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Tiller v. Department of Children & Family Services

Court of Appeals of Illinois, Fourth District

August 12, 2013

JESSICA TILLER, Plaintiff-Appellant,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES; and RICHARD H. CALICA, Director, Defendants-Appellees.

Held [*]

In proceedings arising from plaintiff’s action seeking to reverse and expunge five indicated findings of abuse and neglect that the Department of Children and Family Services found were credible, three of the findings were reversed and expunged by the Director’s final administrative decision, and on plaintiff’s appeal from the trial court’s decision on administrative review upholding the two remaining findings, one was reversed and the other was upheld.

Appeal from the Circuit Court of McLean County, No. 11-MR-276; the Hon. Paul G. Lawrence, Judge, presiding.

Alan J. Novick (argued), of Bloomington, for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Mary C. LaBrec (argued), Assistant Attorney General, of counsel), for appellees.

Justices Appleton and Knecht concurred in the judgment and opinion.

OPINION

STEIGMANN, PRESIDING JUSTICE

¶1 In January 2011, plaintiff, Jessica Tiller, sought to reverse and expunge five indicated findings of abuse and neglect that defendant, the Department of Children and Family Services (DCFS), determined were credible. In September 2011, DCFS Director Erwin McEwen (substituted by current director, Richard H. Calica, by operation of law) accepted the administrative law judge's (ALJ's) recommendations and issued a final administrative decision that reversed and expunged three of the indicated findings but determined that the remaining findings of (1) sexual penetration (89 Ill. Adm. Code 300.Appendix B (Allegation 19), amended at 25 Ill. Reg. 12781, 12797 (eff. Oct. 1, 2001)) and (2) substantial risk of physical injury/environment injurious to health and welfare by neglect (89 Ill. Adm. Code 300.Appendix B (Allegation 10/60), adopted at 25 Ill. Reg. 12781, 12789 (eff. Oct. 1, 2001)) were supported by a preponderance of the evidence. Tiller later filed a complaint, requesting administrative review of DCFS' determination pursuant to section 3-103 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/3-103 (West 2010)). Following a May 2013 hearing, the circuit court affirmed DCFS' decision.

¶2 Tiller appeals, arguing that (1) DCFS' indicated finding of sexual penetration was against the manifest weight of the evidence, (2) DCFS' indicated finding of sexual penetration violated several of her constitutional rights, and (3) DCFS' indicated finding of substantial risk of physical injury/environment injurious to health and welfare by neglect requires reversal because it was based on "double hearsay." Because we agree only with Tiller's first argument, we affirm in part and reverse in part.

¶3 I. BACKGROUND

¶4 A. DCFS' Indicated Findings of Abuse and Neglect Pursuant to the Illinois Administrative Code

¶5 In January 2011, DCFS concluded an investigation into allegations that Tiller and C.C. (born May 11, 1994)–a minor that Tiller had a sexual relationship with–had abused and neglected their daughter M.C. (born August 2, 2010). Specifically, DCFS found credible evidence to support the following indicated findings of abuse and neglect: (1) bone fractures (89 Ill. Adm. Code 300.Appendix B (Allegation 9/59), amended at 25 Ill. Reg. 12781, 12789 (eff. Oct. 1, 2001)); (2) substantial risk of physical injury (abuse) (89 Ill. Adm. Code 300.Appendix B (Allegation 10/60), adopted at 25 Ill. Reg. 12781, 12789 (eff. Oct. 1, 2001)); (3) substantial risk of physical injury/environment injurious to health and welfare by neglect (89 Ill. Adm. Code 300.Appendix B (Allegation 10/60), adopted at 25 Ill. Reg. 12781, 12789 (eff. Oct. 1, 2001)); and (4) cuts, bruises, welts, abrasions, and oral injuries (89 Ill. Adm. Code 300.Appendix B (Allegation 11/61), amended at 25 Ill. Reg. 12781, 12791 (eff. Oct. 1, 2001)). In addition, DCFS also found that credible evidence supported indicating Tiller for sexual penetration (89 Ill. Adm. Code 300.Appendix B (Allegation 19), amended at 25 Ill. Reg. 12781, 12797 (eff. Oct. 1, 2001)), because Tiller admitted having a sexual relationship with C.C., who at the time of M.C.'s birth was 16 years old. Later that month, Tiller appealed DFCS' indicated findings.

¶6 B. The State's Allegations Under the Juvenile Court Act

¶7 In March 2011, the State filed a first supplemental petition for adjudication of wardship, alleging that Tiller and C.C. had neglected M.C. pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 2010)). Specifically, the State alleged, as follows:

"[M.C.], who is under the age of [18] years, is residing in an environment injurious to her welfare in that while residing with her parents, Tiller and [C.C.], [M.C.] received injuries that would not ordinarily occur except for the acts or omissions of a parent or custodian. Specifically, [M.C.] was diagnosed with two healing rib fractures that have been determined by a medical expert to be caused by physical abuse. This creates a risk of harm to [M.C.]"

¶8 Following an adjudicatory hearing conducted later that month, the trial court entered an order adjudicating M.C. a neglected minor based on Tiller's admission to the State's neglect allegation. (The court also determined that C.C., who did not appear at the hearing, failed to provide M.C. the proper care or support as the State alleged in its original petition for adjudication of wardship.) After an April 2011 dispositional hearing, the court adjudicated M.C. a ward of the court and maintained DCFS as her guardian. (DCFS placed M.C. with Tiller's half-sister, Gina Dutro; the court's findings pursuant to the Juvenile Court Act are not the subject of this appeal.)

¶9 C. The Evidence Presented at Tiller's Appeal of DCFS' Indicated Findings

¶10 In July 2011, an ALJ considered Tiller's appeal of DCFS' indicated findings pursuant to section 7.16 of the Abused and Neglected Child Reporting Act (Child Reporting Act) (325 ILCS 5/7.16 (West 2010)). (C.C. did not appeal DCFS' indicated findings.) A summary of the pertinent evidence presented at that hearing–documented by transcripts and the ALJ's written recommendations and opinion issued later that month–showed the following.

¶11 On November 8, 2010, DCFS received information from Crystal Dozart, Dutro's friend, regarding M.C.'s injuries and Tiller's interaction with C.C. Specifically, DCFS documented Dozart's allegations, as follows:

"[DCFS] received a hotline report stating that [M.C.] had two black eyes in the past on two separate occasions with blood being noted in the eye on one occasion; had stiff/rigid torso; that there was ongoing domestic violence in the home; and that Tiller is having a sexual relationship with a minor, [C.C.], who is 16 years old and the father of [M.C.]"
Dozart later informed DCFS that Tiller (1) lived with C.C. and (2) had posted to Dozart's social networking page that she "wanted to kill herself." Dozart also provided DCFS pictures of M.C. that, according to medical personnel, showed significant swelling to both of M.C.'s eyes, bleeding ...

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