For the Good of the Group 245
an accusation that was later proved false.82 Without investigating to determine if this was true,
DCFS took protective custody of L. W. with no basis for this demand and told L.W.’s mother she
could have no contact with her child.83 She was then indicated of neglect under “environment
injurious,” despite this allegation being considered void in March of 2013.84 This case challenged
the unlawful separation of L.W. from the mother under the Fourteenth Amendment and the
Americans with Disabilities Act as well as various other claims about the improper procedure
followed during the investigation.85
This case was settled in 2016 and the settlement included a promise by DCFS to craft a
new mental health policy and procedure and to end the use of mental illness as a risk category
during its safety assessment.86 Most notably, the settlement included a provision that DCFS would
clarify and revise its standards for removing children from their home and implementing safety
plans.87 By clarifying the safety plan protocol to investigators and case workers, DCFS began
reorienting how safety plans were used to allow them to be beneficial to children instead of unjustly
separate them from their parents.
The second safety plan case the Family Defense Center brought was W.M et al v.
Giscombe.88 In this case, the Family Defense Center opposed the DCFS practice called “hospital
holds,” a tactic used to prevents parents under investigation for abuse or neglect from taking their
child home from the hospital.89 W.M. was brought to the hospital for an injury that a doctor
reported as potential abuse and W.M. was then held in the hospital for several days before DCFS
came to interview his parents.90 The parents were told that if they wanted to leave the hospital
with W.M., they would have to agree to a safety plan.91 This is contrary to the standard that safety
plans are to be voluntary agreements.92
W.M.’s parents ultimately agreed to the safety plan and despite the guidelines for safety
plan duration, it continued for almost three months.93 Although doctors clarified there was no
evidence did not conclusively prove child abuse, DCFS maintained protective custody of W.M.94
Thus, W.M. was taken into protective custody without probable cause or exigent circumstances,
which specifically violates Hernandez v. Foster.95 Eventually, the juvenile court determined that
84 Id.; Julie Q. v. Dep’t of Children and Family Servs., 995 N.E.2d 977, 986 (Ill. 2013).
85 Complaint at 3, L. W. v. Simpson, Case N. 1:13-cv-8463, available at http://www.familydefensecenter.org/wp-
86 Id.; Memorandum Opinion and Order, L.W. v. DCFS, N. 1:13-cv-8463, available at
88 W.M. v. Giscombe, Civil Action No. 15-cv-305, available at http://www.familydefensecenter.org/wp-
92 Rights and Responsibilities, supra note 81.
93 W.M. v. Giscombe, Civil Action No. 15-cv-305, available at http://www.familydefensecenter.org/wp-
95 2016 Settlements, supra note 80; Hernandez, 657 F.3d 463 (holding that either probable cause or exigent
circumstances are constitutional requirements for removing a child).