THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SANJAY TYAGI et al., )
) No.
16 cv 11236
Plaintiffs, )
Hon. Thomas M. Durkin
) Judge Presiding
v. )
)
SHELDON, et al., )
) Defendants.
)
)
PLAINTIFFS’ MOTION TO DECLARE FEDERAL LAW - ADOPTION AND SAFE FAMILIES ACT OF 1997 UNCONSTITUTIONAL
Plaintiffs
submit this Motion to declare Federal law - Adoption and Safe Families Act of
1997 unconstitutional. In support of
this Motion, Plaintiffs provide the following facts and arguments.
INTRODUCTION
“Rich, poor, middle-class, white, black, brown
— no child in America is safe.” Federal law - Adoption and Safe Families Act of
1997 (AFSA), in its present form,
(a)
Violates due
process, Equal Protection and Substantive Rights associated with Fourteenth
Amendment
(b) Inflicts
cruel and unusual punishment on children and parents in violation of Eighth Amendment.
ADOPTION
AND SAFE FAMILIES ACT OF 1997
1. On November 19, 1997, President
Bill Clinton signed the Adoption and Safe Families Act (“ASFA”) into federal
law.
2. ASFA contains a provision mandating
that the state file for the termination of parental rights after a child has
spent fifteen of the past twenty-two months in foster care (the "15/22
provision"). There are three exceptions to this provision:
(A) if the child is living with a relative
("kinship placement");
(B) if the state agency has documented a
compelling reason why filing is not in the best interest of the child. Compelling
reasons include:
i. he child has a permanency goal
other than adoption;
ii. there are insufficient grounds for
filing a termination petition; and
iii. the child is more than fourteen
years old and will not consent to adoption.
(C) if the state has failed to provide the family
with the services necessary to safely reunite the child with her parents.
3. The "15/22" provision was
enacted to help eliminate foster care drift, but a strict time frame raises
concerns. First, it is possible that, given more time, a greater number of
parents could rehabilitate themselves. Second, termination is largely irrelevant
if the child is not ultimately adopted. Moreover, termination cannot
automatically solve an abused or neglected child's problems. It is only one
piece of the solution. The more difficult issue is what should happen to
children who are "liberated" from their parents, but are still not
adopted.
4. The effect of the ASFA
"15/22" provision is that more parental rights terminations are occurring.
Yet, this does not necessarily mean that all children affected are being
adopted. It is possible that more terminations will result in more "legal
orphans.
5. On any given day in the United
States, at least 107,000 of the 507,000 children currently in foster care are
legally free and awaiting adoption.
6. The best interest of the child must
remain the primary concern. The current ASFA law does not provide Courts with
time and discretion to consider (a) the likelihood of a child being adopted (b)
the physical condition and age of a child (c) the individual child's needs and
wishes (d) and the present involvement of the natural parents.
7. Research shows that children in
foster care often maintain deep attachments to their biological families, and
thus termination should be recommended only if the child is likely to be
adopted. Just because a child does not live with their parents does not mean
the child has forgotten them. If a child has little chance of a permanent
placement with a new family, their parents rights to see them or talk to them
should not be limited.
8. Children with special needs,
because they are less likely to be adopted, and older children, who are more
likely to remember their biological families, will not necessarily benefit from
parental termination.
9. Termination only lowers the number
of children in foster care if those children free to be adopted are indeed
adopted. Many children in foster care are not appropriate candidates for
adoption because of age, sibling groups, or emotional and physical
difficulties.
10. Parental termination creates two
dangers: the risk that a parent's rights might be terminated when they should
not be, and the chance that a parent's rights should have been terminated, but
were not. The first is great because parental termination is permanent.
"Unlike other custody proceedings, it leaves the parent with no right to
visit or communicate with the child, to participate in, or even to know about,
any important decision affecting the child's religious, educational, emotional,
or physical development.
11. By equating termination with
success, ASFA seems to assume that any child who is free to be adopted will be
adopted.
12. For the many children who are
unlikely to be adopted (adolescents and teenagers, sibling groups, emotionally
or physically disabled children) enforced time limits are ineffectual. Their
parents' "termination" will not effectively change their situation.
They will remain in state care because they are less likely to be adopted than
young, healthy children. For a child who will otherwise have no parents, an
imperfect pair often may be preferable. This is especially true when the
children are older and already have significant ties to their birth parents.
Termination deadlines presume that a child is better off without their natural
parents.
13. Time limits raise significant
issues for parents who must be separated from their children for reasons
unrelated to their parenting capabilities. Drug addicted parents and
incarcerated parents are both affected by ASFA's strict guidelines. A drug
addicted parent may be unable to comply with the requirements imposed by AFSA.
A parent may be unable to recover from an addiction in twenty-two months. Drug
dependency often involves relapses, and the waitlist for treatment centers may
exceed twenty two months. Some children will become available for adoption even
though their own parents, with treatment, would have been able to regain
custody of their children.
14. A similar situation arises with
parents who are incarcerated. A mother, incarcerated for a crime that had
nothing to do with her children, can lose them if her sentence is more than
twenty-two months.
15. The standard governing the decision
to reunify parent and child is one of "reasonable efforts" and the
Act requires a state's compliance to be eligible for federal child welfare
money.
16. Although not offering an explicit
definition, ASFA does provide that "in determining reasonable efforts to
be made with respect to a child, as described in this paragraph, and in making
such reasonable efforts, the child's health and safety shall be the paramount
concern." Thus, the Act does not articulate a definition, but does seek to
clarify the requirement.
17. Unavailability of services and
failure to provide timely and appropriate services to parents are common to
child welfare systems nationwide. Parents are routinely denied the services
required by the reasonable efforts clause.
18. Further, states are not required to
make reasonable efforts if a court has determined that a parent of a child in
foster care has committed specific violent crimes against any of their
children. Reasonable efforts are also not necessary if the parent has subjected
a child to "aggravating circumstances" such as "abandonment,
torture, chronic abuse, and sexual abuse" as defined by state law.
19. In order to speed up the judicial
process, once a court determines that reasonable efforts to preserve and
reunify families are not required, the state must hold a permanency hearing
within thirty days and make a "reasonable effort" to find the child a
permanent placement.
20. ASFA also emphasizes concurrent planning, meaning the state
must be making alternative arrangements for a child while still trying to
rehabilitate the natural parents.
21. Illinois has gone beyond ASFA's
requirements by incorporating the fifteen out of twenty-two month exception
into a new basis for parental unfitness. An Illinois court may find a parent unfit
based solely on the child's placement in foster care for fifteen out of the
past twenty-two months. Although the statute includes the same three exceptions
as the federal act, the new unfitness standard lightens the state's burden in
proving a parent is unfit.
22. By contrast, New York has more or
less adopted ASFA in full. This allows it to rely more heavily on the various
exceptions to the "15/22" requirement. Because the exceptions are
broad, they can be applied to many foster care cases. Through reliance on the
exceptions and judicial discretion, New York can easily delay parental
termination beyond the twenty-two month period if deemed appropriate.
23. Although both states' statutes have
the 15/22 rule and the exceptions, Illinois's inclusion of the new unfitness
standard goes far beyond what the federal ASFA mandates, and makes it too easy
to terminates parental rights. Although ASFA is designed to limit foster care
drift, Illinois's unfitness standard goes too far.
24. Whereas New York puts a premium on
the reunification of the natural family, Illinois emphasizes the importance of
adoption.
25. The federal government's rigid time
frame for parental termination is overly simplistic because it makes it
difficult for decision makers to account for various individual circumstances.
26. A state foster care system is far
too complicated to function effectively without the use of the exceptions like
those embraced by New York. Illinois's statute makes it too easy to terminate
parental rights.
27. The legislative intent behind the
adoption of stringent time constraints was to pressure parents to rehabilitate
faster so that their children could be returned to their custody. The impetus
is made stronger by the fact that a parent's effort also affects the custody of
her other children.
28. States are failing to do the
fundamental job of reuniting children with their birth parents.
29. States are not making reasonable
efforts to reunite children with their birth parents.
30. States are paying lip service to
family preservation programs and these programs are poorly run.
31. ASFA's great flaw is that it speeds
up the clock on terminations without creating an equal mandate to pressure
agencies to make energetic efforts on behalf of reuniting families.
32. The State agencies are not
committing to reuniting parents with their kids. This is shown by the high
percentage of children that are being placed on adoption track.
33. AFSA has created an economy where
children are commodities and public funds are used to purchase the children for
Family Courts. It is creating massive profits not only for the system itself,
but for all the legal and mental health professionals associated with the
process.
34. The mass media in United States
covers up and participates in the organized crime of many sectors of the
society and one of these the mass media covers for is Family and CPS Courts.
35. AFSA has been used to slander,
abuse, ridicule, harass, ignore, humiliate, threaten and attack parents. The
parents have been financially devastated.
36. AFSA promotes separating children
from parents and forcing the children in foster care.
37. For women and men of lower economic
classes, the system is unbeatable. Children are taken away and handed over to
foster parents. There is no one to fight for them, and no money to be made from
the parents. Meanwhile, every kid who is placed in foster care amounts to
thousands of dollars of federal funds that disappear into opportunistic
pockets.
38. For women and men of higher
economic classes, AFSA has allowed the development of a profit based system of
extortion and criminal racketeering that enriches lawyers, judges, doctors and
psyschologists.
39. AFSA is extremely biased against
people of color including Native Americans. Native American children are
routinely removed from Native American parents.
40. AFSA has incentivized Child
Protective Services (CPS)/and Family Courts
to practice a policy that can only be described as ‘Children as
Currency’ policy. Millions of American families – parents and children – are
being subjected to the injustices of ‘Children as Currency’ policy.
41. CPS is known by many names, which
are known by many names, CPS/DHS/DFS/DCF/Foster care/State Custody, to name a
few.
42. CPS agencies need children in their
foster care to meet their federal mandates. The federal funding is distributed
to local communities, meaning the more children in the foster care system, the
higher the paychecks for those involved. These funds extend to foster parents,
teachers, attorneys, doctors, judges, therapists, caseworkers and coaches, as
well as to several sub-agencies like foster care agencies.
43. This creates a conflict of interest
and has resulted in unintended consequences, including corruption. Over the
years, communities have learned how to manipulate the system for financial
gain. Thousands of communities around the U.S. are using ‘children as currency.’
44. Additionally,
approximately 93 percent of foster parents receive disability or unemployment
benefits or have low-income jobs, which often makes them financially and
emotionally unfit to care for children. This also leads to abuse of the
children in their care.
45. According to an AFSCAR Report, 64
percent of children are abused in foster care; People close to this industry
believe the true number is closer to 87 percent. Child abuse in the foster care
system has always existed, but in the past decade the nature of the abuse has
become sadistic. It has been reported in every state that infants and toddlers
are being raped and young children physically tortured. Moreover, it has become
common practice to give foster children sedation drugs. According to the same
Report, 80 percent of all foster care children are given sedation drugs –
supplied by CPS caseworkers. This phenomenon is partly due to the fact that
children on medication can be labeled “special needs,” which entitles foster
parents and all involved to larger payments. It also should be noted that it is
CPS caseworker that decides what foster children can be prescribed medication,
not a doctor or therapist. And when a doctor, therapists, and other
professionals make a recommendation for a child to the courts, it is superseded
by the CPS caseworker making the final decision to where the child will be
placed and what kind of treatment the child shall receive. (CPS caseworkers
court testimonies, opinions & endorsements/authority, triumph over
professional opinions & recommendations).
46. Encouraged by caseworkers, a
majority of foster parents sedate “special needs” children 24 hours a day. CPS
claims that 80 percent of children in foster care are in need of medication”
80% of CPS children on medication, comes from statistic that 80% have either
‘emotional problems’ or “half of all children in foster care are considered
having “chronic medical problems” both labels require medication.
47. “80 percent of children in CPS
custody/foster care are considered having “emotionally problems” (see AFSCARS
Report) thus ripe for meds.” it is the cps caseworkers that have the authority
to label foster children where they see fit; with every label comes a
prescription drug.
48. Because this abuse is occurring in
the comfort of the foster parents homes, the majority of the abuse is gone
unreported. Pedophiles and predators are drawn to the CPS industry and are
acutely aware of the loopholes that allow abuse to go unchecked, protecting the
perpetrators. Many foster parents even have criminal backgrounds. CPS
supervisors have reportedly said, “If we did not allow foster parents with
criminal records, we would have no foster parents.” The decision to accept such
foster parents is left up to the discretion of CPS caseworkers. The same
caseworkers also benefit from legal immunity, meaning they cannot be held
accountable for poor judgment or bad decisions that may lead to a missing
child, child abuse or even a child’s death while in foster care.
49. It has become a common practice for
CPS caseworkers and foster parents to work together for financial gain,
attributing to inappropriate relationships. For example, a caseworker can help
their partner, a friend, neighbor, acquaintance, become a foster parent,
allowing them to both financially benefit from the situation. And then allowing
12 foster children to be fostered in one home, financially benefiting both case
worker and foster parent.
50. Furthermore, unlike criminal
courts, in CPS courts parents are guilty until proven innocent, meaning a false
allegation can lead to one’s children immediately being taken away, without a
Hearing or Session. The majority of these parents are accused of “Abandonment,”
which covers a broad spectrum of situations, from parents working long hours at
a minimum wage job, to a single mother with a terminal illness and even
soldiers called to duty.
51. And
often, once the caseworker has placed the children in foster care and it is
discovered that said allegations were false, caseworkers will look for other
reasons to keep the children in CPS custody because of economic interests.
Again, these allegations can lead to any child being placed into CPS/State
Custody permanently.
52. Some where from 24,000 to 200,000
eighteen-year-olds thru twenty three year olds’ (a number that increases
annually for over a decade) are “released” from the foster care system, into
greater society, every year. Foster children released into society vary in ages
from 18 to 23, the Fed Reports divide the children into ages, ethnic
categories, populations, and classes, this results in insufficient statistics,
drastically differing from one report to the next) These teens are emotionally
scarred and have nothing – no family, no money and no support network. These
children represent the fastest growing population of homelessness in our
country.
53. There
is a profound conflict of interest between the persons who are in an
authoritative position to protect children (CPS caseworkers), and the fact that
those same persons have the possibility to financially benefit themselves or
their associates, from every child placed into foster care.
54. It has become standard operating
procedure for today’s CPS and Family Courts to act in the best interests of
their incomes. On their watch, each year hundreds of thousands of
children suffer from abuse (including rape and prolonged torture) that would
not have happened without the current court system’s initial invasion and
subsequent entrapment. Removing children from their homes, separating children
from parents, and creating conflict within the family unit is ‘Good Business’
for the CPS judicial officials and has become what the Family and CPS Courts do
best.
55. The problem with Family and CPS Courts
is that financial interests outweigh the judicial issues, and the entire legal
system has been geared to support the financial plunder of clients.
56. CPS
Court officials heavily profit from these induced conflicts. They have learned
how to milk the system for financial gain, by targeting the parents, resulting
in children getting placed with pedophiles, sadistic sociopaths, and
narcissists, in life-threatening environments. Although “the State” will pay
the court officials if a low-income or poor family is involved, the system
forces parents who are middle class or wealthier to foot the bills for all
court services. Either way, rich or poor, court officials have made a big
business out of family conflicts, using children as currency.
57. Court
supervisors and evaluators hold enormous influence over each case, yet their
qualifications are often suspect.
58. Tactically, CPS and court officials
across the board often “set up” the parents; not taking their calls and then
putting it in writing that the parents were the one who failed to communicate.
Or scheduling meetings and not telling the parents about the meeting, then
complaining about the parents to other court officials. Without fail, Family
and CPS court officials will blame and discredit the parents, to avoid their
own liability.
59. In most states, Family and CPS
Courts have no accountability and has complete and absolute control. Parents
are routinely told, "it is your money or your child".
60. In many cases, close relatives will
gladly take the child to raise and they are well known responsible citizens.
But CPS usually responds, "We no longer give children to relatives, we put
them in foster care. If they want your child, they have to go to court and
fight for the child." AFSA has enabled CPS to indulge in corruption. Both
parents pay toward foster care and the government too. CPS makes big money. If
CPS gives child to relatives, then CPS does not make any money.
61. Gag orders are issued to the parents
who lost the child, (often in effect until the child reaches age of 18 years)
resulting in sealing files from the public. CPS Judges and caseworkers use the
threat of the parents “not ever seeing the child again” if the gag order is
violated. So when the courts place a child for fostering and adoption, the parents
are not allowed to speak to the media or seek support (i.e., from doctors,
therapists, law enforcement, the media, or other outlets such as websites or
blogs) on behalf of their child, children or themselves, outside of the court’s
purview. Even when the parent brings indisputable evidence against the abusive foster
parents and adoption, such as photos, doctor’s reports, taped conversations, email
conversations and police reports; the parents can be prosecuted and thrown in
jail on the grounds of Contempt of Court – or, even worse, can have his or her
parental rights terminated.
62. Family and CPS Court officials
claim that placing gag orders (barring media access) on all files and
information within the CPS system is meant to protect the “minor child.” But
the gag orders only protect judges, caseworkers, court supervisors, doctors,
therapists, Guardians ad Litem (GALs), and other court representatives from
liability and public exposure. It allows them to manipulate, cover up,
or twist the truth about information concerning their treatment of the child.
63. Even when gag orders are not
issued, many parents are scared silent, knowing if they speak out, showing
damning evidence against CPS, the CPS Social Workers and officials will take their
anger out on the child. They also fear retaliation from the courts. Parents may
be filled with shame and disbelief, thinking, how could this have happened to
me and my child, when I did nothing wrong? I lost my child and no one is going
to believe me.” Many parents are unable to sleep, and come down with
debilitating illnesses - - gastrointestinal diseases, and sometimes terminal
cases of stomach cancer (in addition to other cancers) — due to the extreme
stress caused by lack of contact with their child. Which leaves the healthy
parents sick and unable to explain to the media or others about the injustices
that occurred, that resulted in the separation of parent and child.
64. Family and CPS court officials,
evaluators, therapists, doctors, attorneys, court supervisors (for supervised
visitations), and GALs all receive large weekly kickbacks. As do outside
contract organizations (both for-profit and non-profit) that are spin-offs of
community service, counseling, employment support, and substance and alcohol
abuse groups. There is a long list of those in each community who make money
off of a child’s removal from a safe and loving home.
65. The Guardian Ad Litem “GALs” along
with CPS caseworkers/social workers are, “officers of the court, appointed to
protect the child.” GAL’s co-plan with CPS caseworkers, behind the family and
CPS courts’ closed doors and have quasi-judicial powers. They are in positions
of great authority, manipulation, and coercive control, almost acting like
prosecutors against the protective parents. Judges rely solely on CPS and GAL
recommendations, and are rarely given the stack of evidence.
66. Family and CPS Courts put on a
twisted mask to hide their judicial abuses and private profiteering, with their
public relations-oriented rhetoric of “putting children first” or representing
the “best interests of the child.” It is not that far of a stretch to suggest
the CPS and Family Courts’ actions amount to racketeering and extortion.
67. Brave and relentless parents lose
everything in their battle to protect their children. Bankrupted, and having
lost their children to the abusers, they still do not give up hope. It takes a
genuine concern for a child’s well being to make a commitment, and sacrifice
everything in hopes that one is protecting their beloved child.
68. AFSA has enabled Child abuse to
became a lucrative industry and caused infliction of Cruel and unusual punishment
on children and their biological parents. Termination of Parental Rights is
much more cruel punishment than the death penalty for the children and their
parents.
CONCLUSION
In light of the above facts, Adoption
and Safe Families Act of 1997 (AFSA), in its present form, violates due
process, Equal Protection and Substantive Rights and inflicts cruel punishment and is unconstitutional. “Rich, poor,
middle-class, white, black, brown — no child in America is safe.”
Plaintiffs
respectfully request this Court to declare the Federal law - Adoption and Safe
Families Act of 1997 unconstitutional.
Dated: July 4, 2017 Respectfully
submitted,
/s/ Sanjay Tyagi
Petitioner, Pro Se
/s/ Alka Jagatia
Petitioner, Pro Se
P.O. Box 597124
Chicago, IL 60659
Phone: (312) 278-3425
Email – sanjaytyagi6@gmail.com
I hereby declare, verify, certify and state, pursuant
to the penalties of perjury under the laws of the United States, and by the
provisions of 28 U.S.C. § 1746, that the above and foregoing representations
are true and correct to the best of our knowledge, information, and belief.
Dated this 4th day of July 2017.
Respectfully submitted,
/s/ Sanjay Tyagi
Petitioner, Pro Se
/s/ Alka Jagatia
Petitioners, Pro Se
P.O. Box 597124
Chicago, IL 60659
Phone: (312) 278-3425
Email –
sanjaytyagi6@gmail.com
CERTIFICATE OF SERVICE
I, hereby
certify that I electronically transmitted this document to the Clerk’s Office
using the CM/ECF System for filing and transmittal of a Notice of Electronic
Filing on this 4th day of July 2017, which automatically sends notice and a copy
of filing to all counsel of record.
Respectfully submitted,
/s/ Sanjay Tyagi
Petitioner, Pro Se
/s/ Alka Jagatia
Petitioner, Pro Se
P.O. Box 597124
Chicago, IL 60659
Phone: (312) 278-3425
Email – sanjaytyagi6@gmail.com
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