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Julie Q v. the Department of Children and Family Services and

December 22, 2011

JULIE Q.,
PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND
ERWIN MCEWEN, AS DIRECTOR OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 09-MR-1461 Honorable Raymond J. McKoski, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justice Zenoff concurred in the judgment and opinion.

Justice Birkett specially concurred, with opinion.

OPINION

¶ 1 In this administrative review proceeding, plaintiff, Julie Q., appeals the trial court's judgment affirming the indicated finding of defendants, the Department of Children and Family Services (DCFS) and Erwin McEwen, in his capacity as director of DCFS, which found that plaintiff neglected her minor child, M.Q. This appeal stems from DCFS's March 13, 2009, determination that plaintiff should be indicated for child neglect in the State Central Register. Plaintiff appealed the indicated finding through DCFS administrative procedures, and DCFS denied plaintiff's appeal.

Plaintiff brought an administrative review action in the trial court. On June 2, 2010, the trial court affirmed the administrative ruling. Plaintiff now appeals from the trial court's judgment.

¶ 2 Plaintiff contends that we should reverse the trial court's judgment and vacate DCFS's indicated finding. In support, plaintiff argues that (1) DCFS's indicated finding is invalid because the allegation that forms the basis of the finding is void as a matter of law; (2) DCFS's indicated finding was against the manifest weight of the evidence; and (3) DCFS's indicated finding must be expunged because DCFS failed to provide plaintiff with a timely resolution of her appeal. We reverse the trial court's decision and vacate the indicated finding.

¶ 3 The indicated finding of child neglect stemmed from an incident that took place on January 29, 2009. At approximately 9 p.m. on that date, plaintiff, a recovering alcoholic, and M.Q., plaintiff's nine-year-old child, had a disagreement after M.Q. repeatedly left her bed and asked to sleep with plaintiff. Plaintiff insisted that M.Q. sleep in her own bed. The following day, M.Q. informed her father Chris Q., plaintiff's estranged husband, that plaintiff had locked her in her room and that she believed that plaintiff had been drinking. Chris reported the incident to DCFS.

¶ 4 On February 17, 2009, plaintiff received a phone call from DCFS investigator Lavern Robinson. Robinson informed plaintiff that DCFS had received a complaint that on the evening of January 29, 2009, plaintiff had locked M.Q. in her bedroom. DCFS was investigating whether plaintiff should be indicated as neglecting M.Q., based on allegation No. 10/60 as found in title 89, appendix B, of the Illinois Administrative Code. Allegation No. 10/60 is entitled, "Substantial Risk of Physical Injury/Environment Injurious to Health and Welfare," and provides that a parent has harmed a child in such a manner that:

"the total circumstances lead a reasonable person to believe that the child is in substantial risk ***. This allegation of harm also includes *** placing a child in an environment that is injurious to the child's health and welfare ***." 89 Ill. Adm. Code 300, app. B, No. 10/60 (2011).

Plaintiff denied the allegation and informed Robinson that M.Q.'s bedroom door did not have a lock. Plaintiff admitted to Robinson that she had a history of alcohol addiction but stated that she was not drinking on January 29, 2009. The following day, Robinson visited plaintiff's home. M.Q. reported to Robinson that she was not locked in her room on January 29, 2009, but that she was frightened and could not use the telephone that evening because she was told not to come out of her room. She further reported that she believed that plaintiff was drinking that evening because plaintiff slurred her speech. Robinson believed that M.Q. was credible.

¶ 5 Robinson requested that plaintiff be evaluated by the Northern Illinois Council on Alcohol and Substance Abuse (NICASA). Ana Ramos, a substance abuse counselor with NICASA, counseled plaintiff from March 24, 2009, until April 28, 2009. During this time, plaintiff attended classes at NICASA twice weekly and was tested for drugs and alcohol; all tests were negative.

¶ 6 Robinson spoke with her supervisor and determined that, due to plaintiff's history of drinking in the home, the injurious environment it created, and the substantial risk of injury to M.Q., plaintiff should be indicated for neglect. Robinson made the determination "based on [plaintiff's] history of drinking in the home is where the alleged incident takes [sic] place, the substantial risk of injury or environment is [sic] risk to the health of the child."

¶ 7 On March 13, 2009, DCFS entered its initial indicated finding of neglect against plaintiff. On March 27, 2009, plaintiff filed a notice of appeal with DCFS. Numerous continuances followed;

the parties dispute which party caused the various continuances. On June 23, 2009, an administrative hearing commenced.

¶ 8 Plaintiff testified regarding the events of January 29, 2009. She admitted that she and M.Q. became engaged in a disagreement sometime after 9 p.m. because M.Q. repeatedly left her bed, but she stated that M.Q. was not physically prevented from leaving her room. Plaintiff testified that she did not drink alcohol on January 29, 2009, but admitted that she was a recovering alcoholic.

¶ 9 Plaintiff testified that, in 2004, she was acquitted of driving under the influence. She testified that, in 2005, she pleaded guilty to driving under the influence and was charged with but not convicted of domestic violence. Thereafter, she received inpatient substance abuse treatment twice: in July 2005 and in January 2006. She testified that in early 2009 she was attending Alcoholics Anonymous meetings two to four times per week and attending sessions once a week with a substance abuse therapist, David Gates, where she was randomly tested for alcohol. Plaintiff testified that without prior warning, Gates would test her saliva for any trace of alcohol; all tests were negative. Plaintiff further testified that she had been sober for three years prior to the alleged January 2009 incident.

¶ 10 After plaintiff testified regarding her sobriety, DCFS inquired about an incident in July 2008, when the Lake Bluff police came to her home. Counsel for plaintiff objected, arguing that the incident was irrelevant to the January 2009 incident. DCFS responded that, because plaintiff testified that she had been sober since 2006, the July 2008 incident was "dispositive as to whether she's been maintaining her sobriety or not." DCFS's administrative law judge (the ALJ) overruled the objection.

¶ 11 Plaintiff testified that, in July 2008, M.Q. called 911 claiming that she found an open bottle of wine and a full glass of wine in their home while plaintiff was asleep. Plaintiff testified that she was not drinking that night and that she refused to take a Breathalyzer test when the police offered her one, because she was angry that the police were in her home, going through her cabinets.

¶ 12 Over further objection by plaintiff's counsel, opposing counsel questioned plaintiff regarding another incident, in May 2009. Plaintiff testified that, after plaintiff grounded M.Q. because she lied about doing her homework, M.Q. called Chris, and Chris called the police. The police arrived at plaintiff's home and asked her to take a Breathalyzer test. Plaintiff testified that she agreed to the test but that the officers left without administering it, after receiving an emergency dispatch. Plaintiff testified that she agreed to let the police take M.Q. and place her in Chris's custody, although she was not happy about it. Plaintiff testified that DCFS had investigated the events of July 2008 and May 2009 and that on both occasions the reports were deemed unfounded.

¶ 13 Over further objection by plaintiff's counsel that the incidents were collateral, the ALJ permitted DCFS to introduce police testimony regarding the July 2008 and May 2009 incidents. Lake Bluff police sergeant Keith Landy testified that, on July 26, 2008, he and another officer responded to a call at plaintiff's address. According to the dispatch, a minor child could not wake her mother and was frightened. Upon the officers' arrival, M.Q. told the officers that she was unable to wake her mother and thought that her mother was drunk. M.Q. showed the officers a glass containing a liquid that Landy believed was wine. Landy testified that, although plaintiff was awake when he entered the home, he believed that she was under the influence of alcohol, because she had glassy eyes, had slurred speech, and smelled of alcohol. Landy testified that plaintiff did not take a Breathalyzer test, but he could not recall why the test was not administered. Landy testified that he did not take M.Q. into protective custody, because the house was neat, there was food in the refrigerator, and "there was no imminent danger to [M.Q.]; her mom was just sleeping in the bedroom."

¶ 14 Lake Bluff police officer Lisa Davidson testified that, in May 2009, she responded to a call at plaintiff's home for an "unknown problem." Davidson testified that, when she arrived, M.Q. met her outside the house and told her that plaintiff was drinking. M.Q. also told Davidson that "her mom had 'slurped' her words" and "threw a glass towards her." According to Davidson, plaintiff denied that she was drinking and denied that she threw a glass at M.Q. Davidson testified that she did not observe plaintiff slur her words, did not smell alcohol on plaintiff's breath, and observed nothing that indicated that plaintiff had been drinking. Davidson testified that plaintiff agreed to take a Breathalyzer test but that the test was never administered because Davidson received another dispatch call and never returned.

¶ 15 Dr. Frances Pacheco, a court-appointed custody evaluator, testified on behalf of DCFS. Pacheco testified that she recommended that Chris be granted sole custody because, based on statements by Chris, M.Q., and plaintiff's other child, Pacheco "had some concerns that [plaintiff] had relapsed, that she was drinking alcohol." Pacheco admitted that Chris had told M.Q. "many things that are inappropriate to tell a child," including "inappropriate things about [plaintiff's] alcoholism" which could have caused M.Q. to have an increased level of fear regarding alcoholism. Pacheco also admitted that she was aware that M.Q.'s school had identified M.Q. as having behavioral issues relating to untruthfulness.

¶ 16 Chris testified that plaintiff had received inpatient treatment for alcoholism and he testified regarding plaintiff's struggles with alcohol. He admitted that he was not at plaintiff's home on January 29, 2009. He testified that from 2006 through 2009, M.Q. complained to him that plaintiff was drinking. Chris admitted that M.Q. had lied about being locked in her room on the evening of January 29, 2009. The June 23, 2009, hearing recessed at 6 p.m., before DCFS concluded its case in chief. The matter was continued to July 20, 2009.

ΒΆ 17 On July 20, 2009, DCFS continued its case in chief. Robinson testified regarding her investigation. DCFS offered into evidence plaintiff's entire DCFS file, including the notes of another DCFS investigator, Analia Cobrda, from a prior interview with M.Q. Plaintiff objected to the admission of those notes on hearsay grounds, as Cobrda did not testify. Plaintiff's objection was overruled, and the entire file was admitted into evidence because the notes concerned M.Q.'s statements regarding abuse and neglect. According to Cobrda's notes, M.Q. told her that on January 29, 2009, she did not see any alcoholic beverages but believed that her mother was drunk because she was slurring her words, smelled like alcohol, and was not ...


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