DCFS Director Marc Smith is being sued over allowing foster children to remain in juvenile detention even after judges order them released. Smith has said at times that's the safest alternative for them as the agency searches for somewhere to place them. (Credit: Illinois Answers file photo)

The Cook County public guardian is suing Illinois child welfare officials for allowing foster children to remain locked up in juvenile detention even after they’ve been ordered released — a problem that has only gotten worse,  an Illinois Answers Project investigation found last year.

At issue is the inability of the state’s Department of Children and Family Services’ to find appropriate placements for children with behavioral health and emotional problems that often stem from their histories of serious abuse and neglect.

The federal lawsuit, which is seeking class-action status, alleges that “children incarcerated in juvenile jail are confined to their cells for the majority of the day, have limited opportunities to exercise and are exposed to unnecessary violence and dangers. Moreover, DCFS is unable to provide them the clinically appropriate mental health treatment and educational services that they need — critical resources for children who have suffered trauma and instability.”

“Detaining children and youth in juvenile jails when they don’t need to be there is cruel, unusual and a violation of our Constitution and laws,” Public Guardian Charles Golbert said at a news conference Thursday. “It’s a profound assault upon the children’s civil and human rights . . . While wrongfully incarcerated the children are denied the everyday joys, experiences and opportunities of childhood. Their schooling is disrupted, and they often fall behind in school.”

Janiah Caine, 18, a DCFS youth in care, “languished” for 166 days in Cook County’s Juvenile Temporary Detention Center after a judge ordered her released, according to the lawsuit.

During that time, her grandmother died and because Caine was unable to reach her caseworker she missed the funeral and her mental health deteriorated.  

The experience was “horrible,” she said Thursday.

“I felt so many emotions, like anger, sadness,” Caine said. “It feels like nobody cares about me . . . they were the people who were supposed to get me out of a bad situation, but [they] put me in another bad situation.”

The Illinois Answers investigation showed a steady increase in the number of Illinois foster children held for weeks or months after a judge ordered their release from detention centers. A total of 73 foster children were locked up for weeks or months in the Cook County juvenile temporary detention center without pending charges during 2021, according to an analysis of court and DCFS records. 

That was an increase from 49 similar cases in 2019.

In an interview last year, Smith acknowledged the problems but defended his approach.

“Yes, those numbers have been rising because we have seen an increase in the severity of the needs of children in the state of Illinois,” Smith said last May of the improper child placements.

He said his agency is forced to hold youth in juvenile jails, psychiatric hospitals and shelters because the department lacks safe alternatives.

DCFS Director of Communications Bill McCaffrey said in an email to Illinois Answers Thursday: “We can only place youth where we have availability that meets their needs, which is why the department is also working to expand the capacity that was hollowed out under previous administrations. Thanks to this work, in recent years we have made progress in reducing the number of youth who remain in the justice system past the date they are allowed to be released and we are deeply committed to continued progress. We cannot comment further due to pending litigation.”

Russell Ainsworth, an attorney for Loevy and Loevy which is representing Golbert in the case, put the blame for the issue of improper detainments on Gov. J.B. Pritzker. At the Thursday news conference, Ainsworth said Pritzker “has allowed this problem to fester within DCFS for years. 

“It is time for accountability,” Ainsworth said. “Governor Pritzker needs to take action because the solution is very simple: We need more homes for children.”

A spokesperson for the governor did not immediately respond to a request for comment Thursday.

The suit seeks financial compensation for all foster children improperly detained, though Ainsworth did not provide a dollar amount.

As part of its investigation last year, Illinois Answers reporters obtained court permission to review dozens of confidential juvenile court files, interviewed numerous agency employees and dug out several years of internal data on child placements and worker caseloads.

One foster child — a 15-year-old charged with stealing someone’s backpack at a South Side bus stop — was locked in the Cook County juvenile detention center for seven months beyond his release date in 2020, even though judges repeatedly ordered him released, records show.

“Being in the juvenile detention center makes me feel worthless and depressed,” the teen wrote in a two-page letter to the judge overseeing his case in 2021.

The issue was also highlighted in a WBEZ investigation in June.

Rachel Hinton

Rachel Hinton is a 2017 graduate of DePaul University where she served in various roles at The DePaulia, DePaul's student paper. She was the chief political reporter for the Chicago Sun-Times before joining...

David Jackson

David Jackson is a Pulitzer Prize-winning reporter and four-time Pulitzer finalist whose work has focused on lifting the voices of neglected people amid life-threatening government failures.