NO. 4-08-0835 Filed 3/9/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
DEE ANN WALK and MICHAEL HAMMACK, ) Appeal from Plaintiffs-Appellants, ) Circuit Court of v. ) Sangamon County THE ILLINOIS DEPARTMENT OF CHILDREN ) No. 08MR298 AND FAMILY SERVICES and ERWIN McEWEN, ) Director, ) Honorable Defendants-Appellees. ) Leo J. Zappa, Jr., ) Judge Presiding. _________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In November 2007, the Illinois Department of Children
and Family Services (DCFS) made findings of child abuse or
neglect against plaintiffs, Dee Ann Walk and Michael Hammack.
Plaintiffs filed administrative appeals. Following an eviden-
tiary hearing, a DCFS administrative law judge (ALJ) found
plaintiffs abused or neglected two foster children in their
custody pursuant to part 300, appendix B, of Title 89 of the
Illinois Administrative Code (89 Ill. Adm. Code §300 app. B, as
amended by 25 Ill. Reg. 12781, 12793-94, eff. October 1, 2001) by
forcing the children to remain in a closely confined area re-
stricting physical movement. In April 2008, defendant Erwin
McEwen, DCFS Director, adopted the ALJ's findings and recommenda-
tions and denied plaintiffs' request to expunge the abuse and
neglect findings pertaining to close confinement from the State
Central Register. In May 2008, plaintiffs filed a complaint for
administrative review of DCFS's decision in the Sangamon County
circuit court. In September 2008, the court affirmed the Direc- tor's decision. Plaintiffs appealed. For the following reasons,
we reverse and remand with directions.
I. BACKGROUND
In June 2006, DCFS placed four brothers, ranging in age
from 6 to 10 years old, with Walk, a licensed foster parent and
child-protection investigator employed by DCFS. Hammack lived
with Walk during this time, though the parties dispute whether
Hammack was Walk's paramour or "simply a lienholder." After
several months, DCFS removed two of the brothers from the resi-
dence at plaintiffs' request due to aggression and behavioral
problems. Anthony M., then nine (born August 7, 1997), and
Douglas M., then seven (born April 4, 2000), remained in plain-
tiffs' home.
Both children were diagnosed with attention deficit
hyperactivity disorder (ADHD), oppositional-defiant disorder, and
possible posttraumatic stress disorder. Anthony M.'s behavior
was classified as more severe than that of Douglas M., and he was
also diagnosed with adjustment disorder and fetal-alcohol ef-
fects. Douglas M. received additional diagnoses involving
possible fetal alcohol syndrome and possible reactive-attachment
disorder. According to plaintiffs, both children required
extensive supervision due to their tendency to (1) fight with
each other; (2) put nonfood items, including tree bark, paper,
and animal feces, in their mouths; (3) sneak out of the house at
night; (4) urinate throughout the house; (5) mutilate and kill
various farm animals present on plaintiffs' property; and (6)
- 2 - commit acts of vandalism, such as starting a fire in the barn and
throwing expensive tools in the swimming pool, the pond, and a
nearby field. Plaintiffs estimated the boys caused $60,000 in
property damage, due to (1) destruction of the tools; (2) fre-
quent urinating on the furniture and carpet; and (3) harm to
plaintiffs' animals, including (a) killing over 300 chickens by
stabbing them with nails, (b) injuring 2 horses by stabbing 1
with a stick and poisoning the other with rat poison and anti-
freeze, and (c) kicking a 20-pound dog to death.
Though plaintiffs purchased baby monitors and installed
alarms on the doors and windows of their home, "the young boys
defeated these measures by removing batteries from [the monitors]
and removing pins from door hinges to reach and turn off [the]
door alarms." In June 2007, after the children killed hundreds
of plaintiffs' chickens, plaintiffs gave the remaining chickens
away and used the chain-link fence panels which once enclosed the
penned chickens to build "an outdoor enclosure" containing an
eight- by eight-foot sandbox. The record contains conflicting
reports as to the size of the enclosure, ranging from 8 by 10
feet to 12 by 18 feet to 16 by 24 feet. All accounts agree the
fence was approximately six feet in height. At the evidentiary
hearing, Melanie Goss, a DCFS caseworker, testified the enclosure
was larger than the 14.5- by 16-foot bedroom the boys shared in
plaintiffs' home. The ALJ made no determination of the size of
the chain-link enclosure. (One of the photographs of the enclo-
sure from the record before us is appended.)
- 3 - The parties agree the enclosure had a top made with the
same chain-link fence materials as the sides but disagree as to
whether the enclosure's gate had a lock. At the evidentiary
hearing, Hammack testified the gate held no lock whatsoever.
Walk stated the fence had a lock but (1) it was not located on
the gate's latch, (2) its key was missing, and (3) it was never
used while the boys were inside the enclosure. Bradley Hardick,
Walk's nephew, testified he never saw a lock on the enclosure,
and Walk's friend, David Leach, testified the lock hung on the
fence part of the gate rather than on the latch. Jason Hasquin,
a system-of-care coordinator with Rutledge Youth Foundation, and
caseworker Goss agreed in their respective testimonies (1) the
enclosure had a latched gate with a lock and (2) Walk informed
them she needed a "stronger lock" to contain the children within
the enclosure. The ALJ made no determination on whether a lock
was on the enclosure, it was workable, or it was used when the
boys were inside the enclosure.
The parties also disagree as to the main purpose of the
enclosure. At the evidentiary hearing, plaintiffs stated the
enclosure was meant to keep feral cats and other animals from
defecating in the sandbox. However, interview notes taken by
DCFS child-protection investigator Jan Johnson state Walk in-
formed Johnson the enclosure had a top to prevent the children
from climbing out. Hasquin testified plaintiffs told him the
enclosure was "what they use for the kids when [plaintiffs] do
their chores." Further, in a July 2007 narrative, plaintiffs
- 4 - wrote the enclosure served "to ensure that when [they could not]
be with the children every second (i.e.[,] if [plaintiffs were]
saddling the horses, using the restroom, et cetera)[, the chil-
dren were] unlikely to do any further damage to animals or
property." The ALJ determined plaintiffs' testimony was not
credible and the enclosure's main purpose was to confine the
children when plaintiffs were occupied elsewhere.
From the enclosure's construction the week of June 22,
2007, until DCFS caseworkers visited plaintiffs' residence the
following week, plaintiffs admitted placing Anthony M. and
Douglas M. inside the enclosure on three occasions. First, the
children spent an undisclosed amount of time in the enclosure
when Anthony M. requested to go inside the enclosure to play in
the sandbox while Walk prepared dinner indoors where she could
not see the children and Hammack worked with a horse 15 to 20
feet away from the enclosure. Next, the children spent approxi-
mately 10 minutes inside the enclosure while Walk prepared
breakfast and Hammack untied and walked a horse near the barn.
Hammack was at most 55 to 60 feet away from the children during
this time. The third instance occurred when the boys entered the
enclosure at Hammack's request, as Hammack was leading one of the
horses from the barn to the pasture. The stallion feared the
boys because they had previously stabbed it with a sharpened
stick, so Hammack separated Douglas M. and Anthony M. from the
animal. Initially, Hammack did not close the gate. However, he
later did so after Douglas M. ran out of the enclosure and his
- 5 - proximity caused the horse to "buck, rear up, and land on its
back." Once Hammack closed the gate, Anthony M. protested by
screaming, "'I'm in prison just like my Dad!'" Hammack testified
Douglas M. and Anthony M. spent approximately five minutes inside
the enclosure during the incident. The record does not reflect
whether the enclosure's gate was locked during any of the three
occasions in which the boys were inside.
In addition to the three incidents in which plaintiffs
testified the boys spent time in the enclosure, Hardick testified
his son played with Douglas M. and Anthony M. inside the enclo-
sure on a separate occasion. Further, Goss testified Walk told
her she placed Douglas M. and Anthony M. in the enclosure for 20
minutes or less while plaintiffs showed a visitor the horse
stable. In their testimony, plaintiffs denied the events and
conversation described by Goss.
On June 27, 2007, Hasquin and Goss met with plaintiffs
at plaintiffs' home. During this time, plaintiffs showed Hasquin
and Goss the enclosure. Hasquin testified plaintiffs told him
they used the "'cage'" to supervise the children when plaintiffs
were otherwise occupied. Goss testified the enclosure resembled
a large kennel, one which she had never before seen in a child-
care or day-care environment. Goss and Hasquin notified DCFS of
plaintiffs' use of the enclosure.
On June 30, 2007, DCFS investigator Johnson arrived
unannounced at plaintiffs' home. As part of her investigation,
Johnson interviewed Anthony M. and Douglas M. Anthony M. told
- 6 - Johnson plaintiffs "locked" him and his brother in a cage on
three occasions because plaintiffs did not trust them. Douglas
M. informed Johnson he enjoyed playing in the "cage" with his
brother but also stated plaintiffs used a lock to keep him and
his brother from getting out. Johnson did not measure the size
of the enclosure during her visit. Due to illness, Johnson did
not testify at plaintiffs' evidentiary hearing, and DCFS submit-
ted the investigative file she wrote into evidence. The ALJ
stated the file received limited weight because plaintiffs were
not afforded the opportunity to cross-examine Johnson.
Following Johnson's investigation, DCFS determined
plaintiffs abused or neglected Anthony M. and Douglas M. via (1)
"tying/close confinement" and (2) inadequate supervision. DCFS
then removed the children from plaintiffs' home to a foster home
in Springfield.
Plaintiffs appealed both findings, and in February
2008, the ALJ conducted an evidentiary hearing. Following the
evidentiary hearing, the ALJ made no determinations on the exact
size of the enclosure or whether the latch on the enclosure's
gate contained a functional lock. However, the ALJ made a
determination the enclosure was designed and used primarily to
confine the children when plaintiffs could not closely supervise
them. She also repeatedly referred to the enclosure as a "cage."
The ALJ noted in her recommendation and opinion the enclosure
created a substantial risk of physical harm because (1) photo-
graphs of the enclosure do not show any shade or shelter from
- 7 - sunlight and plaintiffs used the enclosure in mid-summer, (2) the
enclosure contained no food or drink, (3) the children could not
escape the enclosure at will, (4) the children had a history of
fighting violently amongst themselves, and (5) the children were
diagnosed with severe emotional and behavioral problems. The ALJ
later determined DCFS proved its allegation against plaintiffs
regarding close confinement but failed to prove plaintiffs
inadequately supervised Anthony M. and Douglas M.
In April 2008, DCFS Director McEwen adopted the ALJ's
recommendations and findings, granting plaintiffs' request to
expunge the indicated findings of inadequate supervision but
denying plaintiffs' request to expunge the close-confinement
findings.
In May 2008, plaintiffs filed a complaint in the
Sangamon County circuit court for administrative review of the
DCFS Director's decision, naming DCFS and Director McEwen as
defendants. In their complaint, plaintiffs alleged the abuse and
neglect finding based on close confinement was improper because
defendants relied upon a DCFS policy guide never promulgated
pursuant to the requirements set forth in section 5-40 of the
Illinois Administrative Procedure Act (Procedure Act) (5 ILCS
100/5-40 (West 2006)). The court agreed with defendants, finding
DCFS properly based its decision on a promulgated DCFS regulation
rather than the challenged DCFS policy guide.
This appeal followed.
- 8 - II. ANALYSIS
On appeal, plaintiffs contend DCFS erroneously found
plaintiffs abused or neglected Anthony M. and Douglas M. Specif-
ically, plaintiffs argue (1) DCFS failed to consider whether the
enclosure plaintiffs used to contain the children was not physi-
cally restrictive of the children's movements; (2) in making its
decision, DCFS erroneously relied upon an unpromulgated policy
guide in violation of the Procedure Act; and (3) the manifest
weight of the evidence does not support a finding the enclosure
constituted a cage or was unreasonably confining. For the
following reasons, we reverse and remand.
A. Motion Taken With the Case
As a threshold matter, we first address DCFS's motion
to strike portions of plaintiffs' reply brief.
On April 29, 2009, DCFS filed a "Motion to Strike
Portions of Reply Brief," which we ordered taken with the case.
In its motion, DCFS alleged plaintiffs violated Supreme Court
Rule 341(j) (210 Ill. 2d R. 341(j)) by raising issues in their
reply brief not addressed in plaintiffs' opening brief. Accord-
ing to DCFS, plaintiffs failed to raise the following issues in
their opening brief: (1) DCFS's alleged violation of sections
10-35 and 10-40 of the Procedure Act, (2) DCFS's treatment of
Walk given her status as a DCFS employee, and (3) plaintiffs'
demand for attorney fees. Further, DCFS moved to strike portions
of plaintiffs' reply brief pertaining to plaintiffs' objection to
DCFS's inclusion of its own statement of facts in its brief and
- 9 - plaintiffs' "misstatement of the record" regarding the introduc-
tion of the DCFS policy guide in question by witnesses at the
evidentiary hearing before the ALJ.
On May 5, 2009, plaintiffs filed a response to DCFS's
motion to strike, in which they contend the arguments raised in
their reply brief "either relate back to [plaintiffs'] opening
brief or were made in response to issues raised in [DCFS's]
[o]pening [b]rief." We agree with plaintiffs: portions of both
the trial record, plaintiffs' opening brief, and DCFS's brief
relate to the above arguments. Further, while we agree with DCFS
regarding how standard practice permits appellees to draft their
own statement of facts, we find no need to strike plaintiffs'
objection to this or plaintiffs' "misstatement" pertaining to
which witness discussed the DCFS policy guide in question. See
Spangenberg v. Verner, 321 Ill. App. 3d 429, 432, 747 N.E.2d 359,
361 (2001) (refusing to strike a reply brief for nonflagrant
violations of supreme court rules). Accordingly, we deny DCFS's
motion to strike plaintiffs' reply brief in whole or in part.
However, we will disregard any inappropriate statements or
arguments made therein.
B. "Close Confinement" Under Allegation of Harm No. 14
Plaintiffs first contend DCFS failed to consider proof
of physical restriction as required by the "Allegation of Harm"
No. 14 (hereinafter Definition No. 14)--essentially an offense
number listed in the administrative rules as an appendix--found
in part 300, appendix B, of Title 89 of the Administrative Code
- 10 - (89 Ill. Adm. Code §300 app. B, as amended by 25 Ill. Reg. 12793-
94, eff. October 1, 2001). Specifically, plaintiffs argue
Definition No. 14 requires proof beyond the mere classification
that an enclosure is in fact a cage; rather, plaintiffs maintain
Definition No. 14 requires the size of the enclosure constitute
an "unreasonable restriction" of the children's mobility. In
response, DCFS argues (1) Definition No. 14 bars placing children
inside closely confined areas that unreasonably restrict--but do
not totally prohibit--physical movement and thus the size of the
area of confinement is not always determinative and (2) placing a
child in a "cage" is a per se violation of Definition No. 14
because caging a child is never a reasonable restriction of
mobility.
"In administrative cases, we review the decision of the
administrative agency, not the determination of the circuit
court." Wade v. City of North Chicago Police Pension Board, 226
Ill. 2d 485, 504, 877 N.E.2d 1101, 1112 (2007). Further, inter-
pretation of agency regulations is a question of law, which we
review de novo. Perez v. Illinois Department of Children &
Family Services, 384 Ill. App. 3d 770, 772, 894 N.E.2d 447, 450
(2008). However, the agency's interpretation of its own rules
and regulations "'enjoys a presumption of validity.'" Montalbano
v. Department of Children & Family Services, 343 Ill. App. 3d
471, 479, 797 N.E.2d 1078, 1084 (2003), quoting Nolan v. Hillard,
309 Ill. App. 3d 129, 143, 722 N.E.2d 736, 747 (1999).
The case at bar focuses on Definition No. 14. Like all
- 11 - DCFS rules and regulations, Definition No. 14 has a statutory
basis in the Abused and Neglected Child Reporting Act (Child
Reporting Act) (325 ILCS 5/1 through 11.7 (West 2006)). Pursuant
to the Child Reporting Act, an "abused child" includes one whose
caretaker (1) inflicts or creates a substantial risk of "physical
injury to such child by other than accidental means which would
be likely to cause death, disfigurement, impairment of physical
or emotional health, or loss or impairment of any bodily func-
tion" or (2) "commits or allows to be committed an act or acts of
torture upon such child." 325 ILCS 5/3(b), (d) (West 2006). The
Child Reporting Act's definition of "neglected child" includes
children who fail to receive "the proper or necessary support or
medical or other remedial care recognized under [s]tate law as
necessary for a child's well-being, or other care necessary for
[their] well-being, including adequate food, clothing[,] and
shelter." 325 ILCS 5/3 (West 2006).
Based on these definitions, DCFS promulgated regula-
tions detailing various child-abuse and neglect allegations,
essentially defining problematic conduct. 89 Ill. Adm. Code §300
app. B, as amended by 25 Ill. Reg. 12793-94, eff. October 1,
2001. Definition No. 14, entitled "Tying/Close Confinement,"
states as follows:
"Unreasonable restriction of a child's
mobility, actions, or physical functioning by
tying the child to a fixed (or heavy) object,
tying limbs together or forcing the child to
- 12 - remain in a closely confined area which re-
stricts physical movement. Examples include,
but are not limited to:
-- locking a child in a closet
or small room.
-- tying one or more limbs to
a bed, chair, or other object,
except as authorized by a licensed
physician.
-- tying a child's hand behind
his or her back.
-- putting a child in a cage."
(Emphases added.) 89 Ill. Adm.
Code §300 app. B, as amended by 25
Ill. Reg. 12793-94, eff. October 1,
2001.
The definitional sections do not appear to define "cage."
Plaintiffs contend (1) the plain language of Definition No. 14
"requires proof of a physical restriction of a child's movement"
and (2) putting a child in a cage and locking a child in a small
room "are only examples" and not per se violations of unreason-
ably restricting a child's mobility. DCFS does not dispute
Definition No. 14 requires proof a child was physically re-
strained but emphasizes Definition No. 14's plain language does
not require (1) a cage be locked or a certain size or (2) a
complete restriction of a child's mobility. DCFS further main-
- 13 - tains a cage always constitutes an unreasonable restriction of a
child's physical mobility regardless of its size and, thus,
placing a child in a cage is a per se violation of Definition No.
14.
While we do not advocate caging children, affirmance
does not logically follow. DCFS's position in essence elevates
the undefined example over the definition itself. Casting a
space as a cage does not relieve DCFS of its burden to determine
whether the use of the space on the facts fulfills the definition
of harm stated in Definition No. 14. As a result, we do not
address the ALJ's finding the enclosure is a "cage."
As with matters of statutory interpretation, "our
primary objective is to ascertain and give effect to the draft-
ers' intent." Perez, 384 Ill. App. 3d at 772, 894 N.E.2d at 450.
In doing so, we examine the regulation's language and give it its
plain and ordinary meaning. Perez, 384 Ill. App. 3d at 772-73,
894 N.E.2d at 450. Moreover, a court "must construe the statute
so that each word, clause, and sentence is given a reasonable
meaning and not rendered superfluous, avoiding an interpretation
that would render any portion of the statute meaningless or
void." Cassens Transport Co. v. Illinois Industrial Comm'n, 218
Ill. 2d 519, 524, 844 N.E.2d 414, 419 (2006).
While we agree the plain language of Definition No. 14
does not require complete immobility for a finding of close
confinement, we find DCFS's interpretation of confinement via
cages as per se unreasonable is overly broad. Courts have
- 14 - traditionally decided matters involving abuse and neglect of
children on a case-by-case basis. See In re M.Z., 294 Ill. App.
3d 581, 593, 691 N.E.2d 35, 43 (1998). Particularly, courts have
determined each case hinges on its own particular set of facts
because abuse and neglect findings rely on "'amorphous concept[s]
which cannot be defined with particularity.'" In re Edricka C.,
276 Ill. App. 3d 18, 26, 657 N.E.2d 78, 83 (1995), quoting In re
B.M., 248 Ill. App. 3d 76, 79, 618 N.E.2d 374, 376 (1993).
We decline to hold the language of Definition No. 14
bars placing children in a confined area in every possible
circumstance. Definition No. 14 bars the "unreasonable restric-
tion of a child's mobility, actions, or physical functioning" by,
inter alia, "placing the child in a cage." (Emphasis added.) 89
Ill. Adm. Code §300 app. B, as amended by 25 Ill. Reg. 12793-94,
eff. October 1, 2001. While "caging" children is certainly not
to be tolerated under most circumstances, an unforeseen emergency
may arise in which use of an enclosure would be warranted and
entirely reasonable. For example, if a small child is playing in
the yard when a rabid dog suddenly approaches, the child's
caregiver may have no other option for the child's safety but to
quickly place the child in a nearby dog kennel to keep the child
out of immediate danger. Is this unreasonable? Is it statutory
abuse or neglect? Therefore, because limited circumstances may
arise where caging may aid in the safety of children, we disagree
with DCFS's assertion caging is a per se unreasonable restriction
of a child's mobility, actions, or physical functioning for
- 15 - purposes of Definition No. 14. Rather, we find the relevant
inquiry is as follows: do the circumstances of the case render
the confinement unreasonable?
Definition No. 14 requires a degree of consideration of
an enclosure's size in determining either whether the confining
structure is a cage or where the confinement pertains to closets,
rooms, or other areas or structures, but size alone cannot
determine whether confinement is unreasonable. Definition No.
14's plain language states unreasonable close confinement re-
stricts--not prohibits--physical mobility. It further lists
cages and small, locked rooms as examples of closely confining
areas that may be deemed to unreasonably restrict a child's
mobility, actions, or physical functioning. As previously
stated, unreasonable restriction via confinement must be decided
on a case-by-case basis. Locking a child in a closet may be a
more unreasonable restriction of movement than placing a child in
a crib, even though the closet may allow a child a wider range of
mobility than the crib. Therefore, while cages and small, locked
rooms undoubtedly allow children varying degrees of mobility,
this does not automatically indicate whether confining children
in these structures is reasonable. Rather, the circumstances of
the confinement as a whole, including but not solely limited to
the size of the confining structure, must determine the reason-
ableness of the confinement.
Plaintiffs argue the enclosure used to confine Anthony
M. and Douglas M. is too large to constitute a closely confining
- 16 - structure. Plaintiffs further contend categorizing their enclo-
sure as closely confining would render Definition No. 14's plain
language meaningless, allowing any enclosure, such as a fenced-in
backyard, to constitute close confinement. As discussed below,
we find plaintiff's structure was not unreasonably closely
confining under Definition No. 14. However, while children may
have limited space to walk or even run back and forth while
forced to remain in an enclosure, this alone does not determine
whether their confinement inside it was reasonable. Again, we
note findings of abuse or neglect under Definition No. 14 are
decided on a case-by-case basis and require consideration of the
enclosure's size in addition to other factors, such as the
duration in which children are confined and the nature of or
reasoning for the confinement.
DCFS's interpretation of its own rule receives some
deference. See Montalbano, 343 Ill. App. 3d at 479, 797 N.E.2d
at 1084. While DCFS is incorrect caging is per se unreasonable,
we agree cages or enclosures allowing limited movement can
constitute closely confining structures under Definition No. 14.
Further, we note, pursuant to Definition No. 14's plain language,
the reasonableness of the restriction of mobility, physical
movement, and the actions of confined children is determinative
as to whether unreasonable close confinement has occurred, and
while size is one factor used to assess reasonableness, it alone
cannot be the deciding factor.
- 17 - C. DCFS's Reliance on Policy Guide 2000.14
Plaintiffs next argue the ALJ and the DCFS Director
improperly based their decisions on Policy Guide 2000.14, which
DCFS failed to properly promulgate in accordance with the Proce-
dure Act. DCFS responds the policy guide "merely implements
[DCFS's existing] policy regarding close confinement" and does
not constitute an independent rule.
The Procedure Act requires all agency rules be promul-
gated, i.e., made available for public inspection and filed with
the Secretary of State. 5 ILCS 100/5-10 (West 2006). Rules not
properly promulgated are invalid, not effective against any
person or entity, and "'may not be invoked by an administrative
agency for any purpose.' [Citation.]" Champaign-Urbana Public
Health District v. Illinois Labor Relations Board, State Panel,
354 Ill. App. 3d 482, 488, 821 N.E.2d 691, 696 (2004).
An agency "rule" is defined as an agency statement of
general applicability "that implements, applies, interprets, or
prescribes law or policy." 5 ILCS 100/1-70 (West 2006). Pursu-
ant to the Procedure Act, a "rule" does not include the follow-
ing:
"(i) statements concerning only the internal
management of an agency and not affecting
private rights or procedures available to
persons or entities outside the agency, (ii)
informal advisory rulings issued under
[s]ection 5-150, (iii) intra-agency memo-
- 18 - randa, (iv) the prescription of standardized
forms, or (v) documents prepared or filed or
actions taken by the Legislative Reference
Bureau under [s]ection 5.04 of the Legisla-
tive Reference Bureau Act." 5 ILCS 100/1-70
(West 2006).
In the case at bar, both the ALJ and Director McEwen
repeatedly referenced Policy Guide 2000.14 in their respective
decisions. In October 2000, DCFS circulated Policy Guide 2000.14
to its child-welfare staff in response to a newspaper article
accusing the agency of permitting the caging of children. The
guide cited Definition No. 14's definition of "close confinement"
and listed the procedure for taking a report in response to
situations involving tying or close confinement. Regarding the
investigation of confinement cases, the guide instructs DCFS
employees, in pertinent part, as follows:
"For confinement cases, a detailed descrip-
tion of the confining space and the circum-
stances surrounding the confinement must be
included in the investigation file[,] includ-
ing: (1) the size of the space, (2) access to
help/assistance, (3) heat/ventilation pres-
ent, (4) duration and frequency of confine-
ment, (5) presence or absence of lighting,
[and] (6) reason for confinement."
In relation to referral incidents of caged children to law
- 19 - enforcement, the guide further states:
"A parent, or other person responsible for
the child's care, who forces their child to
remain in a cage of any size while denying
the child [(1)] use of bathroom facilities
and/or [(2)] food and/or water commits an act
of neglect, cruelty[,] and depravity which
should be referred to law enforcement for
investigation."
Under the heading "Purpose," the guide states, "[DCFS] has never
approved the caging of children and does find the act abusive,
cruel[,] and neglectful."
Interpretation of agency regulations is a matter of
law, which we review de novo. Perez, 384 Ill. App. 3d at 772,
894 N.E.2d at 450. We find Policy Guide 2000.14 does not consti-
tute a rule for purposes of section 1-70 of the Procedure Act.
Rather, the guide merely alerts its employees of the existing
rule set forth in part 300, appendix B, of Title 89 of the
Administrative Code regarding close confinement and instructs
them how to document and assess confinement cases pursuant to the
definition of "close confinement" found in Definition No. 14.
While the guide states "DCFS has never approved of the
caging of children," it goes on to specify when placing a child
in a "cage" constitutes unreasonable close confinement, i.e.,
"placing a child in a cage of any size while denying the child
use of bathroom facilities and/or food and/or water commits an
- 20 - act of neglect, cruelty [,] and depravity which should be re-
ferred to law enforcement for investigation." This language does
not indicate every instance of placing a child in a "cage"
equates abuse and neglect. These criteria merely specify for
DCFS caseworkers how to determine when restriction of children's
mobility, actions, or physical functioning may be unreasonable
and when the incident should be referred to law enforcement for
investigation.
Policy Guide 2000.14 does not expand the circumstances
in which DCFS determines abuse or neglect based on close confine-
ment. Cf. Kaufman Grain Co. v. Director of the Department of
Agriculture, 179 Ill. App. 3d 1040, 1044, 534 N.E.2d 1259, 1262
(1988) (finding a rule unpromulgated because it extended the
Department of Agriculture's authority to adjudicate disputes
regarding the quality of grain). Moreover, the guide does not
alter private rights or procedures available to plaintiffs
because Definition No. 14 plainly states caging, like locking a
child in a small room, constitutes close confinement only when
unreasonable. Therefore, we do not find Policy Guide 2000.14
constitutes a rule requiring promulgation pursuant to the Proce-
dure Act.
DCFS also alleges Walk had specific knowledge of Policy
Guide 2000.14 due to her employment as a DCFS caseworker.
However, because we find Policy Guide 2000.14 is not a rule, we
need not address the parties' dispute regarding Walk's knowledge
of Policy Guide 2000.14 via her employment with DCFS.
- 21 - D. The Director's Findings Plaintiffs' Enclosure Was Unreasonably Confining
Finally, plaintiffs contend the Director's determina-
tion the enclosure constituted a cage was clearly erroneous and
its underlying findings of fact were against the manifest weight
of the evidence. Above, we found Definition No. 14 does not per
se bar placing children in cage-like structures. Thus, the
relevant inquiry is not whether plaintiffs' structure is a cage
but, rather, whether placing children inside the structure
constituted unreasonable close confinement.
Review of purely factual findings made by an adminis-
trative agency is conducted under a manifest-weight-of-the-
evidence standard. MJ Ontario, Inc. v. Daley, 371 Ill. App. 3d
140, 145, 861 N.E.2d 1161, 1166 (2007). Under such review, a
reviewing court may not substitute its own judgment for that of
the agency, nor does it reweigh the evidence or make an independ-
ent determination of the facts; instead, it should inquire
whether the opposite conclusion is clearly evident. MJ Ontario,
371 Ill. App. 3d at 145, 861 N.E.2d at 1166. "However, the 'mere
fact that an opposite conclusion is reasonable or that the
reviewing court might have ruled differently' does not justify
reversal of the agency's decision." MJ Ontario, 371 Ill. App. 3d
at 145, 861 N.E.2d at 1166, quoting Abrahamson v. Illinois
Department of Professional Regulation, 153 Ill. 2d 76, 88, 606
N.E.2d 1111, 1117 (1992). "If there is evidence in the record
supporting the administrative agency's decision, it should be
affirmed." MJ Ontario, 371 Ill. App. 3d at 145, 861 N.E.2d at
- 22 - 1166.
Moreover, the legal effect of a given set of facts
poses a mixed question of law and fact. See Perez, 384 Ill. App.
3d at 775, 894 N.E.2d at 452. A reviewing court reverses a
finding as to a mixed question only where it is clearly erroneous
(Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d
497, 532, 870 N.E.2d 273, 293 (2006)), i.e., where the court is
firmly convinced a mistake has been committed. AFM Messenger
Service, Inc. v. Department of Employment Security, 198 Ill. 2d
380, 395, 763 N.E.2d 272, 282 (2001). Thus, we review the ALJ's
underlying findings of fact under the manifest-weight-of-the-
evidence standard and the mixed question of law and fact pertain-
ing to whether plaintiffs' structure constitutes unreasonable
close confinement under the clearly-erroneous standard.
The Director upheld the following factual findings made
by the ALJ: (1) Anthony M. and Douglas M. "have serious mental
[-]health and behavioral problems and it would be difficult for
any adult to parent these children on a full-time basis; (2)
Walk's employment with DCFS and experience as a foster-care
parent provided her with "unique wisdom regarding how to care for
and understand difficult children"; (3) plaintiffs constructed a
"metal enclosure" using chain-link panels and a "swinging metal
gate door"; (4) the appearance of plaintiffs' structure "can best
be described as large metal dog kennel"; (5) plaintiffs used the
enclosure at least three times, one of which caused Anthony M. to
grow upset and scream, "'I'm in prison like my dad!'"; (6)
- 23 - plaintiffs built the structure primarily to contain the children
while plaintiffs were occupied elsewhere; (7) caseworker Goss
credibly testified concerning Walk's discussion of needing a
"stronger lock" for the enclosure and leaving the children inside
for 20 minutes while visitors were on the property; (8) two other
child-welfare professionals confirmed the existence and appear-
ance of the enclosure on plaintiffs' property; and (9) at seven
and nine years old, Anthony M. and Douglas M. "were old enough to
understand that they were being placed in a structure typically
used to confine and restrict the movement of animals."
While we find none of the above factual findings were
against the manifest weight of the evidence, we disagree with the
ALJ and the Director as to whether those facts indicate plain-
tiffs' structure was unreasonably confining. The evidence
establishes plaintiffs confined the children within the structure
on several occasions. However, it does not show the confinement
was unreasonable.
Imperative to our finding plaintiffs did not act
unreasonably is the fact the Director upheld the ALJ's finding
plaintiffs adequately supervised the children. Rather than find
plaintiffs left the children unattended for extended periods of
time, the ALJ noted as follows:
"The evidence has established that [Anthony
M. and Douglas M.] were placed in a cage
while at least one of the [plaintiffs] was
outside either in the barn or upon the prop-
- 24 - erty. [DCFS's] witnesses and exhibits have
not presented sufficient evidence to estab-
lish exactly what distance from the cage the
[plaintiffs] were while the children were in
the cage. There was some evidence presented
that while the children were in the cage and
[Hammack] was working, he would check on them
from time to time. *** Because of the poor
quality of the investigation conducted in
this case, there is not enough evidence that
one of the [plaintiffs] could not have heard
a problem between the children and immedi-
ately respond[ed,] thereby protecting the
children from harm."
Correspondingly, nothing in the record suggests plain-
tiffs left the children in the structure for an extended period
of time during which plaintiffs denied them food or water or use
of bathroom facilities. For this very reason, we disagree with
the ALJ and Director's determination the structure was unreason-
ably closely confining. To the contrary, testimony from Walk and
Hammack shows they used the enclosure on several occasions, in
brief intervals, to protect the children. Hammack testified he
confined the children on one occasion to keep them from approach-
ing a horse after Anthony M. ran at the animal, causing it to
buck up on its hind legs and pose a safety risk. Hammack also
admitted he placed the children inside the enclosure on two other
- 25 - occasions, again when he was working with the horses. Walk
testified the children constantly engaged in reckless behavior,
such as sneaking out of the house at night, killing various
animals present on the property, and attempting to burn down the
barn. The evidence supports an inference plaintiffs briefly used
the structure to protect the children while plaintiffs did chores
nearby, not as a means of imprisonment or punishment.
Moreover, although one of the DCFS caseworkers likened
the structure to a "dog kennel," this is not accurate. The
structure contained toys and a sandbox. The chain-link material
comprising the structure's walls (and top) is often used to fence
in backyards, and fences frequently have latches or locks on
gates, often above the reach of children. to prevent them from
running out of yards and into the street. Further, the structure
was large enough for the children to run in, as evidenced by the
trampled grass on the ground inside, and, according to caseworker
Goss, its size exceeded the spacial dimensions of the children's
bedroom. DCFS argues "[a] child's bedroom is primarily [used]
for sleeping[] and is also used for sedentary activities like
homework and board games. It is not meant to be a place where
children walk and run[] and thus would not need to be large
enough to accommodate such activities." However, unreasonable
close confinement does not occur simply because children lack
vast space outside to walk and run. If this were the case,
allowing children to play in a small, fenced-in backyard would
constitute abuse and neglect under Definition No. 14.
- 26 - Given the specific circumstances of this case--namely,
the children's severe behavioral problems--we find plaintiffs did
not engage in unreasonable close confinement by placing Anthony
M. and Douglas M in a structure for short periods of time to
protect them from harming themselves. DCFS presented no evidence
supporting unreasonableness; plaintiffs adequately supervised the
children, and the record does not show the structure itself was
closely confining. Thus, the circuit court erred when it upheld
the ALJ and Director's finding of unreasonable close confinement
under Definition No. 14.
III. CONCLUSION
For the reasons set forth above, we reverse the circuit
court's decision and the agency decision and remand as to the
issue of attorney fees.
Reversed and remanded with directions.
APPLETON and POPE, JJ., concur.
- 27 -