transitions. I have seen the
impact on families when critical information is not documented or shared and a new worker
takes over a case. I have seen the frustration of a juvenile court judge when a new worker is in
court and cannot knowledgeably answer questions about the details of the case. I have heard the
frustration of parents who were engaged and making progress toward reunification and then
experienced a worker change and felt like they were starting over. And I have seen permanency
delayed because critical information was buried in a file and not uncovered in a timely manner
following a case transfer.
(18) Best social work practice never disrupts services to a family unless it is clearly in the
best interest of that particular child. We would not make that kind of concession for our own
children and we certainly cannot make it for the more than 2,000 children DCFS has entrusted
11 of 12 Case No. 2011 MR 254
into our care.
Under penalties of perjury as provided by law, pursuant to 1-109 of the Illinois Code of
Civil Procedure, 735 ILCS 5/1-109, the undersigned hereby certifies that the statements set forth
in this declaration are true and correct, except as to such matters therein stated to be on
information and belief and as to such matters, the undersigned certifies as aforesaid that he/she
verily believes the same to be true.

DATED: August 12, 2011 ______________________________
Patricia Fox
Of Counsel:
Thomas Brejcha
Paul Linton
Peter Breen
Tyler Mark
Thomas More Society
29 South LaSalle St. Suite 440
Chicago, IL 60603
Tel. 312-782-1680
Fax 312-782-1887
Attorneys for Plaintiffs

Bradley E. Huff
Tel. 217-523-4569
Fax 217-523-4656
Attorney for Catholic Charities for the
Diocese of Springfield-in-Illinois

Ms. Patricia Gibson
Peoria, IL 61603
Tel. 309-671-1550
12 of 12 Case No. 2011 MR 254
Fax 309-671-1576

James C. Byrne
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828

David W. Wells
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101-1011
Tel. 314-552-6000
Fax 314-552-7000
Attorneys for Catholic Social Services,
Diocese of Belleville, Illinois

Provider
ID
Agency Name
Total
HMR
Homes
Total
HMR
Kids
Total
Lic.
Homes
Total
Lic.
Kids
% of
Homes
Lic.
7/03/11
Report
Lic %
Homes
Needed
to Reach
80%
Total
Unlic
HMR
Homes
Total
Kids in
Unlic
Homes
Total
Pend.
Homes
Total
Unlic.
Homes
Percent of
Homes with
No Lic.
Activity
Total
App
Wthdrw
Homes
Total
App
Denied
Homes
6B0000 DCFS COOK NORTHERN REGION 58 75 35 48 60.3% 63.6% 11.4 23 27 3 15 25.9% 2 3
6D0000 DCFS COOK SOUTHERN REGION 93 130 50 72 53.8% 53.3% 24.4 43 58 11 25 26.9% 6 1
2A0000 DCFS NORTHERN REGION 88 148 39 68 44.3% 44.2% 31.4 49 80 12 32 36.4% 5 0
4A0000 DCFS SOUTHERN REGION 68 99 30 47 44.1% 43.9% 24.4 38 52 10 21 30.9% 4 3
3A0000 DCFS CENTRAL REGION 87 133 34 50 39.1% 36.7% 35.6 53 83 20 31 35.6% 2 0
6C0000 DCFS COOK CENTRAL REGION 47 64 18 27 38.3% 36.0% 19.6 29 37 10 16 34.0% 3 0
DCFS TOTAL 441 649 206 312 46.71% 46.01% 146.8 235 337 66.0 140 31.75% 22 7
001300 ALLENDALE ASSOCIATION 2 2 2 2 100.0% 100.0% 0.0 0 0 0 0 0.0% 0 0
004259 CHILDRENS HOME ASSOC OF IL 16 28 15 26 93.8% 93.8% 0.0 1 2 0 1 6.3% 0 0
001667 AUNT MARTHAS YOUTH SVC CTR INC 35 51 32 48 91.4% 91.4% 0.0 3 3 1 1 2.9% 0 1
010053 ONE HOPE UNITED-HUDELSON REG 11 18 10 16 90.9% 81.8% 0.0 1 2 1 0 0.0% 0 0
006383 EASTER SEALS JOLIET REGION INC 10 13 9 12 90.0% 90.0% 0.0 1 1 1 0 0.0% 0 0
010618 JEWISH CHILD & FAMILY SERVICES 18 22 16 20 88.9% 83.3% 0.0 2 2 0 2 11.1% 0 0
484355 NATIONAL YOUTH ADVOCATE PROGRAM INC 7 8 6 7 85.7% 87.5% 0.0 1 1 1 0 0.0% 0 0
209412 LITTLE CITY FOUNDATION 13 21 11 18 84.6% 92.3% 0.0 2 3 1 1 7.7% 0 0
009410 HEPHZIBAH CHILDREN'S ASSOCIATION 6 9 5 8 83.3% 83.3% 0.0 1 1 0 1 16.7% 0 0
011126 KALEIDOSCOPE, INC. 6 7 5 6 83.3% 83.3% 0.0 1 1 1 0 0.0% 0 0
004181 ENVISION UNLIMITED - C.A.R.C. 16 22 13 19 81.3% 81.3% 0.0 3 3 2 1 6.3% 0 0
212385 LAKESIDE COMMUNITY COMM 42 70 31 52 73.8% 71.4% 2.6 11 18 8 1 2.4% 0 2
222708 ABJ COMMUNITY SERVICES, INC. 65 91 47 68 72.3% 72.3% 5.0 18 23 8 6 9.2% 1 3
437601 CHILDLINK 34 46 24 32 70.6% 70.6% 3.2 10 14 6 2 5.9% 0 2
012033 CHILDSERV 71 130 50 87 70.4% 69.0% 6.8 21 43 14 5 7.0% 2 0
372473 ALLIANCE HUMAN SERVICES, INC 71 94 50 70 70.4% 70.4% 6.8 21 24 8 10 14.1% 2 1
018607 SHELTER, INC. 27 50 19 33 70.4% 66.7% 2.6 8 17 2 2 7.4% 3 1
223750 SEGUIN SERVICES INCORPORATED 20 33 14 20 70.0% 70.0% 2.0 6 13 2 2 10.0% 0 2
003977 CATHOLIC CHARITIES DIOCESE OF PEORIA 322 515 222 357 68.9% 69.5% 35.6 100 158 53 33 10.2% 6 8
032673 GUARDIAN ANGEL COMMUNITY SERVICES 19 28 13 22 68.4% 68.4% 2.2 6 6 1 5 26.3% 0 0
003970 CATHOLIC CHARITIES OF JOLIET 79 125 54 92 68.4% 67.5% 9.2 25 33 8 13 16.5% 1 3
280899 YOUTH SERVICE BUREAU OF ILLINOIS VALLEY 150 228 101 150 67.3% 65.8% 19.0 49 78 11 24 16.0% 8 6
141828 YOUTH CAMPUS, THE 18 26 12 16 66.7% 66.7% 2.4 6 10 2 4 22.2% 0 0
169899 CHILDREN'S PLACE ASSOCIATION, THE 12 17 8 11 66.7% 72.7% 1.6 4 6 0 4 33.3% 0 0
266994 OUR CHILDREN'S HOMESTEAD 9 12 6 8 66.7% 66.7% 1.2 3 4 0 3 33.3% 0 0
004048 CHADDOCK 43 75 28 49 65.1% 66.7% 6.4 15 26 8 6 14.0% 0 1
310510 BETHANY FOR CHILDREN AND FAMILIES 20 34 13 22 65.0% 70.0% 3.0 7 12 3 3 15.0% 1 0
021329 VOLUNTEERS OF AMERICA 33 40 21 26 63.6% 63.6% 5.4 12 14 4 8 24.2% 0 0
003973 CATHOLIC CHARITIES DIOCESE SPF 77 126 48 85 62.3% 62.3% 13.6 29 41 14 13 16.9% 1 1
012231 LAWRENCE HALL YOUTH SERVICES 47 65 28 42 59.6% 59.6% 9.6 19 23 5 11 23.4% 2 1
481809 CAMELOT CARE CENTERS INC. 32 38 19 23 59.4% 60.0% 6.6 13 15 7 5 15.6% 0 1
011290 KEMMERER VILLAGE 22 33 13 20 59.1% 59.1% 4.6 9 13 6 2 9.1% 0 1
004019 ONE HOPE UNITED NORTHERN REGN 161 278 95 156 59.0% 59.6% 33.8 66 122 17 35 21.7% 13 1
001092 ADA S MCKINLEY COMM SERV INC 56 88 33 54 58.9% 56.9% 11.8 23 34 10 12 21.4% 0 1
013005 LUTHERAN SOCIAL SERVICES OF IL 679 1078 394 643 58.0% 56.4% 149.2 285 435 119 122 18.0% 20 24
004236 CHILDRENS HOME & AID SOC OF IL 215 362 124 204 57.7% 57.2% 48.0 91 158 41 44 20.5% 4 2
017822 RUTLEDGE YOUTH FOUNDATION, INC. 7 9 4 4 57.1% 57.1% 1.6 3 5 2 0 0.0% 0 1
021746 WEBSTER CANTRELL HALL 38 56 21 32 55.3% 55.3% 9.4 17 24 8 8 21.1% 0 1
003976 CATHOLIC SOC SERV DIOCESE OF BELLEVILLE 189 311 104 180 55.0% 53.8% 47.2 85 131 36 41 21.7% 6 2
012998 LUTHERAN CHILD & FAMILY SVC 301 471 164 272 54.5% 54.8% 76.8 137 199 50 73 24.3% 11 3
020329 BABY FOLD 62 104 33 61 53.2% 52.5% 16.6 29 43 15 14 22.6% 0 0
121626 UHLICH CHILDREN'S ADVANTAGE NETWORK 57 84 30 48 52.6% 52.6% 15.6 27 36 11 12 21.1% 2 2
004985 FAMILYCORE 105 164 53 82 50.5% 50.5% 31.0 52 82 25 22 21.0% 5 0
078743 CENTERS FOR NEW HORIZONS CHILD WELFARE 48 62 24 34 50.0% 51.0% 14.4 24 28 8 12 25.0% 3 1
093518 UNIVERSAL FAMILY CONNECTION IN 46 77 23 38 50.0% 47.8% 13.8 23 39 6 15 32.6% 2 0
192987 UNITY PARENTING AND COUNSELING 47 81 23 40 48.9% 47.9% 14.6 24 41 5 13 27.7% 5 1
006726 EVANGELICAL CHILD & FAMILY AGENCY 85 148 40 77 47.1% 47.1% 28.0 45 71 18 25 29.4% 0 2
010020 HOYLETON YOUTH AND FAMILY SERVICES 84 131 39 57 46.4% 48.1% 28.2 45 74 23 20 23.8% 1 1
164018 HULL HOUSE ASSOCIATION 22 48 10 22 45.5% 45.5% 7.6 12 26 6 2 9.1% 4 0
062837 LYDIA HOME ASSOCIATION 25 49 11 26 44.0% 44.0% 9.0 14 23 5 9 36.0% 0 0
001524 ARDEN SHORE CHILD AND FAMILY SERVICES 46 70 18 28 39.1% 37.0% 18.8 28 42 9 15 32.6% 4 0
006840 FAMILY SERVICE CENTER OF SANGAMON COUNTY 27 44 10 14 37.0% 40.0% 11.6 17 30 0 14 51.9% 2 1
028051 ASSOCIATION HOUSE OF CHICAGO 40 75 12 28 30.0% 30.0% 20.0 28 47 6 20 50.0% 2 0
370068 UHLICH CHILDREN'S ADVANTAGE NETWORK 49 51 13 14 26.5% 25.5% 26.2 36 37 5 27 55.1% 3 1
198705 SOS CHILDRENS VILLAGES IL 5 6 1 1 20.0% 20.0% 3.0 4 5 3 1 20.0% 0 0
069884 YOUTH OUTREACH SERVICES 1 1 0 0 0.0% 0.0% 0.8 1 1 0 1 100.0% 0 0
POS TOTAL 3748 5925 2224 3582 59.34% 58.87% 786.4 1524 2343 606.0 726 19.4% 114 78
DCFS + POS Combined 4189 6574 2430 3894 58.01% 57.52% 933.2 1759 2680 672 866 20.7% 136 85
1 of 6 Case No. 2011 MR 254

) Case No. 2011 MR 254
) Presiding Judge
vs. )
)
)
Defendants, )
)
)

THIRD DECLARATION OF GLENN VAN CURA
The undersigned, pursuant to 735 ILCS 5/1-109, declares that he is an adult over the age
(1) I am the Executive Director of Catholic Charities of the Diocese of Joliet (Catholic
Charities). Prior to being hired as Executive Director, I served on the Board of Directors of
Catholic Charities of the Joliet Diocese, and before then I was Regional Director for Catholic
Charities Chicago Northwest. I have both a Master in Business Administration (MBA) degree
and a Master in Social Work (MSW) degree from Loyola University of Chicago.
(2) Catholic Charities has been providing adoption services in Illinois for almost 100
years, dating back to the early 1900s when it opened the Guardian Angel Orphanage in 1914. In
the 1970s it began providing short term and longer term foster homes for dependent children.
Catholic Charities has been contracting with the Illinois Department of Children and Family
2 of 6 Case No. 2011 MR 254
Services (DCFS) to provide Child Welfare Services to the children and families of Illinois for
close to 40 years.
(3) Catholic Charities serves all relative placement cases referred to us by DCFS and we
have never declined a relative referral nor would we on the basis of family structure. We have
declined relatives for other reasons, such as geographic distance or not having an available
worker for the placement.
(4) Catholic Charities works closely with all Relative Caregivers to obtain a Foster Care
License with the Illinois Department of Children and Family Services (DCFS). The license is
issued by DCFS, not Catholic Charities.
(5) DCFS research has shown that Licensed Relative Caregivers are more likely to
provide a safe and stable placement than Traditional Foster Care or unlicensed relative care.
(6) Catholic Charities has not moved and would not move a child from a Foster Relative
Caregiver without the Caregivers consent or unless there is a risk of harm shown by the
completion of an unsafe Child Endangerment Risk Assessment Protocol. (CERAP)
(7) In instances where a placement with a Relative or Traditional Foster Caregiver is
disrupted, Catholic Charities makes every effort to find another (or in the case of a Traditional
Foster Caregiver, a) Relative Caregiver. Catholic Charities will work with this Relative
Caregiver to obtain a Foster Care License.
(8) Catholic Charities does assist and will continue to assist Relative Caregivers in all
cases where a court decides that it is in a Childs Best Interest to be adopted by the Relative
Caregiver.
(9) When a prospective Traditional Foster Caregiver inquires about becoming a Licensed
3 of 6 Case No. 2011 MR 254
Foster Caregiver with Catholic Charities and discloses that he or she is in a cohabiting
relationship or a civil union, Catholic Charities respectfully and immediately advises the
prospective Foster Caregiver that we will not be able to assist him or her directly, but that we will
immediately either refer the person to DCFS or provide the person with contact information for
all other local licensed child welfare agencies that can respond to the persons inquiry and
process licensing applications.
(10) In instances where a Traditional Foster Caregiver has been licensed through Catholic
Charities and subsequently enters into a cohabiting relationship or a civil union, but does not
currently have a foster child in his or her care, Catholic Charities will assist the Caregiver in
transferring his or her license to another agency.
Charities and has a foster child currently in his or her care and subsequently enters into a
cohabiting relationship or a civil union, Catholic Charities will continue to serve the child in
care. Catholic Charities has no policy that prevents the appropriate placement of siblings. If the
Caregiver wants to foster an additional non-related child in his or her home, Catholic Charities
will assist with the transfer of the Caregivers license to another agency, but will continue to
serve the child who is already placed in the home and the childs family in order to maintain the
stability of the existing placement.
(12) Catholic Charities follows all DCFS Rules and Procedures when moving a child
from a foster home. Catholic Charities has not moved and will not move a child from a
Traditional Foster Caregiver without the Caregivers consent, unless there is a risk of harm
shown by the completion of an unsafe Child Endangerment Risk Assessment Protocol, or in
4 of 6 Case No. 2011 MR 254
rare instances, another presenting issue of best interest (such as placement with a relative or
sibling, or foster parents inability to support permanency plan for child). In such cases, foster
parents have the right to a 14-day notice, and some decisions to move a child can be appealed to
DCFS who has the final decision making authority.
(13) In instances where a Traditional Caregiver has entered into a cohabiting relationship
or a civil union and the court has found that it is in the childs best interest to be adopted by the
Caregiver(s), Catholic Charities will continue its practice of providing Foster Care services to the
Child and Foster Family and arrange with DCFS or with another provider to complete the
adoption process.
(14) All Illinois Foster Children who become legally available for adoption, including
special needs children, who do not have an identified adoptive resource, are listed with the
Adoption Center of Illinois. (AICI). Any individual, married couple or civil union couple
wishing to adopt a child listed with AICI can contact AICI directly, regardless of the agency that
they are licensed through. If they are not already licensed, AICI will then refer them to an
agency to assist them with the licensing process.

DATED: August 8, 2011 _______________________
Glenn van Cura. MBA, MSW
5 of 6 Case No. 2011 MR 254
Of Counsel:
Thomas Brejcha
Paul Linton
Peter Breen
Tyler Mark
Thomas More Society
Chicago, IL 60603
Tel. 312-782-1680
Fax 312-782-1887

Bradley E. Huff
Tel. 217-523-4569
Fax 217-523-4656

Ms. Patricia Gibson
Peoria, IL 61603
Tel. 309-671-1550
Fax 309-671-1576

James C. Byrne
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828

David W. Wells
Thompson Coburn LLP
One US Bank Plaza
6 of 6 Case No. 2011 MR 254
St. Louis, MO 63101-1011
Tel. 314-552-6000
Fax 314-552-7000

1 of 6 Case No. 2011 MR 254

) Case No. 2011 MR 254
) Presiding Judge
vs. )
)
)
Defendants, )
)
)

DECLARATION OF ANTHONY RIORDAN
(1) I am the Chief Operating Officer of Catholic Charities of the Diocese of Peoria,
Illinois (Catholic Charities). I have worked for Catholic Charities for twenty-six years, first as
Behavioral Health Services Coordinator for fourteen years, then as Associate Executive Director
(now Chief Operating Officer) for the past twelve years. I have been a licensed marriage and
family therapist (LMFT) since the laws inception in 1995, have been in practice for more than
thirty years and have a Master of Science in Education degree. My original background is in
marriage and family therapy, clinical supervision, training and research. I also have an extensive
background and experience in every aspect of public child welfare in the State of Illinois for over
30 years. This includes developing one of the first Family First programs in Illinois, one of the
2 of 6 Case No. 2011 MR 254
original pilot Family Reunification foster care programs in Illinois, special LAN project front end
community based family service initiatives with Jess McDonald in LAN 29 (QUEST) and LAN
23 (Family Solutions), as well as participating in the front end contract redesign of the present
moderate and intensive community based family services programs in Illinois. Additionally, I
provide executive oversight of Guardian Angel Home a 16 bed residential treatment institution
for DCFS wards, and am a LPHA under Medicaid Rule and Procedure. I have dedicated my
professional life to serving children and families in the Illinois DCFS child welfare system while
at Catholic Charities the past 26 years.
close to 40 years.
3 of 6 Case No. 2011 MR 254
Caregiver.
4 of 6 Case No. 2011 MR 254
adoption process.
5 of 6 Case No. 2011 MR 254

DATED: August 8, 2011 ______________________________
Anthony Riordan. LMFT, M.S. Ed.
Of Counsel:
Thomas Brejcha
Paul Linton
Peter Breen
Tyler Mark
Thomas More Society
Chicago, IL 60603
Tel. 312-782-1680
Fax 312-782-1887

Bradley E. Huff
Tel. 217-523-4569
Fax 217-523-4656
6 of 6 Case No. 2011 MR 254

Ms. Patricia Gibson
Peoria, IL 61603
Tel. 309-671-1550
Fax 309-671-1576

James C. Byrne
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828

David W. Wells
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101-1011
Tel. 314-552-6000
Fax 314-552-7000

1 of 6 Case No. 2011 MR 254

) Case No. 2011 MR 254
) Presiding Judge
vs. )
)
)
Defendants, )
)
)

SECOND DECLARATION OF GARY HUELSMANN
(1) I am the Executive Director of Catholic Social Services of Southern Illinois, Diocese
of Belleville (Catholic Social Services) and have served in that capacity since 2005. I have
worked in human services and social services since 1985 and have a Master in Social Work
(MSW) degree from St. Louis University.
(2) Catholic Social Services and Catholic Charities of the Joliet, Peoria and
Springfield-in-Illinois Dioceses have been providing adoption services in Illinois for almost 100
years, dating back to the early 1900s when Guardian Angel Orphanage was opened in 1914. In
the 1970s Catholic Social Services began providing short term and longer term foster homes for
dependent children. Catholic Social Services has been contracting with the Illinois Department of
2 of 6 Case No. 2011 MR 254
Children and Family Services (DCFS) to provide Child Welfare Services to the children and
families of Illinois for close to 40 years.
(3) Catholic Social Services serves all relative placement cases referred to us by DCFS
and we have never declined a relative referral nor would we on the basis of family structure. We
have declined relatives for other reasons, such as geographic distance or not having an available
(4) Catholic Social Services works closely with all Relative Caregivers to obtain a Foster
Care License with the Illinois Department of Children and Family Services (DCFS). The license
is issued by DCFS, not Catholic Social Services.
(6) Catholic Social Services has not moved and would not move a child from a Foster
Relative Caregiver without the Caregivers consent or unless there is a risk of harm shown by the
disrupted, Catholic Social Services makes every effort to find another (or in the case of a
Traditional Foster Caregiver, a) Relative Caregiver. Catholic Social Services will work with
this Relative Caregiver to obtain a Foster Care License.
(8) Catholic Social Services does assist and will continue to assist Relative Caregivers in
all cases where a court decides that it is in a Childs Best Interest to be adopted by the Relative
Caregiver.
3 of 6 Case No. 2011 MR 254
Foster Caregiver with Catholic Social Services and discloses that he or she is in a cohabiting
relationship or a civil union, Catholic Social Services respectfully and immediately advises the
Social Services and subsequently enters into a cohabiting relationship or a civil union, but does
not currently have a foster child in his or her care, Catholic Social Services will assist the
Caregiver in transferring his or her license to another agency.
Social Services and has a foster child currently in his or her care and subsequently enters into a
cohabiting relationship or a civil union, Catholic Social Services will continue to serve the child
in care. Catholic Social Services has no policy that prevents the appropriate placement of
siblings. If the Caregiver wants to foster an additional non-related child in his or her home,
Catholic Social Services will assist with the transfer of the Caregivers license to another agency,
but will continue to serve the child who is already placed in the home and the childs family in
order to maintain the stability of the existing placement.
(12) Catholic Social Services follows all DCFS Rules and Procedures when moving a
child from a foster home. Catholic Social Services has not moved and will not move a child
from a Traditional Foster Caregiver without the Caregivers consent, unless there is a risk of
harm shown by the completion of an unsafe Child Endangerment Risk Assessment Protocol, or
4 of 6 Case No. 2011 MR 254
in rare instances, another presenting issue of best interest (such as placement with a relative or
Caregiver(s), Catholic Social Services will continue its practice of providing Foster Care services
to the Child and Foster Family and arrange with DCFS or with another provider to complete the
adoption process.

DATED: August 8, 2011 ______________________________
Gary Huelsmann, MSW
5 of 6 Case No. 2011 MR 254
Of Counsel:
Thomas Brejcha
Paul Linton
Peter Breen
Tyler Mark
Thomas More Society
Chicago, IL 60603
Tel. 312-782-1680
Fax 312-782-1887

Bradley E. Huff
Tel. 217-523-4569
Fax 217-523-4656

Ms. Patricia Gibson
Peoria, IL 61603
Tel. 309-671-1550
Fax 309-671-1576

James C. Byrne
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828

David W. Wells
Thompson Coburn LLP
One US Bank Plaza
6 of 6 Case No. 2011 MR 254
St. Louis, MO 63101-1011
Tel. 314-552-6000
Fax 314-552-7000

1 of 6 Case No. 2011 MR 254

) Case No. 2011 MR 254
) Presiding Judge
vs. )
)
)
Defendants, )
)
)

THIRD DECLARATION OF STEVEN E. ROACH
(1) I am the Executive Director of Catholic Charities for the Diocese of Springfield in
Illinois (Catholic Charities). I have worked for various Catholic Charities organizations
across Illinois for twenty-six years and have been in my current position for eleven years. I have
developed and managed numerous foster care and residential programs for DCFS wards. I have
also served on many child and social welfare committees including Child Welfare Advisory
Committee (CWAC), Catholic Charities USA (CCUSA), Social Policy Committee and Catholic
Conference of Illinois (CCI) Social Services Department (past chair). I have a Master of
Science in Business Management degree.
2 of 6 Case No. 2011 MR 254
close to 40 years.
3 of 6 Case No. 2011 MR 254
Caregiver.
4 of 6 Case No. 2011 MR 254
adoption process.
5 of 6 Case No. 2011 MR 254

DATED: August 8, 2011 __________________ ______________
Steven E. Roach, MS (Business Management)
Of Counsel:
Thomas Brejcha
Paul Linton
Peter Breen
Tyler Mark
Thomas More Society
Chicago, IL 60603
Tel. 312-782-1680
Fax 312-782-1887

Bradley E. Huff
Tel. 217-523-4569
Fax 217-523-4656

Ms. Patricia Gibson
Peoria, IL 61603
Tel. 309-671-1550
Fax 309-671-1576

James C. Byrne
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828
6 of 6 Case No. 2011 MR 254

David W. Wells
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101-1011
Tel. 314-552-6000
Fax 314-552-7000

1 of 4 Case No. 2011 MR 254

) Case No. 2011 MR 254
) Presiding Judge
vs. )
)
)
Defendants, )
)
)

DECLARATION OF LYNDA SHARP-LOWER

The undersigned, pursuant to 735 ILCS 5/1-109, declares that she is an adult over the age
(1) I am the Licensing Coordinator for Catholic Charities of the Diocese of Peoria. In
that position, I oversee, coordinate and monitor the licensing, training, support and recruitment of
foster homes for our agency. I provide technical support to and oversight of foster home
licensing requirements to our licensing workers who are housed in seven of our branch offices.
In Peoria, I directly supervise the licensing workers, while in the branch offices there is a direct
supervisor, as well, although I am available to assist as needed. I began working at Catholic
Charities in July 1998 as a therapist, then later as a caseworker supervisor. I transferred to the
Licensing Department in 2004. Before being promoted to Licensing Coordinator in 2006, I
spent some of my time licensing foster homes. I have a Bachelor of Science degree, and a
2 of 4 Case No. 2011 MR 254
Master of Science degree in Human Services Counseling (Illinois State University 1997).
(2) Catholic Charities recruits potential foster families by placing articles in monthly
Catholic Diocesan newsletters, providing bookmarks referring to fostering children to public and
private schools, providing bookmarks referring to fostering children to Catholic parishes and
churches of other denominations, running classified ads in many major newspapers throughout
the Central Illinois area, holding open houses to talk about fostering children, providing and
manning information tables at community and school functions or events, placing ads on bus
billboards and attending speaking engagements for community service clubs and churches.
(3) Catholic Charities also joins with other agencies, including DCFS, in our efforts to
identify potential foster families and have, on occasion, been the only foster care service provider
at a community event when other agencies were not present.
(4) Catholic Charities recruitment efforts are primarily focused on finding adults
interested in becoming licensed foster caregivers. Nonetheless our recruitment efforts also serve
to keep the concerns of foster care in the public eye and to raise awareness of the children and
families in need.
(5) I believe that there would be less attention to this ongoing crisis and less concern
about the needs of the children and families we serve if Catholic Charities were no longer
providing these recruitment efforts.
(6) There are foster parents who specifically seek out Catholic Charities to become foster
parents because of our presence in the community, our longstanding history of providing quality
foster care services or because they were referred to us by our foster parents.
(7) If the available pool of foster homes were to shrink, it would put considerable
3 of 4 Case No. 2011 MR 254
pressure on an already stressed child welfare system and overstress the remaining resources.
This additional stress would result in less stable placements, children placed outside of their local
communities, more disruptions to their education, and more difficulty arranging visits and
working toward reunification.
(8) If Catholic Charities is not allowed to continue its foster care program or to be out in
our communities recruiting foster families, I believe the foster care system as a whole would be
significantly and negatively impacted.
DATED: August 11, 2011

____________________________________________
Lynda Sharp-Lower, MS (Human Service Counseling)
Of Counsel:
Thomas Brejcha
Paul Linton
Peter Breen
Tyler Mark
Thomas More Society
Chicago, IL 60603
Tel. 312-782-1680
Fax 312-782-1887

Bradley E. Huff
4 of 4 Case No. 2011 MR 254
Tel. 217-523-4569
Fax 217-523-4656

Ms. Patricia Gibson
Peoria, IL 61603
Tel. 309-671-1550
Fax 309-671-1576

James C. Byrne
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828

David W. Wells
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101-1011
Tel. 314-552-6000
Fax 314-552-7000

1 of 5 Case No. 2011 MR 254

CATHOLIC SOCIAL SERVICES OF ) Case No. 2011 MR 254
SOUTHERN ILLINOIS, DIOCESE OF )
BELLEVILLE, )
vs. ) Presiding Judge
)
Department of Children & Family Services, )
State of Illinois, the DEPARTMENT OF )
CHILDREN & FAMILY SERVICES, State of )
Illinois, ROCCO J. CLAPPS in his official )
capacity as Director of the Department of )
Human Rights, State of Illinois, and the )
DEPARTMENT OF HUMAN RIGHTS, )
Defendants, )
and )
)
WESEMAN, )
Intervenors. )

DECLARATION OF JIMMY LAGO

Jimmy Lago, upon oath, deposes and states as follows:
2 of 5 Case No. 2011 MR 254
1. I am the Chancellor, the chief administrative officer, of the Archdiocese of
Chicago and have held that position since 2000. From 1998-2000, I served as Executive Director
and, from 1996-1997, as Associate Executive Director of Catholic Charities of the Archdiocese
of Chicago. From 1986-1996, I served as Executive Director and, from 1976-1986, as Executive
Secretary & Associate Director of the Catholic Conference of Illinois, which is the agent through
which the Roman Catholic dioceses of Illinois act mutually and cooperatively in matters of
interdiocesan and state-wide interest, including state legislative matters. From 1975-1976, I
served as Administrator and Project Director for the Winnebago County Child Protection Project
in Winnebago County, Illinois.
2. I hold a Masters in Social Work from the University of Illinois and a Masters in
Business Adminstration from Loyola University, Chicago.
3. Over the past thirty years, I have served on numerous social welfare commissions,
councils, task forces, and boards for the State of Illinois, and various local, statewide, and
national Catholic and other not-for-profit organizations. In 1998, I was appointed to the
Department of Children and Family Services Inspector Generals Child Welfare Ethics Advisory
Board. In 1999, I was appointed to the State of Illinois Futures for Kids Advisory Panel, and in
2002, I was appointed to the Illinois DCFS Title IV-E Advisory Group. In 2000, I was appointed
to serve on the Advisory Board for the Center for Child Welfare and Education, a partnership
between Northern Illinois University and DCFS. That Board is co-chaired by the president of
Northern Illinois University and DCFS Director Erwin McEwen (see,
http://www.cedu.niu.edu/ccwe/aboutus/advisory.shtml). My Curriculum Vitae is attached hereto
as Exhibit A.
3 of 5 Case No. 2011 MR 254
4. In 1960s, the Illinois General Assembly created DCFS. Prior to that time, courts
would place foster children under the direct care of Catholic Charities and other private agencies,
with Catholic officials serving as the court-appointed guardians of those foster children. Even
though DCFS took over the role of court-appointed guardian of foster children in the late 1960s,
Illinois Catholic Charities have continued to provide direct social services to Illinois foster
children.
5. In 1997, Jess McDonald, then-Director of the Department of Children and Family
Services asked me to co-chair with him the State of Illinois Child Welfare Advisory Committee
(see, 89 Ill.Adm.Code 428.50), and I did so from 1997-2002. I worked with Director McDonald
to pass and implement the Illinois Permanency Initiative legislation, the purpose of which is
accurately described on the DCFS website as follows: In line with shifting trends and a
changing national philosophy toward public child welfare services, these bills demonstrate the
shared commitment of the Illinois legislature, The Governor's office, the courts, and other
interest groups to attain timely permanency outcomes for children. A true and accurate copy of
the DCFS web page on this topic, which can be found at
http://www.state.il.us/dcfs/adoption/a_adoption_l.shtml, is attached hereto as Exhibit B.
6. I recently wrote an article in the Catholic New World, the newspaper of the
Archdiocese of Chicago, published July 31, 2011, about the history and work of Illinois
Catholic Charities in relation to foster care, including the leadership role that Illinois Catholic
Charities have played in achieving permanency for the children under their care, a true and
accurate copy of which is attached hereto as Exhibit C. My article is an accurate recitation of the
facts asserted therein.
5 of 5 Case No. 2011 MR 254
Tel. 217-523-4569
Fax 217-523-4656

Ms. Patricia Gibson
Peoria, IL 61603
Tel. 309-671-1550
Fax 309-671-1576

James C. Byrne
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828

David W. Wells
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101-1011
Tel. 314-552-6000
Fax 314-552-7000
Pat Quinn, Governor
DCFS Links
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Chicago
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Street 6-200
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312.814.6800
TTD 312.814.8783
Legislation
Important changes in Illinois adoption
law have also taken place. In 1993 Public
Act 88-148 was passed to help reduce
delays in the adoption process by
allowing prospective adoptive parents to
file an initial petition for adoption before
criminal background and fingerprint
checks are finished. In 1993, Public Act
88-20 was passed, declaring as an "unfit"
person anyone who is convicted of first
degree murder or other listed offenses
against a parent of a child they wish to
adopt.
In 1994, legislation was signed creating a
Putative Father Registry within the
Department of Children and Family
Services. The Registry was established to
give the father of a child the opportunity
to officially declare his paternity. The
father must contact the Registry within
30 days after a child's birth or give up his
rights to consent to or block the child's
adoption. The process is aimed at
preventing future "Baby Richard" cases
by giving a child's father the chance to
intervene in the event the mother decides
to place the child for adoption. In the
"Baby Richard" case, the natural father
claimed he wasn't able to assert his
rights due, in part, to the mother's
deception.
The Illinois Omnibus Permanency
Initiative of 1997 (Public Acts 90-27 and
90-28) is among the most significant
legislation in the Department's history. In
line with shifting trends and a changing
national philosophy toward public child
welfare services, these bills demonstrate
the shared commitment of the Illinois
legislature, The Governor's office, the
courts, and other interest groups to
attain timely permanency outcomes for
children. Together these bills,
z make child safety the paramount
consideration in every child welfare
decision.
z force key decisions to be made
quickly.
DCFS Wards
Adopted
FY 1976-2007
Fiscal
Year
Adoptions
Consummated
2007 1,682
2006 1,670
2005 1,867
2004 2,137
2003 2,795
2002 3,393
2001 4,208
2000 6,281
1999 7,275
1998 4,293
1997 2,229
1996 1,961
1995 1,640
1994 1,200
1993 1,034
1992 724
1991 708
1990 788
1989 719
1988 718
1987 714
1986 763
1985 812
1984 945
1983 900
1982 798
1981 555
1980 475
1979 471
1978 558
1977 762
1976 1,029
Adoption Links
Download the Adoption
Month in Illinois
Bookmark and Poster
Adoption Attorney Panel List
Illinois Licensed Adoption
Agencies
DCFS Provides Adoption
Subsidies To Eligible Non-
Wards
Enhanced Subsidized
Guardianship Waiver
Extension Fact Sheet
Foster PRIDE/Adopt PRIDE
training schedule
Intercountry Adoptions
Reforms
Legislation
Adoption Brochure
Family Forever brochure
Post Adoption and
Guardianship Services
Booklet [PDF]
Post-Adoption Resources
Directory
Making the
Adoption/Guardianship
Decision
Illinois Adoption Advisory
Council
Adoption Information
Center of Illinois
(outside link)
Confidential Intermediary
Services of Illinois
(outside link)
Midwest Adoption Center
(outside link)
Illinois Putative Father
Registry (outside link)
Page 1 of 5 DCFS - Legislation
8/15/2011 http://www.state.il.us/dcfs/adoption/a adoption l.shtml
Springfield
Headquarters
406 East Monroe
Springfield IL
62701-1498
217.785.2509
TTD 217.785.6605
Child Abuse Hotline
800-25-ABUSE
(800-252-2873)
217-785-4020
Missing Child
Helpline
866-503-0184
Advocacy Office
800-232-3798
217-524-2029
Day Care
Information
877-746-0829
312-328-2779
Foster Parent Hotline
800-624-KIDS
(800-624-5437)
Adoption Hotline
800-572-2390
Inspector General
800-722-9124
Youth Hotline
800-232-3798
Illinois Putative
Father Registry
National Center for
Missing and
Exploited Children
Illinois Amber Alert
Illinois Employer
Report Form
z require action and heightened
participation from everyone
involved, including parents, judges,
lawyers, and caseworkers.
Key Provisions of Permanency
Initiative:
z Requires judges to admonish
parents of their responsibilities to
cooperate with DCFS, comply with
their service plans, and correct the
conditions that resulted in their
child's placement, or risk
termination of parental rights. This
admonishment will be given at the
shelter care hearing, first
appearance, the adjudicatory and
dispositional hearings.
z Requires judges to consider earlier
termination of parental rights for
cases in which parental
whereabouts are unknown or
parents are found in default after
receiving service and notice of the
proceedings.
z Provides that after the dispositional
hearing, the court may require that
an attorney appointed for an
indigent parent withdraw from the
case if the parent refuses to
participate in subsequent court
proceedings.
z Clarifies that when return home is
not selected as a child's
permanency goal, DCFS is not
required to provide further
reunification services and
encourages the State's Attorney to
proceed with termination of
parental rights or to seek private
guardianship for the child.
z Clarifies that family reunification is
not necessary in cases when it is
not reasonable to do so (i.e., cases
in which a child or sibling of a child
was abandoned, tortured, or
chronically abused).
z Emphasizes that concurrent
planning should be considered to
attain permanency as soon as it
becomes evident that the parent
cannot or will not correct the
conditions that resulted in a child's
placement. This is especially
important for those cases in which
prognosis for return home appears
poor at the onset of a case.
z Requires that the first permanency
hearing be held within 12 months
from the date the child entered
foster care, and every six months
thereafter. Empowers judges to
establish the permanency goal for a
child and requires frequent reviews
to examine the family's progress.
Establishes permanency goals and
factors to consider when setting the
permanency goal.
z Shortens time frame from 12
months to 9 months after
adjudication that a parent must
make reasonable progress to
correct the conditions which led to
the removal of the child or
reasonable progress toward the
return of the child or risk
termination of parental rights.
z Clarifies that abandonment of a
newborn infant in a hospital or
other setting constitutes grounds to
obtain termination of parental
rights. Also, for children in DCFS
custody, rights can be terminated
when a parent who is incarcerated
has shown a lack of interest in the
child, or when the parent has been
repeatedly incarcerated as a result
of criminal conviction which
prevents the parent from
discharging parental responsibilities
for the child.
z Requires the Guardian ad Litem to
have at least one face to face
interview with the child and one
contact with a current foster parent
before adjudication, again before
the first permanency hearing, and
then at least once each year
thereafter.
z Requires that an aftercare plan be
developed and presented to the
judge when the goal of return
home is recommended. Provides
that, when returning a child home,
the court can order physical
examinations by a licensed
physician at periodic intervals.
z Provides that DCFS may issue
waivers to current foster parents
and relative caregivers who are
providing a safe, stable home
environment, which will allow them
to continue to be caregivers despite
previous criminal activity, provided
that the criminal activity occurred
more than 10 years ago and the
applicant previously disclosed the
criminal activity. [Note: Illinois has
elected to make 42 U.S.C. 671 (20)
(A) inapplicable in this State.]
z Provides that the State of Illinois
will join the Interstate Compact on
Adoption on January 1, 1998.
Other Efforts to Enhance
Permanency for Children.
DCFS has implemented many
administrative changes to enhance timely
permanency decisions for children. Many
innovations are the result collaborative
efforts involving DCFS, individual county
courts, and court participants. Some
examples are listed below.
z Extended Temporary Custody
Hearings.
A Cook County innovation, this
redesigned custody hearing
includes a joint interview of
witnesses by all attorneys, resulting
in a less adversarial environment
and better information upon which
to make decisions. Intensive
scrutiny is given to the necessity
for removing children from the
home, DCFS efforts to prevent
removal, and the service needs of
the children and parents. Follow-up
workers are now required to attend
the Extended TC hearings.
z Family Conferences
are being conducted in selected
Cook County courtrooms as a pilot
program. A Conference is
conducted approximately 55 days
after the Extended TC hearing to
discuss the service plan and
progress to date. The court outlines
the progress expected to ensure
that the child can be safely
returned home and sets a target
date for the return home, if
appropriate. The intent of the
Page of 5 DCFS - Legislation
Conference is for all parties to
agree on the direction of the case
and to avoid unnecessary delays in
achieving permanency.
z On-Site Substance Abuse
Assessments.
DCFS issued an RFP for a
contractor to provide assessments
and referrals on-site at the Cook
County Juvenile Court. This will
save valuable time in obtaining
referrals for the identified families.
z Successor Guardianship.
DCFS received a federal waiver to
offer Subsidized Guardianship as an
additional permanency option for
children. This new option provides
for subsidized legal guardianship of
the child, without termination of
parental rights. DCFS began using
this permanency option on January
1, 1997. At the end of December
1997, nearly 500 children had been
moved to subsidized guardianship.
About 86% of these were from
Cook County.
z Performance Contracting
has been instituted to require
permanency outcomes in all Cook
County DCFS and private agency
Home of Relative (HMR) caseloads.
All agencies on contract to perform
casework services must also
provide adoption services.
Copyright 2009
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July 31, 2011
Charities always puts the child first
By Jimmy M. Lago
ARCHDIOCESAN CHANCELLOR
he story being told by some reporters, media commentators and civil
union advocates is that recent decisions made by Catholic Charities
in five dioceses in Illinois (not to be forced to recruit single-sex foster
parents who are in civil unions) are careless and thoughtless actions by
sectarian agencies resulting in needy children in Illinois being deprived of the
services they require and are entitled to. They conclude by attributing the
blame for failing to serve these children on the Catholic Charities agencies
alone for playing improper political football with state wards who find
themselves in need of substitute care services.
That story could not be further from the truth. Since the founding of the
Archdiocese of Chicago, well before the Chicago Fire, the Catholic Church
here in Chicago responded to the call of its faith: abandoned, neglected,
abused, homeless and otherwise disadvantaged children were cared for!
Even after the Department of Children and Family Services was created in
the mid-1960s to provide state tax support and programmatic consistency to
counties in Illinois that were responsible for caring for these children, Catholic
Charities was chosen to provide much of the actual services, along with other
religiously sponsored and community-based agencies.
The evidence and history are crystal clear: Catholic Charities has always,
and will always, care for children when they are presented, found, referred or
sent, without regard to race, religion, color, creed, national origin, or sexual
preference. They provide love, care, homes, permanency, education, and
much more for each and every child.
And the percentage of successes of these children has been unsurpassed.
Catholic Charities of the Archdiocese of Chicago provided much of the foster
care permanency outcomes that prompted the U.S. Department of Health
and Human Service to give Illinois an award in the mid-1990s for surpassing
Federal goals by moving children out of foster care into adoption, to their own
reconstructed home situations or to other permanent placements. There was
a time, over a century ago, when the Juvenile Court in Cook County made
national history by creating judicial services and options for children apart
from the politics of the time. The need today is the same: keeping politics out
of decisions about the needs of children. Drug-addicted newborns, or children
who have been beaten, starved, forced to live in cardboard boxes, or
otherwise abandoned, need to be loved, served, treated, cared for. They do
Front Page News Update Cardinal George Sports Obituaries Service Directory
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Page 1 of 2 Catholic New World - Charities always puts the child first
8/15/2011 http://www.catholicnewworld.com/cnwonline/2011/0731/1.aspx
19982011 New World Publications
not need to have their lives disrupted and rearranged to suit the new political
correctness.
The incredible role that Catholic Charities has played in the history of child
welfare, their universal care for every child coming to them, make it a tragedy
should they be eliminated, at the first screen, from the care system available
to needy children.
Lago was co-chair, along with the director, of the Child Welfare Advisory
Committee of the Illinois Department of Children and Family Services during
the 1990s, executive director of Catholic Charities, and chair of the Social
Services Advisory Council of the Illinois Department of Public Aid. He is
currently chancellor of the Archdiocese of Chicago.
Page 2 of 2 Catholic New World - Charities always puts the child first
8/15/2011 http://www.catholicnewworld.com/cnwonline/2011/0731/1.aspx
Testimony before the Government
Management, Information and
Technology Sub-Committee of the House
Committee on Government Reform
Illinois Performance Contracting in Child Welfare
Jess McDonald, Director
Illinois Department of Children and Family
Services
Wednesday, September 6, 2000
Every child deserves a stable and lasting family life. This basic principle of
permanency, endorsed as far back as the 1909 White House on the Care of the
Dependent Child, has been a goal of public child welfare systems for most of this
century. But it is only in the last few years that substantial progress has been made
in bringing permanency to the lives of thousands of children who otherwise would
have spent their childhood in foster care. I am happy to say that Illinois has led
the nation in this trend for the past two years. We were recognized in both 1998
and 1999 by the White Houses Adoption 2002 Excellence Award for dramatically
improving the number of children moved to permanent homes.
Its my pleasure to be here today to discuss a program which has played a critical
role in moving Illinois from one of the worst child welfare systems in the country to
one of the bestPerformance Based Contracting. Our status as finalists for the
Ford Foundations Innovations in Government Award provides Illinois with an
important opportunity to demonstrate how government can be dynamic and smart
in responding to the people it serves.
To understand Illinois innovation in contracting for child welfare services, it is first
important to get a sense of the challenges that faced the states child welfare
system during the mid-1990s.
The Crisis in Permanency
Although the commitment to permanency is a long-standing one, most states
struggled in the early 1990s to make good on the promise. Foster care caseloads
rose nationwide from 280,000 children in 1986 to 502,000 children in 1996. There
were 6.9 foster children for every 1,000 childrenthe highest prevalence rate
recorded this century.
In Illinois, the magnitude of the problem was much greater. There were 17.1
foster children for every 1,000the highest prevalence rate in the nation. When I
became Director of the Illinois Department of Children and Family Services in 1994,
tensions were understandably high. Foster care growth was eating up far more of
its fair share of state revenues. Workloads of 50 to 60 children per caseworker
were commonplace, and there were routine calls to dismantle the agency.
It was obvious that change was long overdue.
Page 1 of 5 Testimony - Illinois Performance Contracting in Child Welfare
8/15/2011 http://www.state.il.us/dcfs/docs/testimony.shtml
Although the explosive growth in the Illinois foster care system ended in 1997,
stabilization of intake was not enough. Our read of the situation was that our
substitute care system should have been half its actual size in 1997. In the course
of analyzing our caseload dynamics, we found children were staying far too long in
substitute care. As a result, the median length of time entering children stayed in
care had lengthened from 8 months in 1986 to 56 months in 1996. Addressing the
permanency backlog became our top priority.
Investing in Permanency
Turning stable placements into legally permanent homes is no simple matter after
years of inattention by the child welfare system. As with other states, the growth
in caseloads brought with it an expansion of the level of child welfare services
provided by the private sector. With so much of Illinois child welfare system
privatized, the renewed focus on securing permanency for children posed unique
challenges. Longitudinal data collected by the Department showed that the rate of
children exiting the system fell below the rate of new cases coming in system-
wide.
No small part of the problem was inherent in Illinois basic contracting structure.
Contracts based upon a fee-for-child payment can undermine permanency because
once the child welfare issues have been resolved and the child is discharged, an
agency faces losing revenue unless the child is replaced with a new referral. This
dynamic leads to the predictable practice of focusing the work on maintaining kids
in care rather than aggressively pursuing permanency.
Performance Contracts sought to change this on two levels. First, the contracts
made significant investments in activity that would support permanencyadditional
permanency focused staff positions; resources enabling providers to begin serving
children more quickly upon placement; more resources for supporting children
returning home to their biological parents; and the flexibility to use administrative
funds to support different models of child welfare service provision. Second, and
perhaps most importantly, the contract realigned financial incentives to secure
accountability and reinforce the importance of achieving outcomes over maintaining
children in care. Agencies were allowed to use superior performance in moving
children to permanency as a way of lowering their caseloads, maintaining their
contract level and financially enhancing their program.
This shift was accomplished through redesigning how agencies receive new cases
for placement services. Upon the implementation of Performance Contracting in
Cook County, all agencies were required to accept 24 percent of their caseload in
new referrals. Added to this was the expectation that all agencies would move 24
percent of their caseload to permanencyan outcome expectation reflecting a
nearly threefold improvement over the then system-wide average of eight percent.
The benefits and potential consequences were immediately apparent to contracted
agencies. By exceeding the 24 percent benchmark in permanency expectations, an
agency could secure caseload reductions without a loss in revenue. Falling short of
the benchmark meant serving more children without a change in the contract
level.
Turning the Trend in Permanency
The success of the Performance Contracting initiative is best evaluated using three
important measures: the rise in adoptions, the rise in subsidized guardianships,
and the rise in over all agency performance levels since the programs
implementation.
As I mentioned earlier, Illinois success in steadily increasing the number of
finalized adoptions has brought the state a great deal of national attention. During
state fiscal year 1999, more children were moved to adoption than in the combined
previous seven-year period of 1987 through 1994. President Clintons Adoption
2002 Initiative has now twice recognized Illinois as the nations leader in securing
adoptions for children. The stated goal of this initiative was for states to double the
number of completed adoptions by the year 2002. Illinois managed to nearly pass
this goal just in the first year, increasing the number of adoptions from 2,229 in
state fiscal year 1997 to 4,293 in 1998. During state fiscal year 1999, Illinois again
almost doubled the previous years performance by finalizing 7,315 adoptions.
Although Illinois posted just over 6,200 adoptions by the close of the state fiscal
year on June 30, 2000, this represents a slight improvement in the overall adoption
rate as the foster care population continues to shrink. In all three years, the
majority of the increase in adoptions has been realized out of performance
contracts.
Subsidized guardianship is a new permanency option in Illinois made possible
through a Title IV-E waiver from the federal government. The waiver was
conceived of and designed to create a permanency option for relatives committed
to the long-term care of children placed in kinship care. The combined effect of
this permanency option and performance expectations has been remarkable.
During state fiscal year 1998, 1,276 children were placed permanently with
relatives. During state fiscal year 1999, this number nearly doubled to 2,199
children, with an estimated 1,700 by the end of state fiscal year 2000. As with
adoptions, the majority of these subsidized guardianships were realized out of
performance contracts.
Prior to the implementation of the Performance Contracting initiative in Cook
County relative care, the average permanency rate for agencies was just 6.7
percent. By the end of state fiscal year 1998, the system-wide average for relative
care jumped to nearly 20 percent, with some agencies achieving results as high as
44 percent. This strong showing continued into the second year of performance
contracting which expanded to traditional foster care in Cook County, and in a
limited way, relative and traditional care in the rest of the state. During fiscal year
1999, system-wide performance in Cook County relative care climbed from 20
percent to nearly 30 percent, while the permanency rate for traditional foster care
climbed from 14 percent to 24 percent. By the end of state fiscal year 2000, the
system-wide average permanency rate for Cook County relative care contracts
continued to improve to 34 percent while traditional foster care finished at 25
percent.
Since the implementation of Performance Contracting, the dramatic increase of
children moving to permanency has been nothing less than stunning. The impact
on Illinois caseload alone is amazinga 40 percent decline from a peak of over
51,000 children in care to nearly 30,000 in just three years.
As important as these gains are, the single most important accomplishment of
Performance Contracting is the reinvestment made possible through consistent
gains in permanency. These reinvestments support better service delivery for
children and families in Illinois child welfare system. For three consecutive years,
the Illinois Department of Children and Family Services has used the savings
generated by declining caseloads in Cook County relative care to fund contracted
caseload reductions of 10 percent (state fiscal 2000) and now over 20 percent
(state fiscal year 2001).
Ironically, when the Performance Contracting initiative was first launched for Cook
County relative care in July of 1997, caseloads were funded at 25 children per
workerthe highest caseloads in the state. By the end of the first year of the
initiative (state fiscal year 1998) it was possible to lower the contracted caseload
from 25 children per worker to 22 children per worker within existing spending
levels. By the end of the 2000 fiscal year, average caseloads were lowered to 18
children per workernow the lowest in the state. These gains were made possible
because of two dynamics: the requirement that non-performing agencies give up
contract-level and caseload; and the slowdown in new cases coming into Cook
County for relative care placement.
As this population declines and is concentrated with performing agencies, the
savings from the smaller contracted caseloads of non-performers become available
for reinvestment. The structure of performance contracts allows capacity to be
easily transferred from the worst performing agencies to the best performing
agencies without additional cost. The success of these contracts made what would
otherwise be an expensive and unwarranted move a reality. Lowering caseloads in
this way is an investment in the future that will continue to support improved work
in serving Illinois children and families.
Sharing Our Lessons
Clearly, a child welfare system consists of more than just a contracting framework.
Although child welfare financing plays a central role in how service providers target
and secure specific outcomes, they are actors within a much larger system.
Performance Contracting worked because Illinois had laid important ground work in
making improved performance possible.
First, state laws had to be changed so that undue hesitancy about terminating
parental rights was removed as a barrier to adoption. In 1997, the Illinois General
Assembly passed comprehensive legislation (Permanency Initiative), which
among other things, eliminated long-term foster care as a permanency goal,
reduced permanency planning timelines to one-year, and directed the Department
to engage in concurrent planning to help achieve permanency at the earliest
opportunity.
It is also safe to say that these accomplishments would not be possible without the
partnerships we have been able to forge with the Court. Under the creative
leadership of the Presiding Judge of the Cook County Child Protection Division, the
Cook County Juvenile Court has taken the lead establishing the legal groundwork
for moving Illinois wards into permanent homes.
Finally, the Department supported a real partnership with private service
providers. Conversations with providers have consistently emphasized sharing
information on system performance, barriers to improving, and the on-going
challenges inherent in serving a vulnerable population. By reaching consensus on
outcomes and the importance of results, the Department has been able to steadily
turn improved performance into investments which have supported the very
infrastructure of the child welfare system.
Page of 5 Testimony - Illinois Performance Contracting in Child Welfare
While there is clearly more work ahead, I think Performance Contracting highlights
the power in identifying specific outcomes and investing in strategies which make
improvements a reality. Getting support for this kind of innovation at all levels of
government can only create still greater opportunities for the future.
I appreciate this opportunity to talk about our work in Illinois. Thank you for your
time.
1 of 3 Case No. 2011 MR 254

BELLEVILLE, )
)
Defendants, )
and )
)
WESEMAN, )
Intervenors. )

DECLARATION OF MICHELLE MARTIN

Michelle Martin, upon oath, deposes and states as follows:
2 of 3 Case No. 2011 MR 254
1. I am a Staff Writer for the Catholic New World, the newspaper for the
Roman Catholic Archdiocese of Chicago, having held that position for 11 years.
2. I authored a story that was published April 29, 2007, in the Catholic New World
concerning the cessation of the foster care program of Catholic Charities for the Archdiocese of
Chicago, a true and correct copy of which is appended hereto as an Exhibit.
3. As part of the preparation to write this story, I interviewed Kendall Marlowe,
spokesman for the Illinois Department of Children & Family Services (DCFS). All of the
statements attributed to him in the story I wrote are accurate and true recitations of his statements
to me.
Under penalties of perjury as provided by law, pursuant to Section 1-109 of the Illinois
Code of Civil Procedure, 735 ILCS 5/1-109, the undersigned hereby certifies that the statements
set forth in this instrument are true and correct, except as to matters therein stated to be on
information and belief, and as to such matters the undersigned certifies as aforesaid that she

____________________________________________
Michelle Martin, Declarant
Of Counsel:
Thomas Brejcha
Peter Breen
Thomas More Society
Chicago, IL 60603
Tel. 312-782-1680
Fax 312-782-1887

Brad Huff
Graham & Graham, Ltd
Tel. 217-523-4569
3 of 3 Case No. 2011 MR 254
Fax 217-523-4656

Ms. Patricia Gibson
Peoria, IL 61603
Tel. 309-671-1550
Fax 309-671-1576

James C. Byrne
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828

David W. Wells
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101-1011
Tel. 314-552-6000
Fax 314-552-7000
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Archdiocese of
Chicago
Catholic Charities to close foster care program
Decision hinges on settlement, inability to purchase liability
insurance
By Michelle Martin
STAFF WRITER
Catholic Charities of the Archdiocese of Chicago has begun dismantling its
foster care program after announcing that it will stop providing foster care
services as of June 30.
The decision, which Catholic and state welfare officials called "tragic,"
came after Catholic Charities was unable to get liability insurance for its
foster care program.
Catholic Charities and other private agencies recruit and trains foster
parents to be licensed by the state, place children with the foster parents
they have trained, and provide monitoring, casework and social services to
the children.
When the closure was announced April 16, about 900 children were in the
program, said April Specht, a spokeswoman for Catholic Charities. One
hundred and fifty-six staff positions were to be cut as well.
The decision came after Catholic Charities was unsuccessful in finding
liability insurance to cover the program. Its current carrier agreed to continue
providing coverage of all of Catholic Charities' services except foster care.
The agency approached 25 providers besides its current carrier; 24 turned
it down, and one didn't respond, Specht said.
The insurance company's decision came after Catholic Charities settled a
lawsuit over alleged abuse of three children in a foster home in the 1990s for
$12 million.
The insurance company capped its liability at $10 million, and Catholic
Charities had a $1 million retention fund, said Walter Ousley, Catholic
Charities' director of operations. That left the agency scrambling to come up
with the rest of the money.
Front Page News Update Cardinal George Interview Obituaries Marketplace
Catholic New World - Catholic Charities to close foster care program
http://www.catholicnewworld.com/cnwonline/2007/0429/2 htm
Catholic Charities and the Illinois Department of Children and Family
Services have both formed transition teams to transfer the children and their
foster parents to either the state agency or other private agencies that
continue to work in partnership with DCFS, said Kendall Marlowe,
spokesman for DCFS.
Charities hopes that some of its foster care workers also can move to the
agencies that will work with their young charges, in essence moving
children, parents and workers together as a block, Ousley said.
Marlowe acknowledged that such a process would be ideal, providing the
least disruption to the children, but said the agency cannot make any such
guarantees.
"DCFS recognizes that there is a great deal of skill, expertise and a high
level of qualifications among the outgoing staff," Marlowe said. "We wouldn't
want to lose the skill, care and love those people bring to child welfare.
Acting director Erwin McEwen, when he was talking about this, said it was a
sad day in the history of child welfare in Illinois.
"The reputation of Catholic Charities is excellent. Their performance has
been exemplary."
Those staff members reacted to the news that the program would close
with grief and shock, Ousley said, and with concern, above all, for the
children.
"They were concerned about the kids first," he said. "Even though this is
their livelihood."
Catholic Charities has been providing substitute care for children since
1921, and was among the agencies that advocated for the creation of DCFS
in 1963. It has continued to advocate for the welfare of the state's most
vulnerable children since then, Marlowe said.
In the meantime, Marlowe said, his agency will continue to work with
Catholic Charities of the Archdiocese of Chicago to continue to provide
services to children who live with their parents.
The state is not worried about absorbing the foster children from Catholic
Charities' program into other programs. The number of children in residential
or foster care in the state is about 16,000, down from a high of about 52,000
in 1998, so the state's child welfare agencies have the capacity to take these
children in.
The drop in the number of children in foster care was the result of a
concentrated effort and changes in federal law in the late 1990s to keep
families together when possible, and to return children to their parents or
make them eligible for adoption more quickly when they were taken into
foster care.
At that time, Catholic Charities was among the leading child care agencies
at moving children into permanent homes, either with their biological parents
or with adoptive families, said archdiocesan Chancellor Jimmy Lago, a social
worker by training and former head of Catholic Charities.
"It's a real tragedy that one of the proven best providers in this area can no
longer provide services," Lago said. "This is a singularly important event in
the terms of child welfare in Illinois."
Jess McDonald, a former director of DCFS, said the decision could have
wider ramifications for private agencies providing foster care services in
Illinois.
"If this were to spread as a movement, you could see the eventual end of
the private sector in this role," he said. "It is an incredible blow to the child
welfare system."
It's a system that has long relied on a public-private partnership, with
community-based agencies providing up to 70 percent of the services. Such
agencies have strong community ties. Some, like Catholic Charities, can also
offer additional resources. Catholic Charities supplemented the state
contract to provide foster care with $1.7 million in private donations this year.
But while state law indemnifies DCFS from lawsuits, private agencies have
no such protection in Illinois, one of only two states that do not protect
private child welfare agencies working under contract to the government
from lawsuits, Ousley said. Catholic Charities' insurance carrier-whom
Ousley would not name-provides coverage for foster care in 48 other
dioceses, but none of them are vulnerable because they operate under
different state laws.
Archdiocesan officials approached legislators about changing the law, but
their efforts went nowhere, Lago said.
Add to that the negative publicity from the clerical sexual abuse scandal,
the state's decision to remove its wards from Maryville Academy and the
perception that Catholic Charities, and by extension, the Catholic Church,
has vast financial resources, and Catholic Charities could be seen as an
appealing target for a lawsuit, Ousley said.
"This came at the end of a perfect storm," he said, adding that another
suit, based on an alleged incident in a foster home in 2000, was recently
filed.
The issue for liability, Ousley said, is that plaintiffs are seeking to hold the
agency liable for incidents that happened when there was no Charities staff
member on the scene.
"It's not humanly possible for our staff to be in the homes 24/7," Ousley
said.
"We felt we could not put the rest of the agency at risk because of
something that might happen in a foster home. I'm sick over this. I feel
19982010 New World Publications
terrible that I have to be a part of this."
Catholic Charities foster care by the numbers
Catholic Charites starts providing substuitute care for children:
1921
Illinois Departmenet of Children and Family Services formed:
1963
Number of children in Catholic Charities foster care program:
approximately 900
Number of children in foster care and residential care in Illinois:
16,000
Number of children in foster care in Illinois at the program's
peak: 52,000
Number of insurance companies approached to provide liability
insurance for foster care: 25
Percentage of Catholic Charities budget devoted to foster care:
12 percent
Amount of private donations dedicated to foster care: $1.7
million
Number of people served by Catholic Charities last year: 895,000
1 of 3 Case No. 2011 MR 254

BELLEVILLE, )
)
Defendants, )
and )
)
WESEMAN, )
Intervenors. )

DECLARATION OF SISTER LEA STEFANCOVA, FSJB, ARCHIVIST AT THE
OFFICE OF ARCHIVES & ARCHBISHOP FULTON J. SHEEN FOUNDATION,
DIOCESE OF PEORIA

Sister Lea Stefancova, FSJB, upon oath, deposes and states as follows:
2 of 3 Case No. 2011 MR 254
(1) I am assigned as an Archivist at the Office of Archives & Archbishop Fulton J.
Sheen Foundation, which is located at the Spalding Pastoral Center of the Catholic Diocese of
Peoria, 419 NE Madison Avenue, Peoria, Illinois.
(2) Attached hereto as Exhibits are true and accurate copies of two original letters
that I recently retrieved from the diocesan archives. The documents were created over twenty
years ago, were found in the archives in the normal place for such documents, and are in the
normal form that such records exist in our archives. I have no reason to suspect that the
documents are anything but the authentic business records they appear to be.
Under penalty of perjury as provided by law, pursuant to Section 1-109 of the Illinois
Code of Civil Procedure, 735 ILCS 5/1-109, the undersigned hereby certifies that the statements
set forth in this instrument are true and correct, except as to matters therein stated to be on
information and belief, and as to such matters the undersigned certifies as aforesaid that she

DATED: August 15, 2011 ____________________________________________
Sister Lea Stefancova, FSJB, Declarant
Of Counsel:
Thomas Brejcha
Peter Breen
Thomas More Society
Chicago, IL 60603
Tel. 312-782-1680
Fax 312-782-1887

Brad Huff
Graham & Graham, Ltd
Tel. 217-523-4569
Fax 217-523-4656
3 of 3 Case No. 2011 MR 254

Ms. Patricia Gibson
Peoria, IL 61603
Tel. 309-671-1550
Fax 309-671-1576

James C. Byrne
Spesia & Ayers
1415 Black Road
Joliet, IL 60435
Tel. 815-726-4311
Fax 815-726-6828

David W. Wells
Thompson Coburn LLP
One US Bank Plaza
St. Louis, MO 63101-1011
Tel. 314-552-6000
Fax 314-552-7000

Thomas More Society's Response For Illinois Catholic Charities' MEMORANDUM IN OPPOSITION TO DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT

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Thomas More Society's Response For Illinois Catholic Charities' MEMORANDUM IN OPPOSITION TO DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT

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IN THE CIRCUIT COURT FOR THE SEVENTH JUDICIAL CIRCUIT

SANGAMON COUNTY, ILLINOIS

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