F. A. Q. – D.C.F.S.

Who is D.C.F.S.?

D.C.F.S. is the Illinois Department of Children and Family Services.

What does D.C.F.S. do?

D.C.F.S. is the state agency charged with the protection of children. D.C.F.S. investigates allegations of child abuse and neglect. D.C.F.S. also takes action to protect children pending the outcome of investigations. This could include taking children out of the home or a safety plan in the home. D.C.F.S. also provides/coordinates services to families.

What is a mandated reporter?

Mandated reporters are individuals and institutions which are required to report suspected abuse or neglect to D.C.F.S. by state statute. (See 325 ILCS 5/1 – the Abused and Neglected Child Reporting Act).  Mandated Reports include schools, teachers, members of the clergy, doctors, nurses, mental health professionals and hospital emergency rooms. For example, if a child is brought to the emergency room with suspicious injuries, the staff are required by law to report this suspected abuse to D.C.F.S..

What happens once a call is made to a D.C.F.S. hotline by a mandated reporter or someone else?

Typically, D.C.F.S. will commence an investigation.  They will send an investigator out to the home within 24 hours to look at the home and talk to the children. If the facts are serious enough, D.C.F.S may come to the hospital. In addition, the police agency which has jurisdiction could be called in to investigate. Two parallel investigations will proceed, one by D.C.F.S. and one by law enforcement.  D.C.F.S. will read notices regarding the investigation to the person who is the subject of the investigation. D.C.F.S. has 60 days to complete the investigation.

What is the result of a D.C.F.S. investigation?

If D.C.F.S. determines that abuse or neglect has occurred it will issue an INDICATED finding.  The subject of this finding will then be listed on the D.C.F.S. register of people who have committed acts of child abuse or neglect. If D.C.F.S. determines that no abuse or neglect took place the investigation will be UNFOUNDED.

What is the implication of being listed on the D.C.F.S. register for people who have abused/neglected children?

Most background checks will reveal your name on the register. This may prevent you from obtaining/keeping employment as, for example, a teacher, nurse, day care worker or bus driver. Often D.C.F.S. is called in the context of a contested divorce action.  An indicated finding can be used by the reporting spouse to secure custody of the child or limit access to the child.  In addition, if your daughter joins the Girl Scouts and you wish to participate in activities, you will be required to pass a background check.

D.C.F.S. has gone to my children’s school and called my pediatrician – can they do this?

Once an investigation is set in motion, D.C.F.S. rules and regulations require the investigator take certain actions. This includes speaking to the child’s teachers, care givers and pediatrician.  As such, this conduct is lawful and required for the investigator to complete their investigation.

D.C.F.S. has entered an Indicated Finding against me – what can I do?

The indicated finding is usually made by D.C.F.S. after the investigator has staffed the case with their supervisor.  You have the right to a hearing to challenge this finding.  Beware that you only have a short period of time to request a hearing. It is imperative that you contact a lawyer immediately so that you do not miss this deadline.  As this is a challenge of an action by an agency, the first legal challenge is an administrative review action. As such, the hearing is held by the agency – D.C.F.S. is represented by a lawyer who presents a case to an administrative law judge (A.L.J.) also employed by D.C.F.S..  If you lose the administrative hearing, you are entitled to appeal that ruling to the circuit court of your jurisdiction so that a judge can review the A.L.J.’s decision. This must also be filed within a limited time after the decision is entered.

F. A. Q. – DUI

What should I do if the police question me regarding a crime?

You have the Constitutional right to silence and to have an attorney present.  If you ask for a lawyer, the police are required to immediate stop questioning you.  It is always advisable to have a lawyer present during police questioning.  The mere assertion of the right to silence can be waived and police can hold you for up to 48 hours if they believe you might say something.  The better course of action is to ask for a lawyer as this terminates questioning.  This is more likely to result in you be processed and released. Get a good lawyer as soon as possible!

If I am pulled over, do I have to submit to field sobriety tests?

No.  If you are pulled over, the officer is trained to obtain as much evidence from you as possible.  As stated in the Miranda warnings – everything you say can and will be used against you in a court of law.  In the same way – everything you do will also be used against you.  The field sobriety tests (FSTs) provide the officer with the opportunity to make observations  – which are evidence.  Standardized FSTs include the walk and turn test, Horizontal Gaze Nystagmus test (HGN) and one-leg stand test.  The officer will not tell you this – but you can refuse FSTs.  Also, due to the way the FSTs are graded, they are almost impossible to pass.  It is permissible to politely decline the FSTs.  Remember the officer is just doing his job.

If I refuse the FSTs will I be arrested?

If the officer has decided you require the FSTs it is likely he believes that you are under the influence and will arrest you anyway.  Some officers may even become angry and may try to bully you into taking the FSTs.  However, the biggest mistake people make is thinking that they can talk (or walk) their way out of an arrest.  The better course of action, is to very politely decline all testing and allow yourself to be processed.  This will provide the officer with less evidence and will give your trial attorney a better chance of winning your case.

What happens if I am taken to the hospital emergency room?

Under Illinois law, if you are taken to an emergency room and the hospital takes your blood for purely diagnostic purposes, this can later be obtained by the State and used to prosecute you for DUI.  The Illinois Supreme Court in People v. Jung held that this law is constitutional.  Beware that you will receive no warning from the police or hospital staff that your hospital blood test will be used against you at trial.  However, we have had clients who have successfully refused to have blood drawn or tested for alcohol in the emergency room.

Can I refuse the breath test?

Yes, in Illinois you are permitted to refuse the breath test.

I was involved in an accident and the police drew my blood which was over 0.08, will I be convicted?

We will perform a thorough investigation of your case. We will determine whether the police had probable cause to take your blood. We will subpoena the state forensic laboratory to obtain all the records regarding your blood test. We will have our own experts check whether the tests were properly conducted.  We will check to determine whether the lab was licensed. We will check whether a proper chain of custody was maintained regarding your test samples. We will obtain your medical records to determine how the blood was drawn and whether procedures were followed.  There are extensive procedures that must be followed by hospital staff, police officers and forensic scientists in these cases. As such, there are various ways to win these cases.  We will thoroughly examine every aspect of your case to determine a trial strategy.

I was stopped, performed FST, was arrested and failed the breath test – do I have a case?

We always extensively investigate your case. We will subpoena the officers training records and manuals and determine whether he followed the correct procedures during your traffic stop and FSTs. We will subpoena the video from the squad car. We will examine whether the officer had probable cause for the stop and for your arrest. We will issue a subpoena to the Illinois State Police for every record pertaining to the breath machine.  There are multiple reasons for false positive breath test results including, radio frequency interference and mouth alcohol.  We will have our experts determine whether there is a problem with the machine or the way that the test was conducted.  We will obtain the surveillance tapes from the station to see if the officer followed all breath testing procedures.  Through our tenacious and thorough investigations we are often able to have breath test results thrown out and to win difficult cases.

F. A. Q. – Leaking House

I bought a house and it leaks, do I have any legal recourse?

In Illinois, the Residential Real Property Disclosure Act (“Act”) requires that the seller of a residential home, who has lived in the home in the year prior to sale, disclose known defects to potential buyers.  In addition, the buyer of a leaky house could possibly sue for breach of contract or fraud.

How long do I have to make a claim?

It is important to not delay, the Residential Real Property Disclosure Act (“Act”) has a one year statute of limitations.  This is a short window of time in which to bring the claim.  If you miss this deadline, you may still have a claim for fraud which has a five year statute of limitations.  The statute of limitations for breach of contract is ten years.  It is important to contact a lawyer quickly to preserve all of your claims.

Can I get attorney’s fees?

Under the American Rule, attorney’s fees can only be reimbursed if provided for by contract or in a specific statute. As opposed to the English Rule where the loser in litigation would have to pay the attorney’s fees of the winner.  The Residential Real Property Disclosure Act and the Consumer Fraud Act both provide for attorney’s fees to the prevailing party in litigation. As such, if you win your case under these acts you could be awarded attorney’s fees. However, it is unusual to be compensated for 100% of those fees.  Attorney’s fees are not available for common law claims such as fraud.  Moreover, most real estate contracts do not include attorney fee provisions. As such, it is unlikely you will be awarded attorney’s fees in a breach of contract case for a leaky house.

Will I need experts?

Leaky house cases often involve experts, as a plaintiff with a leaky house case has the burden to prove what the defect is.  In other words – how is the water getting into the house. This often involves the expertise of architects, structural engineers as well as contractors.  In addition, water often results in mold growth.  This may require the expertise of industrial hygenists and mold remediation contractors.  The industrial hygienist would take mold samples and have them analyzed by licensed laboratories. This would identify the types of mold present in the house and would provide the home owner with information to make an informed decision about remaining in the home.  The mold remediation contractor would then remediate the mold and other water damage. We have teams of experts that we work with on a regular basis in these cases.

I have water damage and mold in my house can I have it remediated and still sue the seller of the home?

The plaintiff has a duty to mitigate their damages. As such, the law expects that the plaintiff take reasonable steps to prevent the damage getting worse.  However, the potential plaintiff must always act very carefully when changing the condition of the property.  If the potential plaintiff removes all the mold damage without allowing the potential defendant access to verify the damage, they could be charged with spoliation. This would prevent the plaintiff from admitting into evidence at trial, the evidence which was destroyed during the remediation.  This is a delicate balance and we work with our clients to protect them from claims of spoliation while facilitating the repair and remediation of their houses.

Can I get damages for emotional distress due to the leaking into my house?

We understand how emotionally devastating it is to find that your home leaks.  Usually, your home is your single biggest financial investment.  In addition, people experience excitement and joy when they buy their home.  It is the place you plan to raise your family. It is devastating to discover that your home leaks or floods.  However, claims for emotional distress are limited to cases where no reasonable person could be expected to endure the experience.  This is not a claim generally associated with a leaking or flooding home, even if you lost your wedding dress and baby pictures.

Can I sue the Real Estate Agents or brokers involved in the transaction?

The buyer’s real estate agent/broker has a contractual duty, as well as a fiduciary duty to their client.  As such, if you discover that your agent/broker knew that the house leaked or flooded and failed to tell you about it – they could be sued for breach of contract, breach of fiduciary duty and perhaps fraud. In addition, the Real Estate Act of 2000 places a duty on the seller’s real estate agent/broker to disclose to the potential buyer any latent defects known to that agent/broker.  As such, if you find out that the seller’s agent/broker knew that the house leaks or previously flooded, and they failed to tell you – you could have a claim against them for Consumer Fraud Act.

F. A. Q. – Personal Injury

I’ve suffered a personal injury and I believe it was someone else’s fault.  What should I do first?

The first two things you should do are: 1) get prompt and complete medical attention for your injuries.  This may take some time.  Some injuries do not become apparent until a day or two after the accident.  Be proactive.  See a medical professional and follow their instructions as soon as possible.  2) do not talk about the accident or your injuries with anyone (other than your doctor) until you have had a chance to speak with an attorney.  Once you have seen a doctor and have instructions you should contact an attorney at your earliest convenience.

I think I have a personal injury claim, but I cannot afford an attorney.  What should I do?

We handle most personal injury matters on a contingent basis.  This means that you do not pay attorney’s fees.  We are paid from the proceeds of the recovery we get for you.

The insurance company for the person at fault wants to discuss settlement with me.  Can’t I just represent myself so I don’t have to pay an attorney?

Insurance companies may say they want to talk with you only to record a sworn statement.  You may make admissions or waive certain rights when representing yourself.  You also may not know the full extent of your damages and you may sell yourself short.  Generally speaking, the best course of action is to have an experienced attorney represent and advise you with your claims.

How long do I have to file a personal injury action?

The claims and causes of action you have may differ based on your injuries and how they were caused.  Generally the statute of limitations for personal injuries in Illinois is two (2) years.  Nonetheless, you should see a lawyer about your claim as soon as practicable.

F. A. Q. – Eviction

My tenant stopped paying rent.  Can I change the locks and force them out?

Absolutely not.  If you do so you will violate Illinois law and you could be sued for damages.  Evictions are a statutory procedure and the Illinois Forcible Entry and Detainer Act must be followed to properly evict a tenant, or even a “squatter.”

How long does the eviction process take?

The course that an eviction action will take largely depends on the actions of your tenant.  If they fail to appear in court or put up very little in terms of a defense you could obtain an order of possession (eviction order) in as little as a few months.  If the tenant fights the eviction, uses a lawyer and/or ties to delay the proceedings it could take many months or up to a year.

Can I keep the security deposit paid by the tenant for their last month rent?

Absolutely not!  In fact, in Chicago you may only keep some or all of the security deposit to pay for damages to the premises that are carefully documented and disclosed to the tenant.  Such a disclosure must comply strictly with the Chicago Residential Landlord and Tenant Ordinance (“CLTO”) or you will be subjected to liability.

Once I get my eviction order how long will it be until the tenants leave?

Once you obtain the court order requiring the tenant to vacate the unit you still have to wait for that order to be “enforced.”  This enforcement is performed by the Sheriff who will remove the tenant from the premises.  The Sheriff has a long list of evictions to perform and it may take several weeks or months to get yours done.  Also, the Sheriff will not perform evictions over the holidays or during sub-freezing temperatures.

What is the biggest mistake landlords make with their tenants?

In Chicago it is very common for tenants to contact tenants’ rights attorneys when they are being evicted.  These attorneys often catch landlords “comingling” security deposits with the landlords personal funds.  This is prohibited under the CLTO and subjects the landlord to fines as well as costs and attorney’s fees.  Don’t make this mistake.  Instead of kicking out your tenant you will end up paying their attorney’s fees.