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October 27, 1995


Appeal from the Circuit Court of Champaign County. No. 94L1355. Honorable George S. Miller, Judge Presiding.

As Corrected December 6, 1995.

Honorable Frederick S. Green, J., Honorable Robert W. Cook, J., Honorable Rita B. Garman, J., Concurring

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On September 23, 1994, plaintiff Jamie Teal filed a complaint in the circuit court of Champaign County seeking judicial review under the Administrative Review Law (Law) (735 ILCS 5/3-101 et seq. (West 1992)) of a decision of the Illinois Department of Children and Family Services (DCFS) made by a letter from DCFS to plaintiff on August 29, 1994. In the letter, DCFS denied plaintiff's request for a license to operate a home day-care facility pursuant to the provisions of the Child Care Act of 1969 (Act) (225 ILCS 10/1 et seq. (West 1992)). Section 17 of the Act (225 ILCS 10/17 (West 1992)) makes such a decision subject to judicial review under the Law.

On January 5, 1995, after a hearing, the circuit court granted a motion to dismiss the complaint for want of jurisdiction. Plaintiff has appealed. We hold that the judicial review was properly before the circuit court and that the record conclusively shows that, under confused circumstances, DCFS had not proceeded properly and that the cause must be sent back to DCFS for further proceedings. Accordingly, we reverse the order dismissing the complaint and remand to the circuit court with directions to remand to DCFS for proceedings in accordance with this order.

Plaintiff's complaint alleged that (1) she had applied for the license and had made all necessary filings with her application; (2) she had received the letter of denial; (3) the action of DCFS was contrary to the laws of the State and denied her due process; (4) she was not afforded an opportunity to contest an "indicated" child abuse report which was the basis of the denial; (5) she requested a reconsideration of the denial and was informed no such review was available; and (6) she thereby exhausted her administrative remedies. She requested DCFS be required to file an answer consisting of its records in the proceeding.

Attached to the complaint was the letter of DCFS which denied the license request, stating:

"At this time, your day[-]care home application has been denied due to your indicated Child Abuse Report dated December 1993.

You may re-apply after eighteen (18) months and your application will be re-evaluated for a day[-]care home license."

Section 2 of the Abused and Neglected Child Reporting Act (Reporting Act) (325 ILCS 5/2 (West 1992)) requires DCFS to receive reports of abuse or neglect of children. Under the definitions set forth in section 3 of the Reporting Act, the term "'an indicated report' means any report made under [the Reporting Act] if an investigation determines that credible evidence of the alleged abuse or neglect exists." (325 ILCS 5/3 (West 1992).) The subject of the report has 60 days after notification of the existence of such a report to request that the report be expunged, and the denial of such a request is a final order subject to judicial review. 325 ILCS 5/7.16 (West 1992).

DCFS filed a motion and an amended motion to dismiss the petition for administrative review on various jurisdictional grounds. On appeal it seeks to justify the dismissal only on the basis that plaintiff had failed to exhaust her administrative remedies as required by section 3-102 of the Law, which states, in part, as follows:

"If under the terms of the Act governing the procedure before an administrative agency an administrative decision has become final because of the failure to file any document in the nature of objections, protests, petition for hearing or application for administrative review within the time allowed by such Act, such decision shall not be subject to judicial review hereunder excepting only for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter." 735 ILCS 5/3-102 (West 1992).

Originally DCFS maintained that a failure by plaintiff to seek review of the "indicated report" within the required 60 days after she received notification of that document constituted a failure to pursue her administrative remedies requiring dismissal of her petition for judicial review. However, DCFS now agrees that the failure to contest the "indicated report" did not necessarily bar issuance of a license and thus did not finally determine the issue ...

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