Perez v. Illinois Department of Children & Family Services

894 N.E.2d 447, 384 Ill. App. 3d 770
CourtAppellate Court of Illinois
DecidedAugust 22, 2008
Docket4-07-0854
StatusPublished
Cited by11 cases

This text of 894 N.E.2d 447 (Perez v. Illinois Department of Children & Family Services) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez v. Illinois Department of Children & Family Services, 894 N.E.2d 447, 384 Ill. App. 3d 770 (Ill. Ct. App. 2008).

Opinion

JUSTICE TURNER

delivered the opinion of the court:

Plaintiff, Laura Perez, appeals the Vermilion County circuit court’s September 2007 order, which denied her motion for summary judgment; granted the summary-judgment motion filed by defendants, the Illinois Department of Children and Family Services (DCFS) and its Director, Erwin McEwen; and affirmed DCFS’s dismissal of plaintiffs appeal from an indicated finding of abuse or neglect. We reverse the circuit court’s affirmation of DCFS’s dismissal of plaintiffs appeal and remand with directions.

I. BACKGROUND

At some point, DCFS indicated plaintiff for (1) tying/close confinement, (2) sexual penetration, (3) sexual molestation, and (4) substantial risk of sexual injury.

According to docket sheets, on June 28, 2004, the State charged plaintiff with one count of predatory criminal sexual assault of a child (720 ILCS 5/12 — 14.1(a) (West 1998)) for her actions between January 1, 1999, and January 1, 2001. People v. Perez, No. 04—CF—394 (Cir. Ct. Vermilion Co.) (hereinafter case No. 394). A juvenile case was also brought against plaintiff, which was dismissed on October 21, 2004.

In a September 24, 2004, letter, plaintiff stated her desire to appeal DCFS’s decision to indicate her. On October 20, 2004, a DCFS administrative law judge (ALJ) stayed plaintiffs administrative appeal due to the criminal charge.

On April 19, 2005, the State made a motion to nol-pros the criminal charge against plaintiff. Plaintiff objected, and the trial court granted the State’s motion and canceled plaintiffs bond. The court’s nolle prosequi order stated it was subject to being recommenced. Eight days later, a bond-refund check was mailed to plaintiff. The last entry on the docket sheets for case No. 394 is a September 23, 2005, motion to continue, which plaintiffs counsel asserted was an error.

In an August 11, 2006, letter to DCFS, plaintiffs counsel noted the dismissal of the criminal charge and requested a hearing on plaintiffs appeal or the removal of the indicated report. On October 13, 2006, the ALJ entered an order, dismissing plaintiffs appeal from her indicated report. The order stated, “[plaintiffs] notification of the resolution of circuit court proceedings was received more than 45 days after that decision and is untimely.”

On November 13, 2006, plaintiff filed a two-count complaint against defendants. The first count was brought under the Administrative Review Law (735 ILCS 5/3 — 101 through 3 — 113 (West 2006)) and sought review of DCFS’s dismissal of her appeal. That count was filed within 35 days of the dismissal order and thus was timely. See 735 ILCS 5/3 — 103 (West 2006). The second count was for mandamus and sought a judgment, directing DCFS to conduct a hearing on her appeal. In January 2007, the circuit court granted defendants’ motion to dismiss count II.

In March 2007, plaintiff filed a summary-judgment motion, asserting the 45-day deadline did not apply to her because the circuit court in her criminal case did not make a final judicial determination in her favor. That same month, defendants filed a brief in support of the administrative decision and requested the brief be considered a cross-motion for summary judgment.

In May 2007, DCFS filed a motion to substitute McEwen, the acting director of DCFS, in place of Brian Samuels, the former director. The circuit court granted the motion without objection.

In June 2007, the circuit court held a hearing on the summary-judgment motions. In August 2007, the court wrote a letter opinion, finding DCFS’s decision was not clearly erroneous. Thus, the court granted defendants’ motion for summary judgment and denied plaintiffs. On September 13, 2007, the court entered a written order consistent with the opinion letter.

On October 9, 2007, plaintiff filed a timely appeal from the circuit court’s September 13, 2007, order.

II. ANALYSIS

Plaintiff argues the circuit court erred in its interpretation of section 336.110(a)(1)(A) of Title 89 of the Illinois Administrative Code (89 Ill. Adm. Code §336.110(a)(1)(A), as amended by 26 Ill. Reg. 4175 (eff. March 8, 2002)). We note the only remaining count addressed in the summary-judgment order was brought under the Administrative Review Law, and thus we review the agency’s determination, not the circuit court’s (Odie v. Department of Employment Security, 377 Ill. App. 3d 710, 713, 881 N.E.2d 358, 360 (2007)). The interpretation of an administrative regulation presents a question of law, and thus we review the matter de novo. People v. Wilhelm, 346 Ill. App. 3d 206, 208, 803 N.E.2d 1032, 1034 (2004).

Courts construe administrative rules and regulations under the same principles that govern the construction of statutes. Thus, our primary objective is to ascertain and give effect to the drafters’ intent. We begin by examining the regulation’s language since it is the best indication of the drafters’ intent. Wilhelm, 346 Ill. App. 3d at 208, 803 N.E.2d at 1034. In doing so, we give the language its plain and ordinary meaning (Wilhelm, 346 Ill. App. 3d at 208, 803 N.E.2d at 1034) and read the regulatory scheme as a whole, “so that no part of it is rendered meaningless or superfluous” (People v. Jones, 214 Ill. 2d 187, 193, 824 N.E.2d 239, 242 (2005)). When the regulation’s language is clear and unambiguous, our only function is to apply the regulation as written. Wilhelm, 346 Ill. App. 3d at 208, 803 N.E.2d at 1034. Here, both parties assert the language is clear and unambiguous.

Section 336.110 of Title 89 of the Illinois Administrative Code provides, in pertinent part, the following:

“a) The Chief [ALJ] shall:
1) Upon notification from [DCFS]’s representative that a criminal or juvenile court action is pending based on the same facts as the administrative expungement appeal, issue a stay of the appeal process for all appellants named as defendants or respondents until a final judicial decision has been made. The time period, from the filing of the criminal charges or the juvenile petition, shall not be considered a delay on the part of [DCFS] in issuing and implementing its final administrative decision.
A) If the circuit court makes a final decision favorable to the appellant, the appellant shall notify the [a]dministrative [hjearings [u]nit in writing that a final order has been entered in the criminal or juvenile case and the [a] dministrative [hjearings [u]nit shall schedule a hearing on the appeal. The appellant shall notify the [a]dministrative [hjearings [u]nit within 45 days after any such decision.

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Bluebook (online)
894 N.E.2d 447, 384 Ill. App. 3d 770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-illinois-department-of-children-family-services-illappct-2008.