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12/06/95 S.W. v. ILLINOIS DEPARTMENT CHILDREN AND

December 6, 1995

S.W., PLAINTIFF-APPELLANT,
v.
ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND JESS MCDONALD, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Lester D. Foreman, Judge Presiding.

Presiding Justice Greiman delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff S.W. appeals the circuit court's order which affirmed the final administrative decision of defendant Illinois Department of Children and Family Services (DCFS) denying his request to expunge an indicated finding of sexual molestation involving a four-year-old girl.

On appeal plaintiff raises two issues: (1) whether plaintiff was denied his constitutional right to due process of law by reason of defendant's failure to comply with certain statutory and regulatory time limitations; and (2) whether defendant's findings were against the manifest weight of the evidence or contrary to law.

We find that the delay in the proceedings did not violate plaintiff's constitutional due process right and that the evidence sufficiently supports the administrative agency's decision. Accordingly, we affirm the circuit court's order.

Mr. and Mrs. C. married in June 1984 and had one child named J.C. who was born in June 1987. In June 1989, Mrs. C. filed for a divorce and in September 1989, met plaintiff and they then began dating.

In February 1990, while the divorce was still pending, Mr. C. reported Mrs. C. to DCFS for suspected abuse and neglect of J.C. (referred to as case no. 371670-A). By letter dated March 16, 1990, DCFS notified Mrs. C. that after a thorough evaluation, the report was determined to be unfounded.

In March 1990 Mr. C. reported plaintiff to DCFS for alleged abuse of J.C. (case no. 371670-B). Plaintiff was alleged to have chased J.C. "around the house and was kicking her." In February 1990 plaintiff had a large tumor removed from his spine and the allegation of chasing J.C. occurred within two weeks of plaintiff's surgery. Since it was difficult for plaintiff to "just stand up" himself, it was doubtful that he had the ability to chase anyone "around the house." By letter of April 5, 1990, DCFS acknowledged this report to be unfounded.

Sometime in March 1991, Mrs. C. and her daughter J.C. moved into plaintiff's house. On March 30, 1991, Mr. and Mrs. C.'s divorce became final.

In September 1991, after the divorce was final and Mrs. C. was awarded custody of J.C., Mr. C. again reported plaintiff to DCFS concerning a bruise on J.C.'s head (case no. 371670-C). According to plaintiff, J.C.'s bruise resulted from an accidental fall. While J.C. was eating lunch, she stood on a swivel chair with wheels and reached over when plaintiff pushed on the swivel chair causing J.C. to hit her head on "a plastic Kool-Aid cup." A few days later, on Wednesday, Mr. C. picked up J.C. for visitation, noticed the bruise on her head, and reported plaintiff for child abuse claiming that plaintiff had struck J.C. in the head with a bottle. Due to the nature of the allegation, Mr. C. was given custody of J.C. for the next four days. Following an investigation, DCFS issued an "indicated" finding in the case. An indicated finding means that credible evidence has been found that child abuse occurred. Plaintiff asked his attorney to appeal the case but his attorney failed to pursue the appeal and the time period allowed for an appeal expired.

In September 1991, Mr. C. filed a petition seeking custody of J.C.

The events surrounding the instant case began on October 30, 1991 (Wednesday), when J.C. misbehaved at the day care center she attended and told her teacher (Janice Herr) that plaintiff "gets home and makes me stand in the corner until night time and I don't get Teddie and I don't get dinner and he makes me sleep there." The day care center teacher and teacher's aide (Tammy Ostrand) prepared a report containing this information and directed the report to the assistant director of the day care center (Sophia Terenzio) who in turn notified DCFS. The next day, October 31, 1991 (Thursday), Richard Zemon, a child protection investigator from DCFS, was assigned the case regarding possible improper physical punishment by plaintiff of J.C., i.e., standing in the corner all night without dinner.

On November 1, 1991, (Friday), Zemon went to the day care center to investigate the allegation of improper physical punishment of J.C. and food deprivation at home by plaintiff. Zemon first met with assistant director Terenzio and reviewed the report written by J.C.'s teacher and teacher's aide.

Immediately after meeting with the assistant director and reviewing the teacher's report, Zemon met with J.C. in the office of the assistant director. Zemon noted that the assistant director, the director (Lorri Fabry) and the teacher (Janice Herr) were also present. In his report Zemon noted the time as 11:15 a.m. and stated:

"Child appeared healthy and well cared for. Child was reluctant to talk with me or to answer my questions. Finally asked teacher to go over statements (child's back was toward me during this). Child did not confirm standing in corner and not getting 'Teddie' but stated that she eats when she comes out of the corner. Said she does not eat while she is in the corner. It was also obvious from the discussion that child has no concept of time yet."

Zemon testified at the administrative hearing that he believed "there really was no substance" to the allegation that J.C. had been required to stand in the corner all night without dinner.

After the 11:15 a.m. discussion, J.C. returned to the classroom and the director raised the instant sexual abuse claim with Zemon. In his report, Zemon stated that he was then informed by the director that on October 30, 1991 (Wednesday) J.C.

"volunteered to teacher and aide that [plaintiff] 'sleeps with me.' Child went on to tell them that 'sometimes he wears clothes.' When asked whether [plaintiff] makes her touch anything, child 'appeared scared at first, then said yes.' Child went on to tell them that plaintiff 'lays his tummy on my tummy and one time stuff came out; it was white; he calls it chicken.' Child also said to them 'He calls his private parts his tummy but it's not his tummy.' Child also told them he sometimes touches her private parts. Child also told them that [plaintiff] calls her a 'bad word' and reluctantly told them the word was 'bitch.' Said that he calls her that 'a lot.'"

Immediately after being advised about this information, J.C.

"was brought back into the office and the same interview technique described above was used again and child reaffirmed all of those statements. Since mother was due shortly to pick up child, I [Zemon] decided to wait and talk to her."

Mrs. C. arrived at day care and met with Zemon at 12:15 p.m. When Zemon informed Mrs. C. about plaintiff's alleged sexual behavior, she "was shocked" and "could not believe it." According to Zemon, Mrs. C said that "she and her former husband are in the middle of a bitter custody battle and speculated that he might have coached her to say these things."

Next, Zemon noted in his report that

"[J.C.] was brought back into office and again teacher reviewed the statements with her and child reaffirmed them (her back was toward mother). After, mother asked minor what she felt when [plaintiff] lay his tummy against hers; was it skin or clothing or a blanket? Child said she felt skin."

Zemon next noted in his report that after J.C. left the room, Mrs. C.

"speculated that the natural father might have coached the child to say these things. [Zemon] asked mother whether she really believed the child could be coached into making those statements and mother agreed that it was probably not possible."

Zemon decided that Mrs. C. "would be extremely protective of minor at this time and decided against removing minor." Zemon was not aware that Mr. C's attorney had telephoned the day care center on October 30 to ask whether J.C. had made any allegations of sexual abuse and did not recall whether Mr. C. had been at the school on October 31.

After leaving the day care center, Mrs. C. took J.C. home and called her attorney who in turn called plaintiff. At home, Mrs. C. told plaintiff about the allegations. Plaintiff already was aware of the allegations because his lawyer had called and informed him at work. Mrs. C. testified that plaintiff was very surprised, shocked and hurt by the allegations and thought "how could her dad get her to say these things about me?" Mrs. C. testified that plaintiff and she talked about the allegations with J.C. and J.C. denied it. J.C. ...


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