EZ v. Coler

• Decision Date: 12 March 1985
• Docket Number: No. 82 C 3976.,82 C 3976.
• Citation: 603 F. Supp. 1546
• Parties: E.Z. et al., Plaintiffs, v. Gregory COLER, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

603 F. Supp. 1546

E.Z. et al., Plaintiffs, v. Gregory COLER, et al., Defendants.

No. 82 C 3976.

United States District Court, N.D. Illinois, E.D.

March 12, 1985.

COPYRIGHT MATERIAL OMITTED

Allan E. Lapidus, Vedder, Price, Kaufman & Kammholz, Harvey Grossman, Legal Director, Roger Baldwin Foundation of ACLU, Chicago, Ill., for plaintiffs.

Jeffrey W. Finke, Stephen Kehoe, Kathleen Kreisel, Asst. Attys. Gen., Gen. Law Div., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

NORDBERG, District Judge.

This matter is before the Court on plaintiffs' motion for a preliminary injunction. Over several weeks in late 1983 and early 1984, a preliminary injunction hearing was held on plaintiffs' motion. Subsequently, the parties filed extensive post-hearing briefs. The court has now reviewed the pleadings, the opening statements by counsel for the parties, the testimony of the witnesses, the final arguments of counsel, and the memoranda of the parties, and considered all of the evidence and law presented, including the exhibits received in evidence and the court's extensive trial notes, which include an appraisal of the witnesses and their credibility. In determining the credibility of the witnesses, the court took into account the witnesses' intelligence, ability and opportunity to observe, age, memory, manner while testifying, any interest, bias or prejudice the witness might have and the reasonableness of the testimony considered in light of all the evidence in the case. The court has drawn reasonable inferences from this evidence, and evaluated the legal principles presented by the parties and developed through legal research of the court.

Background and Facts of the Case

Eight plaintiffs brought suit in June, 1982.¹ Plaintiffs are minor children and their parents who were the subject of child abuse investigations by the Illinois Department of Children and Family Services ("DCFS"). Defendants are the DCFS, its director, various administrators and case-workers. Essentially, plaintiffs allege that a DCFS "pattern and practice" of routinely searching the bodies of minor children reported to be abused or neglected by their parents and the pattern and practice of conducting limited warrantless searches of homes in the course of investigating child abuse and neglect reports, violates the fourth amendment.² Plaintiffs seek a preliminary injunction, enjoining the DCFS: a) from conducting searches of minor children without consent of the parent³ or without probable cause; and b) from conducting searches of the residences of such children and their parents or legal guardians without consent, or a search warrant issued upon probable cause.

Defendants maintain that existing detailed procedures governing DCFS child abuse investigations adequately protect plaintiff's constitutional rights. After the filing of this suit, the DCFS began using the Child Abuse and Neglect Investigation Decisions Handbook (Pl.Ex. 3) ("Handbook") and detailed procedures governing child abuse investigations. (Pl.Ex. 2) ("DCFS Procedures" or "Procedures"). The fledgling Division of Child Protection of the DCFS, formed in 1981 to meet the difficult and often life-threatening problem of child abuse, adopted the Handbook and Procedures to aid it in its work. The Handbook was drafted by the American Bar Association and Data Management Associates to provide guidelines to workers investigating child abuse. (Pl.Ex. 3, Coler Tr. 1202, Selinski Tr. 1479). The Handbook was the product of interviews with those who work in the child abuse field, including child protection workers, judges, police officers, the Director of the C. Henry Kempe Center for the Protection and Treatment of Child Abuse and Neglect and the Director of the National Legal Resource Center for Child Abuse Advocacy and Protection. (Selinski Tr. 1464-68).

Current DCFS Procedures

The Handbook and Procedures provide the following methods for investigating child abuse reports. The DCFS receives reports of child abuse via a toll-free hot line which operates 24 hours a day, 365 days a year. Hot line calls must meet the following criteria before a DCFS investigation is commenced:

1. A child less than 18 years of age must be involved;

2. The child must either have been harmed, or be in danger of harm or of a substantial risk of harm;

3. A specific incident or circumstance which suggests the harm was caused by child abuse or neglect has been identified;

4. A parent or caretaker must be the alleged perpetrator of neglect;

5. A parent or other caretaker, an adult family member, an adult individual residing in the same home as the child, or the parent's paramour must be the alleged perpetrator of abuse.

(Procedures Part 302.5(b), Pl.Ex. 2, pp. 10-11). If the above criteria are not satisfied, then an investigation is not commenced. If a report meets these criteria, an in-person visit with the reported child victim must begin within 24 hours. In the event of an emergency, the investigation must begin immediately, at any hour of the day or night. (Procedures Part 302.5(g)(1) and 302.5(g)(2), Pl.Ex. 2, pp. 23-24).

The Interview

The DCFS worker⁴ goes to the residence of the alleged child victim, introduces himself or herself to the parent and tells the reason for the investigation, making reference to the receipt of the child abuse or neglect report. Although the DCFS worker does not tell the parent or caretaker⁵ that he or she has a right to refuse to admit the DCFS worker, a worker may not force his or her way in to see the alleged child victim. If access to the child is denied, the Procedures require that the DCFS worker explain to the parent or caretaker that Illinois law gives the worker the authority to see the children. If access is still denied, the DCFS worker must immediately contact local authorities and request immediate assistance in contacting the child. If necessary, the worker must pursue a court order. (Procedures Part 302.5(d)(7), Pl.Ex. 2, p. 21).

Once inside, the worker may observe those areas of the residence "reasonably related to the allegations of abuse or neglect." (Procedures Part 302.5(g)(3)(v), Pl.Ex. 2, p. 26; Conlee Tr. 358; Buhrmann Tr. 832-33). In addition, the worker may examine the body of the alleged child to victim, if needed, to verify the report of abuse. The Handbook provides:

The worker should observe the child's body for evidence of physical abuse. When a physical examination is necessary to verify the allegation, the worker can select from the following options: The worker should consult with the caretaker and offer three options.

1. The caretaker can take the child to a physician or hospital emergency room for physical examination.

2. The worker will take the child to a physician or hospital emergency room for a physical examination.

3. The caretaker and the worker can jointly disrobe the child and conduct a cursory physical examination.

If the child is at school, the worker should attempt to contact the caretaker before having the school nurse examine the child. The caretaker should be provided with the above three options and a fourth one which involves having the school nurse examine the child. If the caretaker can not be reached, the worker should have the school nurse examine the child.

There are a number of restrictions which apply to the preceding options: They are: Physical examinations of children alleged to be sexually abused should be conducted by a physician or other medical personnel, not the worker. The first two options above apply in this situation. Although it is preferable that a physician conduct an exam, if physical examinations are performed by the worker and the caretaker or other adult, for children over 13 it must be conducted by a worker who is the same sex as the child. Similar examinations of school-age children under 13 should be conducted by a person of the same sex as a child. A child who is severely ill (see section 2.5.1, Medical Examinations) should immediately be seen by a physician. The first two options only apply in this situation.

Handbook, p. 66. If the report of child abuse alleges sexual abuse, the Procedures implemented as of December 1, 1983 require that examination of the child's body shall always be conducted by a physician.

Plaintiffs' Proposed Relief

Plaintiffs contend that the above-outlined procedures are unconstitutional because the DCFS workers do not obtain fully informed consent or do not satisfy a probable cause standard before examining children or searching homes. Plaintiffs propose that no examinations or searches be conducted unless parents, informed that they have a right to refuse to cooperate, consent to the investigation or until a traditional probable cause standard is satisfied. Plaintiffs define such a probable cause standard as "specific articulable facts to believe that examination ... will reveal evidence of injury resulting from abuse or neglect...." Plaintiffs' Post-Hearing Brief in Support of their Motion for Preliminary Injunction—p. 61). Plaintiffs concede, however, that the worker may arrange for an immediate medical examination when he or she determines through interviews or observation of the child's behavior and/or readily apparent physical condition that immediate medical assistance is needed. Id. at pp. 50-51, 61.

Standing of Plaintiffs' to Maintain Action for Injunctive Relief

Before reaching the merits of plaintiffs' claim, the court first turns to the plaintiffs' standing to maintain this suit for injunctive relief. At the preliminary injunction hearing, various plaintiffs and witnesses testified to the facts of individual child abuse investigations by the DCFS. All of the testimony concerned incidents occurring prior to April, 1981. As previously noted, it was not until 1981 that the Division of Child Protection of the DCFS was formed. At that time, child abuse investigation procedures were in their infancy. Then, in July, 1982, the Handbook (Pl.Ex. 3) was...