Charles P. Golbert
Charles P. Golbert

A federal judge dismissed a suit alleging the state’s child welfare agency kept children confined in psychiatric hospitals for too long a period.

U.S. District Judge John Z. Lee ruled claims against the Illinois Department of Children and Family Services weren’t specific enough, writing in a 10-page opinion they treated named defendants of the agency as an “undifferentiated mass” without articulating how each was particularly culpable.

The suit, brought by Cook County Public Guardian Charles P. Golbert, alleged DCFS has held children and young adults in hospitals beyond medical necessity for decades.

The complaint, filed in December 2018, argued the practice is costly to taxpayers, unconstitutional and inhumane.

Lee noted the allegations are “troubling” and dismissed two of the four counts without prejudice. But in the decision Thursday he wrote more details are needed before the case can go forward.

“Plaintiffs’ basic theory is that each [d]efendant was aware of the fact that children in the class were being held BMN [beyond medical necessity], each had the ability to ensure that the children were not held BMN, but each failed to exercise that ability, in violation of [p]laintiffs’ constitutional rights,” he wrote.

“But [p[laintiffs do not articulate in any fashion what those abilities were and how each [d]efendant failed in their duty to perform them. There is no meaningful distinction presented, for example, between DFCS directors and those DCFS employees who merely ‘attended weekly meetings to monitor every child held BMN at various [points] during the class period.’”

The agency is responsible for placing abused and neglected children in safe and beneficial settings. Occasionally, some of them develop mental health problems requiring hospitalization.

Those hospital stays are intended to stabilize them going forward and typically shouldn’t last longer than two weeks, the plaintiffs claimed. However, the agency fails to place a significant number of children once they’re stable, and, as a result, they miss school, don’t get to see family and are unnecessarily exposed to danger from other patients, the guardian’s office argued.

An audit found that more than 800 individuals age 20 or younger were needlessly left in hospitals a total of more than 27,000 days between 2015 and 2017.

The confinement issue is one the agency has known about since at least 1988, the plaintiffs argued, when it was brought up in B.H. v. Johnson. It eventually became part of a federal consent decree requiring those in DCFS custody not be hospitalized more than is clinically necessary.

However, the problem has only gotten worse since then, Golbert complained, and thus that part of the decree is “not worth the paper upon which it was written,” his filing states.

Golbert’s suit contained four counts, two based on the 14th Amendment, stating the agency was deliberately indifferent to the plaintiffs’ harm and that the agency failed to provide medical care. The other two counts cited anti-discrimination provisions of the federal Rehabilitation Act and the Americans with Disabilities Act.

Addressing the first two counts, Lee wrote, “the plaintiffs failed to identify the specific involvement of each defendant. The suit named the agency itself as a defendant, but also specified more than [20] individuals who oversaw or helped oversee DCFS, including the estates of individuals who have died. It amounts to “an extreme degree of group pleading.

“Stated differently, [p[laintiffs essentially identify a problem (albeit, a troubling one) — that children were and are being held BMN — and then point to a large group of [d]efendants and simply suggest that each could have and should have done something about it,” he wrote.

“Without more detail about the specific steps that each [d]efendant, or group of [d]efendants, should have but did not take, the [c]ourt cannot properly assess [p]laintiffs’ [Section] 1983 claims, and the individual [d]efendants lack fair notice as to why they were sued.”

Lee wrote it would be understandable if the guardian didn’t have enough information yet more specific allegations about each defendant is needed.

“But, if this is the case, [p]laintiff should limit the named [d]efendants to those against whom [p[laintiff can offer more specific allegations and seek to join others during the course of discovery, to the extent appropriate,” he wrote.

Those parts of the decision were written in response to the first two counts, but Lee concluded by writing that “for the same reasons outlined above,” the agency’s motion to dismiss the ADA and Rehabilitation Act claims would also be granted, though, without prejudice.

Julie Marie Goodwin, of Loevy & Loevy, represented plaintiffs in the case. She could not be reached.

Barbara Lynn Greenspan, of the attorney general's office, represented DCFS.

A spokeswoman for the attorney general deferred comment to the agency. A spokesperson for the agency could not be reached this morning.

The case is Charles Golbert, et al., v. Beverly Walker, et al.