M.D. v. The Department of Children and Family Services
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Opinion
2015 IL App (1st) 133901
FIFTH DIVISION JUNE 30, 2015
No. 1-13-3901
) Appeal from the M.D., ) Circuit Court of ) Cook County Plaintiff-Appellant, ) ) v. ) No. 12 CH 22419 ) THE DEPARTMENT OF CHILDREN AND FAMILY ) SERVICES and BOBBIE GREGG, Director of Children ) Honorable and Family Services, ) Neil Cohen, ) Judge Presiding. Defendant-Appellees. )
JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice McBride concurred in the judgment and opinion.
OPINION
¶1 Plaintiff M.D. appeals an order of the circuit court of Cook County affirming a final
administrative decision of the Illinois Department of Children and Family Services (the DCFS),
denying his request to expunge an indicated finding 1 of sexual abuse involving his five-year-old
1 In accordance with the Abused and Neglected Child Reporting Act (Act) (discussed further herein), the DCFS maintains "a central register of all cases of suspected child abuse or neglect." 325 ILCS 5/7.7 (West 2012). "An entry in the registry is an 'indicated finding' and requires certain procedures set out in the Act and the DCFS rules." Julie Q. v. Department of Children and Family Services, 2011 IL App (2d) 100643, ¶ 29. "A person who is subject to an indicated report may request that DCFS amend the record of the report or remove the record of the report from the State Central Register." Tiller v. Department of Children & Family Services, 2013 IL App (4th) 120504, ¶ 31; 325 ILCS 5/7.16 (West 2012). 1-13-3901
daughter, A.D. On appeal, M.D. contends that the DCFS's determination to indicate was based
on a superficial investigation that failed to comply with its own procedures. In addition, M.D.
argues that the agency's ultimate determination not to expunge the indicated finding was against
the manifest weight of the evidence where the testimony against him was not credible and the
scientific evidence refuted the sexual abuse allegations. We affirm.
¶2 BACKGROUND
¶3 On April 2, 2010, the DCFS received a report of the possible sexual abuse of A.D. by
M.D. The matter was investigated by both the DCFS and the Wilmette Police Department. That
same day, a DCFS investigator interviewed M.D. and his wife N.G. regarding these allegations.
Following an investigation, on June 2, 2010, the DCFS issued a finding, based on a "credible
evidence" standard, indicating M.D. for allegation 19, sexual penetration, and allegation 21,
sexual molestation. Allegation 19 defined "sexual penetration" as follows:
"Any contact, however slight, between the sex organ or anus of one person
by an object, the sex organ, mouth or anus of another person, or any intrusion,
however slight, of any part of the body of one person or any animal or object into
the sex organ or anus of another person. This includes acts commonly known as
oral sex (cunnilingus, fellatio), anal penetration, coition, coitus, and copulation."
89 Ill. Adm. Code 300.Appendix B (Allegation 19), amended at 25 Ill. Reg.
12781, 12797 (eff. Oct. 1, 2001).
Allegation 21 defined "sexual molestation" as follows:
"Sexual conduct with a child when such contact, touching or interaction is
used for arousal or gratification of sexual needs or desires. Parts of the body, as
used in the examples below, refer to the parts of the body described in the
2 1-13-3901
definition of sexual conduct found in the Illinois Criminal Sexual Assault Act
[720 ILCS 5/12-12] as quoted above under Allegation 18, Sexually Transmitted
Diseases. Examples include, but are not limited to:
- fondling.
- the alleged perpetrator inappropriately touching or pinching parts of the
child's body generally associated with sexual activity.
- encouraging, forcing, or permitting the child to touch parts of the alleged
perpetrator's body normally associated with sexual activity." 89 Ill. Adm. Code
300.Appendix B (Allegation 21), amended at 25 Ill. Reg. 12781, 12798 (eff. Oct.
1, 2001).
In addition, "[s]exual conduct is defined in the Act as 'any intentional or knowing touching or
fondling of the victim or the perpetrator, either directly or through clothing of the sex organs,
anus or breast of the victim or the accused, or any part of the body of a child…for the purpose of
sexual gratification or arousal of the victim or the accused.' " 89 Ill. Adm. Code 300.Appendix B
(Allegation 18), amended at 25 Ill. Reg. 12781, 12797 (eff. Oct. 1, 2001).
¶4 On June 5, 2010, M.D. requested a timely administrative appeal of the indicated finding.
¶5 Hearing
¶6 The DCFS administrative law judge (ALJ) conducted a hearing beginning April 21, 2011.
The matter was continued for further hearing to April 22, June 29, August 29, September 22,
September 29, September 30, December 5, 2011, and February 9 and February 16, 2012. The
DCFS called the following witnesses: (1) Tamara Newel (Newel), psychotherapist for
NorthShore University HealthSystems; (2) Scott Peterson (Peterson), child protection
investigator for the DCFS; (3) Christine DiGangi (DiGangi), forensic interviewer; (4) Susan
3 1-13-3901
Kick (Kick), principal of A.D.'s elementary school; (5) Sousan Bahavar (Bahavar), child
protection investigator supervisor at the DCFS; and (6) Glenda Monterey (Monterey), therapist
for the Center of Contextual Change. M.D. called the following witnesses to testify at the
hearing: (1) N.G.; (2) V.D., mother of M.D.; (3) Kelly Lawrence (Lawrence), forensic scientist
from the Northern Illinois Regional Crime Laboratory; (4) Eric Ostrov (Ostrov), forensic
psychologist; and (5) M.D.
¶7 Tamara Newel
¶8 Newel testified she is a psychotherapist 2 for NorthShore University HealthSystems.
Newel started seeing A.D. for family therapy in 2008. On April 2, 2010, Newel met with A.D.
and N.G. A.D. disclosed to Newel that M.D. had "touched and tickled her private parts." A.D.
also informed Newel that M.D. made her touch his penis. A.D. further disclosed that her father
told her when she wakes up in the middle of the night to come down to the basement and sleep
with him, but not to tell anyone.
¶9 On cross-examination, Newel testified that it was clinically appropriate to take A.D.'s
statement about the suspected abuse in the presence of N.G. because "it was difficult for [A.D.]
to tell anyone that" and "[s]he had never been in a session alone with me." Newel further
testified that after the disclosure, A.D. played and "laughed a lot." This behavior was not
inconsistent with the disclosure because A.D. "appeared to be relieved" after expressing what
had been a secret. Newel also testified that A.D. did not disclose that her father "urinated on
her," "ejaculated on her," "inserted a pencil into her," or "inserted a stick into her."
¶ 10 Scott Peterson
¶ 11 Peterson testified he is an investigator with the DCFS. On April 2, 2010, the DCFS
2 When asked her "position," Newel responded, "I'm a psychotherapist, a clinical social worker." 4 1-13-3901
hotline received a report of sexual abuse regarding A.D. That same day, Peterson interviewed
M.D. at his home regarding the allegations that "he had touched his daughter inappropriately,
tickled her on her privates, made her touch his penis, and I believe the verbiage was he peed on
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2015 IL App (1st) 133901
FIFTH DIVISION JUNE 30, 2015
No. 1-13-3901
) Appeal from the M.D., ) Circuit Court of ) Cook County Plaintiff-Appellant, ) ) v. ) No. 12 CH 22419 ) THE DEPARTMENT OF CHILDREN AND FAMILY ) SERVICES and BOBBIE GREGG, Director of Children ) Honorable and Family Services, ) Neil Cohen, ) Judge Presiding. Defendant-Appellees. )
JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice McBride concurred in the judgment and opinion.
OPINION
¶1 Plaintiff M.D. appeals an order of the circuit court of Cook County affirming a final
administrative decision of the Illinois Department of Children and Family Services (the DCFS),
denying his request to expunge an indicated finding 1 of sexual abuse involving his five-year-old
1 In accordance with the Abused and Neglected Child Reporting Act (Act) (discussed further herein), the DCFS maintains "a central register of all cases of suspected child abuse or neglect." 325 ILCS 5/7.7 (West 2012). "An entry in the registry is an 'indicated finding' and requires certain procedures set out in the Act and the DCFS rules." Julie Q. v. Department of Children and Family Services, 2011 IL App (2d) 100643, ¶ 29. "A person who is subject to an indicated report may request that DCFS amend the record of the report or remove the record of the report from the State Central Register." Tiller v. Department of Children & Family Services, 2013 IL App (4th) 120504, ¶ 31; 325 ILCS 5/7.16 (West 2012). 1-13-3901
daughter, A.D. On appeal, M.D. contends that the DCFS's determination to indicate was based
on a superficial investigation that failed to comply with its own procedures. In addition, M.D.
argues that the agency's ultimate determination not to expunge the indicated finding was against
the manifest weight of the evidence where the testimony against him was not credible and the
scientific evidence refuted the sexual abuse allegations. We affirm.
¶2 BACKGROUND
¶3 On April 2, 2010, the DCFS received a report of the possible sexual abuse of A.D. by
M.D. The matter was investigated by both the DCFS and the Wilmette Police Department. That
same day, a DCFS investigator interviewed M.D. and his wife N.G. regarding these allegations.
Following an investigation, on June 2, 2010, the DCFS issued a finding, based on a "credible
evidence" standard, indicating M.D. for allegation 19, sexual penetration, and allegation 21,
sexual molestation. Allegation 19 defined "sexual penetration" as follows:
"Any contact, however slight, between the sex organ or anus of one person
by an object, the sex organ, mouth or anus of another person, or any intrusion,
however slight, of any part of the body of one person or any animal or object into
the sex organ or anus of another person. This includes acts commonly known as
oral sex (cunnilingus, fellatio), anal penetration, coition, coitus, and copulation."
89 Ill. Adm. Code 300.Appendix B (Allegation 19), amended at 25 Ill. Reg.
12781, 12797 (eff. Oct. 1, 2001).
Allegation 21 defined "sexual molestation" as follows:
"Sexual conduct with a child when such contact, touching or interaction is
used for arousal or gratification of sexual needs or desires. Parts of the body, as
used in the examples below, refer to the parts of the body described in the
2 1-13-3901
definition of sexual conduct found in the Illinois Criminal Sexual Assault Act
[720 ILCS 5/12-12] as quoted above under Allegation 18, Sexually Transmitted
Diseases. Examples include, but are not limited to:
- fondling.
- the alleged perpetrator inappropriately touching or pinching parts of the
child's body generally associated with sexual activity.
- encouraging, forcing, or permitting the child to touch parts of the alleged
perpetrator's body normally associated with sexual activity." 89 Ill. Adm. Code
300.Appendix B (Allegation 21), amended at 25 Ill. Reg. 12781, 12798 (eff. Oct.
1, 2001).
In addition, "[s]exual conduct is defined in the Act as 'any intentional or knowing touching or
fondling of the victim or the perpetrator, either directly or through clothing of the sex organs,
anus or breast of the victim or the accused, or any part of the body of a child…for the purpose of
sexual gratification or arousal of the victim or the accused.' " 89 Ill. Adm. Code 300.Appendix B
(Allegation 18), amended at 25 Ill. Reg. 12781, 12797 (eff. Oct. 1, 2001).
¶4 On June 5, 2010, M.D. requested a timely administrative appeal of the indicated finding.
¶5 Hearing
¶6 The DCFS administrative law judge (ALJ) conducted a hearing beginning April 21, 2011.
The matter was continued for further hearing to April 22, June 29, August 29, September 22,
September 29, September 30, December 5, 2011, and February 9 and February 16, 2012. The
DCFS called the following witnesses: (1) Tamara Newel (Newel), psychotherapist for
NorthShore University HealthSystems; (2) Scott Peterson (Peterson), child protection
investigator for the DCFS; (3) Christine DiGangi (DiGangi), forensic interviewer; (4) Susan
3 1-13-3901
Kick (Kick), principal of A.D.'s elementary school; (5) Sousan Bahavar (Bahavar), child
protection investigator supervisor at the DCFS; and (6) Glenda Monterey (Monterey), therapist
for the Center of Contextual Change. M.D. called the following witnesses to testify at the
hearing: (1) N.G.; (2) V.D., mother of M.D.; (3) Kelly Lawrence (Lawrence), forensic scientist
from the Northern Illinois Regional Crime Laboratory; (4) Eric Ostrov (Ostrov), forensic
psychologist; and (5) M.D.
¶7 Tamara Newel
¶8 Newel testified she is a psychotherapist 2 for NorthShore University HealthSystems.
Newel started seeing A.D. for family therapy in 2008. On April 2, 2010, Newel met with A.D.
and N.G. A.D. disclosed to Newel that M.D. had "touched and tickled her private parts." A.D.
also informed Newel that M.D. made her touch his penis. A.D. further disclosed that her father
told her when she wakes up in the middle of the night to come down to the basement and sleep
with him, but not to tell anyone.
¶9 On cross-examination, Newel testified that it was clinically appropriate to take A.D.'s
statement about the suspected abuse in the presence of N.G. because "it was difficult for [A.D.]
to tell anyone that" and "[s]he had never been in a session alone with me." Newel further
testified that after the disclosure, A.D. played and "laughed a lot." This behavior was not
inconsistent with the disclosure because A.D. "appeared to be relieved" after expressing what
had been a secret. Newel also testified that A.D. did not disclose that her father "urinated on
her," "ejaculated on her," "inserted a pencil into her," or "inserted a stick into her."
¶ 10 Scott Peterson
¶ 11 Peterson testified he is an investigator with the DCFS. On April 2, 2010, the DCFS
2 When asked her "position," Newel responded, "I'm a psychotherapist, a clinical social worker." 4 1-13-3901
hotline received a report of sexual abuse regarding A.D. That same day, Peterson interviewed
M.D. at his home regarding the allegations that "he had touched his daughter inappropriately,
tickled her on her privates, made her touch his penis, and I believe the verbiage was he peed on
her." M.D. denied the allegations and indicated he felt they were a result of "nasty divorce
proceedings."
¶ 12 Peterson next interviewed N.G., who told him that "her daughter came to her and stated
that [M.D.] had touched her inappropriately, that he had tickled her, particularly that he had
tickled her privates, that he made her touch his penis and that he went to the bathroom on her."
Peterson then implemented a "safety plan" which involved M.D. leaving the home. After M.D.
said goodbye to A.D. and exited the residence, Peterson observed A.D. wave at the door and say
" 'goodbye, nasty daddy.' "
¶ 13 On cross-examination, Peterson testified that A.D. did not appear to be afraid of her
father. He further testified that M.D. told A.D. he was going to go live at grandma's house for a
long time. A.D. asked M.D. why he was going away. Peterson testified that M.D. replied that he
was going away because "either that somebody had hurt her or it could have been that he did
something to her."
¶ 14 Christine DiGangi
¶ 15 DiGangi, a licensed clinical social worker, testified that she has been a forensic
interviewer with The Children's Advocacy Center of North and Northwest Cook County (Center)
since 2007. She has a master's degree in social work from Loyola University. By the time she
interviewed A.D., she had as a forensic interviewer conducted 417 interviews.
¶ 16 DiGangi testified to the protocol for interviewing children in the course of a child sexual
abuse investigation. She employs the "Step-Wise" method for interviewing children, which is "a
5 1-13-3901
nine-step protocol that entails rapport building, recall the neutral event, truth and lie, introducing
the topic of concern, open-ended questions, more narrow-ended questions, use of aids, if
necessary, and a conclusion." These interviewing techniques vary depending on the age of the
child. For example, when interviewing very young children some of the steps may be
condensed.
¶ 17 On April 8, 2010, DiGangi met with A.D. at the Center for a forensic interview. Prior to
the interview DiGangi was familiar with the allegations against M.D., that "dad had tickled her
privates and that she had to touch his private." DiGangi walked with A.D. back to the interview
room, where the two of them were alone. The investigative team, which included two Wilmette
police officers, a DCFS worker, and an assistant State's Attorney, was behind a one-way mirror.
Following the protocol, DiGangi built a rapport with A.D. by asking her what she would like to
be called, her age, what she did for her birthday, where she lives, who lives with her, and about
her school. DiGangi then discussed the interview process with her. DiGangi informed A.D. that
she was going to ask her questions and if she did not understand the questions to let her know.
¶ 18 DiGangi stressed the importance of telling the truth and asked A.D. if she knew what it
meant to be truthful. A.D. replied, " 'no not so much.' " DiGangi then provided A.D. with
several examples and asked her to identify in each whether it was telling the truth or telling a lie.
For example, DiGangi asked A.D. "if it would be telling the truth or telling a lie to state that it
was currently raining in the interview room and she told me a lie 'because it's not raining.' " She
also asked A.D. whether it would be telling the truth or telling a lie to state that her name is A.D.
and A.D. responded that it is the truth "because [A.D.] is my name." DiGangi then asked A.D. if
she would be truthful and talk to DiGangi about "things that really happened." A.D. responded,
" 'I will, I will. I promise you I will.' " At this point, DiGangi believed A.D. was capable of
6 1-13-3901
telling the difference between the truth and a lie.
¶ 19 DiGangi then asked A.D. if she knew why she was at the Center. A.D. said " 'because
my dad was hurting me.' " DiGangi asked what her father was doing to hurt her and A.D. said,
" 'he was touching in my private part and he was doing things he shouldn't do and he told me not
to tell anyone and he made me touch his private part. And one time he went potty on me.' "
DiGangi inquired as to what private parts her father had touched and A.D. "pointed to her butt
and her vagina, and she stated he touched both." DiGangi asked where she was when her father
touched her private parts and A.D. replied that she was in his bed. DiGangi then asked A.D.
where her father's bed was and she said downstairs. DiGangi inquired as to how A.D. got
downstairs and she replied, " 'we have staircases, silly you.' " A.D. told DiGangi that she knew
how to go downstairs because her father told her to and that he asked her do to that " 'because he
wanted to hurt me.' "
¶ 20 Once downstairs, A.D. would get into her father's bed. When asked if her father was
awake or asleep, A.D. replied, " 'he is always awake, working, working, working.' " A.D. told
DiGangi that before she got in the bed " '[her father] said get out.' " DiGangi inquired as to
whether A.D. stayed in the bed or got out of the bed after she was told to "get out" and A.D.
responded that she stayed in the bed. DiGangi asked A.D. what happened next and "at this time
she began to shut down and she told me that that was about it, she didn't want to talk anymore,
she was getting tired." DiGangi, however, continued to ask A.D. what happened after she got
into the bed. A.D. informed her that "that's when daddy would do the bad things, the touching."
A.D. told DiGangi that when her father was touching her private parts, "he would laugh and that
he would say 'I'm touching [A.D.'s] private parts.' "
¶ 21 Regarding what she was wearing, A.D. stated she was not wearing anything when she got
7 1-13-3901
into her father's bed and that she " 'usually [does not] wear anything late at night' "; however, she
also said that her father told her to take her pajamas off and put them in the laundry. A.D. told
DiGangi that her father touched her private parts on her skin, not through her clothes.
¶ 22 A.D. told DiGangi that her father "touched her on the inside and she said one time he
touched the hole where the pee comes out and it really hurt." When asked how she knew it went
inside, A.D. said " 'because I could feel it.' " When asked what private part her father touched,
A.D. pointed to her vagina. A.D. further explained her father touched her with his fingers and a
"pencil" or "pencil stick." A.D. described the "pencil stick" as "big and thick and pointy."
DiGangi testified, "I asked her where her dad got the stick from, and she told me outside." When
asked how many times her father "touched her front private part," A.D. told DiGangi "a
hundred." A.D. told her that she was three years old when her father first started touching her
and he last touched her, " 'Monday, last Monday, a few Mondays ago.' "
¶ 23 DiGangi asked A.D. if she had touched her father's "private part" and if "that's when the
pee came out" and A.D. responded, "yes, yes, yes." When asked what the "pee" looked like,
A.D. told DiGangi "it was orange and that it went on her hand." Thereafter, A.D. washed her
hand and changed from her "kitty cat pajamas" into a nightgown "because dad peed on me."
A.D. then put the pajamas in the laundry. DiGangi asked A.D. how many times her father had
peed on her, and she replied "a hundred."
¶ 24 DiGangi asked A.D. how she knew to touch her father "on the skin" and A.D. said
" 'because he was touching my private part and he holded [sic]—he grabbed my hand.' "
DiGangi testified:
"At this time [A.D.] grabbed her wrist and showed me by grabbing her wrist.
And she said that he would put it in there.
8 1-13-3901
I asked her what she would have to do once her hand was by her dad's private
part. And she said 'like this' and she held up her hand and made a fist in the interview
room.
I asked her if her hand stayed still or moved around. And she said 'still.' And,
again, she made the fist and said 'like this.' "
DiGangi asked A.D. what her father's private part looked like:
"[S]he told me that 'it was big and it squished around.' I asked her if it was standing up or
lying down. And she said it was standing up.
She also added something about 'when daddy's private part is standing up is when
he is happy—or when he is happy his private part stands up.'
I asked her who told her that, and she said 'dad did.' "
According to A.D. her father told her, " 'don't tell your mom, don't tell your mom I did this, but I
did [tell mom] because I didn't care."
¶ 25 DiGangi then gave A.D. a 15-minute break from the interview and went to confer with
the investigative team to see if they needed her to ask A.D. any more questions. DiGangi then
resumed the interview and asked A.D. "what she calls the downstairs where dad's bed is and she
told me the basement." The basement door would be open and it was dark, even though her
father was working. This was because he was working on the computer and it made a light in the
basement. DiGangi asked A.D. again if she had no clothes on when she first got into her father's
bed and A.D. said yes. DiGangi further testified:
"[S]he told me that she had to be in the bed and that dad peed on them and that she took
them off and that she had to go upstairs to get a nightgown on and that she came back
downstairs to see if dad would take them off and do the touching.
9 1-13-3901
And then I asked—I asked her if she ever sleeps with mom, and she said 'not that
much.' And I asked her if she has clothes on when she sleeps with mom, and she said
'yes, I have clothes when I sleep with mom.' "
DiGangi asked A.D. again if she was wearing clothes when she first got into her father's bed and,
"[A.D.] told me that her pajamas are on and that she takes them off—that she takes them off and
she puts new pajamas on and then dad takes her new pajamas off and does the touching. *** I
believe she took off her pajamas because she stated that her dad had peed on her." A.D. told
DiGangi that when she went to see her mother, she was wearing "noodle straps and underwear."
When asked why she decided to tell about her father touching her, "[A.D.] said that she had to.
She told me this was the first time that she was telling."
¶ 26 When asked if her father had ever touched his private part to her private part, A.D.
responded, "yes" and that "it was bad." According to A.D., "he slapped her private part with his
private part or he hit his private part about her private part. *** She told me it felt yucky. I
asked her if it hurt, tickled, or something else. And she told me it tickled." When she asked
A.D. if she was standing, sitting, or lying down when her father put his private part in her private
part, DiGangi testified:
"At first [A.D.] said that she was lying down and then she said standing.
She told me that they were both standing. And I told her I was confused as to
how her dad was able to touch her private part with his private part if they were standing.
And then she told me that they were kneeling. And she showed me in the
interview room by kneeling down on [sic] the interview room.
***
She told me that she was standing and that he was able to put his private part in
10 1-13-3901
the circle because she was standing close."
¶ 27 DiGangi testified she did not observe any signs that A.D. had been coached. According
to DiGangi:
"A lot of times [children who are coached] are not able to give peripheral details. They
come in and keep repeating a blanket statement over and over again.
[A.D.], however, was able to provide details that another five-year-old child
wouldn't know. And she was able to provide a great amount of detail, actually nine
single-spaced pages of detail."
Additionally, A.D. answered her questions directly and used age appropriate language.
According to DiGangi, "[A.D.] has knowledge of sexual—of things of a sexual nature that an
average five year old without experiencing this would be able to relate." DiGangi's report of her
interview with A.D. was then entered into evidence without objection.
¶ 28 On cross-examination, DiGangi testified that the interview was not recorded despite a
policy implemented in 2009 to digitally record the forensic interviews of children. This was
because the protocol was in place before the recording equipment was provided and the funds for
the Northbrook office had not come through as of April 2010 when A.D. was interviewed.
Accordingly, DiGangi took copious notes of her interview with A.D.
¶ 29 DiGangi further testified that A.D. "presented as a distracted child" because she had told
DiGangi at times that she did not want to talk anymore or that she was tired. But, according to
DiGangi, A.D. made these statements "because she didn't want to talk about what we were
talking about." A.D. was not frightened during the interview, even when talking about the
touching and the urination. A.D. did, however, appear anxious when DiGangi got close to the
subject matter of the touching, but when A.D. actually spoke of the touching and penetration, she
11 1-13-3901
was "fine."
¶ 30 DiGangi acknowledged that A.D. indicated that when her father touched his private part
to her private part she changed her answer from lying down to standing to kneeling. DiGangi
clarified that A.D. told her both of them were kneeling. When asked whether she believed if
penetration was physically possible in this position, DiGangi responded, "Anything is physically
possible."
¶ 31 Regarding what A.D. was wearing, DiGangi clarified A.D. told her she was not wearing
anything when she got into bed with her father, then after her father peed on her hand she had to
change into different pajamas. Then she changed her pajamas after going up stairs. Then A.D.
went downstairs to see if her father would take her pajamas off.
¶ 32 A.D. told DiGangi that she was abused by her father when she was three, but that the
abuse did not occur when she was living in Chicago. A.D., however, was three years old when
she was living in Chicago.
¶ 33 Susan Kick
¶ 34 Kick is the principal of A.D.'s elementary school and first became familiar with A.D.
when she entered kindergarten in 2008. In kindergarten and first grade, A.D. had "some
assistance with the social worker" and a learning behavior specialist, Kate Cummings
(Cummings). Kick first learned of the alleged sexual abuse on April 12, 2010, from Emily
Nuzzo (Nuzzo), a social work intern. After speaking with Nuzzo, Kick determined that "we
needed to talk to [A.D.] further, clarify what she had said and then determine if we needed to call
DCFS."
¶ 35 A.D. was brought to Kick's office where she met with Kick, Nuzzo, and Cummings.
A.D. told Kick that her father had been touching her. Kick asked:
12 1-13-3901
"like on your arm, like this or on your leg. She said no, here. And I said where is here.
And she pointed to her genitals and said he pulls and pulls and tugs and tugs and it hurts.
I then asked if it had been—if it happened one time, more than one time. And she
said lots and lots of times. It's really bad, bad, bad, bad, bad.
And at that point I determined we had enough information to call DCFS for them
to finish the investigation."
Kick did not observe any signs that A.D. had rehearsed the story. According to Kick, "it seemed
like a very impromptu conversation, nothing that was rehearsed."
¶ 36 On cross-examination, Kick indicated A.D. was seeing Nuzzo because she had "some
transition difficulties in kindergarten" such as being "distractible, inattentive, might cry. She
might not want to do a task, and she might like scream or throw herself on the ground like having
a tantrum."
¶ 37 Sousan Bahavar
¶ 38 Bahavar is a child protection manager at the DCFS. She has worked for the DCFS for
26½ years, has two master's degrees, and is a licensed clinical social worker. In 2010, she was
supervising Leslie Goldberg-Mobry (Goldberg-Mobry), the lead investigator regarding this
matter. Goldberg-Mobry, however, was unavailable to testify during the hearing. Accordingly,
Bahavar testified regarding the investigation in her stead.
¶ 39 Bahavar testified to the following. On April 2, 2010, the DCFS hotline was contacted
regarding allegations that M.D. had molested his five-year-old daughter. On April 8, 2010,
Goldberg-Mobry was present during A.D.'s forensic interview. After the forensic interview,
Goldberg-Mobry attended a poststaffing meeting where she met with all the individuals who
13 1-13-3901
attended the interview and discussed whether A.D. was credible. The conclusion drawn at the
meeting was that A.D. "presented to be very credible."
¶ 40 On May 3, 2010, Goldberg-Mobry interviewed M.D., as indicated in her case notes,
which were entered into evidence as part of the DCFS investigative file. In the course of her
investigation Goldberg-Mobry also interviewed N.G., N.G.'s counsel, Newel, Kick, Terry Smith,
the court-appointed child custody evaluator, Glenda Rogers, and others.
¶ 41 Bahavar testified regarding A.D.'s medical examination that was conducted by Dr.
Afsoon Karimi and entered into evidence as part of the DCFS investigative file. The report
indicated that Dr. Karimi found no medical evidence of sexual abuse and concluded that A.D.'s
examination was "normal." The report, however, included that A.D. had been experiencing
genital pain on and off for the last two years and the pain had recently become more frequent.
Dr. Karimi wrote in her report that, "A normal genital/anal exam does not rule out any past ***
child sexual abuse. It is very common to have normal genital/anal exam in cases of child sexual
abuse." Bahavar also testified that, "the result of a normal exam does not substantiate that there
was no sexual abuse."
¶ 42 Regarding her final meeting with Goldberg-Mobry, Bahavar testified they determined
that A.D. was "very credible":
"[A.D.] provided detailed information. She was consistent. She presented age
appropriate language. She did not present to be coached. She was detailed in regards of
the event, how did it take place, how it felt to the child, and what took place before and
after and where was she and where was the father."
Based on its investigation, the DCFS then determined it would indicate a finding of allegation
19, sexual penetration, and allegation 21, sexual molestation, against M.D.
14 1-13-3901
¶ 43 On cross-examination, Bahavar testified that there were no inconsistencies between
A.D.'s disclosure to Newel and her statements to DiGangi at the forensic interview. Bahavar
explained that full disclosure of the abuse occurs at the forensic interview when the child is
interviewed in detail with questions for which he or she is not prepared. According to Bahavar,
"Therefore, we always see there is more disclosure either way in the forensic interview than what
somebody else reports the child has told them." In addition, Bahavar stated that "the initial
disclosure should not be explored further because the child is going to be interviewed in forensic
interview and all the professionals are trained on that."
¶ 44 When questioned regarding A.D.'s statement that M.D. told her to "get out" prior to the
sexual assault, Bahavar testified, "Just because a person tells the child to get out doesn't mean he
did not touch her later or five-minutes later or an hour later or two minutes later. It's two
separate things."
¶ 45 Regarding A.D.'s positioning in relation to her father during the alleged abuse, Bahavar
found A.D.'s statements to be credible because the abuse happened "more than once." Bahavar
testified A.D. was recalling multiple occasions of abuse "because she said she was touched [a]
hundred times. She didn't say she was touched only March 29th." When asked if it "seemed
possible to you that an adult man could touch his private part to that of a five-year-old girl if she
is standing and he is lying down," Bahavar responded, "If she is standing and he is lying down,
yeah. *** He is laying [sic] down in the bed." When asked, "Does it seem possible to you that
an adult man can touch his private part to that of a five-year-old girl if she is standing and he is
standing," Bahavar replied, "I have never seen the child and I don't know how tall she is. But
anything is possible." Bahavar further testified that the DCFS criteria for sexual penetration does
not have to be "full penetration," but can be contact "however slight."
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¶ 46 Glenda Monterey
¶ 47 Monterey testified as follows. She has a master's degree in marriage and family therapy
and has been employed as therapist with the Center for Contextual Change since July of 2006.
Monterey met with A.D. on a weekly basis beginning May 11, 2010, for trauma-focused
cognitive behavioral therapy. Such therapy is an "evidence-based treatment model for kids age 3
to 18 who have symptoms of trauma" and "consists of different components that help them build
coping skills and create safety so that they can talk about their trauma experience."
¶ 48 During A.D.'s first session, Monterey asked A.D. why she came to see her, and A.D.
replied that she was there because her dad hurt her. Throughout the session A.D. continued to
"present with a lot of trauma symptoms, and anxiety and hyperarousal, and seemed to get easily
overwhelmed and flooded." It was during their third session that A.D. disclosed to Monterey
that "dad touched her private parts in a bad way."
¶ 49 In sessions thereafter, A.D. expressed concerns over her safety and a fear of encountering
her father in public spaces. According to Monterey, "[A.D] asked a lot of questions about the
scenarios and would imagine every possible thing that could happen." A.D. would say things
like, "What if dad follows us, what if we see him again, what if mom can't protect me, what if he
wears a disguise." In one particular session, A.D. played a game with puppets wherein the larger
turtle bit the smaller turtle. A.D. then got other puppets and had them eat the big turtle, then she
comforted the little turtle. Monterey asked A.D. what the little turtle needed to feel safe and she
said "not to see the big turtle." Monterey then asked A.D. whether she wanted to see her father
and A.D. said " 'no, because he put his finger on my private part.' " Monterey recalled that A.D.
was "anxious and agitated, hyperaroused" and, after making this disclosure, had encopresis, an
involuntary bowel movement.
16 1-13-3901
¶ 50 In sessions that followed, A.D. continued to worry that her father would hurt her again.
Monterey had A.D. draw a picture of the fear that she had in one of her nightmares. A.D. "drew
a picture of her dad and of herself. And she drew a penis on her dad and she drew an arrow
connecting his penis to her private part and said that her dad put his private on her private. ***
She circled her vaginal area and then drew an arrow coming out of her dad's penis and directing
to her vaginal area."
¶ 51 Monterey testified that during their sessions A.D. has never recanted her allegations
against her father nor did Monterey observe any signs that A.D. had been coached. Monterey
based this statement on the fact that "[A.D.] has made consistent disclosures across multiple
settings. And the disclosures are oftentimes spontaneous. And when she makes the disclosures,
her affect is congruent with what she is saying." In addition, when A.D. discusses her father she
becomes hyper aroused and anxious. Her "physiological reactivity is high. She is often moving
around, kind of rocking. And many times she has had issues with toileting and had to run out of
the session to use the bathroom."
¶ 52 On cross-examination, Monterey testified that she has never met or spoken with M.D.
She was aware that A.D.'s parents were going through a divorce and discussed the divorce with
A.D. Monterey acknowledged that the divorce could be a partial cause for her anxiety. A.D. did
not tell her that M.D. "went pee-pee on her," "inserted a pencil stick into her private parts," or
"inserted a stick into her private parts." After treating A.D. for 10 months, Monterey
acknowledged that A.D. had not made a full disclosure of the traumatic event; however,
according to Monterey, "[A.D.] hasn't got to the part of her treatment where I would ask her or
even allow her to make a full disclosure." Additionally, Monterey testified that in the past she
has stopped A.D. from making a full disclosure to her because, "It's not therapeutic for kids to
17 1-13-3901
make disclosures when they are in a state of hyperarousal. It could be retraumatizing for them."
¶ 53 The DCFS then rested and M.D. elicited the following testimony from five witnesses.
¶ 54 N.G.
¶ 55 N.G., A.D.'s mother, testified as follows. At the time of her testimony she was still
married to M.D., although divorce proceedings were initiated in 2009. In January of 2010, the
parties entered into an agreement where M.D. would continue to reside at the marital residence,
but he would sleep in the basement.
¶ 56 On the evening of March 29, 2010, N.G. went to a Passover Seder at a friend's home
while M.D. watched A.D. N.G. returned home at 11 p.m. and believed A.D. was asleep in her
room because her bedroom door was closed. After packing for an upcoming trip to Naperville,
Illinois, N.G. went to bed at 1:30 a.m. At 2 a.m. she heard A.D. scream and cry. N.G. started to
get out of bed, but before she reached her bedroom door, A.D. came into her bedroom, crying.
A.D. was wearing underwear and a white spaghetti strap top. A.D. told N.G., "Mommy, daddy
is tickling my private parts and it makes me feel bad." N.G. replied, "Honey, I'm sorry. I bet
that makes you feel bad. I'm glad you told mommy." N.G. further testified:
"And we were quiet awhile. And I asked her, 'Were you sleeping downstairs in
the basement with daddy?' And she said, 'Yes. But he touches and rubs me and I don't
like that. It feels weird.'
And we were quiet for a while longer. And she said, 'Daddy puts his hand on my
penis [sic] and it feels funny when I do that and he even peepeed [sic] on me.' "
At the time, N.G. did not examine A.D. or her pajamas for signs of semen or urine. Although
she routinely washed A.D.'s clothing, N.G. had not previously observed signs of semen on A.D.'s
clothing because she was not looking for it.
18 1-13-3901
¶ 57 The next day, A.D. was very anxious and "seemed off." N.G. did not confront M.D.
because he had left for work by the time she woke up. N.G. had volunteered to make a meal for
the mother of one of A.D.'s classmates who was ill. She and A.D. went grocery shopping, made
the meal, and delivered it at 4 p.m. N.G. then drove A.D. from the classmate's home to a hotel in
Naperville for their preplanned spring break vacation. N.G. did not notify anyone about the
sexual abuse at that time because A.D. was with her the entire day and "it wasn't something that I
wanted to talk about in front of her." N.G. further testified she was "in shock" and knew that if
she continued with the scheduled trip to Naperville it would keep A.D. safe and away from M.D.
N.G. did not initiate any further conversations with A.D. about the abuse while they were on
their trip, but A.D. did bring it up "numerous times."
¶ 58 On Thursday, April 1, 2010, N.G. contacted Newel to schedule an appointment for her to
see A.D. At 2:30 p.m. the next day, Newel met with N.G. and A.D. Thereafter, Newel informed
N.G. that she would be contacting the DCFS. N.G. then returned home with A.D. at 4:30 p.m.
for the first time since March 30. M.D. arrived home at 5 p.m. N.G. observed A.D.'s reaction to
his arrival. According to N.G., A.D. was "really, really kind of anxious and hyper, nervous."
Within an hour Peterson, an investigator from the DCFS, came to her home and asked to speak
with M.D. N.G. took A.D. upstairs with her while Peterson interviewed M.D. After Peterson
spoke to M.D., he interviewed N.G. while A.D. continued playing upstairs. N.G. told Peterson
what A.D. had said to her and denied that these allegations against M.D. were related to their
divorce proceedings. Meanwhile, M.D. was in the basement gathering his belongings. When
M.D. said goodbye to A.D., N.G. could not see them but could hear them. N.G. heard A.D. say,
" 'goodbye, nasty daddy' " after M.D. closed the backdoor behind him.
¶ 59 On April 8, 2010, a Wilmette police officer came to her home and asked N.G. to gather
19 1-13-3901
some of A.D.'s clothes. Some of the clothing came from the luggage she brought on the trip to
Naperville and other clothes came from A.D.'s dirty laundry bin. N.G., however, also indicated
that she had done laundry after she had returned from Naperville.
¶ 60 N.G. further testified that it was not a "normal thing" for A.D. to go to bed without
wearing underwear; however, N.G. had previously taken A.D. to the pediatrician because A.D.
had complained of vaginal irritation. The pediatrician recommended that she sleep without
underwear. A.D. slept without underwear on one or two times after that. In addition, on one
occasion N.G. observed A.D. sitting on the couch next to M.D. without underwear on.
¶ 61 N.G. denied that A.D. had behavioral problems; however, there was an extra aide in
A.D.'s preschool classroom because there were several children who needed extra assistance.
¶ 62 On cross-examination, N.G. testified that after A.D. attended the forensic interview, she
continued to disclose details of the abuse. A.D. told N.G. that M.D. had penetrated her vaginally
and repeated that he "peepeed on her." A.D. also "asked repeatedly why, why did daddy do this
to me. She has been terrified that he would find a way back into the house or her school and hurt
her again." A.D. had anxiety that was preventing her from falling asleep. When she did fall
asleep, A.D. had nightmares about the abuse and would wake up screaming. She also reverted to
bedwetting, which she had not done since she was three years old. N.G. further testified that
A.D. continues to receive individual therapy and is doing better. According to N.G., since M.D.
has vacated the marital residence A.D. has "totally blossomed and come alive" and is "a lot
calmer" and happier.
¶ 63 V.D.
¶ 64 V.D. testified that she is M.D.'s mother and A.D.'s grandmother. She has known A.D.
since she was born and visited A.D. regularly and on holidays, but has not seen A.D. since April
20 1-13-3901
2010. V.D. further testified that M.D. was A.D.'s primary caretaker after she was born, as N.G.
had many health issues and was unable to care for A.D. In the beginning of 2010, V.D. observed
N.G. begin to take more care of A.D. In the weeks prior to the March 29, 2010, incident, V.D.
observed M.D. with A.D. and that their interaction was "normal." V.D. was "shocked" to learn
that M.D. was under investigation for sexual abuse of A.D. She wrote a six-page letter to
Goldberg-Mobry attesting to her son's good character and ability to parent A.D. V.D.'s letter,
along with other character reference letters on behalf of M.D., had previously been entered into
evidence as part of the DCFS investigative file.
¶ 65 Kelly Lawrence
¶ 66 Kelly Lawrence, a forensic scientist at the Northeastern Illinois Regional Crime
Laboratory, testified that she tested the clothing retrieved from A.D.'s home on April 8, 2010.
Lawrence received three pairs of underwear, two tank tops, one pajama top, and one pair of
purple pajama bottoms with hearts. Lawrence first tested the clothing to locate any biological
fluid stains, such as urine or semen, using the alternative light source (ALS) method. All of the
items, except for the pajama top and the pajama bottom, tested ALS positive. Lawrence then
conducted an acid phosphatase (AP) test, a presumptive test for seminal fluid, on the clothing
that tested ALS positive. Out of all the clothing that tested ALS positive, only two pairs of
underwear tested AP positive. After conducting a prostate specific antigen test and microscopic
test on the two pairs of underwear, Lawrence determined that no seminal fluid or sperm was
present. Lawrence testified that to a reasonable degree of scientific certainty there was no
seminal fluid on any of the clothing tested. No DNA testing of the garments was performed.
¶ 67 Lawrence also did not test the clothing further to determine whether the biological stains
were urine. According to Lawrence, if she had tested for urine it would have been
21 1-13-3901
nonproductive, because if the stain was positive for urine she would have been unable to identify
whose urine it was due to the fact that urine does not contain DNA. At the conclusion of her
testimony, Lawrence's forensic report was entered into evidence.
¶ 68 Eric Ostrov
¶ 69 Ostrov testified that he is a board-certified forensic psychologist and has been practicing
since 1981. According to Ostrov, forensic psychology is "psychology applied to legal issues."
His primary area of expertise is regarding whether law enforcement personnel are fit for duty;
however, he has worked with children when conducting child custody evaluations in divorce
proceedings 4 to 5 times a year for the past 30 years. Of those evaluations, Ostrov testified that
10% to 15% of them involved children who were age five or younger. Ostrov has never
evaluated a child under the age of five in reference to a criminal proceeding.
¶ 70 Ostrov testified that he reviewed the forensic interview conducted by DiGangi and the
DCFS records provided to him by M.D.'s counsel. Ostrov opined that the forensic interview did
not meet the standards for eliciting accurate information as it was not conducted in a proper
manner. Specifically, DiGangi did not properly inquire whether A.D. knew the difference
between the truth and a lie, asked leading questions, and failed to ask pertinent follow-up
questions.
¶ 71 Regarding DiGangi's questioning of A.D. about the difference between the truth and a lie,
Ostrov testified that DiGangi did not inquire as to whether A.D. understood that people can make
up stories. Ostrov explained that the interviewer should make clear to the child that the
interviewer does not want the child to try to guess what the interviewer wants to hear or thinks is
true, but that the child should be telling to the best of her recall what actually did happen in every
circumstance and underline to the child how important it is that they say what actually happened.
22 1-13-3901
¶ 72 Ostrov further testified that leading questions are problematic for children because they
tend to believe adults know the right answer and if you provide them with indirect information,
they will tend to believe that information. Ostrov defined a leading question as "a question that
provides information indirectly to the recipient of the question." In Ostrov's opinion, DiGangi
asked A.D. leading questions. Specifically, DiGangi asked "when her dad touches you on your
skin, does he touch you any place else?" Ostrov explained this question is leading because
DiGangi is suggesting to A.D. that M.D. touched her somewhere else. Another example was
when DiGangi asked A.D. whether M.D. "ever touched his private to hers and asked her whether
he ever touched her inside." This was a leading question because she is conveying to A.D. that
M.D. may have touched her somewhere else and may have touched her inside or put his private
against her private. Additionally, the question "does he say anything else to you" is leading
because DiGangi is suggesting to the child that M.D. said something else.
¶ 73 Ostrov further opined that DiGangi erred in questioning A.D. by not asking follow-up
questions after A.D. disclosed that her father had urinated on her. Ostrov testified that he would
have asked A.D. for details, whether it happened before, what the circumstances were, where it
occurred, and what M.D. said to her about it. Ostrov would have also asked follow-up questions
when A.D. stated that her father was working on new ways to hurt her. According to Ostrov, "I
would have asked her to tell me all about that, why she said that, what she meant by that, what's
the evidence for that. I would have wanted to know all about the question—all about the
statement ***." He also would have asked A.D. "if [M.D.] was working all the time, how is he
in the bed? Was he working in the bed?" Ostrov would also have asked follow-up questions
regarding how A.D. and M.D. were positioned.
¶ 74 On cross-examination, Ostrov testified he had never met A.D. nor did he observe the
23 1-13-3901
forensic interview on April 8, 2010. He also acknowledged that many of DiGangi's questions
were open-ended. Ostrov testified he has never conducted a forensic interview like the one
conducted by DiGangi and has never been hired by a law enforcement agency to interview a
child who has alleged to be a victim of sex abuse. Moreover, Ostrov clarified that it is infrequent
that he works with children A.D.'s age and, of those he has worked with, it has been in the
context of child custody evaluations.
¶ 75 On redirect, Ostrov testified that interviewing a child under five year old would not be
much different from interviewing a child over five years old if the child is verbal and
understands language.
¶ 76 M.D.
¶ 77 M.D. provided the following testimony. He and N.G. married in 2002. In August of
2004, A.D. was born after a difficult pregnancy due to N.G. having a degenerative disk in her
lower spine. Thereafter, M.D. was A.D.'s primary caregiver. In 2006, the family moved to
Chicago and M.D. continued to care for A.D. "almost exclusively." In 2008 the family moved to
Wilmette, where M.D. maintained the same level of parental responsibility for A.D. In June of
2009, M.D. and N.G. agreed to obtain a divorce. They continued to reside in the same home
together with A.D. and in January 2010 entered into an agreement wherein M.D. would reside in
the basement of the marital residence and N.G. and A.D. would reside on the second floor.
According to M.D., on March 29, 2010, he and N.G. were not on good terms.
¶ 78 M.D. denied sexually abusing A.D. He acknowledged that A.D. had come to the
basement on the night of March 29, 2010, but that he pushed her off of the bed after she began
whining when he told her he would not get her a glass of water. Her whining escalated to
screaming. N.G. then called for A.D. from the top of the basement stairs and gave her a glass of
24 1-13-3901
water. A.D. then went to bed.
¶ 79 M.D. further testified that when he left the marital residence on April 2, 2010, at
Peterson's direction, he told A.D. that he had to leave "because somebody said that I was hurting
you." He also testified that A.D. "said she loved me and we gave each other a hug and a kiss."
¶ 80 In early May of 2010, M.D. was interviewed by Goldberg-Mobry. M.D. denied the
allegations. M.D. explained to Goldberg-Mobry that he thought the allegations were related to
the divorce proceedings and that he believed N.G. was behind the accusations because she had
used the DCFS as a threat in the past if he ever were to divorce her. He acknowledged, however,
that it was N.G. who filed for divorce. M.D. asked Goldberg-Mobry what he could do to prove
his innocence. Goldberg-Mobry informed him that he could obtain a sex offender evaluation.
M.D., however, did not obtain a sex offender evaluation.
¶ 81 M.D. also testified regarding A.D.'s history of behavioral problems. When A.D. was two
years old, M.D. and N.G. began seeing a therapist to address issues of discipline and how to
handle A.D.'s "acting out." In May of 2008, A.D. began working with an occupational therapist;
however A.D. continued "acting out at home more, screaming, hollering *** if she didn't get her
way." In fall of 2008, A.D. began attending full-time day care at the Wilmette park district.
M.D. and N.G. received a report from the director of the facility regarding A.D.'s behavior.
After meeting with the director to address A.D.'s behavioral issues a special assistant was
brought in to assist A.D. In fall of 2009, A.D. began kindergarten and attended the park district
after school program. M.D. received reports from her teachers, as well as her after-school care
providers, that she was being disruptive. M.D. and N.G. met with the park district director and
aide was assigned to assist A.D. after school.
¶ 82 ALJ's Recommendation
25 1-13-3901
¶ 83 After considering all the testimony and evidence, the ALJ determined that the DCFS
proved by a preponderance of the evidence that M.D. was a perpetrator of child abuse as defined
by the Abused and Neglected Child Reporting Act (the Act) (325 ILCS 5/1 et seq. (West 2012))
and allegations 19 and 21, sexual penetration and sexual molestation. The ALJ recommended
that the Director deny M.D.'s request for expungement of the indicated findings from the State
central register. According to the ALJ:
"In the matter at hand, despite a physical exam of [A.D.] and a laboratory analysis
of [her] clothing, no physical evidence of sexual abuse was discovered, which neither
confirms nor denies the sexual abuse had occurred. Further, no eye-witnesses to the
events in question exist. While [M.D.] is clearly thought highly of by his friends, family
and collogues [sic] as evidenced by the numerous letters of support he received, the only
individuals who are able to definitively state what occurred on the night of March 29,
2010, are [M.D.] and [A.D.] In the absence of any other exculpatory or inculpatory
evidence, the issue before the Administrative Law Judge is reduced to whether the
statements of [A.D.] were credible and therefore the sexual abuse at the hands of [M.D.]
had, in fact, occurred, substantiating allegations #19 and #21."
¶ 84 The ALJ found A.D.'s statements to be age appropriate and credible and, in contrast,
found M.D. not to be credible. Regarding A.D.'s inconsistent statements, the ALJ stated, "It is
reasonable to assume a child of five would not relate precisely the same facts to each and every
individual she spoke with, particularly if those individuals are not experienced, as Ms. DiGangi
is, in interviewing young children who may have been victims of abuse. Indeed, had [A.D.]
simply recited the same facts, in the same manner, to everyone she spoke to, that would be more
indicative of coaching or coercion." The ALJ found that A.D.'s statements to Newell, DiGangi,
26 1-13-3901
Kick, and Monterey "extremely consistent in light of her age and development."
¶ 85 Regarding Ostrov's testimony, the ALJ found that his ability to judge A.D.'s credibility
was "hampered significantly" as he only had documentary evidence from the DCFS to rely upon
to form his opinion. The ALJ further found that Ostrov's expertise did not extend to the field of
child development, as his experience with children age five and under was limited and that this
limited experience with the interview process of children was evident in his testimony and
report.
¶ 86 On May 16, 2012, the Director adopted the specific findings of fact and conclusions of
law of the ALJ and denied M.D.'s request for expungement of the record.
¶ 87 Complaint for Administrative Review
¶ 88 On June 18, 2012, M.D. filed a complaint for administrative review with the circuit court
of Cook County. After the matter was fully briefed, the circuit court issued a written opinion
affirming the Director's decision. M.D. now appeals from the order of the circuit court.
¶ 89 ANALYSIS
¶ 90 On appeal, M.D. asserts the DCFS's determination to indicate was based on a superficial,
biased investigation that failed to comply with its own procedures and, thus, was itself clearly
erroneous. In addition, M.D. argues that the agency's ultimate determination not to expunge its
indicated finding was against the manifest weight of the evidence where: (1) A.D.'s varying
accounts of the sexual abuse were not credible; (2) N.G.'s testimony was not credible because
she had ample motive to coach A.D.; and (3) the scientific evidence refuted the sexual abuse
allegations.
¶ 91 Standard of Review
¶ 92 In reviewing a final decision under the Administrative Review Law (735 ILCS 5/3-101,
27 1-13-3901
et seq. (West 2012)), we review the administrative agency's decision and not the circuit court's
determination. Bolger v. Department of Children & Family Services, 399 Ill. App. 3d 437, 448
(2010). A reviewing court considers all questions of fact and law presented by the entire record.
735 ILCS 5/3-110 (West 2012). In administrative review cases, this court reviews factual
questions under the manifest weight standard, questions of law de novo, and mixed questions of
law and fact under the clearly erroneous standard. Tiller v. Department of Children & Family
Services, 2013 IL App (4th) 120504, ¶ 27. An administrative agency's factual findings are
against the manifest weight of the evidence only when the opposite conclusion is clearly evident.
Id.
¶ 93 Whether the DCFS Conducted an Improper Investigation
¶ 94 M.D. first contends that the agency's determination not to expunge the indicated finding
against him must be reversed where the DCFS conducted an improper investigation.
Specifically, M.D. argues that the DCFS failed to obtain all the available evidence and did not
take into consideration that A.D.'s statements were made in the context of acrimonious divorce
proceedings. Additionally, M.D. asserts that Goldberg-Mobry failed to consider the
"inconsistent assertions, flights of fancy, contradictions and sheer impossibilities of A.D.'s
statements" in her indication of abuse and did not consider the scientific evidence.
¶ 95 In response, the DCFS argues that it is improper for M.D. to challenge the indicated
findings where the matter is on appeal from the Director's determination not to expunge those
findings. The DCFS asserts that Goldberg-Mobry's decision to indicate was nonfinal because
M.D. made a timely filed administrative appeal, and it is the Director who makes the final
determination.
¶ 96 The Act requires the DCFS to maintain a central register of all cases of suspected child
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abuse or neglect reported and maintained under the Act. 325 ILCS 5/7.7 (West 2012). The
DCFS investigates all reports and classifies them as "indicated," "unfounded," or
"undetermined." 325 ILCS 5/7.12 (West 2012). A report is "indicated" when an investigation
determines that credible evidence of the alleged abuse or neglect exists. 325 ILCS 5/3 (West
2012). Credible evidence of abuse or neglect is found when the available facts, viewed in light
of the 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).
¶ 97 A subject of an indicated report may request the DCFS to amend the record of the report
or to remove the record of the report from the central register. 325 ILCS 5/7.16 (West 2012). If
the DCFS refuses a request, the subject of the report has the right to an administrative hearing
before an administrative law judge to determine whether the record of the report should be
amended or removed. Id. The DCFS has the burden of proof in justifying the refusal to amend,
expunge, or remove the record, and it must prove that a preponderance of the evidence supports
the indicated finding. Slater v. Department of Children & Family Services, 2011 IL App (1st)
102914, ¶ 24. After the hearing, the Director of the DCFS receives the ALJ's recommendation
and may accept, reject, amend, or return the recommendation. Id. The Director's decision is the
final administrative decision. Id.
¶ 98 Under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2012)), an
individual may appeal the DCFS's determination in a complaint for administrative review before
the circuit court. 325 ILCS 5/7.16 (West 2012). "In reviewing an administrative agency's
decision, the reviewing court's role is limited to determining 'whether the findings and decision
of the agency are against the manifest weight of the evidence.' " Montalbano v. Department of
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Children & Family Services, 343 Ill. App. 3d 471, 477 (2003) (quoting Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992)).
¶ 99 We decline to review the DCFS's determination to indicate. As previously discussed, the
Director's determination is the final administrative decision, not the DCFS's initial determination
to indicate. Thus, on appeal we do not review the propriety of the DCFS's investigation as M.D.
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 (stating that the DCFS
Director's decision to accept, reject, amend, or return the ALJ's recommendation is the "final
administrative decision" subject to judicial review); Shilvock-Cinefro v. Department of Children
& Family Services, 2014 IL App (2d) 130042, ¶¶ 21-22 (same). Accordingly, we decline to
review the propriety of the DCFS investigation and turn to consider M.D.'s other argument on
appeal that the agency's findings were against the manifest weight of the evidence.
¶ 100 Whether the Agency's Finding Was Against the Manifest Weight
¶ 101 M.D. argues that the agency's determination not to expunge its finding was against the
manifest weight of the evidence where: (1) A.D.'s varying accounts of the sexual abuse were not
credible and the record established that A.D.'s statements changed with retelling, were
contradictory, and resulted from suggestive questioning by DiGangi; (2) N.G.'s testimony was
also not credible, as she had ample motive to fabricate a story of abuse due to their impending
divorce; and (3) the scientific evidence refuted the sexual abuse allegations.
¶ 102 In this case, M.D. challenges the findings of fact of the agency. "The findings and
conclusions of the administrative agency on questions of fact are held to be prima facie true and
correct." 735 ILCS 5/3-110 (West 2012). A reviewing court is limited to determining whether
the agency's findings of fact are against the manifest weight of the evidence. Slater, 2011 IL
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App (1st) 102914, ¶ 30. An agency's decision is against the manifest weight of the evidence only
if the opposite conclusion is clearly evident. Id. "The reviewing court is not to reweigh the
evidence or make an independent determination of the facts." Id. ¶ 28. The fact that an opposite
conclusion is reasonable or that the reviewing court may have reached a different outcome does
not justify the reversal of the administrative findings. Id. ¶ 30. " 'If the record contains evidence
to support the agency's decision, it should be affirmed.' " Id. (quoting Abrahamson, 153 Ill. 2d at
88).
¶ 103 M.D. essentially requests that we reevaluate the credibility of A.D. and N.G. and reweigh
the scientific evidence. We shall not do so, as it is not our function to reevaluate witness
credibility or resolve conflicting evidence. Abrahamson, 153 Ill. 2d at 98; S.W. v. Department of
Children & Family Services, 276 Ill. App. 3d 672, 681 (1995). M.D., however, contends that we
can review the scientific evidence de novo, relying on this court's statement in Ambrose v.
Thornton Township School Trustees, 274 Ill. App. 3d 676, 681 (1995), that "a reviewing court
may evaluate documentary evidence presented in an administrative proceeding de novo." This
argument is misplaced. The Ambrose court had before it primarily documentary evidence in the
form of two maps (one from each party), as it was considering whether the plaintiffs met the
contiguity requirement of section 7-2b of the School Code (105 ILCS 5/7-2b (West 1992)).
Ambrose, 274 Ill. App. 3d at 678. Only one witness, the superintendent of one of the school
districts, testified at the evidentiary hearing on behalf of the defendant that the map submitted by
the defendant was used by his district in its day-to-day business. Id. at 679. On review, this
court examined the maps submitted by the parties de novo and found that defendant's map was
unreliable and did not directly conflict with the plaintiffs' maps. Id. at 681. Additionally, the
court dismissed the superintendent's testimony finding it did not directly relate to the issue at
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hand. Id. Thus, without any evidence directly contradicting plaintiffs' maps, the reviewing court
determined that the plaintiffs presented sufficient evidence to demonstrate the contiguity
requirement had been met and the underlying decision was against the manifest weight of the
evidence. Id.
¶ 104 In this case, the ALJ was presented with numerous witnesses and exhibits supporting the
DCFS's determination to indicate M.D. Unlike the determination in Ambrose, the agency's
decision not to expunge the indicated finding did not turn solely on documentary evidence, but
required the court to weigh the evidence and consider the testimony of the numerous witnesses.
Moreover, M.D. argues on appeal not that the scientific evidence itself was unreliable, but that it
contradicts A.D.'s statements and, thus, M.D.'s argument inherently involves the weighing of
evidence, both documentary and testimonial. As previously discussed, we will not reweigh the
evidence or the determination by the agency as to the credibility of the witnesses. Doe v.
Department of Children & Family Services, 265 Ill. App. 3d 907, 911 (1994); S.W., 276 Ill. App.
3d at 681-82.
¶ 105 Based on the record and the deference accorded a decision entered by an administrative
agency, we cannot say that a conclusion opposite to the agency's decision is clearly evident to
justify reversal. The testimony of Newel, DiGangi, Monterey, Kick, and N.G. provides enough
evidence for us to conclude that the agency could have found by a preponderance of the evidence
that M.D. sexually abused A.D. according to the allegations. N.G. testified that A.D. told her
that M.D. was "tickling my private parts" and that he put her hand on his penis. Newel's
testimony corroborated N.G.'s testimony as A.D. disclosed to Newel that M.D. had touched and
tickled her private parts and made her touch his penis. Similarly, Monterey testified that A.D.
disclosed to her that M.D. touched her private parts "in a bad way" and said that M.D. "put his
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private on her private." Kick also testified that A.D. told her that M.D. "pulls" and "tugs" at her
genitals and "it hurts." In addition, DiGangi testified that A.D. disclosed that M.D. touched her
private part, made her touch his penis, placed his private part on her private part, and that his
touching hurt her.
¶ 106 Moreover, the ALJ expressly considered the inconsistencies in A.D.'s statements and
found her to be credible, stating that "it is reasonable to assume a child of five would not relate
precisely the same facts to each and every individual she spoke with." In addition, the testimony
and evidence established that A.D. was abused on multiple occasions by M.D., not just on March
29, 2010. Accordingly, as Bahavar testified, A.D.'s statements regarding the sexual abuse related
not only to what occurred on March 29, 2010, but also referenced other instances of abuse. The
ALJ also considered whether N.G. coached A.D. and concluded that "none of the several
individuals [A.D.] disclosed to saw any signs of coaching or coercion." Our review of the record
supports these findings. Further, the witnesses testified that A.D.'s disclosures utilized age
appropriate language, were spontaneous, and demonstrated a level of sexual knowledge beyond
what a typical five year old would know. The ALJ found the testimony of the DCFS's witnesses
and A.D.'s statements regarding the abuse to be credible and the Director adopted these
conclusions. The record is more than adequate to support a finding that M.D. abused A.D.
Thus, we cannot say that the agency's determination not to expunge the indicated finding against
M.D. was against the manifest weight of the evidence.
¶ 107 CONCLUSION
¶ 108 For the reasons stated above, the judgment of the circuit court of Cook County is
affirmed.
¶ 109 Affirmed.
Related
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2015 IL App (1st) 133901, 36 N.E.3d 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/md-v-the-department-of-children-and-family-services-illappct-2015.