Grason v. Illinois of Department of Children and Family Services , 2021 IL App (2d) 200782-U ( 2021 )

2021 IL App (2d) 200782-UNo. 2-20-0782
Order filed December 2, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
ANTHONY J. GRASON, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
)
v. ) No. 19-MR-766
)
ILLINOIS DEPARTMENT OF CHILDREN )
AND FAMILY SERVICES; MARC D. )
SMITH, Acting Director; and OFFICE OF )
ADMINISTRATIVE HEARINGS, ) Honorable
) Mitchell L. Hoffman,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Zenoff and Hudson concurred in the judgment.
ORDER
¶1 Held: (1) Director of DCFS’s decision not to expunge indicated finding was not clearly
erroneous; (2) court would not review the propriety of DCFS’s investigation; (3)
plaintiff’s due process rights were not violated.
¶2 The Illinois Department of Children and Family Services (DCFS) investigated a report that
the plaintiff, Anthony Grason, had abused his then 12-year-old son. Following its investigation,
DCFS entered an indicated finding of abuse against the plaintiff that he had created a substantial
risk of physical injury to his son. The plaintiff thereafter pursued an administrative appeal, seeking
2021 IL App (2d) 200782-Uto have the indicated finding expunged from the state central register. The Acting Director of
DCFS, Marc Smith, denied the request for expungement, and his decision was affirmed by the
circuit court of Lake County. The plaintiff appeals from that order. We affirm.
¶3 I. BACKGROUND
¶4 The plaintiff and Emily Smith are engaged to be married and have two children. The older
child is L.G., who was 12 when the incident at issue occurred. The other child was an infant. The
children live with Emily and their grandmother, Penelope Smith, in Round Lake Heights. The
plaintiff lives in Decatur and visits Emily and the children frequently on weekends. L.G. has
special needs, is in some special education classes, has an Individualized Education Plan (IEP) at
school, and is suspected to be on the autism spectrum. One of the characteristics that he exhibits
is that he is very possessive of his bedroom and his things. He becomes extremely upset when
anyone tries to enter his room or sit in his gaming chair.
¶5 On August 27, 2018, while visiting the children, the plaintiff entered L.G.’s bedroom
unannounced with gifts he had bought for L.G. His entrance caused L.G. to become very agitated
and upset. L.G. attempted to get the plaintiff to leave the room, and he pushed him. The plaintiff
left the room and gave the infant child he was carrying to Penelope. The plaintiff returned to
L.G.’s room and L.G. again tried to keep him out. The struggle between the plaintiff and L.G.
became louder and more physical such that Penelope went upstairs to intervene. She found L.G.
in a face-up position on the floor. L.G. was yelling loudly and very upset. Penelope hit the plaintiff
with the wooden spoon she was carrying and told him to stop. The plaintiff left and returned to
Decatur.
¶6 The next day at school, L.G. complained of pain in his side, and reported that his father
had kicked, pushed, and hit him. School officials contacted DCFS and the Round Lake Heights
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2021 IL App (2d) 200782-Upolice department.1 DCFS Investigator Ayleen Woodard met with L.G. at his school later that
day. He told her that he was in his bedroom when his father entered and would not leave. L.G.
tried to push the plaintiff out of his room, but he refused to go. L.G. believed that his father was
“trying to annoy him.” L.G. stated that the plaintiff got angry and pushed him, causing him to hit
his head on his bed, then kicked him in the chest and pushed him into a wall, which made a hole
in the wall. L.G. said that his grandmother then came upstairs and hit the plaintiff with a spoon,
which caused the altercation to stop. Woodard observed an injury to L.G.’s elbow and redness to
his ribs.
¶7 Later that day, Woodard spoke with Penelope, who described the parts of the altercation
she witnessed. Also, that day, Dr. Antoniou examined L.G. at the hospital. He did not see any
visible injuries but found L.G.’s rib area to be painful on palpation. He diagnosed a contusion to
the area.
¶8 On September 7, 2018, Woodard spoke by telephone with the plaintiff. He stated that “it
was all a misunderstanding” and “denied everything” regarding L.G.’s description of the event.
That same day, a DCFS investigator assigned to the Decatur area went to the plaintiff’s residence.
The plaintiff declined to participate in a face-to-face meeting, explaining that he had just spoken
with Woodard by telephone. Following this investigation, Woodard and her supervisor determined
that the plaintiff would be indicated for having caused a substantial risk of physical injury to L.G.
1
Because Emily did not consent to L.G. being interviewed by the Lake County State’s
Attorney’s Office regarding the incident, the case was not approved for charges, and the police
investigation was closed.
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2021 IL App (2d) 200782-UShortly thereafter, the plaintiff filed an appeal with DCFS seeking to have the indicated finding
expunged.
¶9 On October 26, 2018, L.G. sent a letter to DCFS. He stated that the plaintiff did not kick
or abuse him. He also denied telling DCFS or the police that the plaintiff had karate-kicked,
choked, or punched him. The statement was witnessed by Emily.
¶ 10 On June 26, 2019, a hearing was held on the plaintiff’s administrative appeal. At the
hearing, the plaintiff, Woodard, Commander Scott Crawford of the Round Lake Heights police
department, Penelope, Emily, and Ronald Grason (the plaintiff’s father) testified before an
administrative law judge (ALJ). The Round Lake Heights police department’s report of the case
and the DCFS investigative file was admitted into evidence as well as the written statement that
L.G. had sent to DCFS on October 26, 2018. As the plaintiff and Penelope were the only witnesses
to the altercation, we summarize only their testimony.
¶ 11 The plaintiff testified that he arrived at the Smith home on August 27, 2018, with clothes
and shoes for L.G. Holding the infant, he went upstairs to give L.G. the gifts. L.G.’s bedroom
door was slightly open. He walked into the room and put gifts on L.G.’s desk. After L.G. asked,
“don’t you knock?,” the plaintiff apologized. L.G. then shoved and pushed him out the door. The
plaintiff fell while holding the infant. He then went downstairs and gave the infant to Penelope.
During this time, L.G. was standing outside his room and yelling “Don’t you ever knock?” while
also using profanity. As L.G. was “banging around,” the plaintiff went upstairs to tell him to
“knock it off.” L.G. then hit him with both hands and pushed him. They fell and L.G. was on top
of him. L.G. started head-butting him. The plaintiff got L.G. off him and sat him down on the
floor. He put L.G. in a bear hug to calm him down. Penelope then came in waving a wooden
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2021 IL App (2d) 200782-Uspoon. He told her that he had the situation under control and that he would leave. As he was
leaving, L.G. threw the gifts at him and hit him in the head with a shoe.
¶ 12 The plaintiff denied kicking, hitting, choking, or slapping L.G. He explained that he only
put his hands on L.G. in self-defense and that his role was only passive. He acknowledged that
L.G. had an IEP and that he was working with counselors and social workers at school. He stated
that he and Emily had discussed L.G. receiving a psychological evaluation. He acknowledged
meeting a DCFS caseworker outside his home but stated that she only gave him a pamphlet and
left.
¶ 13 Penelope testified that L.G. gets easily upset and blames everyone else for everything. He
does not take social cues and cannot assess situations. He is in some special education classes
because he needs help regulating his emotions and socializing with others. He is an introvert and
very possessive of his room. He does not allow anyone in to clean his room. He wants to be left
alone in there to play games on the computer.
¶ 14 On August 27, 2018, she was in the kitchen making supper. The plaintiff was upstairs with
the infant and L.G. The plaintiff came downstairs and said that L.G. had pushed him. That did
not surprise her. The plaintiff then went back upstairs. She heard a commotion. She yelled to
“knock it off.” However, the noise got louder, so she got her wooden spoon and went upstairs.
She opened L.G.’s bedroom door and saw L.G. and the plaintiff facing each other in a bear hug on
the floor. L.G. was screaming “like a stuck pig.” She tapped the plaintiff on the back with a spoon
and told him to let L.G. go. She then went downstairs. When the plaintiff came downstairs, she
suggested that he leave, and he did. After the incident, she described L.G. as being scared and
very emotionally shaken.
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2021 IL App (2d) 200782-U¶ 15 At the conclusion of the hearing, the ALJ determined that DCFS had met its burden of
establishing that the plaintiff had committed an act of child abuse. The ALJ therefore rejected the
plaintiff’s request to have the indicated finding expunged from the record. The ALJ explained that
it found neither L.G.’s nor the plaintiff’s description of the event credible. L.G. exaggerated what
happened and the plaintiff’s account did not match the evidence (for example, if L.G. had head-
butted the plaintiff, they both would have had bruises or swelling on their heads). The ALJ further
found that Penelope’s testimony indicated that L.G. was not the aggressor. The ALJ noted that
L.G. was possessive of his room and his things and that it made sense that he would try to keep
his father out.
¶ 16 The ALJ additionally found that although it was not clear what happened during the fight,
it was clear that L.G. was injured when it was over. He had pain in his side and a scratch on his
elbow and was diagnosed with a contusion to his right side or ribcage. The diagnosis was
consistent with L.G.’s statement that he and his father fought, and the injury was consistent with a
strike to that area.
¶ 17 The ALJ further found that as the plaintiff was aware that L.G. had special needs, he should
have been more sensitive to those needs and not resorted to violence and abuse. The ALJ therefore
recommended that the Director of DCFS deny the plaintiff’s request to expunge the indicated
finding.
¶ 18 On July 11, 2019, Acting Director Smith adopted the recommendation of the ALJ and
issued the final administrative decision in the case, denying the plaintiff’s request to expunge the
indicated finding. The plaintiff then filed a complaint for administrative review in the circuit court.
On December 2, 2020, the circuit court denied the plaintiff’s request for expungement. The
plaintiff thereafter filed a timely notice of appeal.
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2021 IL App (2d) 200782-U¶ 19 II. ANALYSIS
¶ 20 On appeal, the plaintiff argues that the Director’s decision not to expunge the indicated
finding from the central register was against the manifest weight of the evidence. He also argues
that DCFS should not have made an indicated finding without first interviewing him in person.
Further, he argues that his due process rights were violated due the ALJ’s failure to conduct a
hearing within 90 days of his request that the indicated finding be expunged and because of
DCFS’s failure to maintain an adequate record of the proceedings.
¶ 21 A. Sufficiency of the Evidence
¶ 22 We briefly set forth the statutory and regulatory framework necessary to understand the
plaintiff’s argument on appeal. Under the Reporting Act (325 ILCS 5/1 et seq. (West 2018)),
DCFS maintains a central register of all reported cases of suspected child abuse or neglect. 325
ILCS 5/7.7 (West 2018). When DCFS investigates a report of abuse or neglect, it must determine
whether the report is “indicated,” “unfounded,” or “undetermined.” 325 ILCS 5/7.12 (West 2018).
A report is “indicated” if “an investigation determines that credible evidence of the alleged abuse
or neglect exists.” 325 ILCS 5/3 (West 2018). An indicated report must be entered in the central
register. 325 ILCS 5/7.12 (West 2018).
¶ 23 A person who is subject to an indicated report, like the plaintiff, has the right to an
administrative appeal and to request that the report be expunged. 325 ILCS 5/7.16 (West 2018).
DCFS has the burden of proof in justifying its refusal to expunge the indicated report and must
prove that a preponderance of the evidence supports the indicated finding. 89 Ill. Adm. Code
336.100(e) (2000). Following a hearing, the ALJ makes a recommendation to the DCFS director,
who may accept, reject, amend, or return the recommendation. 89 Ill. Adm. Code 36.220(a)
(2005). The director’s decision is the final administrative decision, review of which is governed
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2021 IL App (2d) 200782-Uby the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2018)). 325 ILCS 5/11.6
(West 2018). Jurisdiction to review final administrative decisions is vested in the circuit court,
from which a party may appeal to this court. 735 ILCS 5/3-104, 3-112 (West 2018). This court,
however, reviews the decision of the agency and not the circuit court. Provena Covenant Medical
Center v. Department of Revenue, 236 Ill. 2d 368, 386 (2010).
¶ 24 In this case, DCFS indicated the plaintiff for abuse. Section 3 of the Reporting Act (325
ILCS 5/3 (West 2018)) defines an “abused child” as, in relevant part, one whose parent or other
responsible person:
“(a) inflicts, causes to be inflicted, or allows to be inflicted upon such child physical injury,
by other than accidental means, which causes death, disfigurement, impairment of physical
or emotional health, or loss of any bodily function; [or] (b) creates a substantial risk of
physical injury to such child by other than accidental means which would be likely to cause
death, disfigurement, impairment of physical or emotional health, or loss or impairment of
any bodily function[.]” Id.¶ 25 Section 4 of the Children and Family Services Act (20 ILCS 505/4 (West 2018)) grants
DCFS the authority “[t]o make all rules necessary for the execution of its powers.” Pursuant to
this authority, DCFS has promulgated rules for the enforcement and administration of the
Reporting Act. See 89 Ill. Adm. Code 300. Relevant to this case, DCFS promulgated Appendix
B, which describes the specific incidents of harm that must be alleged to have been caused by the
acts or omissions identified in section 3 of the Reporting Act before DCFS will accept a report of
child abuse. 89 Ill. Adm. Code 300. Appendix B, amended at 38 Ill. Reg. 13214 (eff. June 11,
2014). The regulations categorize the incidents of harm into numbered “allegations.” The
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2021 IL App (2d) 200782-Uallegation at issue in this case, allegation No. 10, addresses the existence of a substantial risk of
physical injury to the child. Id.¶ 26 Per the regulations, a “[s]ubstantial risk of physical injury” means that a parent or other
responsible person “has created a real and significant danger of physical injury by other than
accidental means that would likely cause death, disfigurement, impairment of physical health or
loss or impairment of any body function.” Id. (emphasis in original). The regulations further
provide that allegation No. 10 should be used when the type or extent of harm to the child is
undefined, but “the total circumstances lead a reasonable person to believe that the child is at
substantial risk of physical injury.” Id. Allegation No. 10 “includes incidents of violence or
intimidation directed toward the child that have not yet resulted in injury or impairment but that
clearly threaten injury or impairment.” Id. Examples of incidents that may create a substantial
risk of physical injury include “violently pushing or shoving the child into fixed or heavy objects.”
¶ 27 Here, the plaintiff contends that the ALJ’s finding that he placed L.G. in substantial risk of
physical injury was against the manifest weight of the evidence. He insists that his actions were
strictly passive, and he only acted in self-defense. Alternatively, he insists that his actions were
reasonable as he was exercising appropriate discipline.
¶ 28 As noted above, upon administrative review, this court examines the Director’s decision,
not that of the circuit court. Bolger v. Department of Children & Family Services, 399 Ill. App.
3d 437, 448 (2010). The applicable standard of review depends on whether the question presented
is factual, legal, or involves a mixture of fact and law. Id. An agency’s finding on a question of
fact is deemed prima facie true and correct and will not be disturbed on review unless it is against
the manifest weight of the evidence. Plowman v. Department of Children & Family Services, 2017
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2021 IL App (2d) 200782-UIL App (1st) 160860, ¶ 24. A factual finding is not against the manifest weight of the evidence
unless the opposite conclusion is clearly evident. Id.¶ 29 In this case, the Director determined that the facts as found established that the plaintiff
created a substantial risk of physical injury to L.G. within the meaning of allegation of harm No.
10. That determination involves a mixed question of fact and law, which limits our review to
assessing whether the Director’s determination was clearly erroneous. Id. ¶ 27. Under that
standard, an agency’s decision will not be disturbed unless it leaves the court with the “definite
and firm conviction that a mistake has been committed.” Id. (quoting AFM Messenger Service,
Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001)).
¶ 30 The record before us contains ample evidence supporting the ALJ’s finding that the
plaintiff created a substantial risk of physical injury to L.G. The plaintiff acknowledges that he
and L.G. were involved in a physical altercation. The plaintiff prolonged that altercation by
returning to L.G.’s room after L.G. clearly indicated that he did not want the plaintiff to be there.
Penelope’s observation of the altercation suggested that the plaintiff was the aggressor as she
described how the plaintiff had L.G. on the floor in a wrestling hold (with L.G. screaming); and
that she hit the plaintiff with a wooden spoon and told him to let L.G. go. Penelope also described
how the altercation had left L.G. emotionally shaken, which is consistent with L.G. complaining
of the altercation the following day in school. Dr. Antoniou’s report that L.G.’s side was tender
to palpation and had a contusion of the ribcage and mid-back indicated that L.G. had been injured
in his altercation with the plaintiff. Accordingly, based on this evidence, we cannot say that the
ALJ’s finding (and the Director’s decision accepting that finding) were clearly erroneous. See id.¶ 31 In so ruling, we reject the plaintiff’s argument that the ALJ should have placed greater
weight on his testimony that he was only acting in self-defense or exercising reasonable parental
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2021 IL App (2d) 200782-Udiscipline. In raising this argument, the plaintiff essentially asks us to substitute our judgment for
that of the trier of fact by reweighing the evidence and drawing our own conclusion as to the
credibility of the witnesses. That is not the function of this court, however, as it is the province of
the administrative agency to determine the credibility of witnesses and resolve conflicts in the
evidence. See Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 540 (2006).
¶ 32 B. Failure to receive an in-person interview before DCFS made indicated finding
¶ 33 The plaintiff’s next contention on appeal is that DCFS should not have made an indicated
finding without first talking to him in person. We decline to review DCFS’s determination to
indicate. As previously discussed, the Director’s determination is the final administrative decision,
not DCFS’s initial determination to indicate. Thus, on appeal we do not review the propriety of
DCFS’s investigation as the plaintiff argues, but instead may only consider the ultimate decision
of the agency. L.F. v. Department of Children & Family Services, 2015 IL App (2d) 131037, ¶¶
45-46, (DCFS Director’s decision to accept, reject, amend, or return the ALJ’s recommendation is
the “final administrative decision” subject to judicial review).
¶ 34 C. Due Process
¶ 35 The plaintiff also argues that his due process rights were violated. Specifically, he
complains that his rights were violated when (1) when the Director failed to issue a final decision
in a timely manner and (2) DCFS did not maintain a sufficient record of the proceedings.
¶ 36 An indicated report recorded in the Illinois Central Register affects a protectable liberty
interest under the Illinois and U.S. Constitutions because it affects one’s ability to obtain
employment. Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 278 (2004).
Thus, before the right can be infringed, “subjects have a significant interest in obtaining a hearing
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2021 IL App (2d) 200782-Uand a final decision in a prompt and efficient manner so that indicated reports, if mistaken, are
expunged as quickly as possible to minimize their damaging impact.” Id.¶ 37 The Illinois Administrative Code provides that “[t]he Director of the Department shall
issue the final decision within 90 calendar days after the receipt of a timely and sufficient request
for an appeal, unless extended by action of the appellant.” 89 Ill. Adm. Code § 336.220(a)(2).
The rule does not contemplate including in the tally of days those delays that are requested by, or
agreed to by, the subject of the investigation. Lyon, 209 Ill. 2d at 282-84.
¶ 38 Here, the plaintiff appealed the indicated finding on September 12, 2018, and the Director
issued his final administrative decision on July 11, 2019—302 days later. Much of the delay was
due to the plaintiff’s actions or continuances to which he agreed (a fact which the plaintiff
acknowledges). The parties only dispute whether the delay between February 11and March 30,
2019, should be attributed to the plaintiff. If those days are not, then the Director did not issue his
decision within the 90 days set forth in the Code.
¶ 39 The plaintiff’s argument is contradicted by the record. The record reveals that on February
11, 2019, an order with the box checked for requests by “Agreement” continued the matter to
March 4, 2019, for a pre-hearing conference. It listed the reason as: “Case did not go to hearing
today because the parties are still trying to settle and appellant brought more materials to [DCFS’s]
attorney.” On March 5, 2019, an order with the box checked for requests by “Agreement”
continued the matter to March 25, 2019, for a prehearing conference. It listed the reason as “Parties
are trying to settle.” As the plaintiff consented to the delays of which he complains, his due process
rights were not violated. Id.¶ 40 The plaintiff’s argument that DCFS failed to maintain an adequate record of the
proceedings is equally without merit. The gist of the plaintiff’s contention is that DCFS violated
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2021 IL App (2d) 200782-Uhis rights when three administrative continuance orders were omitted from the circuit court record.
Although those orders were not included in the original record, DCFS filed a motion to supplement
the record with those orders, which the trial court granted. As the plaintiff provides no reasonable
explanation as to how he was prejudiced by the circuit court’s granting of the motion to supplement
the record, there is no basis to disturb the circuit court’s order.
¶ 41 III. CONCLUSION
¶ 42 For the reasons stated, the judgment of the circuit court of Lake County is affirmed.
¶ 43 Affirmed.
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