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Lori Burris v. the Department of Children and Family Services and Erwin Mcewen

June 29, 2011

LORI BURRIS,
PLAINTIFF-APPELLEE,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND ERWIN MCEWEN,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Director, Mary K. Rochford, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Quinn

PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Neville and Steele concurred in the judgment and opinion.

OPINION

Plaintiff filed a complaint for administrative review of the Director of Department of Children and Family Services' (DCFS) decision denying her request to expunge an indicated report of neglect based on an allegation that she placed her child, M.W., in an environment that was injurious to the child's health and welfare. Plaintiff argued, during the administrative proceedings and on review, that the Abused and Neglected Child Reporting Act's (Reporting Act) (325 ILCS 5/1 through 11.7 (West 2006)) definition for "neglected child" does not include the term "injurious environment." Therefore, plaintiff maintained that DCFS's administrative rule (89 Ill. Adm. Code 300 app. B (2010)) listing "substantial risk of physical injury/environment injurious to health and welfare" as an allegation of neglect was void and DCFS was not authorized to maintain reports of neglect on the central register based on an indicated finding of environment injurious to health and welfare.

In its decision, DCFS rejected plaintiff's argument and affirmed the indicated report, placing plaintiff's name on the central register pursuant to the Reporting Act. The Director found that DCFS's regulations, listing "environment injurious to health and welfare" as an allegation of neglect, was not inconsistent with the Reporting Act. The circuit court reversed the Director of DCFS's decision, finding that DCFS could not place plaintiff's name on the central register in this case where the Reporting Act did not contain "environment injurious" under its definition of a "neglected child" and the legislature had previously removed the phrase from the Reporting Act.

On appeal, DCFS contends that the circuit court erred in reversing its determination where DCFS's administrative rule, including "environment injurious" as an allegation of neglect, is a valid regulation and consistent with the Reporting Act. DCFS argues that the legislative history of the Reporting Act shows that the legislature removed the phrase "environment injurious" from the statute in 1980 because the phrase standing alone might create confusion, not because the legislature intended to preclude DCFS from including it as specific allegation of neglect in its regulations, enacted in 2001.

Following oral arguments in this case, this court issued an order on March 3, 2011, directing the parties to file supplemental briefs addressing: (1) the applicability of section 7.16 of the Reporting Act (325 ILCS 5/7.16 (West 2006)) and whether the administrative appellate process established by the Reporting Act is precluded, under section 336.190(a)(3) of DCFS's 1-10-1364 rules (89 Ill. Adm. Code 336.190(a)(3) (2010)), where a court has entered a finding of child abuse or neglect. DCFS argues that it would have been appropriate for the administrative hearing to be dismissed under section 7.16 of the Reporting Act and section 336.190(a)(3) of DCFS' rules, where this court's previous findings of child neglect involving M.W. under the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2006))(In re M.W., 386 Ill. App. 3d 186 (2008)) preclude plaintiff's right to a hearing to contest whether the same facts establish child neglect under the Reporting Act. Plaintiff maintains that she had a right to a hearing under the Reporting Act because, while this court made a finding of child neglect under the Juvenile Court Act, no court had made a judicial finding of neglect with respect to whether the definition of "neglected child" in the Reporting Act encompasses the category of subjecting a child to an environment injurious to the child's welfare.

For the following reasons, we reverse the circuit court's determination and find that plaintiff's administrative appeal requesting expungement of the report of child neglect should have been dismissed pursuant to section 7.16 of the Reporting Act (325 ILCS 5/7.16 (West 2006)) and section 336.190(a)(3) of DCFS's rules (89 Ill. Adm. Code 336.190(a)(3).

I. BACKGROUND

A. Juvenile Court Proceedings

Plaintiff is the mother of M.W., who was born in September 2007, and D.J. who was born in April 2004. M.W.'s involvement with DCFS arose from his half brother D.J.'s adjudication of abuse and neglect. See In re D.J., No. 1-05-3815 (Apr.21, 2006) (unpublished order under Supreme Court Rule 23).

In June 2005, a caller to the DCFS hotline reported scratches and bruises to D.J.'s body and that his toenails were discolored. A DCFS investigator visited D.J., who was living with plaintiff and her boyfriend, Shawn Patterson. During the visit, the DCFS investigator observed that D.J. had a healing scar on his forehead, discolored and infected toes, and slightly pink buttocks. Plaintiff and Patterson claimed that D.J. had a diaper rash and injured himself in a fall. Plaintiff agreed to take D.J. to the doctor the next day, but she failed to do so and the DCFS investigator's subsequent attempts to contact plaintiff were unsuccessful.

On July 25, 2005, plaintiff was living in a motel with Patterson and D.J. While plaintiff was at work, Patterson called the police to report that he had been robbed. When police arrived, they saw D.J. lying still on a bed and that his head was swollen. D.J. was hospitalized with injuries including: rectal trauma, an enlarged rectal opening, rectal tears, oral injuries, chin lacerations, skull fracture, forehead bruising, an adult-sized bite mark to his abdomen, multiple nonpatterned bruises to his abdomen, thigh lesions, gonorrhea of the mouth, a right palm lesion, and chronic toenail irritation or trauma. D.J. was diagnosed as a battered child and a victim of child sex abuse, repetitive child physical abuse, medical neglect, and failure to protect from harm.

Patterson was arrested and charged with child endangerment, aggravated battery, and predatory criminal sexual assault. Patterson admitted to pinching D.J.'s thighs, burning his hand, and inserting a plunger into his rectum. Plaintiff told medical personnel that D.J. had fallen down the stairs and denied knowledge of the bite mark on his abdomen, scratches on his rectal and leg areas, and the laceration to his anus. Plaintiff admitted seeing Patterson pinch D.J.'s Plaintiff met with a DCFS investigator on July 27, 2005, and told the investigator that Patterson began baby-sitting D.J. in the middle of May, that she knew Patterson smoked marijuana, that neighbors told her Patterson swore at D.J. and told him to shut up, and that she saw Patterson pinch D.J. between the legs. Plaintiff admitted that she failed to comply with the doctor's instruction to bring D.J. for a follow-up visit after he received treatment for his toes in June. Plaintiff admitted that she tried to protect Patterson by falsely telling the police that she did not know how D.J.'s thighs were injured and by falsely telling hospital staff that D.J. fell down the stairs in her presence. Plaintiff later told police that she saw Patterson pinch D.J.'s thighs in an effort to get him to stop crying and that sometimes she noticed bruises on D.J.'s legs, face and arms when she got home from work. Plaintiff also stated that she noticed more bruises on D.J.'s thighs and abdomen after July 4, 2005, and Patterson told her he bit D.J. to stop him from crying and show him "who was in charge."

After D.J. was discharged from the hospital in August 2005, he was placed in a residential medical facility and assessed for services. Plaintiff was referred for services, including individual therapy. In March or April 2007, plaintiff surrendered her parental rights to D.J. and all services were discontinued. At the time, plaintiff was pregnant with M.W.

Plaintiff met M.W.'s father, Darrion W., in June 2006, and he moved in with her in September 2006. After several months, Darrion W. began a relationship with another woman and moved out but resumed his relationship with plaintiff when she told him that she was five months pregnant. M.W. was born in September 2007, and four weeks later DCFS received an anonymous telephone call expressing concern for his safety due to the ...


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