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06/26/96 KARIN KEMP-GOLDEN v. DEPARTMENT CHILDREN

June 26, 1996

KARIN KEMP-GOLDEN, PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, DEFENDANT-APPELLEE, AND DOUGLAS POEPSEL, DEFENDANT.



Appeal from Circuit Court of McLean County. No. 94MR34. Honorable Luther H. Dearborn, Judge Presiding.

As Corrected August 29, 1996.

Honorable James A. Knecht, J., Honorable Robert J. Steigmann, J., Honorable Rita B. Garman, J. Concurring. Justice Knecht delivered the opinion of the court: Steigmann and Garman, JJ., concur.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Plaintiff, Karin Kemp-Golden, filed a complaint in the circuit court for declaratory relief and administrative review of a decision made by defendant, the Department of Children and Family Services (DCFS). DCFS filed a motion to dismiss the complaint, which the court granted, finding plaintiff lacked standing to seek the relief requested. Plaintiff appeals, arguing her complaint was erroneously dismissed and the regulatory scheme which denies her standing is unconstitutional. We disagree and affirm.

Plaintiff is the mother of a son, D.K. (born April 12, 1990). Doug Poepsel (Poepsel) is D.K.'s natural father. Plaintiff and Poepsel were never married but, after D.K.'s birth, plaintiff allowed Poepsel to take D.K. for visits and a court awarded Poepsel visitation rights.

On January 12, 1992, a scheduled visitation day, Poepsel spent six hours visiting with D.K. When Poepsel returned D.K. to plaintiff's home, plaintiff observed red abrasions on D.K.'s scrotum and penis. Plaintiff telephoned Poepsel and asked him what he had done with D.K. that day, but Poepsel would not tell plaintiff and stated it was none of her business. Concerned as to what may have happened to D.K., plaintiff called a hot line operated by DCFS to ask about possible indications of physical or sexual abuse. After speaking with a DCFS employee, plaintiff filed a report of possible physical or sexual abuse of D.K. by Poepsel with DCFS, in accordance with section 7 of the Abused and Neglected Child Reporting Act (Act) (325 ILCS 5/7 (West 1992)).

A DCFS investigator conducted an investigation and determined credible evidence of sexual molestation and the infliction of cuts, welts, and bruises had been indicated. Under section 7.14 of the Act, such a finding results in an "indicated" report of abuse, which is kept on file in a central State register. 325 ILCS 5/7.14, 7.7 (West 1992). Pursuant to section 7.16 of the Act, Poepsel filed a written request with DCFS asking it to expunge the indicated report on the grounds the findings in the report were inaccurate. This request was denied and, in accordance with section 7.16 of the Act, Poepsel was afforded a DCFS hearing at which the denial of his request was reviewed. 325 ILCS 5/7.16 (West 1992).

The hearing took place in September 1993, before an administrative law judge (ALJ). Plaintiff and her attorney were present for the hearing and plaintiff testified as a witness. However, plaintiff did not introduce evidence, examine witnesses or participate in any other manner. In February 1994, the ALJ issued his recommendation and opinion to the director of DCFS, recommending DCFS expunge the report of sexual molestation, cuts, welts and bruises (Poepsel report) from the central register because credible evidence of such allegations had not been documented. The Director of DCFS adopted the ALJ's recommendation and DCFS expunged the Poepsel report. Plaintiff was not given notice by DCFS of its decision and learned of the expungement from Poepsel.

On March 23, 1994, plaintiff filed a complaint in the circuit court of McLean County requesting, in the first count, administrative review of the DCFS decision to expunge the Poepsel report. The second count was for declaratory relief, asking the court to hold the existing administrative procedure for adjudicating indicated reports was unconstitutional.

DCFS filed a motion to dismiss plaintiff's complaint, contending plaintiff lacked standing to seek the relief she requested, and in August 1994, the court heard the arguments of the parties on the motion to dismiss. On August 11, 1994, the circuit court dismissed the first count of plaintiff's complaint, finding she did not have standing to obtain judicial review of the administrative decision because (1) it was unclear whether she was a party to the administrative proceeding and (2) even if she was a party to the proceeding, she was not aggrieved by the decision reached there. Additionally, the circuit court later found plaintiff did not have standing to seek the declaratory relief requested and dismissed the second count of her complaint on May 30, 1995.

Plaintiff has legitimate concerns regarding the protection of her son. However, under the applicable regulatory and statutory scheme, she does not have standing to seek administrative review of the DCFS decision or to raise a constitutional challenge to the administrative standing provisions, and her complaint was properly dismissed.

We first consider whether plaintiff had standing to obtain judicial review of the DCFS decision to expunge the Poepsel report. Decisions made by DCFS are administrative decisions subject to judicial review under the Administrative Review Law (Review Law) (735 ILCS 5/3-101 et seq. (West 1994)). 325 ILCS 5/7.16, 11.6 (West 1994). Under the Review Law, the right to seek judicial review of an administrative decision is limited to parties of record at the administrative proceeding whose rights, privileges, or duties were adversely affected by the decision. Williams v. Department of Labor, 76 Ill. 2d 72, 78, 389 N.E.2d 1177, 1179, 27 Ill. Dec. 769 (1979); Castleman v. Civil Service Comm'n, 58 Ill. App. 2d 25, 28, 206 N.E.2d 514, 516 (1965); Maybell v. Illinois Liquor Control Comm'n, 246 Ill. App. 3d 14, 17, 614 N.E.2d 1370, 1373, 185 Ill. Dec. 685 (1993). Thus, one who was not a "party" to the administrative proceeding or is not "aggrieved by the agency decision" does not have standing to seek judicial review of the decision. Williams, 76 Ill. 2d at 79, 389 N.E.2d at 1180.

Accordingly, we must first determine whether plaintiff was a party to the administrative proceeding. Plaintiff contends she was a party to the administrative proceeding because sections 3 and 7.16 of the Act afford her party status. See 325 ILCS 5/3, 7.16 (West 1994).

Plaintiff argues she has standing to seek judicial review of the DCFS decision because section 7.16 of the Act allows "a subject of a report" to seek judicial review of certain decisions DCFS makes with respect to a report of abuse. Section 7.16 of the Act sets forth in part:

" subject of a report may request the Department to amend, expunge identifying information from, or remove the record of the report from the [central State] register. *** If the Department refuses to do so or does not act within 30 days, the subject shall have the right to a hearing within the Department 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 this Act. *** Decisions of the Department under ...


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