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Montalbano v. Illinois Department of Children and Family Services

September 25, 2003


Appeal from Circuit Court of McLean County No. 01MR186 Honorable Elizabeth A. Robb, Judge Presiding.

The opinion of the court was delivered by: Justice Cook


Plaintiff, Michael Montalbano, appeals the circuit court's order upholding a final administrative decision of defendant, Illinois Department of Children and Family Services (Department), denying his request to expunge an indicated finding of sexual penetration, molestation, and substantial risk of harm. We reverse.


On January 10, 2000, the Department received a report that an unknown person, soon thereafter identified as Michael Montalbano, had sexually abused an 11-year-old girl. The following week, a Department investigator and two Illinois State Police officers began conducting interviews of the girl, her mother, Montalbano, and others. Following an investigation, on March 22, 2000, the Department issued a finding, based on a "credible evidence" standard, indicating Montalbano for sexual penetration, sexual molestation, and substantial risk of harm.

On April 30, 2000, Montalbano wrote to the State Central Register's administrator requesting that the Department review its decision and provide him with the reports related to the investigation. After receiving these materials, Montalbano sent a November 2, 2000, letter to the Department stating that the information in its records was inaccurate and should be amended or destroyed. This internal review was denied. According to the Department's brief, this occurred on February 14, 2001. The date is not disputed, although no documentation appears in the record. On February 16, 2001, Montalbano wrote to the Department's administrative hearings unit, stating that he wished to appeal the indicated finding and asking that the indicated report be expunged.

On June 25, 2001, an administrative law judge (ALJ) held a hearing to consider Montalbano's request to expunge the indicated finding against him from the State Central Register. At the hearing, Montalbano made three motions. The first requested a directed finding on the grounds that there was no opportunity to cross-examine the minor and no corroboration of the minor's statements. This motion was denied. The second sought to dismiss the case because the Department failed to call a mandated reporter to testify at the hearing. This motion was also denied. The third motion requested an alteration of the "safety plan" under which Montalbano was prohibited from living in his home. The ALJ ordered the Department to review the safety plan in response.

On July 2, 2001, the ALJ issued an opinion denying Montalbano's request for expungement from the State Central Register. The ALJ found the Department's witnesses to have testified credibly, and determined that the Department had met its burden to prove the accuracy and consistency of the report indicating Montalbano. The Director of the Department adopted the ALJ's findings of fact and conclusions of law on September 19, 2001.

On October 9, 2001, Montalbano filed a three-count complaint with the circuit court of McLean County, naming the Department and its Director, Jess McDonald, as defendants. Count I sought administrative review of the Department's decision of September 19, 2001, contending that the decision was against the manifest weight of the evidence. Count II requested a declaratory judgment that the Department had deprived Montalbano of due process by delaying the proceedings. Count III sought that the court declare the "safety plan" void.

In its final order of January 6, 2003, the circuit court (1) denied count I because the Department's decision was not against the manifest weight of the evidence; (2) denied count II because Montalbano failed to object during the administrative process to the untimeliness of the hearing and decision; and (3) granted count III, finding that the safety plan should be reviewed. This appeal followed. The safety plan of count III is not at issue on appeal.


Plaintiff argues that delays between his request for administrative appeal and the Department's final decision deprived him of due process. We agree.

Generally, a court conducting an administrative review will not consider an issue or defense not raised at the administrative level. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278, 695 N.E.2d 481, 489 (1998). This rule has been applied to constitutional due process challenges. S.W. v. Department of Children & Family Services, 276 Ill. App. 3d 672, 679, 658 N.E.2d 1301, 1307 (1995). Defendants assert that by not raising the issue at the administrative level, plaintiff has waived his due process argument. However, waiver is "an admonition to the parties rather than a limitation on [the] court's jurisdiction" (Texaco-Cities Service Pipeline Co., 182 Ill. 2d at 279, 695 N.E.2d at 489) and does not prevent us from considering the merits of plaintiff's argument in the interests of justice. We therefore address plaintiff's due process argument.

Under section 7.16 of the Abused and Neglected Child Reporting Act (Reporting Act), once a person has been "indicated" on the State Central Register for suspected abuse, the subject of the report "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). If the Department rejects this request, the subject may appeal.

First, the subject may request in writing that the Department review its decision. 89 Ill. Adm. Code §336.40(c) (Conway Greene CD-ROM April 2001). If the Department again refuses to expunge the indicated finding, the Department must issue a notice of right to an administrative hearing. 89 Ill. Adm. Code §336.40(a) (Conway Greene CD-ROM April 2001). Alternatively, if the Department fails to act within 10 days after being requested to review its initial decision, the subject may request an administrative hearing to review the decision. 325 ILCS 5/7.16 (West 2000). By statute, this hearing must be provided "within a reasonable time after the subject's request." 325 ILCS 5/7.16 (West 2000). A Department regulation further provides that the Department shall make a final decision within 90 days of the request for a hearing. 89 Ill. Adm. Code §336.220(a) (Conway Greene CD-ROM April 2001). Finally, the underlying statute provides that the Department's final decision must be issued within 45 days of the hearing. 325 ILCS 5/7.16 (West 2000).

It is undisputed in this case that the Department failed to comply with either the 90-day deadline under the regulations or the 45-day statutory limit. Plaintiff requested an administrative hearing on February 16, 2001, the hearing was held June 25, 2001, and the Director issued the Department's final decision on September 19, 2001. This meant intervals of 215 days from ...

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