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Lyon v. Department of Children and Family Services

November 20, 2002

MARK LYON, PLAINTIFF-APPELLEE,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES; JEFF MCDONALD, IN HIS CAPACITY AS DIRECTOR OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES; AND CAROL SILCOX, IN HER CAPACITY AS ADMINISTRATIVE LAW JUDGE, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Champaign County No. 01MR226 Honorable Thomas J. Difanis, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

UNPUBLISHED

The Department of Children and Family Services (Department) recorded in its central register that plaintiff, Mark Lyon, had sexually molested a minor. See 325 ILCS 5/7.7 (West 2000). Lyon requested the Department to remove the record from the registry, and when the Department refused, he filed an administrative appeal. See 325 ILCS 5/7.16 (West 2000). After an evidentiary hearing, an administrative law judge issued a recommended decision upholding the Department's initial decision not to remove the record.

The Department's Director adopted the recommended decision, and Lyon filed an action for administrative review, naming the Department, Director, and administrative law judge as defendants. See 325 ILCS 5/7.16 (West 2000); 735 ILCS 5/3-103 (West 2000). The circuit court reversed the Director's decision on the ground that the Department's untimely production of documents during the administrative proceedings had deprived Lyon of due process. Defendants appeal. We disagree with the circuit court's - 1 -rationale but affirm its judgment.

I. BACKGROUND

Section 7.7 of the Abused and Neglected Child Reporting Act (Act) (325 ILCS 5/7.7 (West 2000)) requires the Department to maintain "a central register of all cases of suspected child abuse or neglect." As soon as it receives a report of alleged child abuse or neglect, the Department's regional child protective service unit (service unit) must transmit a copy of it to the central register. 325 ILCS 5/7.10 (West 2000). Within 60 days after receiving the report, the service unit must determine whether the report is "'indicated' or 'unfounded.'" 325 ILCS 5/7.12 (West 2000). If it is impossible to begin or complete an investigation within 60 days, the service unit may deem the report "'undetermined[,]' provided every effort has been made to undertake a complete investigation." 325 ILCS 5/7.12 (West 2000). "The Department may extend the period in which such determinations must be made in individual cases for additional periods of up to 30 days each for good cause shown." 325 ILCS 5/7.12 (West 2000).

A report is "indicated" "if an investigation determines that credible evidence of the alleged abuse or neglect exists." 325 ILCS 5/3 (West 2000). A report is "unfounded" if "it is determined after an investigation that no credible evidence of abuse or neglect exists." 325 ILCS 5/3 (West 2000). A report is "undetermined" if "it was not possible to initiate or complete an investigation on the basis of information provided to the Department." 325 ILCS 5/3 (West 2000). The Act does not define the term "credible evidence." A regulation says: "'Credible evidence of child abuse or neglect' means that the available facts[,] when viewed in light of surrounding circumstances[,] would cause a reasonable person to believe that a child was abused or neglected." 89 Ill. Adm. Code §300.20 (Conway Greene CD-ROM June 2002).

When receiving a report, the service unit "shall make an initial investigation and an initial determination whether the report is a good[-]faith indication of alleged child abuse or neglect." 325 ILCS 5/7.4(b)(2) (West 2000). If the report is a good-faith indication of abuse or neglect, the service unit will begin a formal investigation to decide whether the report is indicated or unfounded. 325 ILCS 5/7.4(b)(3) (West 2000).

"Investigative staff shall have direct, in-person contact with the alleged child victim, the alleged perpetrator, and the child's caretaker within seven days of the date the report was received," unless the person is inaccessible. 89 Ill. Adm. Code §300.110(c) (Conway Greene CD-ROM June 2002). "The Department may make collateral contacts with persons other than the subjects of the report or the reporter to obtain further information regarding suspected child abuse or neglect." 89 Ill. Adm. Code §300.110(e) (Conway Greene CD-ROM June 2002). In deciding whether to make "collateral contacts," the Department will weigh (1) the allegations in the report, (2) the severity of the incident, and (3) the likelihood that the collateral contact will have relevant information. 89 Ill. Adm. Code §300.110(e)(1) through (e)(3) (Conway Greene CD-ROM June 2002).

When the service unit finishes its formal investigation, it must report its finding "forthwith" to the central register, i.e., the finding of "indicated" or "unfounded." 325 ILCS 5/7.12 (West 2000). The Department must transmit to district school superintendents information regarding any employee of a school whom the Department has found to be a perpetrator in an indicated report. 89 Ill. Adm. Code §300.140(b) (Conway Greene CD-ROM June 2002). If the subject of the report is a school employee, the school superintendent must notify the State Board of Education, the school board, and the chief administrative officer of the school that the employee "has been named as a perpetrator in an indicated report." 105 ILCS 5/10-21.4 (West 2000).

The Department's regulation further provides:

"(b) The Department will transmit to district school superintendents in Illinois and private school administrators information regarding any persons known to be employed in a school or who otherwise come into frequent contact with children in a school who are determined to be perpetrators of indicated reports of child abuse and neglect.

(c) the Department will transmit to regional superintendents and the State Superintendent of Education information that a person known to be a holder of a certificate issued by the State Board of Education has been named as a perpetrator in an indicated report of child abuse or neglect." 89 Ill. Adm. Code §§300.140(b), (c) (Conway Greene CD- ROM June 2002).

If the perpetrator requests an expungement of the indicated record or an administrative hearing, the Department will so notify the district and regional school superintendents and the State Superintendent of Education. 89 Ill. Adm. Code §300.140(d) (Conway Greene CD-ROM June 2002).

Within 60 days after the Department notifies the "subject of a report" that it has completed its investigation, the "subject" "may request the Department to amend the record or remove the record of the report from the register." 325 ILCS 5/7.16 (West 2000). "Subject of a report" means either the child who was abused or neglected or the "person responsible who is also named in the report." 325 ILCS 5/3 (West 2000).

If the Department declines a request to expunge a record, the regulations provide for a two-step appeal. "To begin the appeal process[,] the subject shall request in writing that the Department review its decision." 89 Ill. Adm. Code §336.40(c) (Conway Greene CD- ROM June 2002). If, after reviewing the file, the Department again declines to expunge the record, the Department will issue a notice of right to an administrative hearing, and the subject can request a hearing in accordance with that notice. 89 Ill. Adm. Code §336.80 (Conway Greene CD-ROM June 2002).

If the Department disregards the subject's request to expunge a record or does not act within 10 days, "the subject shall have the right to a hearing within the Department to determine whether the record of the report should be amended 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 2000). "Such hearing shall be held within a reasonable time after the subject's request ***." 325 ILCS 5/7.16 (West 2000). A regulation requires the chief administrative law judge to "schedule *** a hearing at a date within 70 calendar days after the date of receipt of the appellant's request for an administrative hearing." 89 Ill. Adm. Code §336.110(a)(1) (Conway Greene CD-ROM June 2002).

The Act provides:

"In such hearings, the burden of proving the accuracy and consistency of the record shall be on the Department and the appropriate Child Protective Service Unit. The hearing shall be conducted by the Director or his designee, who is hereby authorized and empowered to order the amendment or removal of the record to make it accurate and consistent with this Act. The decision shall be made, in writing, at the close of the hearing, or within 45 days thereof, and shall state the reasons upon which it is based." 325 ILCS 5/7.16 (West 2000).

At the administrative hearing, "the Department must prove that a preponderance of the evidence supports the indicated finding, or that the record is being maintained in a manner consistent with" the Act and regulations. 89 Ill. Adm. Code §336.100(e)(2) (Conway Greene CD-ROM June 2002). "'Preponderance of the evidence' means the greater weight of the evidence or evidence which renders a fact more likely than not." 89 Ill. Adm. Code §336.20 (Conway Greene CD-ROM June 2002).

Within 20 days after receiving a timely request for an appeal, the Department shall send the appellant a copy of the investigative file, with confidential information deleted in accordance with Title 89, part 431, of the Illinois Administrative Code (89 Ill. Adm. Code §§431.15 through 431.140 (Conway Greene CD-ROM June 2002)). 89 Ill. Adm. Code §431.60(a) (Conway Green CD-ROM June 2002). The Department shall not disclose the identity or location of persons reporting or cooperating in the investigation unless "an administrative law judge determines that the lack of such ...


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