Judges: Per Curiam
Filed: Feb. 03, 2005
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ Nos. 03-3071 & 03-3191 JEFF DUPUY, BELINDA DUPUY, PILAR BERMAN, et al., Plaintiffs-Appellants, Cross-Appellees, v. BRYAN SAMUELS, Director, Illinois Department of Children and Family Services, Defendant-Appellee, Cross-Appellant. _ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 4199—Rebecca R. Pallmeyer, Judge. _ ARGUED JUNE 3, 2004—DECIDED FEBRUARY 3, 2005 _ Before BA
Summary: In the United States Court of Appeals For the Seventh Circuit _ Nos. 03-3071 & 03-3191 JEFF DUPUY, BELINDA DUPUY, PILAR BERMAN, et al., Plaintiffs-Appellants, Cross-Appellees, v. BRYAN SAMUELS, Director, Illinois Department of Children and Family Services, Defendant-Appellee, Cross-Appellant. _ Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 4199—Rebecca R. Pallmeyer, Judge. _ ARGUED JUNE 3, 2004—DECIDED FEBRUARY 3, 2005 _ Before BAU..
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In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3071 & 03-3191
JEFF DUPUY, BELINDA DUPUY,
PILAR BERMAN, et al.,
Plaintiffs-Appellants,
Cross-Appellees,
v.
BRYAN SAMUELS, Director,
Illinois Department of Children
and Family Services,
Defendant-Appellee,
Cross-Appellant.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 4199—Rebecca R. Pallmeyer, Judge.
____________
ARGUED JUNE 3, 2004—DECIDED FEBRUARY 3, 2005
____________
Before BAUER, RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge. Jeff Dupuy, Belinda Dupuy and
Pilar Berman brought this action under 42 U.S.C. § 1983 on
behalf of a class of persons who had been indicated as
perpetrators of child abuse or neglect in reports maintained
on the State Central Register of the Illinois Department of
Children and Family Services (“DCFS”). The plaintiffs
sought injunctive relief, alleging that the DCFS procedures
for investigating and disclosing allegations of child abuse
2 Nos. 03-3071 & 03-3191
and neglect deprive them of due process of law. The district
court granted the plaintiffs injunctive relief, and both parties
have appealed. For the reasons set forth in the following
opinion, we affirm in part and reverse in part and remand
the cases for further proceedings consistent with this
opinion.
I
BACKGROUND
A. DCFS Policies and Procedures Prior to This Litiga-
tion
The Illinois Abused and Neglected Child Reporting Act
requires DCFS to “protect the health, safety and best
interests of the child in all situations in which the child is
vulnerable to child abuse or neglect.” 325 Ill. Comp. Stat.
5/2.1 To achieve this mandate, DCFS operates a child abuse
and neglect hotline, conducts investigations into allegations
of child abuse and neglect, records and discloses (in limited
circumstances) the findings of its investigations and pro-
vides a system to appeal those findings. DCFS also licenses
child care facilities, such as day care centers and foster
homes, and conducts background checks of current and
prospective employees of DCFS-licensed child care facilities.
1
The district court’s opinion contains an exhaustive review
of the DCFS procedures for investigating and reporting allega-
tions of child abuse and neglect and provides detailed ex-
amples of how those procedures affected individual plaintiffs. See
Dupuy v. McDonald, 141 F. Supp. 2d 1090, 1092-1131 (N.D.
Ill. 2001). This opinion sets forth the factual findings of the district
court relevant on appeal.
Nos. 03-3071 & 03-3191 3
1. The Investigative Process
DCFS operates a toll-free, 24-hour hotline to receive
reports of alleged child abuse or neglect. R.468-1, Joint
Ex.1 at § 300.30. It receives over 350,000 calls annually, of
which approximately one-third are formally investigated.
DCFS rules require investigative staff to have in-person
contact with the alleged victim, the alleged perpetrator and
the child’s caretaker within seven days after a report is
received.
Id. at § 300.90. DCFS formally investigates reports
that it deems to have been made in good faith and that meet
the following minimum criteria: (1) the alleged victim is less
than eighteen years of age; (2) the child either has been
harmed or is in substantial risk of harm; (3) the suspected
perpetrator is an immediate family member, a person
responsible for the child’s care or a person who resides in
the same house as the child; and (4) there was an abusive or
neglectful incident or set of circumstances that caused the
harm or substantial risk of harm.
Id. at § 300.100(g).
At the start of a formal investigation, if the subject of a
report is employed in or otherwise has a position that
allows access to children, DCFS notifies the employer of the
investigation.
Id. at § 300.100(i). While the investigation
is pending, the employer must take reasonable action to
restrict the employee from contact with children at work.
325 Ill. Comp. Stat. 10/4.3.
Upon completion of the investigation, the DCFS investiga-
tor must decide whether credible evidence of child abuse or
neglect exists. R.468-1, Joint Ex.1 at § 300.110(i)(1). DCFS
rules define “credible evidence” to mean that “the available
facts when viewed in light of surrounding circumstances
would cause a reasonable person to believe that a child
was abused or neglected.”
Id. at § 300.20. When cred-
ible evidence supports an allegation of child abuse or
4 Nos. 03-3071 & 03-3191
neglect, DCFS designates the report as “indicated.”
Id. at
§ 300.110(i)(3).
2. Disclosure of Indicated Reports
DCFS maintains indicated reports on the State Central
Register (“central register”). 325 Ill. Comp. Stat. 5/7.12.
Indicated reports are retained on the central register for
a minimum of five years. Id. at 5/7.14. Each abuse and
neglect allegation is assigned to one of three retention
categories: allegations of death of a child and/or sexual
penetration are retained for fifty years; allegations involving
serious physical injury, sexual molestation or sex-
ual exploitation of a child are retained for twenty years; and
all other allegations are retained for five years. 89 Ill.
Admin. Code § 431.30. After the expiration of the retention
period, the indicated report must be expunged, unless
another report is received involving the same child, his
sibling or offspring, or a child in the care of the persons
responsible for the child’s welfare. 325 Ill. Comp. Stat.
5/7.14.
For allegations concerning a person in a position with
access to children, DCFS notifies the employer whether the
report was indicated. R.468-1, Joint Ex.1 at § 300.130(d).
Furthermore, in order for a person to obtain or renew a
license, or to work with children in a licensed facility, DCFS
first conducts a background check. This background check
includes a check of the central register to determine whether
the person has an indicated report against them. R.468-1,
Joint Ex.4 at §§ 385.10(a), 385.30(d). An indicated report is
placed on the central register and disclosed to current and
potential employers even before any formal appeal or
review process. As will be discussed later in this opinion,
Nos. 03-3071 & 03-3191 5
the district court’s preliminary injunction order, the subject
of this appeal, modified this procedure. Notably, moreover,
DCFS presumes that a person indicated for certain serious
allegations is not suitable for a position that allows access to
children.2
Id. at § 385.50(a). The employer (but not the
indicated person) may request DCFS review and waiver of
the presumption of unsuitability.
Id. at § 385.50(b). A child
care facility must notify DCFS in writing of its decision
regarding the employment of a person who has been
indicated for child abuse or neglect.
Id. at § 385.50(c).
3. Appeals Process
Any indicated person may appeal and seek to have an
indicated finding expunged. R.468-1, Joint Ex.2 at § 336.30.
The appeal request must be made to DCFS in writing within
sixty days of the date that DCFS sends the person notice that
a report was indicated against him. Id. at § 336.80. The
2
Severe allegations include: death, head injuries, internal
injuries, wounds (gunshot, knife or puncture), torture, sexually
transmitted diseases, sexual penetration, sexual molestation,
sexual exploitation, failure to thrive, malnutrition, medical
neglect of a disabled infant, and serious injury to the child. R.468-
1, Joint Ex.4 at § 385.50(a). DCFS also presumes unsuitability to
work with children for any person named in more than one
indicated report for the following allegations: burns; poison; bone
fractures; cuts, bruises, welts, abrasions and oral injuries; human
bites; sprains or dislocations; tying or close confinement; sub-
stance misuse; mental and emotional impairment; substantial risk
of physical injury or an environment injurious to health
and welfare; substantial risk of sexual injury; inadequate supervi-
sion; abandonment/desertion; medical neglect; lock-out; inade-
quate food, shelter or clothing; and environmental neglect.
Id.
6 Nos. 03-3071 & 03-3191
appeals process has two steps: a child protection internal
review and a full administrative hearing.
Id. The internal
reviewers consider the material in the appellant’s investiga-
tive file and the appellant’s brief written statement, and
decide whether the record should be amended, expunged or
removed.3
Id.
If the appellant challenges the internal review decision,
the Administrative Hearing Unit (“AHU”) must schedule a
hearing for a date within thirty days of the request.4
Id. at §
336.110(d). In all hearings since March 1, 1996, DCFS
has been required to prove the child abuse and neglect
allegations by a preponderance of the evidence.
Id. After the
evidentiary hearing, the Administrative Law Judge (“ALJ”)
provides a recommended decision to the DCFS Director,
who accepts, rejects or modifies the ALJ’s decision and
issues a final decision.
Id. at § 336.150(a).
3
As we shall discuss later in this opinion, DCFS amended the
rules governing the appeals process after the hearing on the
plaintiffs’ preliminary injunction motion. The district court
observed that the new regulations appeared to eliminate the
internal review procedures, but that it could not be certain
because DCFS had not provided the new procedures or rules
implementing the new regulations.
Dupuy, 141 F. Supp. 2d
at 1100.
4
As will be discussed later in this opinion, the district court
found a history of inexcusably long delays in the appeals process.
The district court’s preliminary injunction order modifies DCFS
procedures on appeal.
Nos. 03-3071 & 03-3191 7
B. District Court Proceedings
1. The District Court’s Original Order
The plaintiffs filed a motion for a preliminary injunction
against several DCFS policies and procedures that they
alleged deprived them of due process of law.5 The plain-
tiffs challenged three core DCFS policies: (1) the indicated
report decision-making process; (2) the notice and hear-
ing policies; and (3) the disclosure and use of indicated
report policies. The plaintiffs also challenged, among other
things, DCFS’ special policy of placing holds on the addi-
tional placement of foster children in a foster home that is
reported for child abuse or neglect. The district court
concluded that the procedure did not deprive foster parents
of due process of law. Dupuy v. McDonald, 141 F. Supp. 2d
1090, 1140 (N.D. Ill. 2001). On appeal, the plaintiffs continue
to assert that foster parents must be afforded an opportunity
to contest foster care holds. We shall address this issue later
in this opinion. Specifically, the plaintiffs challenged the
“credible evidence” standard for indicating reports of child
abuse or neglect. They argued that DCFS investigators
understood the standard to mean that “any” credible
evidence of abuse or neglect was sufficient and, as a result,
gathered only inculpatory evidence and disregarded any
evidence that the abuse or neglect did not occur.
Id. at 1135.
Further, the plaintiffs contended that DCFS provided no
meaningful opportunity to contest an indicated finding.
5
The district court construed the plaintiffs’ motion to seek
preliminary relief only for “child care employees,” such as day
care providers, foster care givers and social workers, as opposed
to family members who are indicated by DCFS.
Dupuy, 141
F. Supp. 2d at 1131.
8 Nos. 03-3071 & 03-3191
And they maintained that indicated reports should not be
disclosed to and used by employers.
The district court concluded that the then-employed DCFS
procedures violated the plaintiffs’ due process rights. As a
threshold matter, the district court determined that “the
pursuit of work in one’s chosen profession constitutes a
recognized and protected liberty interest . . . .”
Id. at
1134. The district court found that the plaintiffs “were
deprived of such an interest” because, “[w]hether it be
by way of their enforcement of mandatory background
checks on prospective employees or ‘Notices of Presumptive
Unsuitability’ sent to current employers, DCFS policies and
procedures clearly effectuate an indicated perpetrator’s
exclusion from the child care profession.”
Id.
The district court then assessed what process the Con-
stitution required by applying the three-factor test set
forth in Mathews v. Eldridge,
424 U.S. 319, 335 (1976). The
court found that the plaintiffs have a serious and legitimate
private interest in pursuing employment in the child
care field, and that the State has an equal countervailing
interest in protecting children.
Dupuy, 141 F. Supp. 2d at
1136. Accordingly, the district court focused on the risk of
error inherent in the then-employed credible evidence
standard.
Id. (citing Valmonte v. Bane,
18 F.3d 992, 1002-04
(2d Cir. 1994)). The court found that the record supported
the argument that the standard often was interpreted
by DCFS investigators as “any” credible evidence.
Id. at
1135. Further, the record supported that some investiga-
tors gathered and considered only inculpatory evidence and
disregarded any evidence weighing against an indicated
finding.
Id. The court also cited “unrebutted evidence that
74.6% of indicated findings that are challenged are ulti-
mately reversed on review.”
Id. at 1137. The court con-
Nos. 03-3071 & 03-3191 9
cluded that “this staggering expungement rate is due to the
relatively low standard of proof required to indicate a
finding, combined with the indefensible delays that
allow memories to fade and, therefore, evidence to be-
come unreliable.”
Id.
The district court then addressed DCFS’ notice and
hearing policies. The court expressed grave concern “about
the inexcusable delays experienced by Plaintiffs in at-
tempting to appeal, and seek expungement of, the indicated
findings against them.”
Id. at 1138. The court found:
At the time of the preliminary injunction hearing, DCFS
regulations stated that an administrative hearing would
be provided within thirty days of a request. Ill. Admin.
Code tit. 89, § 335.110(d)(1). The AHU, however,
routinely sent appellants a letter informing them that
while DCFS had received their hearing request, it could
not schedule a hearing promptly due to a backlog.
Id. The court cited specific examples of plaintiffs who had
experienced delays from over a year to as long as three
years.
Id. at 1138-39.
The district court noted that, after the preliminary injunc-
tion hearing, DCFS had codified new regulations
that changed the timetable for the DCFS appeals process.
Id.
(citing 89 Ill. Admin. Code §§ 336 et seq. (“Amended Rule
336”)). Specifically, Amended Rule 336 provides that a
person who appeals an indicated finding is entitled to an
administrative hearing and final decision within ninety
days. 89 Ill. Admin. Code § 336.220. The district court
explained the import of the amended regulation in the
preliminary injunction context:
[I]f followed, Amended Rule 336 will ensure that an
10 Nos. 03-3071 & 03-3191
individual is afforded a hearing, under a “preponder-
ance of the evidence” standard, within 90 days of his
or her request for appeal. Again, the court notes that,
in theory, this is a marked improvement, but with-
out evidence that any such improvement has yet
occurred, the court must grant Plaintiffs’ request for
a preliminary injunction.
Dupuy, 141 F. Supp. 2d at 1139.
Instead of directing specific relief, the district court
gave the parties sixty days to develop constitutionally
adequate procedures.
2. Specific Injunctive Relief Ordered by the District
Court
The parties subsequently negotiated changes to DCFS
policies and procedures during seven court-mediated
sessions. R.361 at 1-2. At about this time, DCFS drafted
new procedures to govern the indicated report decision-
making process. The new draft procedures instruct in-
vestigators how to assess the credibility and relevancy of the
information they gather during the investigation of sus-
pected child abuse. R.443 at 6 (citing R.323, Draft Procedure
300.60k). More importantly, the new draft procedures also
state clearly that a child abuse or neglect investigation must
consider all evidence that an incident of abuse or neglect did
or did not occur. R.323, Draft Procedure 300.60l.6
6
The draft procedures underscore the requirement to consider
all evidence:
The final step in determining whether [State Central Regis-
ter] reports will be indicated or unfounded is to consider all
(continued...)
Nos. 03-3071 & 03-3191 11
The district court entered an order on July 10, 2003, to
resolve the parties’ remaining disputes and to order specific
relief. With respect to the burden of proof for indicating
reports, the court reviewed DCFS’ new draft procedures and
stated that they are “clearly appropriate steps.” R.443 at 6.
The district court directed DCFS to “adopt and maintain a
standard that entails consideration of all available evidence,
both inculpatory and exculpatory, for its child abuse and
neglect investigations.” Id. at 7. The plaintiffs urged none-
theless that the court should enjoin DCFS from any use of
the term “credible evidence” in the regulations.
Id. at 6-7.
The district court noted that DCFS may be well-advised to
use a new expression for the burden of proof, but the court
chose not to interfere with the state agency’s operations
more than it deemed necessary to remedy the constitutional
violation.
Id. at 7.
6
(...continued)
information obtained during the investigation and determine
which information is relevant to be used as evidence to make
a determination. It is of critical importance that all evidence
suggesting that an incident of abuse or neglect did not occur
be given the same consideration as evidence suggesting that
an incident of abuse or neglect did occur. The CANTS XXXX,
Child Abuse/Neglect Finding Matrix, must be used to
evaluate each piece of information to determine its relevance,
credibility and weight of importance in proving or disprov-
ing the allegations presented. The supervisor is to review the
matrix with the investigator to determine whether the
evidence is sufficient to lead a reasonable person to believe
that the incident occurred or that the set of circumstances is
or was present. Equal consideration shall be given to information
entered in both columns.
R.323, Draft Procedure § 300.60l (emphasis in original).
12 Nos. 03-3071 & 03-3191
Further, the district court addressed the plaintiffs’ right to
reply to allegations of child abuse or neglect against them.
The court ruled that it was constitutionally untenable for
indicated reports to be recorded on the central register and
disclosed to employers before any formal appeal or review
process. The district court directed that DCFS shall provide
a limited telephonic administrative review prior to the entry
of an indicated finding for any child care worker.7 Id. at 11.
The district court “believe[d] that it is at least probable that
the conferences will in fact eliminate some of the gross
errors described in the court’s earlier opinions.”
Id. at 12.
Both sides reserved objections to the procedure.
The district court added several requirements to en-
sure that the conference is effective: (1) prior to the con-
ference, the child care worker receives a worksheet describ-
ing all bases for the potential indicated finding; (2) a
DCFS manager or supervisor who had no part in the
child abuse or neglect investigation presides over the
conference; (3) the conference may be rescheduled at
least once for good cause; (4) one hour should be allotted for
each conference; (5) the worker is not permitted to call or
cross-examine witnesses; (6) the worker may be represented
by counsel and may present his own account of the incident
and submit evidence; (7) the DCFS manager or supervisor
who conducts the conference will have the authority to enter
or overturn the investigator’s recommendation or to return
it for further investigation; and (8) the worker will receive
prompt notice of the final determination.
Id. at 11-12, 14.
The district court also contemplated more rapid post-
7
The district court referred to this review as an “Administrator’s
conference.” R.443 at 11.
Nos. 03-3071 & 03-3191 13
deprivation hearings for child care workers. DCFS proposed
a forty-five day time frame, and the plaintiffs proposed
twenty-one days; the district court believed that “the
swiftest reasonable process will consume five full weeks.”8
Id. The court therefore directed that DCFS shall provide
child care workers, upon timely request for an appeal, a
hearing and final decision within thirty-five days.
Another significant aspect of the district court proceedings
was DCFS’ objection to any injunctive relief for
school teachers and administrators, applicants for child care
positions or child care licenses, child care workers at non-
DCFS-licensed facilities and persons pursuing a career in
child care. The district court first responded that any school
teacher or school administrator who is not by law entitled to
a pre-termination hearing stands to be deprived of the right
to continue in his profession as the result of an indicated
finding. Similarly, the court noted that workers in non-
DCFS-licensed facilities can suffer significant disruption and
loss as a result of an indicated finding that is later reversed.
8
The district court explained that
[t]his time frame assumes approximately seven days for the
Department to set a hearing date and provide a copy of the
investigative file to the appellant; another seven days for the
appellant to prepare for a pre-hearing conference at which
subpoenas will issue; at least seven more days before
an approximately two-day hearing will take place; seven
more calendar days (that is, no fewer than five working
days) for the Administrative Law Judge to issue a recom-
mended decision, and finally, another seven days for review
of the ALJ’s decision by the Director’s office.
Id. at 15.
14 Nos. 03-3071 & 03-3191
For those reasons, the court believed that such persons are
entitled to a pre-deprivation administrative conference and
an expedited appeals process.
Id. at 4-5.
However, the district court did not believe that license
applicants, students and others pursuing a career in
child care were entitled to the pre-deprivation conference or
to expedited appeals.
Id. at 2. The court took the view that
such individuals “have expectations, but not existing
interests, in working as child care professionals.”
Id. at 4.
Such individuals, it therefore concluded, would not be
harmed by waiting ninety days for administrative review.
The district court noted the counterbalancing burden on
DCFS of determining which individuals are pursuing a
career in child care and the possibility that making the new
procedures widely available would diminish their effective-
ness.
Id. at 4-5.
The district court then turned to foster parents. The
district court held that foster parents are protected ade-
quately by the DCFS licensing procedures, and that they
have no liberty interest in a foster care license that demands
a pre-deprivation conference or an expedited appeal.
Id. at
5. The court rejected the plaintiffs’ argument that the loss of
foster care payments, which results from allegations of child
abuse or neglect, is equal in effect to a child care worker’s
losing his job due to an indicated finding.
Id. The district
court reasoned that DCFS’ payments to foster parents are
not intended as income; rather, foster care regulations both
permit foster parents to work outside the home and require
them to have sufficient financial resources to provide for the
foster child.
Id. Further, the foster care payments simply are
reimbursement for caring for the foster child—removing the
child relieves foster parents from providing that service and
meeting that expense.
Id.
Nos. 03-3071 & 03-3191 15
C. Contentions of the Parties
Neither party is satisfied completely with the district
court’s remedy. The plaintiffs contend that the standard
for indicating reports remains too low and that the dis-
trict court should have enjoined the use of the term “credi-
ble evidence.” The plaintiffs further maintain that only a full
evidentiary hearing before a report is indicated and dis-
closed will protect their rights. The plaintiffs also urge that
any person—not only child care workers—who may be
indicated by DCFS should be afforded pre-deprivation
process.
DCFS, in contrast, submits that the more rigorous inter-
pretation of the credible evidence standard, combined with
an administrative conference for child care workers before
a report is indicated, provides sufficient pre-deprivation
process. Moreover, DCFS notes that indicated persons have
the right to prompt, full post-deprivation administrative
review. DCFS also argues that the district court abused its
discretion by requiring DCFS to provide child care workers
with expedited appeals within thirty-five days.
16 Nos. 03-3071 & 03-3191
II
DISCUSSION
A. Standard of Review
A district court’s decision to grant or deny an injunction
is entitled to deference by the reviewing courts, and we shall
reverse only for an abuse of discretion. Graham v. Med. Mut.
of Ohio, 130 F.3d 293, 295 (7th Cir. 1997). We review the
district court’s findings of fact for clear error and its conclu-
sions of law de novo.
Id.
B. Due Process Clause
The Due Process Clause of the Fourteenth Amendment
forbids a state to deprive any person of “life, liberty, or
property, without due process of law.” U.S. Const. amend.
XIV, § 1. “To maintain [a due process] action, a plaintiff
must establish that a state actor has deprived him of a
constitutionally protected liberty or property interest
without due process of law.” Doyle v. Camelot Care Ctrs., Inc.,
305 F.3d 603, 616 (7th Cir. 2002). Accordingly, our due
process inquiry involves two steps: “[T]he first asks whether
there exists a liberty or property interest which has been
interfered with by the State; the second examines whether
the procedures attendant upon that deprivation were
constitutionally sufficient.” Kentucky Dep’t of Corr. v.
Thompson,
490 U.S. 454, 460 (1989) (citations omitted).
1. Liberty Interest
The plaintiffs allege that the DCFS procedures de-
prived them of their liberty interest to pursue the occupa-
tion of their choice, child care. As our court has estab-
Nos. 03-3071 & 03-3191 17
lished previously:
It is well-settled that an individual has no cognizable
liberty interest in his reputation; consequently, when a
state actor makes allegations that merely damage a
person’s reputation, no federally protected liberty
interest has been implicated. See Paul v. Davis, 424
U.S. 693, 711-12 (1976); Hojnacki v. Klein-Acosta,
285 F.3d
544, 548 (7th Cir. 2002). Indeed, “mere defamation by
the government does not deprive a person of liberty
protected by the Fourteenth Amendment, even when it
causes serious impairment of one’s future employ-
ment.” Hojnacki, 285 F.3d at 548 (internal quotations and
citations omitted). Rather, it is only the “alteration of
legal status,” such as governmental deprivation of a
right previously held, “which, combined with the injury
resulting from the defamation, justif[ies] the invocation
of procedural safeguards.” Paul, 424 U.S. at 708-09;
Townsend v. Vallas, 256 F.3d 661, 669 (7th Cir. 2001). As
such, when a state actor casts doubt on an individual’s
“good name, reputation, honor or integrity” in such a
manner that it becomes “virtually impossible for the
[individual] to find new employment in his chosen
field,” the government has infringed upon that individ-
ual’s liberty interest to pursue the occupation of his
choice.” Townsend, 256 F.3d at 670.
Doyle, 305 F.3d at 617 (parallel citations omitted).
The district court concluded that child care workers
effectively are barred from future employment in the
child care field once an indicated finding of child abuse or
neglect against them is disclosed to, and used by, licensing
agencies and present or prospective employers.
Dupuy,
141 F. Supp. 2d at 1139. Such circumstances squarely
implicate a protected liberty interest. See
Doyle, 305 F.3d at
18 Nos. 03-3071 & 03-3191
617 (deciding that DCFS employees named in indicated
reports had alleged sufficiently a deprivation of their liberty
interests);
Valmonte, 18 F.3d at 1001 (being indicated for
child abuse or neglect in a report maintained on the state
central register did not simply defame child care worker but
placed a tangible burden on her employment prospects);
Cavarretta v. Dep’t of Children & Family Servs.,
660 N.E.2d
250, 258 (Ill. App. Ct. 1996) (being named in indicated report
for child abuse or neglect maintained on the central register
implicated the plaintiff’s liberty interest in pursuing his
chosen occupation).9
2. Pre-deprivation Process
We must now examine whether the procedural safeguards
established by DCFS are insufficient to protect that interest.
“Due Process ‘is not a technical conception with a fixed
content unrelated to time, place[,] and circumstances[;]’
instead, it ‘is flexible and calls for such procedural
protections as the particular situation demands.’ ” Hudson v.
City of Chicago, 374 F.3d 554, 559 (7th Cir. 2004) (quoting
Mathews, 424 U.S. at 334) (alterations in original). What
process the Constitution requires is dictated by the familiar
Mathews three-factor test. That approach requires that we
9
See also Pleva v. Norquist,
195 F.3d 905, 915 (7th Cir. 1999)
(“When the government removes someone from a position ‘for
stated reasons likely to make him all but unemployable in the
future, by marking him as one who lost his job because of
dishonesty or other job-related moral turpitude,’ the conse-
quences are akin to depriving him of the ability to follow his
chosen trade, and due process must be provided.”) (quoting
Lawson v. Sheriff of Tippecanoe County, Indiana,
725 F.2d 1136,
1138 (7th Cir. 1984)).
Nos. 03-3071 & 03-3191 19
balance: “ ’First, the private interest that will be affected by
the official action; second, the risk of an erroneous depriva-
tion of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest.’ ” Gilbert
v. Homar,
520 U.S. 924, 931-32 (1997) (quoting
Mathews, 424
U.S. at 335); see also
Hudson, 374 F.3d at 559-60. As we have
stated in the analogous context of a public employee’s
termination:
As long as substantial post-deprivation process is
available, the pre-deprivation process required when
terminating an employee often need not be elaborate or
extensive. Rather, in many situations, it “should be an
initial check against mistaken decisions—essentially,
a determination of whether there are reasonable
grounds to believe that the charges against the em-
ployee are true and support the proposed action[;] . . .
[the] pre-termination process need only include oral
or written notice of the charges, an explanation of
the employer’s evidence, and an opportunity for the
employee to tell his side of the story.”
Hudson, 374 F.3d at 560 (quoting
Gilbert, 520 U.S. at 929)
(internal citations and quotations omitted in original).
We therefore turn to an evaluation of the pre-depriva-
tion process afforded to child care workers by the cred-
ible evidence standard of proof for indicating and disclosing
reports of child abuse or neglect and the limited Administra-
tor’s conference available before DCFS finalizes a decision
to indicate a report.
20 Nos. 03-3071 & 03-3191
a. credible evidence standard
As discussed earlier, DCFS rules define credible evi-
dence of child abuse or neglect to mean that “the avail-
able facts, when viewed in light of surrounding circum-
stances, would cause a reasonable person to believe that
a child was abused or neglected.” 89 Ill. Admin. Code
§ 336.20. The district court found that DCFS investigators
historically read this standard to permit them to indicate
a finding on no more than “any” credible evidence.
Many investigators therefore did not consider evidence that
the child abuse or neglect did not occur. Dupuy, 141 F. Supp.
2d at 1135. Consistent with the district court’s order,
DCFS has drafted a new rule that, among other things,
expressly instructs the factfinder to consider all available
evidence that an incident of abuse or neglect did or did not
occur and admonishes that “[i]t is of critical importance that
all evidence suggesting that an incident of abuse or neglect
did not occur be given the same consideration as evidence
suggesting that an incident of abuse or neglect did occur.”
R.323, Draft Procedure § 300.60l (emphasis in original).
The plaintiffs nevertheless submit that, even though DCFS
investigators now must consider exculpatory evidence, the
standard of proof for indicating reports is not sufficiently
high. In essence, they submit that the “credible evidence”
standard will continue to enable DCFS to indicate a finding
based on a scintilla of inculpatory evidence, even in the face
of equal or more powerful exculpatory evidence. In their
view, we ought to require either a clear and convincing
standard or, at minimum, a preponderance of the evidence
standard. The plaintiffs contend that, despite DCFS’ efforts,
the standard has not changed substantively as a practical
matter because DCFS investigators have long under-
stood the credible evidence standard to impose no ob-
Nos. 03-3071 & 03-3191 21
ligation upon them to consider or weigh exculpatory
evidence. Therefore, investigators will continue to indi-
cate individuals if there is any evidence to support an abuse
or neglect allegation, even in the face of significant evidence
to the contrary.
DCFS maintains that the district court did not abuse its
discretion by concluding that the more rigorous cred-
ible evidence standard together with the pre-depriva-
tion Administrator’s conference will ensure the accuracy
of indicated reports. Moreover, DCFS notes that indicated
persons also can seek to expunge an indicated report
through a full evidentiary hearing after the indication is
placed on the register.
Both sides present strong cases on the need for an accurate
evaluation of the facts even at this initial stage. The child
care workers want to avoid being stigmatized by a false
indicated report that will preclude them from working in
the child care field until it is expunged. See, e.g.,
Doyle, 305
F.3d at 619 (noting that, based on “thin evidence, and prior
to an adversarial hearing that may develop a more complete
and balanced record, DCFS discloses this finding to current
and prospective employers of the indicated individual”). On
the other side of the balance, “[a]ssuring the safety and well-
being of a child exposed to abuse or neglect often requires
DCFS to act promptly on the basis of meager evidence.”
Id.
Given the importance of the interests of both parties, the
decisive factor in this case is the high risk of erroneous
deprivation, see
Valmonte, 18 F.3d at 1003; specifically,
the unacceptable 74.6 percent reversal rate for challenged
indicated reports under DCFS’ original method of evaluat-
ing these claims. The standard of proof that applies no
doubt will influence directly the risk of erroneous judg-
ments: a higher standard reduces the risk of indicating an
22 Nos. 03-3071 & 03-3191
innocent person but also increases the risk of not indicat-
ing a perpetrator of child abuse or neglect. See In re Winship,
397 U.S. 358, 370-71 (1970) (Harlan, J., concurring). More-
over, a higher standard of proof often will impede quick
action by the State, although this concern is somewhat
balanced by the State’s shared interest in avoiding mistakes
and identifying the true perpetrator. See Dupuy,
141 F. Supp.
2d at 1139; Lyon v. Dep’t of Children & Family Servs.,
807
N.E.2d 423, 436 (Ill. 2004).
We believe that the more rigorous interpretation of the
“credible evidence” standard required by the district court’s
order is an appropriate measure at the pre-indication stage.
As understood by the district court, this standard requires
that the investigator not simply identify some evidence that
supports an indicated finding. It also requires that the
investigator take into account all of the available evidence
that tends to show that abuse or neglect did or did not occur.
Only then may the investigator decide whether that totality
of evidence would cause a reasonable individual to believe
that a child was abused or neglected.
The plaintiffs nevertheless submit that the requirement
that the investigator identify and weigh all the available
evidence on both sides of the issue likely will be ignored
as a practical matter. They point out that the same for-
mulation was employed prior to this litigation and, at
that time, widely was understood to describe the inves-
tigator’s obligation as simply to identify any evidence
of abuse or neglect—without the concomitant obligation to
identify and weigh evidence pointing against such a
finding.
Our colleague in the district court indicated a certain
unease with the continuation of a term of art that for so long
was identified with a one-sided view of the evidence that no
party defends today. Other than bureaucratic intransigence,
Nos. 03-3071 & 03-3191 23
it is difficult to identify any reason for DCFS’ determination
not to abandon this term. Several considerations convince
us, however, that, at this preliminary stage of the litigation,
the district court did not abuse its discretion in deciding not
to require the wholesale abandonment of the term. First of
all, as the district court noted, the term now is employed in
a regulatory context that contains clear instructions on prop-
er investigative techniques and that explicitly requires
that the investigating officer consider all evidence on
both sides of the issue.10 We also believe that, absent
more concrete evidence that the standard would be mis-
10
The district court found:
New draft DCFS procedures provide explicit, comprehensive
instructions for assessing the reliability of information
uncovered in the investigation, including the significance
of professional training; independent verification of non-
professional sources of information; sensitivity to the interest
a witness might have, and the consistency and plausibility of
the witness’s statement; consideration of the witness’s
opportunity to observe; and recognition of the
age, developmental stage, and susceptibility to influence any
child witness. (Draft Procedures, § 300.60K, Exhibit 3
to Plaintiff’s Statement.) Most important, the new procedures
state clearly that a child abuse or neglect investigation
requires consideration of “[a]ll evidence that indicates that
an incident of abuse or neglect did or did not occur.” (Id.
§ 300.60L, emphasis in original.) The procedures under-
score still further the requirement that exculpatory evi-
dence be considered, directing the investigator to create
a matrix having two columns, one for recording evi-
dence suggesting that abuse or neglect did not occur and
a second for recording evidence in support of a finding
of abuse or neglect.
R.443 at 6.
24 Nos. 03-3071 & 03-3191
applied in the future, the district court was correct in
determining that it was appropriate for the federal dis-
trict court to refrain from interfering with the State’s
administration of a state program any more than was
necessary to remedy the constitutional violation. Rufo v.
Inmates of the Suffolk County Jail, 502 U.S. 367, 392 (1992).
Moreover, although the fears of the plaintiffs at this
point are speculative, if retention of the “credible evi-
dence” standard later becomes problematic in practice,
the plaintiffs are not without recourse. At that point,
faced with direct evidence of an unconstitutional course
of conduct, the district court would be on solid ground
in requiring abolition of the term.
In evaluating this standard for the pre-indication stage
of the investigation, the articulation of this standard of proof
by DCFS certainly ought not be assessed in isolation. Rather,
it is important to take into consideration that, before a
person can be indicated under this standard of proof, the
investigator’s determination to that effect is subject to
review by an examiner who did not take part in the investi-
gation. This review must include a hearing at which the
accused individual will have a right to present his side of
the story. When viewed in this procedural context, we
cannot say that the district court abused its discretion when
it permitted DCFS to retain the term “credible evidence” in
its articulation of the governing standard of proof.11
11
At first glance, it may appear that our determination as to
the “credible evidence” standard sets our circuit’s law at odds
with the standard articulated by the Court of Appeals for the
Second Circuit in Valmonte v. Bane,
18 F.3d 992 (2d Cir. 1994). Our
study of that case leads us to the conclusion that no such conflict
is present. In that case, our colleagues on that bench simply did
(continued...)
Nos. 03-3071 & 03-3191 25
b. administrator’s conference
In approving the district court’s decision on the appropri-
ate standard of proof, we relied in part on the fact that an
accused individual would be afforded an opportunity to be
heard prior to the decision to indicate that individual.
Because our analysis of the burden of proof therefore relies
in part on this hearing and because the plaintiffs have
questioned, as an independent issue, the adequacy of that
hearing, we now turn to an examination of that step in the
process.
The district court’s injunction requires DCFS to pro-
vide child care workers (upon request) an opportunity to
respond to the allegations before DCFS indicates and
discloses a report. The hallmark of due process is an
opportunity to be heard at a meaningful time and in a
meaningful manner. Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 542 (1985). “[T]he formality and procedural
requisites for the [pre-termination] hearing can vary,
depending upon the importance of the interests involved
and the nature of the subsequent proceedings. . . . In
11
(...continued)
not have before them the context present in our case. The initial
investigation took place under a “some credible evidence”
standard that did not require the investigator to consider
evidence on both sides of the question. The investigator’s
decision was not subject to pre-indication review by an officer
who had not participated in the investigation, nor was the
accused individual afforded an opportunity to state his side of
the story prior to indication. Post-indication review, moreover,
was, at least at the early stages, subject to a deferential standard.
Given this overall lack of procedural protection, the Second
Circuit required that the initial determination be by a “fair
preponderance of the evidence.”
Id. at 1003-05.
26 Nos. 03-3071 & 03-3191
general, something less than a full evidentiary hearing
is sufficient prior to adverse administrative action.”
Id.
at 545 (internal citations and quotations omitted).
The plaintiffs contend that the Administrator’s conference
does not provide the minimal process due because it is not
an evidentiary hearing that affords, for example, the right to
cross-examine witnesses. DCFS maintains, however, that the
State’s interest in protecting children and the need for
prompt action outweigh the interest of child care workers in
maintaining employment in the time between a report’s
indication and full administrative review. DCFS further
submits that the conference fulfills the limited purpose of a
pre-deprivation hearing because it provides oral or written
notice of the charges, an explanation of the evidence on
which the proposed action is based and an opportunity for
the child care worker to present his side of the story.
Moreover, DCFS notes that its amended regulations provide
for post-deprivation administrative review (at most within
ninety days after a timely request for appeal), at which it
must prove its case by a preponderance of the evidence. See
89 Ill. Admin. Code § 336.120(b)(15).
The plaintiffs respond that, in the usual case, such as the
one presented by Loudermill, informal pre-deprivation
process is sufficient because there is a prompt post-depriva-
tion evidentiary hearing and the State can compensate fully
the wrongfully discharged employee through reinstatement
and back pay. In their view, the situation presented here is
substantially different. DCFS, they point out, does not
employ the child care workers, and therefore it cannot order
reinstatement or back pay to compensate a wrongly indi-
cated child care worker. DCFS, in reply, submits that the
adequacy of a pre-determination hearing does not depend
Nos. 03-3071 & 03-3191 27
on whether the employer is the Government. It relies on
FDIC v. Mallen,
486 U.S. 230 (1988), in which the Supreme
Court rejected a bank employee’s due process challenge
against the FDIC, even though the FDIC was not his em-
ployer and could not provide him with back pay. Appellee’s
Br. at 40.
In assessing the need for a full evidentiary hearing at
the pre-deprivation stage, we employ once again the
familiar Mathews three-factor balancing test. The child
care workers have an interest in not being stigmatized
and in not losing their job due to a mistaken interim deci-
sion. On the other hand, DCFS needs to respond quickly to
allegations of child abuse or neglect.
In order to assess these submissions, we think it best to
examine the entire process encompassed within the Admin-
istrator’s conference. At the outset, it is important to note
that the accused individual is provided with adequate
notice of the opportunity for such a hearing and with
sufficient information about the nature of the allegation to
afford an adequate opportunity to tell his side of the story.
The accused individual is provided with the name of the
child involved in the alleged incident, the place of the
alleged incident, an explanation of the central register and
the length of time the incident will remain on the central
register. Furthermore, the accused individual is informed of
the opportunity for a post-indication hearing. Before the
conference, the accused worker also is provided with an
explanation of the basis for the investigator’s belief that the
allegation has merit. The accused is permitted to retain
counsel to evaluate the evidence and to represent the
accused at both the pre- and post-indication hearings.
We think that it is also important to stress that the
decision-maker at the Administrator’s conference is a person
28 Nos. 03-3071 & 03-3191
who has had no part in the investigative process. Therefore,
the accused, while not having the opportunity to call other
witnesses and to engage in cross-examination, does have the
opportunity to tell his side of the story and to present
evidence that he deems relevant before a new decision-
maker.
The plaintiffs correctly note that the accused individual
before an Administrator’s conference is not in exactly the
same position as the municipal employee faced with
discharge in Loudermill. In the usual Loudermill situation,
an erroneous decision by the employer is subject to later
remedies that can compensate for the loss of employment
during the period between the preliminary hearing and
the later plenary examination of the case. Because DCFS
does not employ the accused worker in the situation before
us, no such remedy is easily available. Nevertheless,
we believe that the procedure contemplated by the dis-
trict court’s order, especially when combined with the other
procedural safeguards, provides the accused with
an adequate opportunity to avoid an unjust determina-
tion. At the Administrator’s conference stage, the ac-
cused has adequate notice of the allegation and an opportu-
nity to place his version of the situation before an individual
who has played no adversarial role in the matter. Further-
more, any adverse determination is subject to de novo
review under a heightened standard of proof within a very
short period of time. Given the countervailing concerns of
DCFS to identify individuals who pose a continuing threat
to children, we believe that the structure approved by the
district court’s order is adequate to ensure the accused
individual due process.
3. Post-deprivation Process
Nos. 03-3071 & 03-3191 29
We now turn to procedures for the period after a report is
indicated and placed on the central register. The dis-
trict court ordered DCFS to adopt a thirty-five day expe-
dited appeals process for child care workers. The Su-
preme Court has explained:
In determining how long a delay is justified in affording
a post-suspension hearing and decision, it is appropri-
ate to examine the importance of the private interest
and the harm to this interest occasioned by delay; the
justification offered by the Government for delay and its
relation to the underlying governmental interest; and
the likelihood that the interim decision may have been
mistaken.
Mallen, 486 U.S. at 242.
Under the Supreme Court’s three-factor balancing test,
child care workers have an interest in quickly returning
to work, and DCFS has an interest in avoiding hasty,
inaccurate decisions. The district court found that DCFS’
stunning 74.6 percent reversal rate after appeal was due not
only to the low evidentiary standard but also to “inexcus-
ably long delays, which allow memories to fade.”
Dupuy,
141 F. Supp. 2d at 1136; see also
Doyle, 305 F.3d at 618-20
(concluding that the credible evidence standard, operating
in conjunction with a belated post-deprivation process,
failed to afford child care employees adequate process).
Notably, before the district court, DCFS proposed a forty-
five day administrative appeals process and the plaintiffs
proposed twenty-one days. R.363-1. The district court
carefully evaluated the tasks that each side would have to
accomplish in preparing for the hearing and determined
that a thirty-five day period was the appropriate interim.
We can find no basis in this record to alter that conclusion.
30 Nos. 03-3071 & 03-3191
C. Persons Entitled to the Administrator’s Conference
We next turn to the district court’s holding that the
Administrator’s conference was not constitutionally re-
quired for license applicants, students and others pursuing
a career in child care who are indicated by DCFS because
“[s]uch individuals have expectations, but not existing
interests, in working as child care professionals.” R.443 at 4.
1. Liberty Interest
It is well-settled that, standing alone, damage to one’s
reputation does not implicate a cognizable liberty interest.
Paul v. Davis,
424 U.S. 693, 711-12 (1976). In the employment
context, in which most of these cases arise, we have set forth
the following elements of the cause of action. A claim that
a government employer has infringed an employee’s liberty
to pursue his occupation requires: (1) he was stigmatized by
the employer’s actions; (2) the stigmatizing information was
publicly disclosed; and (3) he suffered a tangible loss of
other employment opportunities as a result of the public
disclosure. McMath v. City of Gary, Indiana,
976 F.2d 1026,
1031 (7th Cir. 1992). Although our case is not an employ-
ment case, this approach nevertheless is helpful.
The first element is not in dispute: Labeling a person as a
child abuser certainly calls into question his “good name,
reputation, honor, or integrity.” Bd. of Regents of State
Colleges v. Roth,
408 U.S. 564, 573 (1972) (quoting Wisconsin
v. Constantineau,
400 U.S. 433, 437 (1971)); see also
Valmonte,
18 F.3d at 1000.
With regard to the second element, in Koch v. Stanard,
962 F.2d 605, 607 (7th Cir. 1992), we held that police
force applicants were not deprived of a liberty interest
because the defendants had not published the results of the
Nos. 03-3071 & 03-3191 31
applicants’ psychological tests. See also Medley v. City
of Milwaukee,
969 F.2d 312, 318 (7th Cir. 1992) (holding
that landlords had no liberty interest in continued par-
ticipation in State rent assistance program, in part because
they did not allege that the defendants had disclosed
the reason for the disbarment to anyone but the landlords or
to other public housing agencies).
In the present case, DCFS contends that an indicated
report does not violate any liberty interest of a career
entrant because, at the time DCFS decides to indicate a
report, it does not disclose that report to any potential future
employer. Appellee’s Br. at 45. The plaintiffs, in contrast,
submit that the necessary disclosure does occur because, by
operation of statute, DCFS discloses indicated reports to
employers whenever an applicant looks for work in the
child care field. Appellant’s Reply Br. at 24. In Valmonte, the
Second Circuit held that being listed on the state child abuse
register stigmatized the plaintiff who said she would be
applying for a child care position because her status would
be disclosed to her potential employers when they consulted
the register, as required by state law.
Valmonte, 18 F.3d at
1000. Persons pursuing a career in child care in Illinois face
a similar situation because as a condition of employment, “all
current and prospective employees of a child care facility
who have any possible contact with children in the course of
their duties,” must authorize DCFS to conduct
a background check to determine if the person has an
indicated report against him. 225 Ill. Comp. Stat. 10/4.3.
Because a prospective employee’s status is disseminated to
his potential employer, by operation of state law, during
the hiring process, we believe that the plaintiffs have
met the publication requirement.
With respect to the third element, whether there has
32 Nos. 03-3071 & 03-3191
been a tangible loss of other government opportunities,
DCFS contends that a defamatory statement that affects only
future employment and is not incident to the loss of current
employment does not implicate a protected liberty interest.
Appellee’s Br. at 44. Accordingly, DCFS continues, a person
who does not occupy a current position in the child care
field does not warrant the opportunity to be heard before
DCFS indicates the report.
Id.
In our attempt to adhere faithfully to the holdings of
Paul and Siegert v. Gilley,
500 U.S. 226 (1991), we have said
that
mere defamation by the government does not deprive
a person of “liberty” protected by the Fourteenth
Amendment, even when it causes “serious impairment
of [one’s] future employment,” Siegert v. Gilley, 500 U.S.
226, 234 (1991); see
Paul, 424 U.S. at 697. Rather it is the
“alteration of legal status,” that, “combined with the
injury resulting from the defamation, justif[ies] the
invocation of procedural safeguards.” Paul, 424 U.S.
at 708-09, 710.
Hojnacki v. Klein-Acosta,
285 F.3d 544, 548 (7th Cir. 2002)
(parallel citations omitted); see also
McMath, 976 F.2d at 1032
(holding that plaintiffs had stated a claim for a liberty
interest because “there is a nexus between the firing—the
loss of current employment—and the publication sufficient
to implicate a liberty interest cognizable under Siegert and
prior case law”) (emphasis in original);
Koch, 962 F.2d at 607
(Flaum, J., concurring) (“Siegert is consistent with prior case
law providing that a public official’s publication of a
defamatory statement may infringe an individual’s liberty
interest if the statement (1) stigmatizes the individual in a
manner that substantially forecloses opportunities for future
Nos. 03-3071 & 03-3191 33
government employment, and (2) is made incident to an
adverse current employment decision.”).
As our colleagues in the Second Circuit recognized in
Valmonte, the case before us presents a situation that
is significantly different from the usual situation in
which we are asked to determine whether the plaintiff
can be said to suffer the deprivation of a liberty interest
as opposed to a simple state tort injury for defamation. As in
the case before us, Valmonte dealt directly with whether a
person who stated that she would be applying for a child
care position, but had not been terminated from government
employment, could establish the sort of tangible loss
required to be deprived of a constitutional interest.
Valmonte, 18 F.3d at 1000. The judges of the Second Circuit,
acknowledging explicitly the restrictions imposed by Siegert
and Paul, determined that the case involved unique circum-
stances: A child care employer was required by statute to
check the state child abuse register before hiring a new
employee; the employer had to justify in writing its decision
to hire a person listed on the register; and the employer had
to inform an applicant if he was not hired because of being
listed on the register.
Id. at 1001. The court concluded that
“the fact that the defamation occurs precisely in conjunction
with an individual’s attempt to attain employment within
the child care field, and is coupled with a statutory impedi-
ment mandating that employers justify hiring the indi-
vidual, is enough to compel a finding that there is a liberty
interest implicated.”
Id.
Today, we are confronted with circumstances very similar
to those before the Second Circuit in Valmonte. Illinois law
requires prospective employers to consult the central
register before hiring an individual and to notify DCFS in
writing of its decision to hire a person who has been
34 Nos. 03-3071 & 03-3191
indicated as a perpetrator of child abuse or neglect. 89 Ill.
Admin. Code § 385.50(c). In short, placement of an individ-
ual’s name on the central register does more than create a
reputational injury. It places, by operation of law, a signifi-
cant, indeed almost insuperable, impediment on obtaining
a position in the entire field of child care. Along with our
colleagues in the Second Circuit, we believe that the imposi-
tion of this added legal impediment constitutes a very
tangible loss of employment opportunities due to the
disclosure of the indicated report.
In Larry v. Lawler,
605 F.2d 954, 958 (7th Cir. 1978), a
case decided before Siegert, our court held that the plain-
tiff who had been rated ineligible for federal employ-
ment for as long as three years, on the ground of alleged
alcoholism and abusive behavior, had a liberty interest. The
Civil Service Commission’s findings were available to
any federal agency for various purposes, such that the
plaintiff effectively was deprived of the opportunity to work
in any capacity for the federal government. We held that the
plaintiff had a protected liberty interest because “in addition
to the infliction of a stigma, [he] suffered a tangible loss in
being foreclosed from any consideration for government
employment for a substantial time.”
Id.
2. Pre-deprivation Process
DCFS submits that career entrants do not have a strong
interest in an opportunity to be heard before DCFS indicates
a report. In its view, because DCFS notifies a licensed child
care facility only of indicated reports that involve current or
prospective employees, the entrant has no need for an
immediate review of the decision to place his name on the
central register. We evaluate what process is due to the
Nos. 03-3071 & 03-3191 35
career entrants through balancing the three Mathews factors:
the private interest; the risk of an erroneous deprivation of
that interest and the probable value of additional procedural
safeguards; and the State’s interests.
Gilbert, 520 U.S. at 931-
32.
We cannot accept DCFS’ characterization of the need of
career entrants. As we have noted already, dissemination to
prospective employers is the conduct that triggers the career
entrants’ liberty interest. And, as we also have noted
previously, the plaintiffs’ ability to avoid erroneous indi-
cated reports and to obtain employment in their chosen field
is a substantial interest. See, e.g.,
Doyle, 305 F.3d at 619
(noting that, based on “thin evidence, and prior to an
adversarial hearing that may develop a more complete and
balanced record, DCFS discloses this finding to current and
prospective employers of the indicated individual”). For the
entrant pursuing immediate job opportunities, for the
student enrolled in an educational program, especially one
involving placement in internships or involving other
similar contact with children, the need for immediate
resolution of the matter might well be of extreme impor-
tance.
DCFS maintains that providing the Administrator’s
conference to all indicated persons would place a sub-
stantial burden on its limited resources. Given the extremely
high error rate experienced by DCFS in its initial decisions
to subject an individual to indication, we cannot accept the
conclusory statement that the process of correcting such
errors before they ruin a career is overly burdensome. DCFS
would have to make a significantly more specific showing
that affording a person a limited opportunity to respond to
the allegations against him would impose significant
administrative burdens, excessive costs or an intolerable
36 Nos. 03-3071 & 03-3191
delay in responding to reports of child abuse. The require-
ments of the Administrator’s conference are not elaborate.
Furthermore, DCFS shares the accused person’s interest in
avoiding erroneous decisions: If the wrong person is
indicated, then the actual perpetrator remains unidentified
and, if DCFS mistakenly indicates a report, it will waste re-
sources defending the report in a full evidentiary hearing on
administrative appeal.
With regard to the risk of erroneous deprivation and the
value of added procedures, the district court’s conclu-
sion that a pre-deprivation conference effectively will
reduce the incidence of erroneous indicated reports
applies with equal force to the situation of career entrants.
For these reasons, we believe that providing career entrants
the Administrator’s conference best accommodates these
competing interests, and we direct the district court to
impose an appropriate remedial order.12
D. Foster Parents
An indicated report against a foster parent can have
12
We leave it to the district court, in fashioning a remedy, to
delineate with more precision exactly who ought to qualify as
a “career entrant.” Certainly, persons actively engaged in the
job placement process and persons enrolled in academic pro-
grams aimed specifically at a profession dealing with an aspect
of child care suffer the sort of harm described in the text. On the
other hand, those with more remote aspirations will not be able
to assert that the impediment imposed by the State through an
indicated report is as immediate. With the assistance of the
parties, the district court will be able to fashion an order that
protects those against whom the State’s action will have immedi-
ate and significant repercussions.
Nos. 03-3071 & 03-3191 37
significant and immediate ramifications. In most cases,
it causes the removal of the child. Dupuy, 141 F. Supp. 2d at
1130. A pending or indicated report also is a ground for
DCFS to deny an application for a foster home license or
to stop the placement of additional children in a foster
home.
Id. DCFS pays foster care benefits on behalf of each
child placed in a foster home who is a DCFS ward.
Id. at
1129. Although the benefits are intended to support the
child, foster parents are allowed to use the benefits to
pay common household expenses, such as mortgage
payments and utilities.
Id. Foster parents commonly come to
depend on those benefits for household expenses, and thus,
the removal of a foster child or a hold on the placement of
additional children in a home can have a significant finan-
cial impact.
Id. at 1129-30. When DCFS places a hold on
additional placements of children to a foster home, it sends
written notice; however, the hold is not appealable and is
not lifted until the conditions that led to the hold no longer
exist.
The plaintiffs rightfully concede that foster parents do not
have a constitutionally protected interest in maintaining a
relationship with a specific foster child. Appellant’s Reply
Br. at 24; see Procopio v. Johnson,
994 F.2d 325, 330 (7th Cir.
1993) (Illinois law confers no liberty interest on foster
parents to a relationship with a foster child or the continued
placement of certain children in their home, because the
foster family relationship is subject to the State’s determina-
tion that it should continue); see also Smith v. Org. of Foster
Families for Equal. & Reform,
431 U.S. 816, 845-46 (1977)
(foster parents’ interest in the family relationship “derives
from a knowingly assumed contractual relation with the
State,” and therefore, “it is appropriate to ascertain from
state law the expectations and entitlements of the parties”).
In this appeal, however, the plaintiffs claim a protected
38 Nos. 03-3071 & 03-3191
liberty interest in pursuing a career in foster care and a
property interest in the foster care benefits that DCFS pays
foster homes on behalf of each child under their care.
1. Liberty Interest
The plaintiffs claim that foster care holds effectively
deprive them of their right to be employed as foster parents.
As we have noted earlier in this opinion, to establish a
protected liberty interest, the plaintiffs must show a loss of
reputation plus the deprivation of some other legal status or
right. Hojnacki v. Klein-Acosta,
285 F.3d 544, 548 (7th Cir.
2002) (only the “ ’alteration of legal status,’ ” such as loss of
a right previously held, when combined with the damage to
reputation, requires due process) (quoting
Paul, 424 U.S. at
708-09).
a. stigma
As we said previously in this opinion, labeling someone
as a child abuser calls into question that person’s “good
name, reputation, honor, or integrity.” Roth, 408 U.S. at
573; see also
Valmonte, 18 F.3d at 1000. However, only
defamatory statements that are disclosed or made public
can stigmatize a person. Head v. Chicago Sch. Reform Bd. of
Trs.,
225 F.3d 794, 801 (7th Cir. 2000). Illinois law generally
requires that the information on the central register remain
confidential. 325 Ill. Comp. Stat. 5/11. Although limited
exceptions are enumerated in the statute, the plaintiffs have
not alleged that those exceptions apply to foster parents. Cf.
Doyle, 305 F.3d at 617 (child care workers had a protected
liberty interest because prospective employers check the
central register to determine if the employee has been
indicated for abuse or neglect). But see Bohn v. County of
Nos. 03-3071 & 03-3191 39
Dakota,
772 F.2d 1433, 1436 n.4 (8th Cir. 1985) (determining
that biological parents identified as child abusers had a
liberty interest because, by defaming them, investigating the
quality of their family life and maintaining data on them,
the State exposed them to public opprobrium and may have
damaged their standing in the community); Yuan v. Rivera,
No. 96 Civ. 6628,
1998 WL 63404, at *5 (S.D.N.Y. Feb. 17,
1998) (stating that “[t]he severe reputational harm of being
labeled a child abuser coupled with the potential for
dissemination may be all that is needed to establish stigma”)
(citing
Bohn, 772 F.2d at 1436 n.4; Lee TT. v. Dowling,
664
N.E.2d 1243 (N.Y. 1996)).
40 Nos. 03-3071 & 03-3191
b. alteration in legal status
The plaintiffs contend that foster parenting is a career, the
pursuit of which is a liberty interest. They reason that the
State requires foster parents to have sufficient finan-
cial resources and permits them to hold outside employ-
ment only if it does not interfere with the proper care of
the foster child. See Appellant’s Br. at 36-37; see also
Doyle, 305 F.3d at 617 (“[W]hen a state actor casts doubt
on an individual’s ‘good name, reputation, honor or integ-
rity’ in such a manner that it becomes ‘virtually impossible
for the [individual] to find new employment in his chosen
field,’ the government has infringed upon that individual’s
liberty interest to pursue the occupation of his choice.”)
(quoting Townsend v. Vallas,
256 F.3d 661, 670 (7th Cir.
2001)).
DCFS submits that foster care is not a career, but a
contractual role created by the State for the purpose of
assisting the unfortunate victims of child abuse or ne-
glect. Appellee’s Br. at 50. Moreover, DCFS continues, the
payments to foster parents do not amount to “income” but
merely reimburse the parents for expenses incurred in
caring for the child.
Id. When a child is removed, the
payments stop but so do the expenses incurred in caring for
that child.
Id. But see Lee
TT., 664 N.E.2d at 1250 (holding
that foster parents satisfied “plus” requirement because as
a result of their listing on the state child abuse registry, the
foster children were removed, they lost benefits available to
them as foster parents, and they lost statutory preference for
adoption).
On the record before us, we believe that DCFS’ character-
ization of the situation is the accurate one. In analyzing
a foster family’s liberty interest, the Supreme Court has
recognized that “the typical foster-care contract gives the
Nos. 03-3071 & 03-3191 41
agency the right to recall the child ‘upon request,’ and . . .
the discretionary authority vested in the agency ‘is on its
face incompatible with plaintiffs’ claim of legal entitlement.’”
Smith, 431 U.S. at 860 (Stewart, J., concurring) (quoting Org.
of Foster Families v. Dumpson,
418 F. Supp. 277, 281
(D.C.N.Y. 1976)). We believe that, although foster parents
play an honorable and, indeed, noble, role in our society,
that role cannot be said to constitute, at least for purposes of
due process analysis, a “career.”
2. Property Interest
The plaintiffs also claim that foster parents have a prop-
erty interest in the benefits that DCFS makes on behalf of
children placed in their care. DCFS responds that foster
parents have no legitimate entitlement to the foster care
benefits paid by DCFS on behalf of foster children in their
care. “The hallmark of property, the Court has emphasized,
is an individual entitlement grounded in state law, which
cannot be removed except ‘for cause.’ ” Logan v. Zimmerman
Brush Co.,
455 U.S. 422, 430 (1982). “Once that characteristic
is found, the types of interests protected as ‘property’ are
varied and, as often as not, intangible, relating to the whole
domain of social and economic fact.”
Id. (internal quotations
and citations omitted). DCFS argues that even though foster
parents often come to depend on foster care benefits for
common living expenses, they have no legitimate entitle-
ment to the payments under state law. Appellee’s Br. at 49.
In Youakim v. McDonald,
71 F.3d 1274 (7th Cir. 1995), we
set forth the general principle that
before an individual will be deemed to have a prop-
erty interest in a benefit, he must show “more than an
abstract need or desire for it. . . . He must, instead,
42 Nos. 03-3071 & 03-3191
[establish] a legitimate claim of entitlement to it.” (Empha-
sis added). Such a legitimate claim of entitlement,
moreover, is “defined by existing rules or understand-
ings that stem from an independent source such as state
law.”
Id. at 1288 (quoting
Roth, 408 U.S. at 577) (alterations
in original). In Youakim, we held that DCFS violated the due
process rights of foster children by discontinuing
their benefits because they lived with relatives that could no
longer be licensed after legislative reform unless DCFS
provided the home an opportunity to become licensed.
Id.
at 1292. Contrary to the plaintiffs’ assertion, however, we
have never held that foster parents have a property interest
in the foster care benefits paid on behalf of the children
under their care. We agree that, under the present circum-
stances, the property interests asserted by the plaintiffs are
not of the kind protected by the Fourteenth Amendment.
Conclusion
Accordingly, we affirm in part and reverse and remand in
part the judgment of the district court. Each party shall bear
its own costs in this court.
AFFIRMED in part,
REVERSED and REMANDED in part
Nos. 03-3071 & 03-3191 43
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-3-05
