Montalbano v. Department of Children & Family Services

797 N.E.2d 1078, 343 Ill. App. 3d 471, 278 Ill. Dec. 160

• Court: Appellate Court of Illinois
• Decided: September 25, 2003
• Docket: 4-03-0075
• Status: Published

Opinions

JUSTICE COOK

delivered the opinion of the court:

Plaintiff, Michael Montalbano, appeals the circuit court’s order upholding a final administrative decision of defendant, Illinois Department of Children and Family Services (Department), denying his request to expunge an indicated finding of sexual penetration, molestation, and substantial risk of harm. We reverse.

I. FACTS

. On January 10, 2000, the Department received a report that an unknown person, soon thereafter identified as Michael Montalbano, had sexually abused an 11-year-old girl. The following week, a Department investigator and two Illinois State Police officers began conducting interviews of the girl, her mother, Montalbano, and others. Following an investigation, on March 22, 2000, the Department issued a finding, based on a “credible evidence” standard, indicating Montalbano for sexual penetration, sexual molestation, and substantial risk of harm.

On April 30, 2000, Montalbano wrote to the State Central Register’s administrator requesting that the Department review its decision and provide him with the reports related to the investigation. After receiving these materials, Montalbano sent a November 2, 2000, letter to the Department stating that the information in its records was inaccurate and should be amended or destroyed. This internal review was denied. According to the Department’s brief, this occurred on February 14, 2001. The date is not disputed, although no documentation appears in the record. On February 16, 2001, Montalbano wrote to the Department’s administrative hearings unit, stating that he wished to appeal the indicated finding and asking that the indicated report be expunged.

On June 25, 2001, an administrative law judge (ALJ) held a hearing to consider Montalbano’s request to expunge the indicated finding against him from the State Central Register. At the hearing, Montalbano made three motions. The first requested a directed finding on the grounds that there was no opportunity to cross-examine the minor and no corroboration of the minor’s statements. This motion was denied. The second sought to dismiss the case because the Department failed to call a mandated reporter to testify at the hearing. This motion was also denied. The third motion requested an alteration of the “safety plan” under which Montalbano was prohibited from living in his home. The ALJ ordered the Department to review the safety plan in response.

On July 2, 2001, the ALJ issued an opinion denying Montalbano’s request for expungement from the State Central Register. The ALJ found the Department’s witnesses to have testified credibly and determined that the Department had met its burden to prove the accuracy and consistency of the report indicating Montalbano. The Director of the Department adopted the ALJ’s findings of fact and conclusions of law on September 19, 2001.

On October 9, 2001, Montalbano filed a three-count complaint with the circuit court of McLean County, naming the Department and its Director, Jess McDonald, as defendants. Count I sought administrative review of the Department’s decision of September 19, 2001, contending that the decision was against the manifest weight of the evidence. Count II requested a declaratory judgment that the Department had deprived Montalbano of due process by delaying the proceedings. Count III sought that the court declare the “safety plan” void.

In its final order of January 6, 2003, the circuit court (1) denied count I because the Department’s decision was not against the manifest weight of the evidence; (2) denied count II because Montalbano failed to object during the administrative process to the untimeliness of the hearing and decision; and (3) granted count III, finding that the safety plan should be reviewed. This appeal followed. The safety plan of count III is not at issue on appeal.

II. ANALYSIS

Plaintiff argues that delays between his request for administrative appeal and the Department’s final decision deprived him of due process. We agree.

Generally, a court conducting an administrative review will not consider an issue or defense not raised at the administrative level. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278, 695 N.E.2d 481, 489 (1998). This rule has been applied to constitutional due process challenges. S.W. v. Department of Children & Family Services, 276 Ill. App. 3d 672, 679, 658 N.E.2d 1301, 1307 (1995). Defendants assert that by not raising the issue at the administrative level, plaintiff has waived his due process argument. However, waiver is “an admonition to the parties rather than a limitation on [the] court’s jurisdiction” (Texaco-Cities Service Pipeline Co., 182 Ill. 2d at 279, 695 N.E.2d at 489) and does not prevent us from considering the merits of plaintiffs argument in the interests of justice. We therefore address plaintiffs due process argument.

Under section 7.16 of the Abused and Neglected Child Reporting Act (Reporting Act), once a person has been “indicated” on the State Central Register for suspected abuse, the subject of the report “may request the Department to amend the record or remove the record of the report from the register.” 325 ILCS 5/7.16 (West 2000). If the Department rejects this request, the subject may appeal.

First, the subject may request in writing that the Department review its decision. 89 Ill. Adm. Code § 336.40(c) (Conway Greene CD-ROM April 2001). If the Department again refuses to expunge the indicated finding, the Department must issue a notice of right to an administrative hearing. 89 Ill. Adm. Code § 336.40(a) (Conway Greene CD-ROM April 2001). Alternatively, if the Department fails to act within 10 days after being requested to review its initial decision, the subject may request an administrative hearing to review the decision. 325 ILCS 5/7.16 (West 2000). By statute, this hearing must be provided “within a reasonable time after the subject’s request.” 325 ILCS 5/7.16 (West 2000). A Department regulation further provides that the Department shall make a final decision within 90 days of the request for a hearing. 89 Ill. Adm. Code § 336.220(a) (Conway Greene CD-ROM April 2001). Finally, the underlying statute provides that the Department’s final decision must be issued within 45 days of the hearing. 325 ILCS 5/7.16 (West 2000).

It is undisputed in this case that the Department failed to comply with either the 90-day deadline under the regulations or the 45-day statutory limit. Plaintiff requested an administrative hearing on February 16, 2001, the hearing was held June 25, 2001, and the Director issued the Department’s final decision on September 19, 2001. This meant intervals of 215 days from plaintiffs request until a final Department decision and of 86 days from the hearing until the decision.

This court recently had occasion to consider the due process implications of the Department failing to follow its own statutory and regulatory timetable in an appeal of an indicated finding. Lyon v. Department of Children & Family Services, 335 Ill. App. 3d 376, 780 N.E.2d 748 (2002), appeal allowed, 203 Ill. 2d 549, 788 N.E.2d 729 (2003). The Second District had previously held that a person may not be indicated on the register merely on the basis of credible evidence (Cavarretta v. Department of Children & Family Services, 277 Ill. App. 3d 16, 660 N.E.2d 250 (1996)) but had not addressed the effect of having a postindication hearing under a preponderance-of-the-evidence standard. In Lyon, we made clear that only the right to a prompt hearing under a preponderance-of-the-evidence standard saved the indication on the basis of credible evidence from being a denial of due process. Lyon, 335 Ill. App. 3d at 389, 780 N.E.2d at 759. We held that “[i]f the Department enters an ‘indicated’ report *** on the basis of ‘credible evidence’ rather than a preponderance of the evidence, due process requires the Department to strictly comply with its statutory and regulatory deadlines for processing the administrative appeal.” (Emphasis added.) Lyon, 335 Ill. App. 3d at 390, 780 N.E.2d at 759. Under Lyon, therefore, the Department’s failure to comply with the time limits contained in the statute and regulations poses a due process problem. Defendants’ attempts to convince us that Lyon does not control this case are unpersuasive.

Defendants first argue that no liberty interest is at stake, and thus due process has no application. Any procedural due process analysis must begin with a determination that life, liberty, or property is at issue; otherwise no process is due. Polyvend, Inc. v. Puckorius, 77 Ill. 2d 287, 293-94, 395 N.E.2d 1376, 1378-79 (1979). We are unmoved by defendants’ efforts to minimize the significance of being placed on the State Central Register of suspected child abusers. Being placed on the register has been found to implicate both a federal liberty interest (Cavarretta, 277 Ill. App. 3d at 22, 660 N.E.2d at 254) and an Illinois constitutional due process right (Cavarretta, 277 Ill. App. 3d at 24, 660 N.E.2d at 255)). Defendants attempt to distinguish cases such as the Cavarretta decision on the ground that they involved teachers, whereas the plaintiff in this case is a police dispatcher. But we said in Lyon that “ [considering the deep abhorrence in which society holds sexual predators of children, the ‘indicated’ finding could make Lyon unemployable in any profession.” Lyon, 335 Ill. App. 3d at 389-90, 780 N.E.2d at 759. Thus, the fact that plaintiff has not suffered any adverse employment consequences at his current job does not make his being placed on the register any less legally significant.

Defendants also assert that because the regulation containing the 90-day limit was not promulgated until June 2000, it has no application in this case. However, plaintiffs request for a hearing and all subsequent events occurred after the regulation had been put into place. The procedural context in Lyon was very similar, in that the regulation was introduced after the indicated finding was placed on the register. We did not hesitate there to insist that the Department comply with its own regulation requiring it to issue a decision within 90 days. Lyon, 335 Ill. App. 3d at 385-87, 780 N.E.2d at 756-57.

The Department violated both its own 90-day time limit for rendering a decision after a request for a hearing and the statutory 45-day limit on issuing a decision after the hearing has been held. In doing so, it deprived plaintiff of due process.

Plaintiff also argues that the decision of the ALJ was against the manifest weight of the evidence. We disagree.

The findings and conclusions of an administrative agency on questions of fact are held to be prima facie true and correct. 735 ILCS 5/3 — 110 (West 2000). 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.” Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992). An administrative agency decision will be found to be against the manifest weight of the evidence “only if the opposite conclusion is clearly evident.” Abrahamson, 153 Ill. 2d at 88, 606 N.E.2d at 1117.

The ALJ heard a number of witnesses at the June 25, 2001, administrative hearing. The witnesses had interviewed the child victim and her mother. The ALJ found these witnesses to have testified credibly, and their testimony is more than adequate to support a finding that plaintiff abused the child. We cannot say that the ALJ’s finding was against the manifest weight of the evidence.

Plaintiff next argues that his motion for directed finding should have been granted, because he was not given an opportunity to cross-examine the minor and because her hearsay testimony was not sufficiently corroborated. This argument is based on In re A.P., 179 Ill. 2d 184, 688 N.E.2d 642 (1997). That case interpreted a provision of the Juvenile Court Act of 1987 (Juvenile Court Act), providing:

“Previous statements made by the minor relating to any allegations of abuse or neglect shall be admissible in evidence. However, no such statement, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.” 705 ILCS 405/2 — 18(4)(c) (West 2000).

Plaintiff argues that although A.P involved a different forum than we are concerned with here, this is “a distinction without a difference.” However, the forum makes all the difference. The above-cited provision concerns the admissibility of evidence in a civil adjudicatory hearing to determine whether a minor has been abused or neglected. A.P., 179 Ill. 2d at 194, 688 N.E.2d at 648.

Here, in contrast, the relevant forum was an administrative hearing. In administrative proceedings, the provisions of the Illinois Administrative Procedure Act (Procedure Act) (5 ILCS 100/1 — 1 through 15 — 10 (West 2000)) apply. 20 ILCS 505/4 (West 2000). Under the Procedure Act, administrative agencies must generally follow the rules of evidence applied in civil cases in the circuit courts, but “[ejvidence not admissible under those rules of evidence may be admitted *** (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.” 5 ILCS 100/10 — 40(a) (West 2000).

The Department’s rules grant an ALJ the authority to “conduct a fair, impartial^] and formal hearing in which the strict rules of evidence do not apply.” 89 Ill. Adm. Code § 336.120(b)(1) (Conway Greene CD-ROM April 2001). The rules also provide that the ALJ may:

“allow into evidence all evidence helpful in determining whether an alleged perpetrator abused or neglected a child, *** even though not competent under the civil rules of evidence.” 89 Ill. Adm. Code § 336.120(b)(9) (Conway Greene CD-ROM April 2001).

The clear meaning of these provisions is that the ALJ is permitted to rely on hearsay in reaching a decision, although such evidence would not be admissible under the rules of evidence. Because this case concerns an administrative hearing, and not a proceeding under the Juvenile Court Act, plaintiffs objection that the minor’s hearsay statements were not corroborated by other evidence is unavailing.

Plaintiffs final argument is that the indicated finding must be expunged because the “mandated reporter,” a teacher, did not testify at his hearing. A Department rule provides, in relevant part, as follows:

“Any person who makes a report or who investigates a report may be ordered by the [c]ourt to testify fully in any judicial proceeding resulting from the report about any evidence of the abuse or neglect or the cause of the abuse or neglect. Any mandated reporter listed in subsection (b)(1) who makes a report of suspected child abuse or neglect shall testify fully in any administrative hearing resulting from such report, as to any evidence of abuse or neglect or the cause thereof.” 89 Ill. Adm. Code § 300.30(e) (Conway Greene CD-ROM April 2001).

Plaintiff asserts that because the rule states that the mandated reporter “shall testify” at the hearing, the failure of that person to testify requires expungement of the indicated finding. We disagree.

We review de novo an administrative agency’s interpretation of its own rules, but the agency’s interpretation “enjoys a presumption of validity.” Nolan v. Hillard, 309 Ill. App. 3d 129, 143, 722 N.E.2d 736, 747 (1999). Here, the Department, through its ALJ, determined that the rule merely requires that if the Department chooses to call the mandated reporter to testify at the hearing, the mandated reporter must testify fully. This interpretation comports with the language and apparent purpose of the rule. While it might often be useful to have the testimony of the mandated reporter, it is difficult to imagine that this person’s testimony would always be useful.

Because the rule does not require the mandated reporter to testify in all proceedings, the plaintiffs motion to expunge the indicated finding on that basis was properly denied.

III. CONCLUSION

For the foregoing reasons, we reverse the circuit court’s judgment.

Reversed.

APPLETON, J., concurs.