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E.Z. v. COLER

March 12, 1985

E.Z. ET AL., PLAINTIFFS,
v.
GREGORY COLER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Nordberg, District Judge.

  MEMORANDUM OPINION AND ORDER

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.*fn1 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 caseworkers. 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.*fn2 Plaintiffs seek a preliminary injunction, enjoining the DCFS: a) from conducting searches of minor children without consent of the parent*fn3 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.

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 worker*fn4 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 caretaker*fn5 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 published and extensive amendments to DCFS Procedures became effective as of January 1, 1983.

Defendants point out that, since the individual incidents complained of occurred before new, more detailed procedures were adopted, plaintiffs have no standing to maintain this action since many of the incidents could not be repeated under the new procedures. For example, the alleged Z. incident, wherein a child was examined by a DCFS worker for signs of sexual abuse, could not be repeated since under the new procedures since only a doctor may now examine a child for evidence of sexual abuse.

Because much of the complained of conduct could not be repeated, defendants maintain that the standing requirement, exemplified in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), bars plaintiffs from seeking injunctive relief. In Lyons, the plaintiff alleged that he had been stopped for a traffic violation and, without provocation, Los Angeles police applied a choke-hold to him, rendering him unconscious and causing him injury. He also alleged that police routinely applied choke-holds in situations where they were not threatened with the use of deadly force. The Court found that because Lyons had not and could not credibly allege that the police always choked any citizen with whom they had an encounter and that Lyons would have another encounter with police, he lacked standing to seek injunctive relief. The Court found that any threat to Lyons from the alleged unlawful conduct was not real and depended upon the possibility that he would again have an encounter with the police and that either he would illegally resist arrest or detention or the officers would disobey their instructions and again render him unconscious without any provocation. Because Lyons was unable to allege that he would have another encounter with police and that all police always applied choke-holds in all citizen encounters or that the City authorized police officers to act in such a way, Lyons did not have the requisite personal stake in the outcome of the case to satisfy the standing requirement of Article III.

In contrast to Lyons, plaintiffs in the instant case do have a live controversy with the defendants, the DCFS and its agents. The plaintiffs allege that certain actions of the DCFS in investigating reports of child abuse violate plaintiffs fourth amendment rights. Specifically, plaintiffs allege that nude inspections of children, the warrantless searches of homes of possible victims and failure to implement a probable cause standard to govern investigation of abuse reports have occurred and continue to occur and that plaintiffs may be subjected to these alleged injustices if an injunction is not issued. Such allegations pose a situation which the Supreme Court found would have saved Lyons' claim; that the plaintiff can credibly allege that the practice he or she is challenging always occurs and that plaintiff has a realistic chance of being subject to the practice. Thus, unlike Lyons, the alleged unconstitutional conduct by government authorities is not speculative and dependent upon contingencies like the plaintiffs' potential criminal conduct and the governmental authorities' disobedience to their superiors as in Lyons.*fn6 The plaintiffs have alleged that they have been subjected to allegedly unconstitutional practices by the DCFS and that future child abuse ...


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