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Lehmann v. Department of Children and Family Services

September 09, 2003

CHARLES AND VIVIAN LEHMANN, PLAINTIFFS-APPELLEES,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND JESS MCDONALD, DIRECTOR OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County No. 00 CH 14208 Honorable Nancy J. Arnold, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill

PUBLISHED

The Illinois Department of Children and Family Services (DCFS) and its director, Jess McDonald, defendants, appeal an order of the circuit court reversing a refusal by DCFS to expunge a finding of child abuse by the plaintiffs, Charles and Vivian Lehmann. DCFS determined that child abuse allegations against plaintiffs should not be expunged after a hearing before an administrative law judge (ALJ). Plaintiffs sought judicial review. The circuit court reversed. Defendants appeal, seeking reinstatement of their denial of expungement of the child abuse findings against plaintiffs. We reverse the order of the circuit court and reinstate the order of DCFS.

On appeal from a circuit court's judgment, we review the administrative agency's decision and not that of the circuit court. XL Disposal Corp. v. Zehnder, 304 Ill. App. 3d 202, 207, 709 N.E.2d 293 (1999). Our review extends to all questions of law and fact presented by the entire record. Jackson v. Retirement Board of the Policemen's Annuity & Benefit Fund, 293 Ill. App. 3d 694, 698, 688 N.E.2d 782 (1997). We regard an administrative agency's findings and conclusions on questions of fact as prima facie true and correct. 735 ILCS 5/3-110 (West 2000); City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295 (1998). A reviewing court does not reweigh the evidence or substitute its judgment for that of the administrative agency, but only ascertains whether the findings of fact are against the manifest weight of the evidence and the opposite conclusion is clearly evident. City of Belvidere, 181 Ill. 2d at 204. An administrative agency's findings on questions of law are reviewed under the less deferential de novo standard. City of Belvidere, 181 Ill. 2d at 205.

DCFS reached its decision to deny plaintiffs' request for expungement after hearings before an ALJ which included the testimony of 15 witnesses. The testimony revealed plaintiffs' methods of disciplining their foster children, sisters Sandy C., Marcelia (also written as Marseala, Marycelia, Marttcelia) C. and Elizabeth C. The girls were sexually abused by their father before being placed in plaintiffs' licensed foster care home in December 1995. Sandy was six years old, Marcelia was five and Elizabeth was four. DCFS removed Elizabeth from plaintiffs' home at plaintiffs' request in October 1997. DCFS removed Sandy and Marcelia against plaintiffs' wishes in June 1999 and notified plaintiffs in August 1999 that they had been "indicated" for child abuse. Under section 336.20 of the Illinois Administrative Code (the Code), an "indicated report" is a report of child abuse or neglect made to DCFS "for which it has been determined, after an investigation, that credible evidence of the alleged abuse or neglect exists." 89 Ill. Adm. Code §336.20 (1996).

On November 6, 1999, plaintiffs requested an administrative hearing under section 336.110 of the Code (89 Ill. Adm. Code §336.110 (1996)). Defendants notified plaintiffs that a hearing would be held on December 8, 1999. Testimony began before the ALJ on December 21, 1999. The parties agreed to future hearing dates of January 10 and 14, 2000.

Louisa (also written as Louis and Luisa) Salazar, a DCFS child abuse investigator, testified she investigated allegations by Elizabeth that plaintiffs hung the children from a pipe in the basement of plaintiffs' home and bound the children's mouths and hands with duct tape as punishment. Salazar testified that although Mrs. Lehmann said such incidents never happened, Mr. Lehmann showed Salazar a galvanized pipe on the basement ceiling and admitted hanging Elizabeth from the pipe for misbehavior for about 30 seconds on two or three occasions.

Salazar said Mr. Lehmann said he hung Elizabeth for both discipline and exercise, but he denied hanging the other girls. Salazar said the policy of DCFS is that corporal punishment may not be used with foster children.

Salazar said Elizabeth reported that she once fell from the pipe and complained that plaintiffs forced her to run around in the basement with loud music playing. Salazar said Elizabeth claimed Marcelia also was hung from the pipe and forced to run around the basement with loud music playing and Marcelia's hands were duct taped to the floor. Salazar testified that Marcelia reported being hung from the pipe as punishment and Elizabeth was hung until she dropped. Salazar said DCFS ultimately removed Sandy and Marcelia from plaintiffs' home because of serious concerns about torture and the risk of physical harm.

On cross-examination, Salazar testified that Sandy and Marcelia said they wanted to be adopted by plaintiffs and Sandy denied being hung from a bar. The proceedings recessed abruptly when the ALJ told the parties that he had to leave.

The hearing resumed three weeks later on January 10, 2000, as agreed. Salazar testified, "in general, [the children were subjected to] all sorts of irregular punishments that were not agreeable *** to any regular kind of punishment that we use ***. [T]hey were physically punished, corporal punishment that was not agreeable to the practice of DCFS ***." Salazar said the allegations of the girls being hung from a high bar, subjected to loud music and forced to run laps and Elizabeth's allegations about duct tape were enough to show a substantial risk of harm.

Laura Michael was a caseworker for the Evangelical Child and Family Associates (ECFA), a private agency under contract with DCFS for casework with foster children. Michael testified that Marcelia and Sandy told her that Mr. Lehmann spanked them with a belt and Marcelia said Mrs. Lehmann locked her in the basement. Michael said on cross-examination that plaintiffs were rated "satisfactory" by ECFA, had been considered as adoptive parents for the girls and the girls had wanted to be adopted by plaintiffs but no longer did.

The hearing resumed on January 14, 2000, by agreement. Cindy Schultz, a licensed foster parent, testified that Sandy and Marcelia were placed with her after being removed from plaintiffs' home. Schultz testified to Marcelia's report that she was hung from a pole in plaintiffs' home many times and hurt herself when she fell. Schultz said Marcelia said she was forced to run around the back yard until she collapsed and around the basement with loud music playing to drown out her screams, was locked in the basement and was tied up and duct taped to her bedroom floor. Shultz said Sandy reported that Elizabeth was spanked by Mr. Lehmann, which left marks on Elizabeth's "behind." Sandy said she was forced to hang by the bar on one occasion. Schultz testified on cross-examination that the girls initially wanted to return to plaintiffs and Sandy said Mr. Lehmann characterized hanging from the bar as "fun."

Madeline McMahon, a licensed foster parent, testified that Elizabeth told her Mr. Lehmann placed duct tape over her mouth, hung her from a pipe, forced her to run outside until she was exhausted, forced her to run in the basement with loud music playing and spanked her with a belt. McMahon said Marcelia told her that plaintiffs forced her to run as punishment and Mr. Lehmann spanked her with a belt. McMahon testified that Marcelia and Sandy reported being hung from a bar as punishment and sent to their rooms where they were given only bread and water. Defendants rested their case.

The proceedings resumed three weeks later on February 4, 2000. The record does not disclose the reason for or objections to the delay. Laurie Mudgett, a licensed foster parent who took the girls in on two occasions, said the girls did not complain about being hurt or receiving inappropriate treatment in plaintiffs' home and wanted to be adopted by plaintiffs.

Mark Odell, an ECFA supervisor, testified on direct examination that Sandy and Marcelia never complained to their caseworker about corporal punishment, but Elizabeth reported that Mr. Lehmann had spanked her. Odell testified that Mrs. Lehmann called ECFA to "self-report" two incidents of corporal punishment--once when Mr. ...


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