2024 IL App (1st) 230910-U No. 1-23-0910 Order filed September 23, 2024 First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ BELINDA LUGO, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 2022 CH 05376 ) THE DEPARTMENT OF CHILDREN AND FAMILY ) SERVICES and MARC D. SMITH, in his Official ) Capacity as Director of Children and Family Services, ) ) Honorable Defendants-Appellees. ) Alison C. Conlon, ) Judge, presiding.
JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: Decision of the Director of Children and Family Services to deny plaintiff’s request to expunge indicated findings of child neglect is affirmed.
¶2 Plaintiff Belinda Lugo appeals pro se from an order of the circuit court of Cook County
which affirmed a final administrative decision of the Director of Children and Family Services
denying her request to expunge indicated findings of child neglect against her that were entered No. 1-23-0910
into the State Central Register. See 325 ILCS 5/7.7 (West 2022). On appeal, Lugo contends that
the evidence does not support the indicated findings of lock out, inadequate supervision, and
environment injurious to health and welfare (neglect). We affirm.
¶3 I. Background
¶4 Lugo is the mother of Nicole Lugo, who is the mother of M.F., T.F., T.L., and A.L. 1 In
2011, Lugo became the legal guardian of M.F. and T.F. Lugo became the foster parent through
Aunt Martha’s Health and Wellness Center (Aunt Martha’s) of T.L. and A.L. at their respective
births after Nicole tested positive for “something” at the hospital.
¶5 In May 2021, the Department of Children and Family Services (DCFS) received a hotline
call reporting suspected child abuse and neglect against Lugo. DCFS investigated the report based
on, as relevant here, two incidents. Following its investigation, DCFS determined that credible
evidence supported indicated findings that Lugo neglected M.F., T.F., T.L., and A.L. In July 2021,
DCFS sent Lugo a letter informing her that she was being indicated for environment injurious to
health and welfare (neglect), inadequate supervision, and lock out. The letter also informed Lugo
that, as a person indicated for child neglect, her name would be maintained on the State Central
Register for five years. Lugo timely filed a request for an administrative appeal, seeking an
expungement of the indicated findings from the Register.
¶6 On January 27, 2022, and March 17, 2022, an administrative law judge (ALJ) conducted a
hearing on Lugo’s expungement request to determine whether the DCFS report complied with the
Abused and Neglected Child Reporting Act (ANCRA) (325 ILCS 5/1 et seq. (West 2022)).
1 Because Nicole Lugo shares the same last name as plaintiff, we refer to Nicole by her first name.
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¶7 At the hearing, Yaide Ortiz testified that she is M.F.’s aunt and lives about two blocks from
Lugo. In May 2021, M.F., then 16 years old, came to her house on two separate occasions stating
that he had been “kicked out” of Lugo’s house. The first such incident occurred around 6 or 7 p.m.,
with M.F. explaining that Lugo got mad because he came home a little late. M.F. stated that Lugo
took his keys and would not let him in the house. Ortiz thought M.F. was “making it up” and sent
him back home to Lugo. A couple of days later, M.F. again arrived at Ortiz’s home claiming that
Lugo “kicked him out.” M.F. told Ortiz that he did not feel comfortable with Lugo and was “not
eating good” because Lugo was not using food stamps to buy groceries. Ortiz reported the incidents
to the police and has been housing M.F. ever since. Ortiz encouraged M.F. to keep in contact with
Lugo, but he “really doesn’t want to talk to her.”
¶8 Iris Williams, vice president of foster care licensing at Aunt Martha’s, testified that she
first became familiar with Lugo on the day Aunt Martha’s removed T.L. and A.L. from Lugo’s
home. Prior to work hours on that day, Lugo called Aunt Martha’s to report that T.L. had been
missing from the between 1 and 2 a.m. Williams immediately sent a supervisor to Lugo’s home.
The supervisor called the police and completed a report. 2
¶9 While the police were at Lugo’s home, Williams spoke to Lugo on the phone about what
occurred. Lugo reported that the police had come to her house the night before because she had
reported M.F. missing. Sometime around 1 or 2 a.m., Lugo was “jarred” awake by the opening
and closing of the door to her home. Lugo went downstairs and discovered that T.F. and T.L. were
gone. Lugo “immediately ran out” of the house and searched the area, but did not find them.
2 The supervisor was no longer employed by Aunt Martha’s at the time of the hearing.
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Williams asked Lugo where A.L. was when she went out to look for T.F. and T.L. Lugo never
replied to that question or mentioned whether she took A.L. with her.
¶ 10 Later, Williams asked Lugo why she waited so long to call the agency after she discovered
T.L. missing. Lugo responded that she knew T.L. was with Nicole, so she was giving Nicole a
chance to bring her back. Lugo did not contact the police. Aunt Martha’s staff recovered T.L. from
Nicole “with no issues.” Aunt Martha’s ultimately removed T.L. and A.L. from Lugo’s care and
placed them in a traditional foster home. It was Williams’ understanding that T.F. was now in the
care of her paternal grandparents.
¶ 11 DCFS investigator Josue Gutierrez testified that he investigated Lugo’s case. His
investigative file was admitted as an exhibit over Lugo’s hearsay objection. The investigative file
showed that Gutierrez interviewed M.F., who stated that Lugo was “manipulative and a bully” and
had “kicked him out” on more than one occasion. Whenever Lugo kicked him out, M.F. went to
Ortiz’s house.
¶ 12 On May 25, 2021, Gutierrez interviewed Lugo for about 30 minutes. Lugo reported that
she argued with M.F. at the front door, and M.F. was possibly at Ortiz’s house, but she “wasn’t
sure.” Gutierrez later spoke with a police detective, who opined that the children were with family,
but “there seemed to be a lot of conflict between them.”
¶ 13 During her testimony, Lugo denied ever locking M.F. out of her house. Lugo explained
that, on the day of the first alleged lockout incident, she told M.F. that, if he would not tell her the
truth, she wanted him to “go out” and “come right back in again without any attitude and explain
to [her] where [he had] been.” Instead, M.F. left out the backdoor. When she determined that M.F.
went to Ortiz’s house, she told T.F. to text Ortiz’s husband that “nobody kicked [M.F.] out” and
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“to tell him to come right back home.” A reply text was not received. Lugo wanted a record of
what M.F. was doing, because she “knew he was trying to pull something.” M.F. remained at
Ortiz’s house. Lugo denied that the second alleged lockout incident occurred.
¶ 14 As to the incident involving T.F. and T.L., Lugo testified that Nicole called her around 2
a.m. while everyone was asleep. Lugo did not answer the phone, because she assumed that Nicole
wanted to visit with the children, and it was too late. After going back to sleep, Lugo was awakened
by the sound of the front door at around 6 or 7 a.m. At that time, she noticed that T.F. and T.L.
were gone. Lugo “panicked” and went out the door “as fast as she could” to see if she could catch
them. She did not walk outside the gate or around the block. When Lugo did not see anyone, she
knew they were “long gone” and “ran right back upstairs.” She was outside the house for a minute
or two. Lugo checked on the A.L., who was sound asleep. Lugo called Nicole multiple times but
could not reach her. She waited until her Aunt Martha’s caseworker arrived at the office at 8 a.m.
to report what was happening, because she knew the children were with Nicole and did not think
they were in trouble. Lugo reasoned that T.F. had never run away before, and she would never go
with anyone but Nicole. Lugo did not call the police right away, explaining it was close to when
the caseworker was arriving at her office and Lugo knew where the children were. Lugo was in
“panic mode” and knew the caseworker would resolve the issue. As to A.L., Lugo testified that
when she discovered that T.F. and T.L. were missing, she immediately went outside to try to find
them. When she did not see a vehicle, she ran back upstairs to check on A.L., who was still asleep.
¶ 15 On April 26, 2022, the ALJ issued a written opinion and recommendation to the Director.
The ALJ concluded that the preponderance of the evidence supported indicated findings of harm
based on lock out as to M.F., inadequate supervision as to T.F. and T.L., and environment injurious
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to health and welfare (neglect) as to A.L. The ALJ credited Ortiz’s testimony that M.F. came to
her house twice after being kicked out of Lugo’s home. The ALJ did not find Lugo’s denial of
kicking M.F. out to be credible. Regarding the inadequate supervision allegation, the ALJ found
the evidence supported the allegation because Lugo waited approximately six hours to report the
incident to the agency, failed to contact law enforcement, and believed the children were not in
danger because they were with Nicole even though she had been determined to be unable to parent
them. Regarding the injurious environment as to A.L., the ALJ did not find Lugo’s testimony that
she was only outside for one to two minutes credible or reliable. The ALJ also found that Lugo
was not immediately forthcoming with information about leaving A.L. alone and her minimization
of the incident was self-serving. The ALJ recommended that the Director deny Lugo’s request to
expunge the indicated findings of child neglect against her entered into the State Central Register.
¶ 16 The Director issued a final administrative decision, adopting the ALJ’s findings of fact and
conclusions of law, and denying Lugo’s request for expungement of the indicated findings from
the State Central Register.
¶ 17 Lugo filed a complaint for administrative review in the circuit court. The circuit court
affirmed the Director’s decision. This appeal followed.
¶ 18 II. Analysis
¶ 19 On appeal, Lugo challenges the Director’s decision denying her request for expungement
of the indicated findings of lock out, inadequate supervision, and environment injurious to health
and welfare (neglect).
¶ 20 Before considering the merits of this appeal, we note the appendix to Lugo’s brief includes
documents such as character witness statements and police reports that are not in the appellate
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record. On administrative review, we cannot consider “new or additional evidence in support of or
in opposition to any finding, order, determination or decision of the administrative agency.” 735
ILCS 5/3-110 (West 2022). Thus, we will not consider those materials in our analysis.
¶ 21 Our judicial review of the Director’s decision to deny expungement is governed by the
Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2022)). 325 ILCS 5/7.16 (West
2022). In an administrative review appeal, we review the administrative agency’s decision rather
than the decision of the circuit court. Cintron v. Dart, 2022 IL App (1st) 201369, ¶ 19. The standard
of review depends on whether the question is one of fact, one of law, or a mixed question of law
and fact. Medponics Illinois, LLC v. Department of Agriculture, 2021 IL 125443, ¶ 29. Questions
of law are reviewed de novo. Id. Questions of fact are reviewed against the manifest weight of the
evidence. Id. Mixed questions of law and fact are reviewed under the clearly erroneous standard.
Id.
¶ 22 In this case, the findings that Lugo (1) locked M.F. out of her home, (2) failed to supervise
T.F. and T.L., and (3) placed A.L. in an environment where there was a likelihood of harm are
questions of fact, reviewable under the manifest weight of the evidence standard. An agency’s
findings of fact are considered prima facia true and correct. Mireles v. Dart, 2023 IL App (1st)
221090, ¶ 56. A factual finding is against the manifest weight of the evidence only where the
opposite conclusion is clearly apparent. Id. The Director’s finding that Lugo committed child
neglect as defined in ANCRA involves a determination of whether the facts satisfy the legal
standard, which is a mixed question of law and fact reviewed under the clearly erroneous standard.
A reviewing court will not reverse a decision as clearly erroneous unless it has a firm conviction
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that a mistake has been made. Cinkus v. Village of Stickney Municipal Officers Electoral Board,
228 Ill. 2d 200, 211 (2008).
¶ 23 A report of suspected child abuse or neglect is “indicated” when an investigation
determines that credible evidence of the alleged abuse or neglect exists. 325 ILCS 5/3 (West 2022).
Credible evidence of child neglect “means that the available facts, when viewed in light of
surrounding circumstances, would cause a reasonable person to believe that a child was abused or
neglected.” 89 Ill. Adm. Code § 300.20, amended at 35 Ill. Reg. 1599 (eff. Jan. 15, 2011). The
subject of an indicated report may request that DCFS expunge the report from the State Central
Register and is entitled to an administrative hearing to determine whether the report should be
removed. 325 ILCS 5/7.16 (West 2022). At the hearing, DCFS has the burden of proof to show
that by a preponderance of the evidence the report supports the indicated finding. 89 Ill. Adm.
Code 336.115(c)(2)(B) (2017). The hearing is presided over by an ALJ, who issues a
recommendation on the request for expungement to the Director, who may, among other things,
accept or reject that decision. 89 Ill. Adm. Code 336.120(b)(15), 336.220(a)(1) (2017). The
Director’s decision is the final order for purposes of appeal, and the party may seek judicial review
of the denial of expungement. 89 Ill. Adm. Code 336.220(a)(1) (2017); 735 ILCS 5/3-104 (West
2022).
¶ 24 In this case, the indicated findings against Lugo are based on three allegations of harm: the
lock out of M.F., inadequate supervision of T.F. and T.L., and environment injurious to health and
welfare (neglect) as to A.L. We will address each allegation of harm in turn.
¶ 25 A. Lock Out
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¶ 26 Lock out occurs when “[t]he parent or caregiver has denied the child access to the home
and has refused or failed to make provisions for another living arrangement for the child.” 89 Ill.
Adm. Code § 300, appendix B (Allegation 84) (2017). Here, DCFS provided evidence that Lugo
denied M.F. access to the home and failed to make provisions for M.F. to stay elsewhere. Gutierrez
testified that M.F. had been kicked out of Lugo’s house, and Lugo acknowledged that she refused
M.F. access to the house, but with the option to return “without any attitude.” Ortiz also testified
that M.F. had been kicked out of the house more than once. There was no evidence that M.F. was
scheduled to go to Ortiz’s home that night. While Lugo did instruct T.F. to text Ortiz’s husband,
she did not investigate further when there was no response. The ALJ found Ortiz’s testimony
credible and Lugo’s testimony not credible. We will not reweigh the evidence and the ALJ’s
assessment of credibility. Plowman v. Department of Children & Family Services, 2017 IL App
(1st) 160860, ¶ 24. After reviewing the record, we cannot say the ALJ’s factual findings, adopted
by the Director, were against the manifest weight of the evidence. Likewise, considering the factual
findings, we cannot say that the determination that those factual findings constituted a lock out
was clearly erroneous.
¶ 27 Nonetheless, Lugo asserts that the ALJ’s factual findings were against the manifest weight
of the evidence because they relied on Ortiz’s hearsay testimony, M.F. admitted that he left on his
own volition, the ALJ incorrectly found that M.F. walked “several blocks” to Ortiz’s home when
she only lived two blocks away, and M.F. staying with Ortiz was consistent with the family’s prior
“care plan.”
¶ 28 None of Lugo’s assertions have merit. Under DCFS rules, the ALJ may “allow into
evidence all inculpatory and exculpatory evidence helpful in determining whether an indicated
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perpetrator abused or neglected a child” (89 Ill. Adm. Code 336.120(b)(9) (2017)) and “allow into
evidence previous statements made by the child relating to abuse or neglect as hearsay exceptions”
(89 Ill. Adm. Code 336.120(b)(10) (2017)).” Moreover, the ALJ was charged with resolving any
conflict in evidence as to the distance between Ortiz’s and Lugo’s house and the reason why M.F.
went to Ortiz’s home. See Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 540
(2006). Whether that distance was “several blocks” or two blocks is inconsequential. We will not
reweigh the evidence. Beggs v. Board of Education of Murphysboro Community Unit School
District No. 186, 2016 IL 120236, ¶ 50.
¶ 29 B. Inadequate Supervision
¶ 30 As relevant here, inadequate supervision occurs “when a child is placed at a real, significant
and imminent risk of likely harm due to a parent’s or caregiver’s blatant disregard of parental or
caregiver responsibilities of care and support.” 89 Ill. Adm. Code § 300, appendix B (Allegation
74 (2017)). Relevant factors include the age of the child; the maturity level of the child; the
duration of time and frequency of occurrence the child was left without care and support, including
supervision; the time of day or night the child was left without care and support, including
supervision; the physical distance the child was from the parent or guardian at the time the child
was without care and support, including supervision; and “other factors that demonstrate that the
parent or caregiver took other precautionary measures to prevent or mitigate the risk of any harm
to the child.” Id.
¶ 31 Here, DCFS presented evidence showing that T.F. at age 13 and T.L. at age 2 went missing
from Lugo’s home after Lugo had gone to sleep for the evening. Lugo acknowledged that she did
not immediately report them missing to Aunt Martha’s and did not notify the police. Lugo
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explained that she believed they were with their mother. Although T.L. was found with her mother,
T.F. was not. Moreover, Lugo’s insistence that T.F. and T.L. were not at risk of harm because they
were with Nicole disregards that the children were placed in Lugo’s care because Lugo believed
Nicole was not doing a good job parenting and struggled with drug addictions. The ALJ found that
a preponderance of the evidence supported the indicated finding against Lugo for inadequate
supervision. After reviewing the record, we cannot say that the ALJ’s factual findings, adopted by
the Director, were against the manifest weight of the evidence. Nor can we say that the
determination that those factual findings constituted inadequate supervision was clearly erroneous.
¶ 32 Nonetheless, Lugo argues that the lack of supervision finding was unfounded because this
“was an isolated and unprecedented incident.” She also argues that it was reasonable for her not to
call the police when discovering that the children were missing. Lugo further argues that the ALJ
improperly shifted the burden of proof from DFCS to Lugo by asserting that she did not present
evidence showing that the children were not at risk of harm.
¶ 33 However, even deeming this an “isolated and unprecedented incident,” that does not
change the finding that Lugo’s reaction in this instance constituted inadequate supervision.
Frequency of occurrence is only one factor for the court to consider under this allegation of harm.
Id. We also cannot reweigh the evidence and place less weight on Lugo’s decision not to contact
the police when she learned the children were missing. Plowman, 2017 IL App (1st) 160860, ¶ 24.
Additionally, the ALJ clearly understood that the burden of proof belonged to DCFS, as the ALJ’s
recommendation referenced that burden multiple times. Moreover, the ALJ ultimately found that
DCFS had met that burden by presenting evidence that showed T.F. and T.L. were at risk of harm
while they were missing. Thus, these contentions do not warrant reversal.
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¶ 34 C. Injurious Environment (Neglect)
¶ 35 An environment injurious to health and welfare (neglect), is defined as when “a child’s
environment creates a likelihood of harm to the child’s health, physical well-being or welfare and
that the likely harm to the child is the result of a blatant disregard of parent or caretaker
responsibilities.” 89 Ill. Adm. Code § 300, appendix B (Allegation 60) (2017). This allegation
applies when “the type or extent of harm is undefined but the totality of circumstances, including
inculpatory and exculpatory evidence, leads a reasonable person to believe that the child’s
environment may likely cause harm to the child’s health, physical well-being or welfare due to the
parent’s or caretaker’s blatant disregard.” Id. Factors to consider include the child’s age, the
“child’s medical condition, behavioral, mental or emotional problems, developmental disability or
physical handicap,” the “severity of the occurrence,” the “frequency of the occurrence,” the
“alleged perpetrator’s physical, mental and emotional abilities, particularly related to his or her
ability to control his or her actions,” the “dynamics of the relationship between the alleged
perpetrator and the child,” the “alleged perpetrator’s access to the child,” the “previous history of
indicated abuse or neglect,” the “current stresses or crisis in the home,” “the presence of other
supporting persons in the home,” and the “precautionary measures exercised by a parent or
caregiver to protect the child from harm.” Id. All factors must be considered, but one factor by
itself “may present sufficient danger to justify taking the report.” Id.
¶ 36 Here, Lugo acknowledges that she left the home while five-month-old A.L. was asleep
inside to look for T.F. and T.L. when she discovered them missing. Lugo reported to Aunt Martha’s
that she walked around the block looking for the missing children. At the hearing, Lugo testified
that she only walked outside as far as the front gate and was outside for only a minute or two. The
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ALJ found Lugo’s testimony not credible or reliable and her minimization of the incident self-
serving. We cannot second guess the ALJ’s credibility determination. MIFAB, Inc. v. Illinois
Human Rights Comm’n, 2020 IL App (1st) 181098, ¶ 58. The ALJ found that a preponderance of
the evidence supported the indicated finding against Lugo. After reviewing the record, we cannot
say that the ALJ’s factual finding, adopted by the Director, of environment injurious to health and
welfare to five-month-old A.L. was against the manifest weight of the evidence. Likewise,
considering the factual findings, we cannot say that the determination that those factual findings
constituted environment injuries to health and welfare was clearly erroneous.
¶ 37 Nonetheless, Lugo contends that the ALJ improperly found that Lugo left A.L. asleep in
the home, because that basis was not discussed in the investigative report. She asserts her due
process rights were violated where she could not have prepared a defense from allegations she did
not know were at issue. She also contends no testimony assessed the length of time A.L. had been
alone in the apartment and that it was an isolated incident.
¶ 38 As an initial matter, Lugo’s due process argument is forfeited. It is well-established that “if
an argument, issue, or defense is not presented in an administrative hearing, it is procedurally
defaulted and may not be raised for the first time” on judicial review. Cinkus, 228 Ill. 2d at 212.
Because Lugo did not raise the due process argument before the ALJ, the issue is forfeited for our
review.
¶ 39 Further, contrary to Lugo’s assertion, testimony addressed the length of time A.L. was
alone in the apartment. Lugo testified she was outside for one to two minutes. Williams testified
that Lugo claimed to have run down the street and around the block looking for T.F. and T.L.,
which a trier of fact can reasonably infer was longer than one to two minutes. The ALJ found that
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Lugo was not credible or forthcoming about leaving A.L. alone or how long he was alone. We will
not reweigh the evidence or reassess credibility. Plowman, 2017 IL App (1st) 160860, ¶ 24.
Additionally, even deeming this an isolated incident, frequency was only one factor for the ALJ to
consider. 89 Ill. Adm. Code § 300, appendix B (Allegation 60) (2017). Again, we will not reweigh
the evidence. Plowman, 2017 IL App (1st) 160860, ¶ 24. Thus, these contentions do not warrant
reversal.
¶ 40 In light of the findings of lock out, inadequate supervision, and environment injurious to
health and welfare (neglect), we cannot say that the Director’s decision to deny Lugo’s request for
expungement of the indicated findings of child neglect against her was clearly erroneous.
¶ 41 III. Conclusion
¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County
¶ 43 Affirmed.
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