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01/05/96 MICHAEL CAVARRETTA v. DEPARTMENT CHILDREN

January 5, 1996

MICHAEL CAVARRETTA, PLAINTIFF/APPELLEE,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES; STERLING M. RYDER, AS FORMER DIRECTOR OF CHILDREN AND FAMILY SERVICES; JESS MCDONALD, AS DIRECTOR OF CHILDREN AND FAMILY SERVICES; ANN BREEN-GRECO, DEPARTMENT OF CHILDREN AND FAMILY SERVICES LAW JUDGE, DEFENDANTS-APPELLANTS (COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 47, DEFENDANT).



Appeal from the Circuit Court of Lake County. No. 94-MR-226. Honorable Bernard E. Drew, Jr., Judge, Presiding.

Presiding Justice McLAREN delivered the opinion of the court: Inglis and Thomas, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

Sterling Ryder, former director of the Illinois Department of Children and Family Services (DCFS), Jess McDonald, director of the DCFS, and Ann Breen-Greco, DCFS Administrative Law Judge (ALJ) (hereinafter defendants), bring this appeal. The defendants seek review of a decision of the trial court of Lake County. The trial court reversed the decision of the ALJ. The ALJ refused to expunge from the State register a report of an "indicated" finding of sexual molestation by the plaintiff, Michael Cavarretta, of a female junior high school student. The trial court found that DCFS violated the plaintiff's due process rights by failing to hold a timely administrative hearing and render a timely decision. The defendants appeal the trial court's decision. We affirm.

We begin our discussion with an overview of the Abused and Neglected Child Reporting Act (Act) (325 ILCS 5/1 et seq. (West 1994)). The Act provides that DCFS shall receive and investigate reports of child abuse or neglect made under the Act and maintain a State register of all such cases. (325 ILCS 5/7.3, 7.7 (West 1994).) After DCFS receives a report of suspected child abuse or neglect, DCFS forwards the report to the State register. (325 ILCS 5/7.10 (West 1994).) Thereafter, DCFS investigates the report (325 ILCS 5/7.4(b)(3) (West 1994)) to determine whether the report is "indicated" or "unfounded" within 60 days (325 ILCS 5/7.12 (West 1994)) and reports the determination to the State register (325 ILCS 5/7.12 (West 1994)). If DCFS determines "that credible evidence of the alleged abuse or neglect exists," the report is deemed "indicated." (325 ILCS 5/3 (West 1994).) If DCFS determines "that no credible evidence of abuse or neglect exists," the report is deemed "unfounded." (325 ILCS 5/3 (West 1994).) If DCFS is unable to "initiate or complete an investigation on the basis of information provided to the Department," or is unable to do so within 60 days, the report is deemed "undetermined." (325 ILCS 5/3, 7.12 (West 1994).) The Illinois Administrative Code (Code) provides that DCFS must make its determination within 60 days of the complaint. 89 Ill. Adm. Code § 300.90(d) (1994).

After DCFS sends notice of the determination to the subject of the report, the subject may request DCFS to expunge or amend the report within 60 days. (325 ILCS 5/7.16 (West 1994).) If DCFS denies the request or fails to act within 30 days:

"The subject shall have the right to a hearing *** to determine whether the record of the report should be amended, expunged, or removed on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with [the] Act. (325 ILCS 5/7.16 (West 1994).)

The hearing "shall be held within a reasonable time after the subject's request." (Emphasis added.) (325 ILCS 5/7.16 (West 1994).) Moreover, the Code provides: "The Administrator of the Administrative Hearing Unit shall *** schedule the hearing at a date within 30 calendar days of the date [of] the appellant's written notice stating that the "issue was not resolved "to the appellant's satisfaction." (Emphasis added.) 89 Ill. Adm. Code § 336.110(d)(1) (1994).

At the hearing, DCFS has the burden of proving the accuracy and consistency of the record. Further, the ALJ's "decision shall be made, in writing, at the close of the hearing, or within 30 days thereof. " (Emphasis added.) (325 ILCS 5/7.16 (West 1994).) The ALJ must base its recommendation on whether there is "credible evidence of abuse or neglect." (89 Ill. Adm. Code § 336.130(b)(14) (1994).) The DCFS director's decision to adopt, modify, or disagree with the ALJ's recommendation must be "based upon the credible evidence standard." (89 Ill. Adm. Code § 336.150(a) (1994).) "Decisions of the *** are administrative decisions subject to judicial review under the Administrative Review Law [735 ILCS 5/3-101 et seq.]. " 325 ILCS 5/7.16 (West 1994).

In the instant case, on February 26, 1992, DCFS received a report from Richard Carlstadt, the principal of Lundahl Junior High School, alleging that the plaintiff, a physical education teacher at the school, fondled and tickled C.M., a 14-year-old female student, on February 19, 1992. DCFS began its investigation on February 27, 1992. The record does not indicate when DCFS completed its investigation. However, by April 24, 1992, 58 days after the investigation began, the State register was informed that DCFS determined that the report was "indicated." On May 14, 1992, DCFS notified the plaintiff that the "indicated" report would be placed in the State register, 78 days after DCFS began its investigation. The plaintiff requested that DCFS expunge the report. The record does not reveal when DCFS received the request. However, the request form was dated June 8, 1992. On July 27, 1992, a DCFS child protection manager determined that credible evidence existed in the record, and on August 19, 1992, DCFS notified the plaintiff that the review panel denied his request for expungement.

On August 28, 1992, the plaintiff requested an administrative hearing on the issue. On September 17, 1992, DCFS sent the plaintiff a letter regarding the plaintiff's request for an administrative hearing. The DCFS letter stated in relevant part:

"Due to the numerous requests for administrative hearings that this office receives, we will not be able to schedule your requested hearing for several months. However, approximately one month before the hearing is scheduled, someone from this office will either contact you or send you a notice concerning the scheduling of the hearing."

On May 24, 1993, DCFS notified the plaintiff that the hearing was scheduled for June 23, 1993, 299 days after the plaintiff made his request. The parties agreed to continue the hearing until August 10, 1993. The record does not indicate which party made the request for the continuance. An administrative hearing was held on September 2, September 8, and October 14, 1993.

On April 1, 1994, 581 days after the plaintiff appealed the DCFS decision and 169 days after the last day of testimony, the ALJ issued her recommendation and opinion. The ALJ found that there was "credible evidence" that the plaintiff sexually molested C.M. and, thus, denied the plaintiff's request for expungement of the record from the State ...


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