Appeal from the Circuit Court of McHenry County, No. 12-MR-79 Honorable Michael T. Caldwell, Judge, Presiding.
Justices Birkett and Spence concurred in the judgment and opinion.
¶1 Plaintiff, Karen Shilvock-Cinefro, appeals the trial court's judgment upholding an order of the Illinois Department of Children and Family Services (the agency) that denied her request for the expungement of an indicated report of child abuse. We reverse because there was no evidence that abuse occurred under section 3(b) of the Abused and Neglected Child Reporting Act (Act) (325 ILCS 5/3(b) (West 2010)).
¶2 I. BACKGROUND
¶3 On November 22, 2011, the agency entered on the central register an indicated report of abuse for allegation of harm No. 14, tying/close confinement, based on an incident in which plaintiff used duct tape, a sheet, and rope to restrain her adopted deaf child, N.C. , in a vehicle in order to transport her to a hospital for assistance with behavioral problems. Plaintiff filed a request to expunge the report, and a hearing was held.
¶4 With the exception of the use of rope as a restraint, the facts are not in dispute. Plaintiff is a social worker and a licensed nursing home administrator, with a bachelor's degree in psychology and a master's degree in sociology and gerontology. Plaintiff and her husband have four biological children and, including N.C. , three children adopted from China. Plaintiff home-schools the four youngest children.
¶5 Plaintiff and her husband became interested in adopting N.C. when they saw her on a video from a Chinese orphanage. They could tell that she was hearing impaired and they had previously adopted a hearing-impaired child from China. They believed that N.C. should be adopted before she turned 14, because, at that time, she would age out of the orphanage. N.C. had originally been found at a bus station in China when she was around six years of age, and she had been in the orphanage for eight years. Although her birth date based on Chinese records placed her at around 14 years of age, a later dental exam estimated that she might be two or three years younger. At the time of the events at issue, N.C. was around 5 feet tall and weighed 70 to 80 pounds. N.C. did not speak, although there was evidence that she knew some limited sign language and had some writing skills. N.C. had been given hearing aids, and plaintiff arranged for her to be further evaluated for the possibility of cochlear implants. N.C. was also severely nearsighted, and plaintiff got her new glasses.
¶6 In June 2011, plaintiff, her husband, and two of her biological children traveled to China to get N.C. When they arrived, they learned that N.C. spent weekdays at a rehabilitation institute and returned to the orphanage on weekends. While they were in China, N.C. exhibited behavioral problems. In one instance, she purposely attempted to walk in front of an oncoming vehicle, and plaintiff's husband grabbed her and pulled her out of the way. In another instance, N.C. ran up behind plaintiff's husband and rammed an umbrella into his buttocks. She also bit plaintiff and hit plaintiff's husband. During the plane trip back to the United States, N.C. refused to stay in her seat, pinched plaintiff's husband, and was difficult to control.
¶7 After arriving in the United States, N.C. continued to have behavioral problems, including throwing a lamp at plaintiff, spitting, screaming, and crying, and scratching and biting herself. N.C. also took off her seatbelt while in the family's van, causing plaintiff to get in the backseat and hold her hands. On other occasions, N.C. bit plaintiff, plaintiff's husband, and one of the other children, causing bruises. One of plaintiff's other children was afraid of N.C. During the incidents, plaintiff would try to comfort N.C. by rubbing her head and arms. Plaintiff would use timeouts or hold her. She also would hold her to prevent her from scratching herself. There was evidence that the family had been trying to obtain help for N.C. 's behavioral problems. Plaintiff said that she was overwhelmed by N.C. at times.
¶8 The incident leading to the finding of abuse occurred on August 29, 2011. On that day, N.C. created a disruption by banging her pencil box on a table. Plaintiff sent N.C. to her room, where she pounded on the wall and yelled until she became quiet and took a nap. Plaintiff later woke up N.C. in order to take her and three of the other children to a learning center. N.C. began to yell, refused to put on her shoes, and screamed and kicked. Plaintiff was able to get N.C. to the van and into one of the seats. N.C. then began to kick, yell, spit, and scratch herself. Plaintiff asked the other children to exit the van. Plaintiff held N.C. for around 10 minutes, but N.C. did not calm down, and plaintiff did not think she could get her back into the house for another timeout.
¶9 Plaintiff said that N.C. was out of control, that the situation was very intense, and that N.C. was more violent than she had ever seen her. Plaintiff had previously discussed with others the need to get N.C. help if a particularly bad outburst occurred, and she decided to take N.C. to the hospital for help. She had also discussed the need to keep N.C. safe in a car if N.C. could cause a distraction to the driver. She said that she had previously discussed with a therapist the possibility of needing to restrain N.C. , but that tying was not specifically mentioned. That therapist, however, told an investigator that she did not discuss tying or confining N.C. with plaintiff. Plaintiff did not wish to call 911, because in the past her family had problems with the hospital that the ambulance service would use. She also was concerned that N.C. was fearful of ambulances and that paramedics strapping her down would be very traumatic.
¶10 Because N.C. had previously attempted to get out of the van during outbursts, plaintiff used a sheet and duct tape that were already in the van to restrain N.C. to the seat. Plaintiff believed that the restraint was necessary in order to safely transport N.C. to the hospital. Plaintiff put duct tape over the sheet and N.C. 's clothing but, because N.C. was kicking and flailing around, some of the tape stuck on her arms and legs. Plaintiff wrapped tape around N.C. 's middle and elbow areas twice and around her legs at the knees two or three times. She used a nylon belt to restrain N.C. 's wrists. In addition, plaintiff placed a piece of duct tape on N.C. 's upper lip to prevent her from spitting, but she left it loose and did not cover N.C. 's mouth with it. She described it as a 1½-inch flap and said that N.C. 's breathing was not restricted or obstructed. The trip to the hospital took about 25 minutes. During the trip, plaintiff pulled over twice and checked the tape because N.C. was violently kicking the center console, was trying to open the door, and had slid down in her seat. Plaintiff said that she drove responsibly to the hospital and she denied using rope to restrain N.C. She said that there was rope in the van and that, during the trip, N.C. picked it up and swung it like a whip. Plaintiff admitted that she had never seen duct tape used as a method of restraint and was familiar with other forms of restraint. She also said that she did not think she could have safely driven N.C. to the hospital using other methods.
¶11 When plaintiff arrived at the hospital, she parked at the emergency room entrance and went inside to seek assistance. Wendy Mitchell, an emergency room nurse, and Matt Randow, a hospital security guard, assisted in removing N.C. from the van. Randow reported that N.C. had tape around her wrists, legs, chest, and waist, a sheet around her waist, and rope tied around her legs and waist. Mitchell reported that N.C. was secured to the seat with duct tape around her shoulders, arms, abdomen, thighs, and calves. Mitchell said that N.C. 's wrists and ankles were tied with a rope and that she was crying. Trauma shears, which are like large heavy-duty scissors, were used to cut through the duct tape. It took around three to five minutes to remove N.C. from the van. Mitchell testified that ...