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

March 21, 2013

JULIE Q., APPELLEE,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES ET AL., APPELLANTS.



JUSTICE GARMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, and Theis concurred in the judgment and opinion.

Justice Burke took no part in the decision.

OPINION

¶ 1 Plaintiff Julie Q. filed an administrative review action against the Illinois Department of Children and Family Services (DCFS) appealing DCFS's indicated finding of child neglect. The indicated finding resulted from an incident occurring at plaintiff's home on January 29, 2009. DCFS based its finding on its Allegation No. 10/60 titled "Substantial Risk of Physical Injury/Environment Injurious to Health and Welfare" (Allegation 60).

¶ 2 The circuit court of Lake County found that the finding was not against the manifest weight of the evidence, upheld the validity of Allegation 60, and concluded that the hearing was timely held within 90 days pursuant to DCFS rules. The appellate court reversed, concluding that Allegation 60 was void and that the finding was against the manifest weight of the evidence. 2011 IL App (2d) 100643. The appellate court did not consider the timeliness issue.

We granted DCFS's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). For the following reasons, we affirm the judgment of the appellate court.

¶ 3 BACKGROUND

¶ 4 On February 17, 2009, Julie Q. received a phone call from Lavern

Robinson, an investigator with DCFS. Robinson informed Julie Q. that DCFS was investigating a report of possible child abuse or neglect by Julie Q. for her actions toward her daughter M.Q. on January 29, 2009. Julie Q.'s husband and M.Q.'s father, Chris Q., made the report to DCFS after M.Q. informed him of events taking place on the evening of January 29, 2009. M.Q. reportedly told Chris

Q. that her mother, who had a history of alcoholism, had been drinking and locked M.Q. in her room and prevented her from making phone calls. At that time Chris Q. and Julie Q. were separated and Chris Q. was not living at Julie Q.'s home.

¶ 5 DCFS investigated the report and indicated Julie Q. for neglect due to her history of drinking in the home, the injurious environment it created, and the substantial risk of injury to M.Q. On March 13, 2009, DCFS entered its initial indicated finding of neglect against Julie Q. based on Allegation 60. Allegation 60 is found in title 89, section 300.Appendix B (hereinafter, Appendix B) of the Illinois Administrative Code. Appendix B lists specific incidents of harm, one of which must be alleged before DCFS will accept a report of child abuse or neglect. Under Allegation 60 a specific incident of neglect occurs when an individual "plac[es] a child in an environment that is injurious to the child's health and welfare." Appendix B then lists examples of factors to be considered in determining if the child has been placed in an environment injurious to his or her health. Julie

Q. filed a notice of appeal on March 27, 2009. The hearing was delayed on multiple occasions due to continuances, the causes of which are disputed by the parties.

¶ 6 The administrative hearing began on June 23, 2009. The June 23, 2009, hearing date provided insufficient time for the parties to present their evidence, and the hearing was continued until July 20, 2009. Julie Q. first testified that she was a recovering alcoholic and that she had participated in inpatient substance abuse programs on two occasions. She acknowledged two prior arrests for driving under the influence. In 2004, she was acquitted of driving under the influence, and in 2005 she pled guilty to the same charge. Julie Q. also testified that the police were called to her home in 2005 for a call of domestic violence after she was drinking and slammed the door on Chris Q.'s leg. Julie Q. stated that she had been sober since January 29, 2006. DCFS then asked Julie Q. about the events taking place on January 29, 2009. Julie Q. acknowledged that she had a disagreement with M.Q. after M.Q. repeatedly got out of her bed between 9 and 11 p.m. that day. While stating that she restricted M.Q. to her bedroom, she denied preventing M.Q. from using the phone.

¶ 7 Robinson then testified as the primary investigator for DCFS.

During Robinson's testimony, DCFS was permitted to admit DCFS's investigation file. Julie Q. objected to the admission of the file as hearsay because the file included notes written by another investigator, Analia Cobrda, regarding Cobrda's meeting with M.Q. Cobrda was not called to testify at the hearing. Robinson admitted that she had not met with Cobrda, but that she used Cobrda's notes when reaching her conclusion that Julie Q. should be indicated for neglect. Specifically, Cobrda's notes included statements made by M.Q. to Cobrda that Julie Q. had been drinking on January 29, 2009, and that she knew this because her mom's speech was slurred. M.Q. also told Cobrda that her mother was angry and made M.Q. stay in her room. Robinson then testified that the factors listed in Allegation 60 led her to recommend an indicated finding. She specifically referred to the history of Julie's past alcohol abuse and the credible statements made by M.Q.

¶ 8 DCFS also introduced testimony by two officers who had been called to Julie Q.'s home on previous occasions. This testimony was admitted over objection by Julie Q. Officer Lisa Davidson testified that on July 26, 2008, she responded to a call made by M.Q. saying that she could not wake up her mother and that she was frightened. Upon arriving to Julie Q.'s home, M.Q. showed Officer Davidson a glass containing a clear liquid smelling like alcohol. Officer Davidson testified that Julie Q.'s speech was slurred and that she refused to take a portable Breathalyzer test. These statements were corroborated by Officer Keith Landy, who was also called to the scene. Officer Landy testified that in addition to slurred speech, Julie Q. had glassy eyes and appeared intoxicated. He also stated that he believed Julie Q. had a drinking problem and that this drinking problem put M.Q. in an environment injurious to M.Q.'s health and wellness.

¶ 9 Officer Davidson also testified to events taking place in May 2009 when officers were called back to Julie Q.'s home. Arriving at the home, Officer Davidson testified that M.Q. was visibly upset and told the officer that her mom was drinking and that she was afraid of her mom. According to Officer Davidson, M.Q. said that her mom threw a glass at her. Julie Q. again denied drinking and agreed to take a portable Breathalyzer test, but one was not given because the officers received another serious call. Officer Davidson testified that he did not smell alcohol on Julie Q. but that another officer reported that he did smell alcohol on Julie Q.'s breath. Finally, Officer Davidson noted that they took M.Q. to the police station to wait for her father to take her home.

ΒΆ 10 DCFS also questioned Dr. Frances Pacheco, a court-appointed evaluator. Dr. Pacheco was appointed to provide an evaluation regarding the couple's custody dispute in their dissolution action. Dr. Pacheco testified that she had interviewed Chris Q., Julie Q., and M.Q. She stated that she recommended Chris Q. be awarded sole custody due to concerns of Julie Q.'s drinking and statements made by M.Q. that she was afraid of being left alone ...


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