801 F.2d 893 (7th Cir. 1986), 84-2757, Darryl H. v. Coler

Docket Nº:84-2757, 85-1611.
Citation:801 F.2d 893
Party Name:DARRYL H., et al., Plaintiffs-Appellants, v. Gregory COLER, Director, Illinois Department of Children and Family Services, et al., Defendants-Appellees. B.D. by C.D., et al., Plaintiffs-Appellants, v. Gregory COLER, Director, Illinois Department of Children and Family Services, et al., Defendants-Appellees.
Case Date:September 09, 1986
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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801 F.2d 893 (7th Cir. 1986)

DARRYL H., et al., Plaintiffs-Appellants,


Gregory COLER, Director, Illinois Department of Children and

Family Services, et al., Defendants-Appellees.

B.D. by C.D., et al., Plaintiffs-Appellants,


Gregory COLER, Director, Illinois Department of Children and

Family Services, et al., Defendants-Appellees.

Nos. 84-2757, 85-1611.

United States Court of Appeals, Seventh Circuit

September 9, 1986

Argued Sept. 11, 1985.

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Patrick T. Murphy, Patrick T. Murphy, Ltd., Chicago, Ill., Allan E. Lapidus, Vedder Price Kaufman & Kammholz, Chicago, Ill., for plaintiffs-appellants.

Jeffrey W. Finke, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.

Before WOOD, COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

In these consolidated appeals, the appellants challenge the constitutionality of a procedure utilized in child abuse investigations by the Illinois Department of Children and Family Services (DCFS). Specifically, as these cases reach us today, the plaintiffs allege that the DCFS policy which permits the caseworker to conduct a physical examination of the child's body for evidence of abuse violates rights protected by the fourth and fourteenth amendments. A final resolution of this issue will require the reconciliation of very fundamental constitutional values: the privacy rights of the

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child; the privacy rights of the family in the important area of childrearing; and the obligation and right of responsible government to deal effectively with the stark reality of child abuse in our society, a problem the seriousness of which has only been appreciated fully in recent times and in which the methods of identification and prevention must still be termed developmental. 1

On this appeal we are not required to accomplish a definitive reconciliation of these competing constitutional value concerns. Indeed, it would be inappropriate to do so. These cases are here at very preliminary stages of the litigation process. In one case, we must determine whether the district court abused its discretion when it refused to grant a preliminary injunction prohibiting use of the challenged procedure pending a determination of its constitutionality. In the other, we must decide whether the district court erred when it granted the defendants' motion for summary judgment. Although we cannot entirely accept the reasoning of the district courts in either case, we believe, for the reasons set forth in the following paragraphs, that, in each case, the judgment must be affirmed.



The DCFS is a state agency charged with responsibility for receiving and investigating alleged cases of child abuse. Ill.Rev.Stat. ch. 23, p 2057.3. Illinois has given the DCFS a mandate to "protect the best interests of the child, offer protective services in order to prevent any further harm to the child and to other children in the family, stabilize the home environment and preserve family life whenever possible." Id. at p 2052. In an attempt to fulfill this mandate, the DCFS enlisted the assistance of physicians, attorneys, law enforcement officers, social workers and many others. Based upon the advice of these professionals, the DCFS developed and implemented a comprehensive plan for preventing, detecting and treating child abuse. The agency adopted uniform guidelines for investigating the thousands of cases of alleged child abuse it receives each year. These procedures are articulated in Illinois Department of Children and Family Services, Child Abuse and Neglect Investigation Decisions Handbook (1982) [hereinafter cited as Handbook ], Pl.Ex. 3, and in a 1983 policy memorandum from Gregory L. Coler, Director of DCFS, to Administrative and Service Staff, entitled "Procedures Implementing Rulemaking" [hereinafter cited as Memorandum], Pl.Ex. 2. The Handbook establishes five criteria (hot-line criteria) which must be met before the DCFS will investigate allegations of abuse or neglect. To constitute a report which requires further investigation, the DCFS must receive information that:

(1) a child less than eighteen years old is involved;

(2) the child was either harmed or in danger of harm;

(3) a specific incident of abuse is identified;

(4) a parent, caretaker, sibling or babysitter is the alleged perpetrator of neglect; or

(5) a parent, caretaker, adult family member, adult individual residing in the child's home, parent's paramour, sibling or babysitter is the alleged perpetrator of abuse.

Memorandum at 10-11. A report which meets the hot-line criteria receives a priority ranking based on the risk to the child,

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and a DCFS caseworker is assigned to investigate the allegations. Handbook at 33; Memorandum at App. G. Following the procedures outlined in the Handbook and the Memorandum, the caseworker begins a "fact-finding process which is designed to determine if credible evidence of abuse or neglect exists." Handbook at 33.

The investigation includes interviews with the child and his caretaker, Handbook at 42; observation of the child's home environment to determine whether it may be injurious to the child's health or safety, Memorandum at 26; and an examination of the child to verify allegations of physical abuse, Handbook at 66. According to the Handbook, when a physical examination is deemed necessary, a caseworker should consult with the caretaker and select one of the following options:

(1) require the caretaker to take the child to a physician for a physical examination;

(2) take the child to a physician for a physical examination;

(3) disrobe the child and conduct a cursory physical examination while the caretaker is present; or

(4) permit the school nurse to examine the child.

Id. Only three restrictions apply to the examination:

(1) in cases of sexual abuse, a physician shall conduct the examination;

(2) an examination of a child over age thirteen must be conducted by a caseworker of the same sex; and

(3) a severely ill child should immediately be seen by a physician.

Id. Unless there are grounds for taking the child into temporary protective custody, neither the Handbook nor the Memorandum provides any guidelines for a situation in which the caseworker and caretaker are unable to agree on one of the options. Following the interviews, observations, and examinations, the caseworker files a report containing a recommendation for further investigation or a conclusion that the allegations were unfounded. Memorandum at 32.

In the cases before us, children were required to disrobe and to permit the caseworker to examine their bodies for evidence of abuse or neglect. 2 Arguing that the DCFS procedure was an unreasonable search prohibited by the fourth amendment and a violation of the family's right to autonomy protected by the fourteenth amendment, the plaintiffs filed suit in district court. In B.D. by C.D. v. Coler, No. 84-2757, the plaintiffs seek preliminary injunctive relief; in Darryl H. v. Coler, No. 85-1611, the plaintiffs seek retrospective money damages. Although consolidated for appeal, the facts and procedural history of these cases require us to consider them separately in this opinion.


B.D. by C.D., et al. v. Coler, et al.

  1. Facts

    In 1982, eight families filed suit against the administrators and caseworkers of the DCFS. Each plaintiff alleged similar instances in which DCFS caseworkers required them to disrobe for a physical examination as part of a DCFS investigation of alleged child abuse. 3 At oral argument,

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    counsel noted that only the cases of two plaintiffs, B.D. and A.O., are now before this court. In April 1981, the DCFS received an anonymous report that B.D., a ten-year-old boy, had been beaten by his father. After speaking with the principal at B.D.'s school, the caseworker required B.D. to remove his pants and examined his back and buttocks. In November 1980, A.O.'s mother contacted the DCFS seeking family counseling. During the conversation, she revealed that A.O. had been kicked and shoved by his stepfather. Four months later, a caseworker interviewed A.O. at school and required him to remove his shirt and pants as part of an examination for evidence of abuse.

  2. Proceedings in the District Court

    The plaintiffs filed suit seeking declaratory and injunctive relief and money damages. They argued that the DCFS investigatory procedures violate the fourth amendment's prohibition against unreasonable searches and the right to privacy protected by the fourteenth amendment. The plaintiffs filed motions seeking: (1) to be certified as a class representing all of the children and parents in the State of Illinois; (2) to amend their complaint to include additional parties; and (3) to obtain a preliminary injunction prohibiting the DCFS from conducting searches of minor children without consent of the parent or probable cause. After extensive hearings, which included substantial testimonial evidence, the district court denied the plaintiffs' motions. 4 The court concluded that the plaintiffs had failed to establish any of the criteria necessary for preliminary injunctive relief. E.Z. v. Coler, 603 F.Supp. 1546, 1562 (N.D.Ill.1985). The district court first focused on the plaintiffs' likelihood of success on the merits. After concluding that the fourth amendment applied to the investigative procedures, the court found that, based on the evidence presented at the hearings, the physical examination was a reasonable search which did not violate the fourth amendment, and found that the plaintiffs consented to the searches. Id. at 1562-63. The court also held that the right to family autonomy was not absolute and, in this case, was outweighed by the state's interest in protecting the children. Id. at 1559. 5

    Turning to the other...

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