Who to Contact if children falsely removed by DCFS
The Family Defense Center
70 E. Lake St, Suite 1100
Chicago, IL 60601
The Family Defense Center is a nonprofit organization whose mission is to advocate justice for families in the child welfare system. We advocate for families who need our help the most: families threatened with losing their children to foster care. Nothing is more painful for a child than to be taken from the only parents he or she knows. Yet, child protection systems throughout America frequently remove children from parents as a first resort, not a last resort. Many parents lose custody of their children to state foster care systems primarily because they are poor or because they are victims of abuse themselves. Far too many children in foster care bounce from home to home and are separated from siblings. Any family can be the victim of a false, harassing, or misguided Hotline call.
|We handle the following types of cases:
||We do not generally handle the following types of cases:
- Ongoing DCFS investigations for abuse or neglect
- Safety Plan negotiations
- Appeals of Indicated findings and Administrative Review Actions
- A limited number of Juvenile Court cases in which DCFS is attempting to take protective custody if we have been counseling the client during an open investigation
- Civil rights cases alleging violations of the 4th and 14th amendments.
- Precedential appellate cases
- Child Support
- Criminal cases
- Open Juvenile Court cases (this means that if your Juvenile Court case has already started when you first contact us, we will most likely not be able to offer you legal representation)
- Private custody cases
- Cases in Domestic Relations Court such as Orders of Protection
- DCFS foster care placement appeals
A few years ago here in Illinois the League of Woman Voters sent their members out to be ‘court watchers.’ The Court watchers reported some of the outrageous actions that were evident is some of the Courts. The constant pressure brought a measure of reform that has since dissipated. The Court […]
via From Ken Ditkowsky on the need for more courtwatchers — MaryGSykes.com
When public defenders refuse to listen to the defendant’s story, refuse to investigate the case, refuse to follow the law, refuse to tell the court when the court is violating law, are abrupt, rude, and harmful to defendants like ignoring their disability needs or indigency status when bail is set, and especially when they fail to subject the case to adversarial testing, then they should be replaced. Legally when a defendant tells the judge that the PD is doing these things, the judge is obligated to question the defendant to see if there is a basis for ruling ineffective assistance of counsel and replacing the PD. The State’s Attorney may NOT participate in this stage 1 questioning. Yet they almost always do. The judges rarely listen to defendants who complain about PDs, but their failure to do so is a reversible error if it affects the outcome of the case. Attorneys will rarely help you with this issue unless the symptoms of misconduct of the PD are obvious like appearing in court drunk or not appearing in court at all. So, generally, defendants who are being abused by the system and rely on the PD due to indigency are scr**ed. This is where the ACLU and other public interest legal foundations should play a more active role, but so far they don’t.
The following is a summary of the present state of law in Illinois regarding these manners.
REPLACING A BAD PUBLIC DEFENDER – DIFFICULT BUT POSSIBLE:
NOTE: This refers to Illinois and federal case law – you must research the laws in your state.
CASE LAW CONCERNING INEFFECTIVE ASSISTANCE OF COUNSEL.
- GENERAL ISSUE – STRICKLAND TWO-PRONG TEST ON APPEAL
- The Sixth Amendment requires only competent representation and does not guarantee a meaningful relationship between a defendant and counsel. (quoting Morris v. Slappy, 461 U.S. 1, 13-14 (1983)) Schell v. Witek, 218 F.3d 1017, ¶ 35 (9th Cir. 1991)
- The Illinois Supreme Court has held that, to determine whether a defendant was denied his or her right to effective assistance of counsel, on appeal, an appellate court must apply the two-prong test set forth in Strickland Washington, 466 U.S. 668 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504(1984) (adopting Strickland)). Under Strickland, a defendant must prove both (1) his attorney’s actions constituted errors so serious as to fall below an objective standard of reasonableness; and (2) absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466 U.S. at 687-94).
- Under the first prong of the Strickland test, the defendant must prove that his counsel’s performance fell below an objective standard of reasonableness “under prevailing professional norms.” Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004). Under the second prong, the defendant must show that, “but for” counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. “[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome–or put another way, that counsel’s deficient performance rendered the result of the trial unreliable or fundamentally unfair.” Evans, 209 Ill. 2d at 220; Colon, 225 Ill. 2d at 135. In other words, the defendant was prejudiced by his attorney’s performance.
- To prevail, the defendant must satisfy both prongs of the Strickland Colon, 225 Ill.2d at 135; Evans, 209 Ill. 2d at 220. “That is, if an ineffective-assistance claim can be disposed of because the defendant suffered no prejudice, we need not determine whether counsel’s performance was deficient.” People v. Graham, 206 Ill. 2d 465, 476 (2003). We do not need to consider the first prong of the Strickland test when the second prong cannot be satisfied.
- STRICKLAND – PREJUDICE PRESUMED CRITERIA (HATTERY & CRONIC)
- In People v. Stanford, 2011 Ill. App. (2nd) 2090420, our supreme court has noted that the Court in Strickland recognized that “there are some circumstances so likely to prejudice the accused that such prejudice need not be shown, but instead will be presumed.” People v. Hattery, 109 Ill.2d 449, 461 (1985). Situations warranting the presumption of prejudice include cases in which (1) there is a complete denial of counsel at a critical stage of the trial, or (2) “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659 (1984); see Angarola, 387 Ill.App.3d at 735. Additionally, a more limited presumption of prejudice exists where counsel has a genuine conflict of interest. Strickland, 466 U.S. at 692. “Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ “ Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980)). Our supreme court has emphasized that a “defendant faces a high burden before he can forsake the two-part Strickland test” by meeting the Cronic standard. People v. Johnson, 128 Ill.2d 253, 270 (1989).
- In People v. Stanford, 2011 Ill. App. (2nd) 2090420, the defendant argued that the Cronic standard applied. Cronic, 466 U.S. at 658 (“[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.”). Although in the Stanford case the court said this argument was inopposite, our supreme court did note that in some cases it may be on point when the trial court summarily dismissed the defendants’ motions for new counsel without any inquiry: United States v. Nguyen, 262 F.3d 998, 1003–04 (9th Cir.2001) (where the defendant’s counsel of choice appeared and requested leave to be substituted in for the PD and requested a continuance and the trial court made no inquiry into the defendant’s dissatisfaction with appointed counsel, the trial court abused its discretion in denying the substitution motion); . . . Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir.1970) (holding that the defendant’s being embroiled in an irreconcilable conflict with his attorney warranted reversal where the defendant was dissatisfied and would not cooperate with the attorney and the trial court summarily dismissed the defendant’s four motions for new counsel WITHOUT ANY INQUIRY).
- STRICKLAND ERROR REQUIRES ESTABLISH INEFFECTIVENESS COUNSEL
- In People v. Stanford, 2011 Ill. App. (2nd) 2090420, our supreme court stated that even if the counsel’s comments were enough to require the trial court to conduct an inquire into the effectiveness of counsel, “the error is not reversible unless defendant establishes that counsel was ineffective. See People v. Ogurek, 356 Ill.App.3d 429, 434 (2005)”
- It is instructive that the 9th Circuit Court of Appeals held: “When forced to choose between incompetent counsel and pro se representation . . . . we concluded that no showing of prejudice was required because Crandall was improperly left with no counsel at all” (quoting Crandell v. Bunnell, 144 F.3d 1213, 1214 (9th Cir. 1998)) and quoting Strickland v. Washington, 466 U.S. 668, 692 (1984) (“Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”)). Schell v. Witek, 218 F.3d 1017, ¶ 34 (9th Cir. 1991)
- Thus, the ultimate constitutional question the federal courts must answer is not whether the state trial court “abused its discretion” in not deciding defendant’s motion, but whether this error actually violated defendant’s constitutional rights in that the conflict between defendant and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment. Schell v. Witek, 218 F.3d 1017, ¶ 36 (9th Cir. 1991)
- EFFECTIVENESS OF PD MUST BE ESTABLISHED BEFORE COLLATERAL ISSUES CONSIDERED (FIRST IMPRESSION ISSUE IN ILLINOIS)
- It is instructive, as this is an issue of first impression in Illinois that in People v. Stankewitz, 51 Cal.3d 72, 270 Cal. Rptr. 817, 793 P.2d 23 (1990), the California Supreme Court held that a motion to replace incompetent counsel must be heard before a collateral hearing on issue of competency [or fitness] because “the Sixth Amendment right to effective representation virtually compels a hearing and an order granting a motion for substitution of counsel when ‘there is a sufficient showing that the [51 Cal. 3d 88] defendant’s right to the assistance of counsel would be substantially impaired if [the defendant’s] request was denied.’ (People v. Carr (1972) 8 Cal. 3d 287, 299 [104 Cal. Rptr. 705, 502 P.2d 513]; accord People v. Burton (1989) 48 Cal. 3d 843, 855 [258 Cal. Rptr. 184, 771 P.2d 1270];People v. Moore (1988) 47 Cal. 3d 63, 76 [ 252 Cal. Rptr. 494, 762 P.2d 1218]; People v. Smith (1985) 38 Cal. 3d 945, 956 [216 Cal. Rptr. 98, 702 P.2d 180]; People v. Walker (1976) 18 Cal. 3d 232, 238 [133 Cal. Rptr. 520, 555 P.2d 306].)”
- The California Supreme Court clarified this concept further in its Marsden decision [now a rule in Cal.] which held that a trial judge abuses his discretion when he boldly states that the court has observed that the PD was performing admirably, but fails to give the defendant an opportunity to explain his/her concerns about ineffective assistance of counsel. This is on point with Illinois Supreme Court rule 63 which requires the court to hear the defendant:
Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention “is lacking in all the attributes of a judicial determination.” …. It is in the highest tradition of [2 Cal.3d 126] American jurisprudence for the trial judge to assist a person who represents himself as to the presentation of evidence, the rules of substantive law, and legal procedure, and judges who undertake to assist, in order to assure that there is no miscarriage of justice due to litigants’ shortcomings in representing themselves, are to be highly commended.” (Spector v. Superior Court (1961) 55 Cal.2d 839, 843 [13 Cal.Rptr. 189, 361 P.2d 909].) People v. Marsden , 2 Cal.3d 118 (1970)
- PD INEFFECTIVE WHEN FAIL TO ALERT COURT OF COURT’S ERRORS
- There are a number of cases where it is instructive that the federal courts have found error when the PD failed to bring to the attention of the court statutory, legal, or constitutional errors made by the court:
- Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995) (Counsel failed to correct state trial judge’s statutory mis-statements that state sentence could run concurrent with potential federal sentence);
- United States v. Stearns, 68 F.3d 328 (9th Cir. 1995) (A counsel failed to file notice of appeal); Fern v. Gramley, 99 F.3d 255 (7th Cir. 1996) (Prejudice could be presumed from an attorney’s failure to file an appeal upon the defendant’s request); Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995) (Failure to file notice of appeal after request by defendant; Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997) (Failure to investigate the defendant’s mental illness was ineffective assistance of counsel); United States v. Kauffman, 109 F.3d 186 (3rd Cir. 1997) (Failure to investigate insanity defense was ineffective assistance of counsel;
- Coss v. Lackawanna County District Attorney, 204 F.3d 453 (3rd Cir. 2000) (Defendant was prejudiced by attorney’s failure to subpoena witnesses;
- Carter v. Bell, 218 F.3d 581 (6th Cir. 2000) (Failure to investigate mitigating evidence was ineffective assistance); Hinton v. Alabama, 2014 U.S. 136440, 571 U. S. ____ (2014) (Defendant prejudiced by ineffective assistance of PD, when the PD refused to hire an expert witness due to his ignorance of the law fundamental to the case);
- MUST HOLD EVIDENTIARY HEARING ON DEFENDANT’S POST-TRIAL MOTION AS TO INEFFECTIVE ASSISTANCE COUNSEL BEFORE HEARING POST-TRIAL MOTIONS [HERE MOTION FOR RESTORATION OF FITNESS AFTER TRIAL FINDING UNFIT]
- The Illinois Supreme Court in People v. Krankel, 102 ILL.2d 181, 183 (1984) held that the “[T]rial Court erred in failing to appoint counsel other than defendant’s originally appointed counsel to argue his pro se motion alleging ineffective assistance of counsel.” See also People v. Moore, 2003 Ill. 87958, 207 Ill.2d 68, 77-78 (2003) (First stage is to examine defendant as to basis of claim of ineffective counsel and if lacks merit then not required to appoint counsel to argue it; defendant is not required to renew claim of ineffective counsel for purposes of appeal).
- In People v. Jolly, 2015 Ill. 117142 at ¶ 38, the Illinois Supreme Court held that the First Stage examination of defendant concerning ineffective counsel is held WITHOUT the adversarial participation of the State’s Attorney because there is no substitute counsel arguing the defendant’s position. The Court also held that when an adversarial proceeding is held that the remedy is to hold a new Krankel hearing before a different judge. At ¶ 46
- The Illinois Supreme Court, in People v. Jocko, 2010 Ill. 108465, at p.4-6, 239 Ill. 2d (2010) &, held that although a two-prong Strickland hearing cannot be held pretrial as it cannot be determined if the errors affected the outcome of the trial (i.e. determine prejudice), it is required to hold a pre-trial evidentiary hearing concerning ineffective assistance of counsel only when prejudice is not relevant as when bail issues are concerned (Jocko at p 5), when there are conflicts of interest (Jocko at p. 4, 239 Ill.2d at 92 quoting Holloway v. Arkansas, 435 U.S. 475 (1978)), or when there is complete deprivation of counsel (Jocko at p. 4, 239 Ill.2d at 92 quoting Cronic 466 U.S. at 659 )
Shelton is in need of extreme grass roots help in fighting the system who is trying to shut her up. If you enjoy this blog and want to read more, read this here.
The reason to file a motion for a supervisory order with the Illinois Supreme Court (IL S Ct) is if a person is unable to file direct appeal on the issue. For example in a divorce case where the judge endlessly keeps an issue “in reserve” for more than a year, and therefore, there is no final appealable order because all issues are not dealt with, then it is appropriate to file a motion for supervisory order to the IL S Ct in order to ask for an order to force the trial judge to make a decision on the case.
Also see info from the Illinois Pro Bono organization: here
The following is an example of a motion for supervisory order. The sample IL S Ct motion for supervisory order is here.
To file it, if the court is in session you send the original and 9 copies to the IL S Ct in Springfield at their office. If they are not in session and you are in Chicago, you file an original and five copies in the Chicago office of the IL S Ct and then send one copy to each of the four justices outside of Chicago – their local offices. Recently (2013) the IL S Ct made rules on how to E-file. See their web site for updated information.
Included must be notice of service to the judge (who is the respondent) and to the other parties, an order with a place for the judges to circle either “denied” or “granted” and a place to sign it., a verified statement that you are complying with the 20 page limit to the pleading, a cover for the appendix, an affidavit that the documents in the appendix are true and accurate copies, a table of contents with page numbers for the appendix, an affidavit if you are pro se (verified statement if you are an attorney) that you have served notice and the motion to the parties and judges, and a check for $25 dollars. See IL S Ct rules 383,341-343.
The supporting record must be authenticated by the trial court clerk or verified by affidavit by attorney or pro se counsel as required in IL S Ct rule
When the British government acted like dictators and ignored the laws we had the Boston Tea Party and then the revolutionary war.
It is time for a new awakening of the Fourth branch of government – this time to clean up the courts. It is past time to talk the talk -we must walk the walk -no fear – just act! When the judge violates the law – file everything possible in state and federal court (complaint for supervisory order; complaint for mandamus; Section 1983 federal civil rights suit for injunctive relief – justices have immunity from suits for monetary damages but not from suits for injunctive relief or mandamus; Attorney Regulatory Commission Complaint; Judicial Inquiry Board Complaint; Judicial Council complaints; complain to the press; complain to officials in charge of the County or State; complain to your representatives and senators; make a request for impeachment to the speaker of the house; complain to the press, put ALL details of your case on the Internet.
The Declaration of Independence states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.
But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Our right to justice is not something that the judiciary should play with. Our justice system is not a tool of self serving lawyers to use to allow lawyers to take advantage of the misfortunate and victimize them. Our courts are to serve the people and not as a profit center to protect the incomes of lawyers. We the people hereby give notice to the judiciary that you are acting in contempt of the people and that you will refrain from continuing to do so or face the consequences.
For more details see this link: http://www.perkel.com/politics/issues/fourth.htm