The case arises at a legal crossroads between the government's interest in moving quickly to safeguard children from abuse or neglect and the right of parents to raise and maintain a family without undue government interference.
The high court is scheduled to consider whether to take up the case, Dupuy v. McEwen, at its private conference Thursday. An order agreeing or refusing to hear the appeal could come as early as Monday.
State procedures to investigate allegations of child abuse have been a topic of national concern after more than 400 children from a polygamist group's ranch in west Texas were taken from their parents and held for nearly two months in foster care. The Texas Supreme Court later ordered state officials to return the children to their parents while the investigation continues.
At issue in the Illinois case is whether state officials can use the potential threat of placing children in foster care as a means to pressure parents to forfeit their parental rights.
Agents with the Illinois Department of Children and Family Services (DCFS) routinely advise parents in the initial stage of an abuse investigation that their children may be taken into state custody unless the parents agree to a state-imposed "safety plan." Such plans can require the accused parent or parents to leave the home immediately and cease all unsupervised contact with their children for the duration of the investigation, according to a lawsuit filed by a group of Illinois parents.
Imposition of the safety plan can be authorized by a single unconfirmed tip received via an anonymous child-abuse hot line, the suit says.
In contrast, to authorize the removal of children from their parents, authorities must be able to present enough evidence to convince a judge that there is "reasonable suspicion" that a child has been abused or is in imminent danger.
Illinois officials bypass this evidentiary standard and judicial oversight by giving parents an offer they can't refuse, according to the lawsuit.
The offer: Agree to a safety plan or your children may be taken away. Parents are not given an opportunity to know the substance and source of an abuse allegation, nor are they given an opportunity to challenge the safety plan before a neutral decisionmaker.
Is it coercion? Judges disagree.
A federal judge ruled that such tactics by state officials were a form of coercion. But a federal appeals court disagreed. The Seventh Circuit Court of Appeals in Chicago upheld the state program, saying it raised no constitutional issues because the parents had voluntarily agreed to the safety plan.
"We can't see how parents are made worse off by being given the option of accepting the offer of a safety plan," wrote Circuit Judge Richard Posner. He said the safety plan offers parents more options, not fewer options.
"If you tell a guest that you will mix him either a Martini or a Manhattan, how is he worse off than if you tell him you'll mix him a Martini?" Judge Posner wrote.
Lawyers for the families say parents have a fundamental right to raise their children without government involvement unless officials can show evidence of abuse.
"There has to be some compelling interest in overriding that basic protection [of parents' rights], and a hot-line call by itself doesn't cut it," says Diane Redleaf, executive director of the Family Defense Center in Chicago and a lead lawyer in the case.
"The Seventh Circuit's suggestion that the agonizing choice at the center of this case – between leaving one's family or having one's children taken into state custody – is no different than choosing between a 'Martini' or a 'Manhattan' at a cocktail party, trivializes the family's fundamental liberty interests," writes Stanford law professor and lawyer Jeffrey Fisher in a brief to the court on behalf of the Illinois families.
"When a person is offered a 'Martini or a Manhattan,' he always retains the option of declining both drinks," Mr. Fisher says. "Though it has no evidence of parental wrongdoing, DCFS does not offer parents the option of no restrictions on their family life when it 'offers' safety plans."
Parents never risk losing children
The safety plan program began in 1995. Safety plans are offered to an estimated 10,000 Illinois families each year. There is no record that any parent has ever refused to participate in a safety plan and risk having the state take custody of his or her children.
Illinois officials defend the program, saying parents voluntarily agree to safety plans. They say the plans are designed to provide a middle path between taking every child into state custody or leaving children in the presence of potential abusers during an investigation.
The safety plans are severe enough to prompt the participation of other family members like grandparents or aunts but not so severe as to wrest the child from his or her home, officials say.
State child-protection officials say their mission is different from that of the criminal justice system and that they should not be held to a high legal standard. DCFS is protective and supportive, not punitive, they say. As one official put it: "We are expected to go into a home, determine what has happened, and predict what might happen in the future."
Both sides in the case dispute various statistics. Fisher says allegations in approximately two-thirds of all Illinois hot-line reports are eventually determined to be "unfounded." The state responds that less than 20 percent of all hot-line reports are even investigated.
Fisher and Ms. Redleaf offer several examples of parents accused of child abuse. One case involved a married couple, both professors at a major Chicago-area university. Someone made an anonymous call to the hot line suggesting that one of the professors had abused his 8-year-old adopted daughter. Prior to any investigation into the veracity of the charge, state agents offered the professor a choice: leave the home immediately pursuant to a safety plan or DCFS would take the girl into foster care. The professor moved out. During the investigation, the state found no credible evidence supporting the abuse charge.
In another case, high school science teacher James Redlin was suspected of child abuse after state authorities received an anonymous tip that he had sexually abused his mildly autistic 6-year-old son on an occupied subway train. Mr. Redlin says it was playful tickling, not sexual abuse. But someone thought his conduct was inappropriate and informed state investigators. The state's safety plan required Mr. Redlin's wife, who uses a wheelchair, to provide 24-hour supervision of any contact between Redlin and their son. That case was later determined to be "unfounded."
In a third case, a preschool teacher, Patrick DeLaFont, was accused in a hot-line call of abusing a preschool child. State investigators required Mr. DeLaFont to move out of his home, pending the investigation, even though none of his own children were the subject of the accusation. After living apart from his family for 11 months, investigators concluded the allegation against DeLaFont was "unfounded."
After a 2-year-old girl fell from a back porch while playing, her parents took her to a hospital emergency room where X-rays revealed a fractured arm. Someone at the hospital doubted the back-porch explanation. State investigators demanded that the husband – seen as the likely abuser – leave the family home for 24 hours. He did so. A week later, the day before Thanksgiving, agents ordered both parents out of the house or risk having both their children taken into foster care. Grandparents arrived to care for the children while the parents were sent away. A week later, the parents were allowed to return home to their children after another doctor examined the X-rays and found no basis to suspect child abuse.