Celina Montoya , et al., individually and on behalf of all others similarly situated v. ROB JEFFREYS, Director of the Illinois Department of Corrections

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2791
C ELINA MONTOYA , et al.,
individually and on behalf of all others similarly situated,
Plaintiffs-Appellants,
v.
R OB J EFFREYS,
Director of the Illinois Department of Corrections,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cv-01991 — John Robert Blakey, Judge;
Gary Feinerman, Judge.
____________________
A RGUED D ECEMBER 7, 2023 — D ECIDED A PRIL 18, 2024
____________________
Before WOOD, KIRSCH , and JACKSON-A KIWUMI, Circuit
Judges.
KIRSCH , Circuit Judge. Celina Montoya, Jennifer Tyree,
Ronald Molina, and Zachary Blaye brought a class action law-
suit against the Illinois Department of Corrections (IDOC)
challenging an IDOC policy restricting contact between a

-- 1 of 20 --

2 No. 22-2791
parent convicted of a sex offense and her minor child while
the parent is on mandatory supervised release (MSR). The
plaintiffs alleged that this policy violates Fourteenth Amend-
ment procedural and substantive due process. The district
court entered judgment largely for IDOC. Though we agree
with the court that IDOC’s policy does not violate procedural
due process, we hold that its ban on phone contact violates
substantive due process. On this record, call monitoring is a
ready alternative to the phone-contact ban that accommo-
dates the plaintiffs’ right to enjoy the companionship of their
children at a de minimis cost to IDOC’s penological interests.
We therefore affirm in part and reverse in part.
I
In Illinois, a parent on mandatory supervised release who
has been convicted of a sex offense is subject to an IDOC pol-
icy restricting her written, phone, and in-person contact with
her minor child. Upon her release from prison, she is pre-
sumptively banned from contact with her minor child. She
may request contact, though she must enroll in sex offender
therapy if she does so. She is not limited to seeing an IDOC
therapist and may see a therapist in private practice instead.
If the parent cannot get an appointment with a therapist
within 14 days, an IDOC sex offender therapist will review
her file and complete assessments to allow the parent’s con-
tainment team to begin making a determination regarding her
child-contact request.
The containment team, comprised of the parent’s parole
agent, a sex offender therapist, and the parole commander for
the district, evaluates the risk she poses to her child. The pa-
role agent considers the parent’s compliance with MSR, in-
cluding compliance with MSR rules. The therapist assesses

-- 2 of 20 --

No. 22-2791 3
the risk of harm to the child and makes a dangerousness de-
termination. This assessment holds considerable weight be-
cause of the therapist’s expertise in evaluating sex offenders.
Each therapist may use her own policies to reach a contact
recommendation, including policies related to how long the
parent must be enrolled in therapy before the therapist makes
a recommendation. The team must give the parent an initial
decision on her contact request within 21 days. If the contain-
ment team restricts or denies contact, it must provide the par-
ent with written reasons for the decision and review of the
restrictions or prohibitions every 28 days. A therapist may
deny contact on the basis of insufficient therapy to make a
recommendation to allow child contact.
The parent may appeal the containment team’s decision to
IDOC’s Manager of Sex Offender Services, Sarah Brown-
Foiles. Brown-Foiles serves as an independent appellate deci-
sionmaker. She does not oversee the containment team mem-
bers who make the initial contact determinations and does not
participate in their decision-making process. Sometimes,
Brown-Foiles is not independent, typically when the contain-
ment team has solicited her advice about a particular contact
request or when she supervises the sex offender therapist on
the containment team. But in those instances, a different ap-
pellate decisionmaker will hear the appeal: either IDOC’s
Chief of Programs, Alyssa Williams, or the Clinical Director
at the Big Muddy River Correctional Center, Heather Wright.
The named plaintiffs—Celina Montoya, Jennifer Tyree,
Ronald Molina, and Zachary Blaye—are parents who are or
were subject to IDOC’s policy. Montoya was released from
prison on MSR and was prohibited from residing with her
youngest child, who was 15 years old at the time of filing, for

-- 3 of 20 --

4 No. 22-2791
approximately five months. Tyree was released from prison
on MSR, and two of her children were minors at the time of
her release. After her release, a state court judge ordered that
her minor son live with her, but her parole agent refused to
allow him to live with her because of the policy. Molina was
released from prison on MSR and was prohibited from all
contact with his son, who was 16 years old at the time of filing.
Blaye was also released on MSR, and at the time of filing, his
son was 13 years old. After first being restricted from having
contact with his son under the policy, Blaye was permitted to
have phone and in-person contact with him.
Montoya, Tyree, Molina, and Blaye brought a class action
lawsuit under 42 U.S.C. § 1983 against Rob Jeffreys, in his of-
ficial capacity as IDOC’s Director, alleging that IDOC’s policy
violates Fourteenth Amendment procedural and substantive
due process. After a bench trial, the district court largely up-
held the policy, in part because of IDOC’s strong interests in
protecting children and rehabilitating sex offenders and testi-
mony that there was no assessment or combination of assess-
ments that could be an adequate substitute for a sex offender
therapist’s post-release evaluation. But it upheld the policy
with two exceptions. Uncontested but relevant to the analysis
on appeal, one exception held that the policy’s ban on written
communications was unconstitutional; the court declared that
IDOC must allow a parent to submit a written communication
addressed to her child to the containment team for review and
decision within seven calendar days. The plaintiffs appealed,
challenging the policy’s restrictions on phone and in-person
contact.

-- 4 of 20 --

No. 22-2791 5
II
Under Article III, a plaintiff must have standing—“a per-
sonal stake in the case”—to invoke “the federal judicial
power.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)
(cleaned up). At least one named plaintiff must have standing
for a class action to proceed. Kohen v. Pacific Inv. Mgmt. Co.,
571 F.3d 672, 676–77 (7th Cir. 2009). It is unclear from the rec-
ord whether all the named plaintiffs have standing. But at the
time the amended complaint was filed, Molina was still pro-
hibited from all contact with his son and thus had standing.
See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991) (an-
alyzing standing to bring a class action at the time the com-
plaint was filed). Because at least one named plaintiff has
standing, we may proceed to the merits. In assessing the mer-
its, we review the legal conclusions made in a bench trial de
novo and the factual findings for clear error. Morisch v. United
States, 653 F.3d 522, 528 (7th Cir. 2011).
A
The plaintiffs first argue that the policy violates proce-
dural due process because (1) it fails to provide a sufficiently
neutral and impartial decisionmaker, (2) it lacks a pre-depri-
vation hearing, and (3) its post-deprivation process is not
prompt and fair. To determine whether IDOC’s policy vio-
lates procedural due process, we consider the three factors
outlined in Mathews v. Eldridge, 424 U.S. 319 (1976): (1) the pri-
vate interest affected by the policy, (2) the risk of erroneous
deprivation of the interest and the probable value of addi-
tional or substitute procedural safeguards, and (3) IDOC’s in-
terest, including the administrative or fiscal burdens of the
additional safeguards, id. at 334–35.

-- 5 of 20 --

6 No. 22-2791
1
No party challenges the district court’s conclusion that
procedural due process requires a neutral, independent deci-
sionmaker in evaluating child-contact requests. Rather, the
plaintiffs insist that a parent’s treating therapist is not a suffi-
ciently objective and impartial evaluator (because the thera-
pist is directly involved in the parent’s treatment) and that
there is not always a neutral and impartial appellate deci-
sionmaker. In most cases, Brown-Foiles serves as an inde-
pendent appellate decisionmaker. When she is not independ-
ent, either Williams or Wright will hear the appeal instead.
The plaintiffs argue that neither Williams nor Wright is suffi-
ciently neutral and impartial, as Williams is Brown-Foiles’s
supervisor, and Wright reports to Brown-Foiles. And in their
view, the appeals process is also insufficient because it is con-
ducted in writing, not through an in-person hearing, and thus
a parent does not have a realistic opportunity to present her
own evidence and rebut the evidence against her. They assert
that IDOC could satisfy procedural due process at a minimal
cost by having the Prisoner Review Board (PRB), which al-
ready dictates MSR conditions, serve as the initial deci-
sionmaker for child-contact requests.
The first Mathews factor, the private interest affected by the
policy, weighs in the plaintiffs’ favor. Their right to enjoy the
companionship of their children “is perhaps the oldest of the
fundamental liberty interests recognized by the Supreme
Court.” United States v. Lee, 950 F.3d 439, 448 (7th Cir. 2020)
(cleaned up).
But the second factor, the risk of erroneous deprivation
and the probable value of additional safeguards, weighs in
IDOC’s favor. If the policy did not provide for a neutral and

-- 6 of 20 --

No. 22-2791 7
impartial decisionmaker, there would be a significant risk of
erroneous deprivation. However, IDOC’s policy does.
Brown-Foiles does not oversee the containment team mem-
bers who make the initial contact determinations and is not
involved in their decision-making process. See Felce v. Fiedler,
974 F.2d 1484, 1499 (7th Cir. 1992) (“Of course, a deci-
sionmaker need not be external to an institution to be inde-
pendent.”). Williams may not be sufficiently independent be-
cause she supervises Brown-Foiles. See id. at 1499–500 (hold-
ing that supervisors of the primary decisionmaker were insuf-
ficiently independent because they had “individual interests”
in supporting their subordinate’s decision). But we need not
reach that issue because the plaintiffs did not dispute
Wright’s neutrality below, and on appeal, they simply note
that Wright reports to Brown-Foiles, providing no further ex-
planation for why Wright is insufficiently independent and
citing to no case to support their argument. Plaintiffs thus for-
feited their argument on appeal that Wright is insufficiently
independent. Love v. Vanihel, 73 F.4th 439, 449 (7th Cir. 2023)
(“Arguments inadvertently not raised in the district court are
forfeited, and in the civil context, ordinarily unreviewable on
appeal, because we review forfeited claims only in excep-
tional cases.”) (footnote omitted).
Similarly, the probable value of the additional safe-
guard—a decisionmaker at the initial decision level who is
not directly involved in a parent’s treatment or supervision—
is minimal. The policy already provides for a decisionmaker
who is not directly involved. And though the plaintiffs argue
that the appeals process should be conducted through an in-
person hearing rather than in writing, they do not explain
why a parent does not have a realistic opportunity to present

-- 7 of 20 --

8 No. 22-2791
her own evidence and rebut the evidence against her through
writing.1 The second Mathews prong thus favors IDOC.
The third Mathews factor—IDOC’s interest, including the
administrative or fiscal burdens of the additional safe-
guards—may cut in the plaintiffs’ favor. It is unclear from the
record what burden IDOC would face if the PRB had to serve
as the initial decisionmaker, and IDOC does not address on
appeal the potential burden of this additional safeguard. Sim-
ilarly, in assessing the third Mathews factor, the district court
addressed the burden to IDOC of providing an independent
appellate decisionmaker (such as Williams or Wright) but not
the burden of providing an independent decisionmaker in the
first instance. The burden of this additional safeguard may be
minimal. But regardless, the third factor does not outweigh
the second, which favors IDOC not only because the risk of
erroneous deprivation is low but also because the probable
value of the additional safeguard is negligible. IDOC’s policy
therefore provides for a sufficiently neutral and impartial de-
cisionmaker and does not violate procedural due process on
this basis.
2
The plaintiffs argue that the policy’s lack of a pre-depriva-
tion hearing is impermissible because fundamental rights
1 In a short footnote in their brief, the plaintiffs mention that many
parents are never afforded an opportunity to appeal because they do not
receive a written explanation for contact restrictions from their therapist.
But the policy requires that parents receive written reasons if contact is
restricted or denied. Therefore, a parent who does not receive written rea-
sons might be able to bring an as-applied challenge to the policy but not a
facial challenge.

-- 8 of 20 --

No. 22-2791 9
cannot be categorically abrogated. They rely on Justice
Scalia’s concurrence in Connecticut Department of Public Safety
v. Doe, 538 U.S. 1 (2003), which stated that a properly enacted
law can eliminate a liberty interest unless the interest is so
fundamental that it implicates substantive due process, id. at
8. And they state that the PRB could consider the need for
contact restrictions in a pre-deprivation hearing at the same
time that it determines other MSR conditions. But an “im-
portant government interest, accompanied by a substantial
assurance that the deprivation is not baseless or unwarranted,
may in limited cases demanding prompt action justify post-
poning the opportunity to be heard until after the initial dep-
rivation.” Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 618
(7th Cir. 2002) (quotation omitted).
Again, the first Mathews factor weighs in the plaintiffs’ fa-
vor, as they have a fundamental right to enjoy the compan-
ionship of their children. However, their argument that fun-
damental rights cannot be categorically abrogated falls short.
That the concurrence referred to substantive (not procedural)
due process aside, nothing in it suggested that a law can never
restrict a fundamental liberty interest without a pre-depriva-
tion hearing. Instead, the post-deprivation process must sat-
isfy due process.
The second factor favors IDOC because the probable value
of the additional safeguard of a pre-deprivation hearing is
low. To be sure, without a pre-deprivation hearing, the plain-
tiffs face a substantial risk of erroneous deprivation of contact.
There is no pre-release process to make a contact decision
based on the risk of harm to the child, and thus the policy may
prevent a parent who poses no harm to her child from having
contact with the child until a contact decision is made. But the

-- 9 of 20 --

10 No. 22-2791
additional safeguard of a pre-deprivation hearing has low
probable value. The district court did not clearly err in finding
that a pre-release evaluation of dangerousness is less accurate
than a post-release evaluation, in part because a pre-release
evaluation does not consider the parent’s adjustment to com-
munity life and adaptation to stressors outside prison. Given
this low probable value, the second Mathews factor weighs in
IDOC’s favor.
The third Mathews factor favors IDOC, too. IDOC has a
strong interest in making an accurate contact determination.
The PRB could consider the need for contact restrictions when
it determines other MSR conditions. But the district court did
not clearly err in crediting testimony that there is no assess-
ment or combination of assessments that could be an ade-
quate substitute for a sex offender therapist’s post-release
evaluation, even though the PRB could hear testimony from
a therapist before it conducts a pre-release evaluation. A ther-
apist’s post-release evaluation may still be more accurate than
the PRB’s pre-deprivation evaluation because she can deter-
mine the time at which she can accurately make a dangerous-
ness determination. The policy’s failure to provide for a pre-
deprivation hearing does not violate procedural due process.
3
The plaintiffs also argue that the post-deprivation process
is not prompt and fair, particularly because it lacks criteria
and deadlines for contact determinations. They warn that a
therapist could deny contact to incentivize a parent to comply
with other aspects of her therapy or for no particular reason.
We address this procedural due process argument to the ex-
tent it is distinct from their substantive due process argument
concerning the lack of criteria and deadlines for contact

-- 10 of 20 --

No. 22-2791 11
determinations. As with the plaintiffs’ other procedural due
process arguments, the first Mathews factor favors them. But
the second and third factors weigh against them. There is a
substantial risk of erroneous deprivation, as a parent who
poses no danger to her child may be denied a final contact
determination while her therapist gathers enough infor-
mation to make a contact recommendation to the containment
team. But the plaintiffs mischaracterize IDOC’s policy by stat-
ing that a therapist could decline to make a recommendation
to incentivize a parent to comply with other aspects of her
therapy or for no reason whatsoever. IDOC’s policy does not
allow contact to be denied for reasons unrelated to safety.
And though Dr. Jerry Blain, a sex offender therapist who
works with IDOC, suggested in testimony that a therapist
could withhold contact approval to incentivize a person on
MSR to comply with other aspects of her therapy, this view is
an aberrant misunderstanding of the policy and one IDOC
has rejected. We note that to the extent such misunderstand-
ings persist, a person on MSR may still be able to bring an
individual lawsuit claiming that IDOC has applied the policy
against her in a way that violates the Fourteenth Amendment.
For the same reason, the plaintiffs’ additional safeguard of
objective standards and criteria has low probable value;
IDOC’s policy already restricts the bases upon which a con-
tact determination may be made. We expect that IDOC will
ensure that containment team members understand the per-
missible bases for a contact recommendation or decision. The
plaintiffs’ additional safeguard of deadlines also has low
probable value because the post-deprivation hearings yield
an initial decision within 21 days of the parent’s contact re-
quest and review every 28 days of any restrictions or prohibi-
tions. And in any event, the third Mathews factor outweighs

-- 11 of 20 --

12 No. 22-2791
the probable value of the safeguards. As with the lack of pre-
deprivation hearings, IDOC has a strong interest in accurate
contact determinations and thus in information about a par-
ent’s post-release adjustment to community life and adapta-
tion to stressors outside of prison. Due process does not re-
quire a prompter post-deprivation hearing or additional cri-
teria in IDOC’s policy.
B
The plaintiffs next assert that the policy violates substan-
tive due process because (1) it lacks criteria and deadlines for
contact determinations, (2) the contact ban amounts to an un-
constitutional presumption of dangerousness, and (3) the
phone-contact ban is irrational. To determine whether IDOC’s
policy violates substantive due process, we apply the stand-
ard from Turner v. Safley, 482 U.S. 78 (1987), which asks
whether the policy “is reasonably related to legitimate peno-
logical interests,” id. at 89. Turner identified four factors rele-
vant to the reasonableness determination: (1) whether there is
a “valid, rational connection” between the regulation and the
governmental interest; (2) whether alternative means of exer-
cising the right at issue remain available to inmates; (3) the
impact accommodation of the right will have on guards, other
inmates, and the allocation of prison resources; and (4) the ab-
sence of ready alternatives. Id. at 89–90 (quotation omitted).
Regarding the absence of ready alternatives, “if an inmate
claimant can point to an alternative that fully accommodates
the prisoner’s rights at de minimis cost to valid penological in-
terests, a court may consider that as evidence that the regula-
tion does not satisfy the reasonable relationship standard.” Id.
at 91. IDOC does not have to prove the validity of its policy;

-- 12 of 20 --

No. 22-2791 13
rather, the burden is on the plaintiffs to disprove it. Overton v.
Bazzetta, 539 U.S. 126, 132 (2003).
The Court explained in Turner that this deferential stand-
ard is necessary because prison administrators, not courts, are
tasked with making difficult decisions related to institutional
operations. 482 U.S. at 89 (citation omitted). It sought to avoid
subjecting “every administrative judgment … to the possibil-
ity that some court somewhere would conclude that it had a
less restrictive way of solving the problem at hand.” Id. And
in Felce, we applied Turner to the MSR context. Felce, who was
on MSR, sued under § 1983, alleging that a condition of his
MSR violated due process. Felce, 974 F.2d at 1485–87. In deter-
mining that Turner’s reasonableness standard applied, we
discussed Washington v. Harper, 494 U.S. 210 (1990), which
stated that the standard “applies to all circumstances in which
the needs of prison administration implicate constitutional
rights,” id. at 224. We concluded, “We have no reason to doubt
that this basic analysis [in Washington] is just as applicable to
parole as to prison situations.” Felce, 974 F.2d at 1494.
The plaintiffs argue that the district court erred in apply-
ing Turner’s standard because its logic is inapplicable to the
community supervision context, which does not present the
same institutional security needs as do jails and prisons. They
also argue that the standard should not apply where an MSR
condition interferes with a fundamental right. But Felce
squarely held that Turner’s standard applies to the MSR con-
text, and Turner and Felce made no distinction between the
different constitutional rights that administrative needs could
implicate. And though the plaintiffs point to United States v.
Baker, 755 F.3d 515 (7th Cir. 2014), and United States v. Good-
win, 717 F.3d 511 (7th Cir. 2013), in which we vacated

-- 13 of 20 --

14 No. 22-2791
conditions of supervised release related to sex offenders’ con-
tact with their children, those cases involved special, discre-
tionary conditions imposed by district courts, Baker, 755 F.3d
at 523; Goodwin, 717 F.3d at 522, whereas Felce involved an
MSR condition drawn up by Felce’s parole agent and the
agent’s supervisor, Felce, 974 F.2d at 1487. Turner concerned
deference to administrative, not judicial, decisions. Thus, Felce
controls, and the district court did not err in applying Turner’s
standard to evaluate whether IDOC’s policy violates substan-
tive due process.
1
As with their procedural due process argument, the plain-
tiffs maintain that the policy lacks any criterion or deadline
for a therapist’s final contact recommendation and that a ther-
apist can interfere with a parent’s right to enjoy the compan-
ionship of her child indefinitely, without making any deter-
mination of dangerousness. For instance, they argue that a
therapist could continually deny contact approval on the ba-
sis of insufficient therapy sessions to make an assessment.
Looking to the first Turner factor, there is a valid, rational
connection between the particular criteria and deadlines in
the policy and IDOC’s interests in protecting children and re-
habilitating sex offenders on MSR. It is rational to restrict par-
ent-child contact before the parent’s stability and reintegra-
tion into the community are assessed as part of a dangerous-
ness determination. Further, it is rational to pair a 21-day
deadline for the initial contact determination with a 28-day
deadline for each subsequent review. These deadlines ensure
that therapists have sufficient sessions with the parent to
make an accurate recommendation. This factor thus weighs
in IDOC’s favor.

-- 14 of 20 --

No. 22-2791 15
The second Turner factor weighs slightly against the plain-
tiffs. The policy’s presumptive ban on contact applies equally
to phone and in-person contact, but the district court declared
the ban on written contact unconstitutional. Therefore, a par-
ent may exercise her right to enjoy the companionship of her
child via written communications. But while written commu-
nication is an alternative means of parent-child contact, we
are not oblivious to the fact that written communication with
a child is far different than phone and in-person communica-
tion, which are interactive.
Similarly, the third factor weighs in IDOC’s favor. Impos-
ing a formal deadline for a final determination may not sig-
nificantly affect the allocation of its resources. But, as dis-
cussed above, IDOC’s policy already contains criteria and a
deadline for the initial contact determination, and the plain-
tiffs do not identify what specific criteria should be added to
the policy or how the addition of that criteria would affect the
allocation of prison resources.
The fourth factor favors IDOC, too. Imposing a formal
deadline for final contact determinations would pose more
than a de minimis cost to IDOC’s interest in protecting chil-
dren, as a therapist may have to make a final contact recom-
mendation without the information needed to make an accu-
rate assessment of the parent’s dangerousness. And again, be-
cause the plaintiffs do not specify what criteria they would
add to the policy, it is unclear what cost the additional criteria
would pose to IDOC’s penological interests. The policy is
therefore reasonably related to IDOC’s interests; it does not
lack criteria or deadlines such that it violates substantive due
process.

-- 15 of 20 --

16 No. 22-2791
2
The plaintiffs also argue that the policy contains a 35-day
irrebuttable presumption against phone and in-person con-
tact that amounts to an unconstitutional presumption of dan-
gerousness. They note that there is an established methodol-
ogy for assessing risk—an evaluation by a licensed sex of-
fender evaluator—and that IDOC is already legally mandated
to conduct a pre-release sex offender evaluation on every per-
son released from IDOC who has been convicted of a sex of-
fense, see 730 ILCS 5/3-6-2(j). IDOC has noted that contact
may be approved in fewer than 35 days, so not every parent
is subject to a 35-day period in which she awaits an initial con-
tact determination. On appeal, IDOC seemingly concedes that
the policy makes a presumption of dangerousness but
stresses that the presumption is not irrebuttable.
With respect to the first Turner factor, there is a rational
connection between the presumptive ban and IDOC’s inter-
ests in protecting children and preventing sexual harm.
Though not every parent convicted of a sex offense will pose
a danger to her child, there is at least a rational connection
between the policy of disallowing contact until a dangerous-
ness determination is made and IDOC’s interest in protecting
children. The second factor also slightly favors IDOC, as there
is no longer a presumptive ban on written contact, but written
contact is substantially different than phone or in-person con-
tact. The third factor favors the plaintiffs, as IDOC is already
legally mandated to conduct a pre-release sex offender evalu-
ation on each parent subject to the policy. But the fourth factor
favors IDOC and outweighs the others. The alternative of a
pre-release evaluation would pose more than a de minimis

-- 16 of 20 --

No. 22-2791 17
cost to IDOC’s goals of protecting children and rehabilitating
sex offenders. As previously mentioned, a post-release evalu-
ation is more accurate than a pre-release evaluation because
it considers a parent’s response to life and stressors outside
prison. The presumptive ban is reasonably related to IDOC’s
legitimate penological interests and does not violate substan-
tive due process.
3
Finally, the plaintiffs challenge the policy’s ban on phone
contact as irrational for four reasons: (1) the parents regularly
communicated with their children via phone while they were
in prison, (2) phone contact does not present the same risk of
sexual abuse as unsupervised in-person contact, (3) a custo-
dial parent or IDOC agent could easily monitor phone calls,
and (4) the abrupt disruption of phone contact can only have
negative consequences for the children. In support of the ban,
IDOC argues that it has a strong interest in assessing a par-
ent’s stability and reintegration into the community before al-
lowing parent-child contact and that, as the district court
found, predatory behaviors are possible through phone con-
tact. It thus warns that allowing phone contact between a par-
ent and her child immediately upon the parent’s release from
prison would require it to monitor the calls in real time and
to potentially intervene to protect the child, which would
pose a substantial administrative burden.
Both the plaintiffs and IDOC have significant interests at
stake. But phone contact is materially different than physical,
in-person contact. Those speaking on an audio call cannot see
each other, which is a substantial, meaningful difference.
There is no exchange of facial expressions or body language,
and there are no forms of physical affection typical of a

-- 17 of 20 --

18 No. 22-2791
parent-child relationship. Also, phone calls can be more easily
monitored than in-person contact and can be abruptly ended.
The risks that IDOC identifies, while certainly not insignifi-
cant, are less compelling when only phone contact is in-
volved. We are mindful that IDOC has an interest in protect-
ing children from their own parents if it has “some definite
and articulable evidence giving rise to a reasonable suspicion
that [another] child has been abused or is in imminent danger
of abuse.” Brokaw v. Mercer Cnty., 235 F.3d 1000, 1019 (7th Cir.
2000). But IDOC has tools at its disposal to minimize or elim-
inate the risk of abuse, and we must also consider the parents’
fundamental liberty interest in the enjoyment of the compan-
ionship of their children. With that, we move to the applica-
tion of the Turner factors.
As to the first Turner factor, there is a rational connection
between the phone ban and IDOC’s interests in protecting
children and rehabilitating sex offenders on MSR. It is rational
to restrict contact before the parent’s dangerousness is accu-
rately assessed, and therefore this factor weighs in IDOC’s fa-
vor. But we note that the rational connection is weaker when
only phone contact, not both phone and in-person contact, is
restricted. The second factor weighs slightly against the plain-
tiffs because though they can contact their children through
written communications, written communication is signifi-
cantly different than interactive phone contact.
Our analysis instead turns on the third and fourth Turner
factors, which weigh heavily in the plaintiffs’ favor. The
plaintiffs argue that a custodial parent or an IDOC agent
could easily monitor a phone call between a person on MSR
and her child. IDOC responds that the district court found
that call monitoring would pose a substantial administrative

-- 18 of 20 --

No. 22-2791 19
burden. But there is no evidence in the record to suggest that
call monitoring by a custodial parent or an IDOC agent while
a parent awaits a final contact determination would create
such a burden, and the district court did not explain its find-
ing. See Pyles v. Nwaobasi, 829 F.3d 860, 868 (7th Cir. 2016)
(“Where the evidence underlying a fact … supports only spec-
ulation about the existence or nonexistence of the contested
point, it is clear error to conclude that the point has been es-
tablished.”). In fact, the record indicates that custodial parents
are already involved in call monitoring. Steve DeYoung, an
IDOC parole commander, testified during the bench trial that
if a parent is approved for phone contact, the therapist on the
containment team may request that the child’s custodial par-
ent monitor the phone calls. And an IDOC agent could also
monitor a call: a person on MSR convicted of a sex offense
must meet with her parole agent at least once a month and
thus could schedule a monitored call during one of those re-
quired meetings.
The district court additionally found that no evidence sug-
gests that IDOC could “recreate at de minimis cost the existing
infrastructure used to record or monitor prison phone calls,”
but that is not the proper inquiry for a person on MSR. The
record gives no indication that IDOC must monitor phone
calls made outside prison in the same way it monitors calls
inside prison to address its safety concerns. See Heyer v. U.S.
Bureau of Prisons, 984 F.3d 347, 364 (4th Cir. 2021) (finding no
evidence in the record to support the district court’s conclu-
sion that a particular phone call security measure was neces-
sary to address security concerns). For instance, Brown-Foiles
testified during the bench trial that any potential risk from a
phone call would be ameliorated by monitoring the call and
did not testify that the monitoring had to occur in the same

-- 19 of 20 --

20 No. 22-2791
way it does in prison to be effective. And because call moni-
toring would minimize the risk of abuse, monitoring would
not pose more than a de minimis cost to IDOC’s penological
interests in protecting children and rehabilitating sex offend-
ers.
“Here, as in Turner, there may well be ‘obvious, easy alter-
natives to the [phone-contact ban] that accommodate the right
[to enjoy the companionship of one’s child] while imposing a
de minimis burden’” on IDOC’s child safety and rehabilitation
objectives. Riker v. Lemmon, 798 F.3d 546, 558 (7th Cir. 2015)
(quoting Turner, 482 U.S. at 98). “Absent significantly more
evidence explaining the importance of banning [phone con-
tact], Turner does not allow us to accept at face value the De-
partment’s unsubstantiated contentions.” Id. IDOC could
modify its policy to bring it into compliance with substantive
due process. But on this record, the phone-contact ban is not
reasonably related to legitimate penological interests. We
therefore conclude that IDOC’s policy is unconstitutional in-
sofar as it presumptively prohibits parent-child phone contact
while a parent awaits a final contact determination and re-
verse as to the phone-contact ban.
A FFIRMED IN PART AND R EVERSED IN PART

-- 20 of 20 --