Wright v. Department of Children & Family Services

2025 IL App (4th) 240049

• Court: Appellate Court of Illinois
• Decided: June 12, 2025
• Docket: 4-24-0049
• Status: Published

Opinion

2025 IL App (4th) 240049

NO. 4-24-0049 FILED June 12, 2025 IN THE APPELLATE COURT Carla Bender 4th District Appellate Court, IL OF ILLINOIS

FOURTH DISTRICT

SHAWN WRIGHT, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County THE DEPARTMENT OF CHILDREN AND FAMILY ) No. 23MR78 SERVICES and MARC SMITH, In His Official Capacity ) as Director of Children and Family Services, ) Honorable Defendants-Appellants. ) Lisa Yvette Wilson, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Doherty and Lannerd concurred in the judgment and opinion. Justice Doherty also specially concurred, with opinion.

OPINION

¶1 Defendants, the Department of Children and Family Services (DCFS) and its

director, Marc Smith (Director), appeal from an order of the circuit court of Peoria County

reversing DCFS’s final administrative decision denying the request of plaintiff, Shawn Wright, to

expunge an indicated finding of sexual exploitation against him under the Abused and Neglected

Child Reporting Act (Act) (325 ILCS 5/1 et seq. (West 2022)). On appeal, DCFS argues the court

erred by concluding (1) the Director’s finding that Wright sexually exploited E.B., a minor, was

against the manifest weight of the evidence, (2) the Director improperly considered hearsay

evidence of E.B.’s statements, and (3) DCFS’s investigation failed to comply with the relevant

statutory timing requirements. We disagree and affirm the judgment of the trial court.

¶2 I. BACKGROUND ¶3 A. The Initial Hotline Report

¶4 On March 4, 2022, DCFS received a hotline report concerning an incident

involving Wright, a coach and teacher’s aide at Manual High School in Peoria, Illinois, and E.B.,

a 17-year-old senior student. According to the report, E.B. disclosed she and Wright were in a

stairwell alone when Wright asked her, “How come you don’t where [sic] a bra?” Wright “then

pulled her breast out of her shirt” and told her, “You’re too young. I’m just messing around, but if

you were older, I would hit that.” Wright then grabbed E.B.’s buttocks.

¶5 B. The DCFS Investigation

¶6 Following the hotline report, Wright was placed on administrative leave. Detective

Adrian Aguilar of the Peoria Police Department was assigned to the criminal investigation of the

incident. Valerie Johnson was assigned to DCFS’s investigation, which assessed whether to make

an indicated finding against Wright for “Allegation of Harm No. 20,” sexual exploitation, and

“Allegation of Harm No. 21,” sexual molestation. Johnson’s investigative file contained the

following information.

¶7 1. Johnson’s Interview of T.S.

¶8 On March 4, 2022, Johnson traveled to the home of T.S., E.B.’s friend. Johnson

intended to speak with E.B., who had been residing at T.S.’s home since October 2021. When

Johnson arrived, T.S.’s mother answered the door and informed Johnson that E.B. was not present.

As a result, Johnson spoke with T.S.’s mother, who stated E.B. was a good student and was enlisted

in the United States Army with a ship-out date of May 1, 2022. E.B. began staying with her and

T.S. after E.B. reported she and her grandmother, who had been caring for her, were not getting

along. T.S.’s mother explained that on March 1, 2022, E.B. disclosed to T.S. “someone had been

inappropriate” with her at school. After T.S. told her mother about E.B.’s disclosure, she, T.S., and

-2- E.B. met with the school’s principal on March 3, 2022.

¶9 2. E.B.’s Written Statement

¶ 10 Johnson’s investigative file included a statement E.B. wrote on March 3, 2022, in

which she reported that on March 1, 2022, Wright stopped her while she was walking to the nurse’s

office, gave her a hug, and asked when she was leaving for the Army. Wright then said, “[L]et me

ask you something? Why don’t you ever wear a bra?” E.B. responded, “I don’t know their [sic]

just uncomfortable.” Wright stated, “[T]hey are nice though they are nice,” then again asked her

about the Army.

¶ 11 Thereafter, Wright walked into the stairwell “and told [E.B.] to come here because

he doesn’t want anybody to think no weird stuff.” Wright “asked to see [E.B.’s] nipples when [she]

walked over.” E.B. wrote that Wright said he was serious, told her again, “[L]et me see your

nipples” and “pulled my whole breast out my shirt.” Wright then said he was “just playing with

you your to young but If you were old enough Id most definitely hit that [sic].” As E.B. left the

stairway, Wright “hit [her] behind” then followed her toward the nurse’s office while talking about

the Army and stating he was “just playing back there.”

¶ 12 Three minutes after E.B. entered the nurse’s office, Wright walked in, talked with

E.B. about the Army again, then left. E.B. left the nurse’s office about five minutes later, and

Wright stopped her saying, “I was just playing you know your to [sic] young I would never[.] I

was just joking with you so don’t take it serious.” E.B. responded, “Okay,” and then walked away.

¶ 13 3. Aguilar’s Interview of E.B.

¶ 14 Johnson’s file also documented that Aguilar arranged for a Children’s Advocacy

Center (CAC) interview with E.B. to occur on March 8, 2022. Aguilar conducted the interview,

which was recorded and later reviewed by Johnson. Johnson compiled a summary of the interview

-3- for the investigative file. According to Johnson’s summary, E.B. told Aguilar on March 1, 2022,

she was walking to the nurse’s office when Wright stopped her in the hallway. It was not unusual

for Wright to hug her, and they often talked about her enlistment in the military because Wright

also served in the military. After Wright asked about E.B.’s ship-out date, he went into the stairwell

near his classroom and said, “ ‘[L]et me ask you something.’ ” E.B. followed Wright into the

stairwell, and Wright “asked her why she doesn’t wear a bra.” E.B. told him, “[T]hey are not

comfortable,” and Wright stated, “[T]hey still look nice.”

¶ 15 E.B. told Aguilar that Wright then asked to “see her nipples,” and she told him

“no.” According to E.B., Wright then reached out and pulled the front of her tank top down with

his finger, exposing one of her breasts. E.B. noted Wright did not physically touch her when pulling

down her shirt. E.B. backed up and started to leave the stairwell. As she did so, Wright patted her

buttocks and told her he was “just playing,” as “she was too young for him,” but if she was older,

he would “hit that.”

¶ 16 E.B. went to the nurse’s office, and after she was there for two or three minutes,

Wright also arrived. According to E.B., they again discussed the Army, then Wright left. When

E.B. left the nurse’s office, Wright was in the hall. Wright told her he was “joking with her,” she

was “too young for him,” and she did not need to tell anyone about what happened because he was

“just playing.” Thereafter, E.B. walked away and texted T.S. about what happened. E.B. told

Aguilar she had known Wright for four years and he had never before been inappropriate with her.

¶ 17 4. Johnson’s Conversation With Aguilar

¶ 18 The investigative file also indicated Johnson spoke with Aguilar on March 10,

2022, and he told her that he had viewed video footage from Manual High School that captured

parts of E.B. and Wright’s interactions in the hallways, although no cameras were in the stairwell

-4- itself. Aguilar informed Johnson he intended to contact Wright to schedule an interview with him

and he would let Johnson know when it was scheduled.

¶ 19 However, on March 15, 2022, Aguilar informed Johnson he forgot to contact her

to tell her he had spoken with Wright at the police station. Aguilar told Johnson that Wright had

denied the allegations against him, explaining that E.B. followed him into the stairwell to show

him a new tattoo on her shoulder. Wright also told him he did not know E.B.’s name, and he denied

speaking with E.B. after encountering her at the nurse’s office. Wright made “statements about a

bell ringing,” but according to Aguilar, “his story was inconsistent with body language *** on

video footage of their interactions.” By contrast, Aguilar believed E.B.’s story was consistent with

the video footage he reviewed. Aguilar informed Johnson that Wright was arrested for aggravated

battery due to the incident but the State ultimately declined to file charges against him.

¶ 20 5. Aguilar’s Police Report

¶ 21 Johnson’s investigation experienced several delays from March 15, 2022, through

September 2022—during which time E.B. turned 18. Notes in the investigative file provided that,

although Johnson believed the “report will be indicated,” the investigation would “have to go into

extension” due to, among other things, Johnson’s not being able to obtain a police report from

Aguilar, her needing to interview Wright, and her otherwise having “multiple tasks to complete.”

¶ 22 After receiving the police report of the incident, Johnson included a summary in

the investigative file. According to Johnson, the police report contained the following information.

E.B. alleged that “Wright pull [sic] her breast from out of her shirt against her will” while in a

stairwell. The report also described the events as asserted by E.B. in her March 3, 2022, written

statement. Wright, however, denied the allegations, claiming he walked into the stairwell when

E.B. “mentioned she had a tattoo and showed him the tattoo.” He then returned to his classroom

-5- before going to the nurse’s office for a bandage.

¶ 23 The police interviewed the school principal, who stated she felt Wright’s claim that

E.B. wanted to show off her tattoo, which depicted a large “Manual Ram” on her shoulder, “was

credible.” The principal explained E.B. frequently showed her tattoo to other teachers by “pulling

her shirt to the side to expose it” and that E.B. was “not bashful about showing her tattoo.”

Thereafter, the police interviewed E.B.’s grandmother, who explained she was recently diagnosed

with stage three liver failure. E.B.’s grandmother told officers that she and E.B. “clashed” because

E.B. “wanted more space and freedom.” As a result, the grandmother agreed to let E.B. live with

T.S. and T.S.’s mother “to make things easier for all of them.”

¶ 24 6. Johnson’s Interview of Wright

¶ 25 On September 27, 2022, Johnson spoke with Wright. Wright told her he only

generally knew E.B. by her face and did not know her name. He talked with E.B. regularly about

the military, given her goals and his prior military service. He explained it was common in the 30

years he worked in the school district to talk to students, encourage them, and give them hugs and

high fives to support them and promote healthy relationships with authority figures.

¶ 26 Wright told Johnson that on March 1, 2022, he saw E.B. while walking out of his

classroom. He gave her a “side hug” and talked about the Army and her lack of a driver’s license.

According to Wright, he told E.B. he was going upstairs and turned to the stairwell. However, E.B.

stopped him, said she got a new tattoo, and asked if he wanted to see it. Wright replied, “[S]ure.”

E.B. came into the stairwell with him, pulled down the shoulder of her tank top, and displayed a

tattoo of the school’s mascot—a Manual Ram—on her upper arm and shoulder. Wright stated the

rest of E.B.’s torso, including her breasts, remained covered and he made no contact with her. He

then “believe[d] the bell then rang,” so he went back into the hall to return to his class. A short

-6- time later, he went to the nurse’s office for a hangnail, and he saw E.B. there, who told him her

medication was upsetting her stomach. Wright told her to feel better, then he went back to his

class.

¶ 27 Wright did not recall speaking with E.B. thereafter, but the police told him he had.

He saw E.B. in the hallways later in the day, but she did not seem afraid of him. He explained he

was called into the school office a few days later and was asked if an incident occurred between

him and a student. He responded, “[N]o.” He told Johnson he learned the stairwell he and E.B.

were in was the only stairwell in the school without a security camera in it when he asked for the

video footage of the alleged incident. He denied touching E.B. or asking her about her breasts.

¶ 28 7. Johnson’s Final Report

¶ 29 On October 5, 2022, Johnson completed her report, which proposed an indicated

finding for “Allegation of Harm No. 20,” sexual exploitation, and that “Allegation of Harm No.

21,” sexual molestation, was unfounded. An administrator’s conference was scheduled for

November 3, 2022. See 325 ILCS 5/7.4(c)(1) (West 2022) (granting school employees suspected

of abuse or neglect the right to an administrator’s teleconference prior to a final finding wherein

the alleged perpetrator may present evidence or information supporting his or her position). On

that date, Wright did not call in to the conference, and at its conclusion, the administrator upheld

the proposed indicated finding of sexual exploitation. On November 4, 2022, DCFS indicated

Wright for the allegation of sexual exploitation.

¶ 30 C. Administrative Appeal

¶ 31 On November 14, 2022, Wright requested an administrative appeal. At the

prehearing conference, DCFS disclosed that it intended to call Johnson, Johnson’s supervisor, and

Aguilar as witnesses. DCFS also disclosed E.B. as a witness but indicated it had “no realistic hopes

-7- of actually obtaining her testimony” because she had turned 18 and joined the Army. The hearing

was scheduled for December 20, 2022.

¶ 32 On December 20, 2022, DCFS sought a continuance on the basis that Aguilar was

ill. In response, Wright’s counsel objected to a continuance, asserting that “these investigations

are taken—are usually completed in about 60 days. This was seven months.” The administrative

law judge (ALJ) granted DCFS a continuance over Wright’s objection and set the hearing for

January 25, 2023.

¶ 33 The hearing commenced on January 25, 2023.

¶ 34 1. Aguilar’s Testimony

¶ 35 DCFS first called Aguilar, who recounted what E.B. told him during her forensic

interview. Aguilar further described a gesture E.B. made during the interview when describing

how Wright purportedly exposed her breast. Specifically, E.B. demonstrated that Wright had

reached out with a finger and pulled down her shirt to expose her breast. She claimed Wright “did

not actually touch her breasts” but had pulled down her shirt and exposed her breast.

¶ 36 Aguilar also described hallway surveillance videos that had been recovered. The

videos contain no sound, and on multiple occasions, several frames of each video appear to be

missing, suggesting interruptions in the recordings. Aguilar testified the cameras record only when

they detect motion and stop recording when no motion is detected. Those videos were played for

the ALJ.

¶ 37 The videos show three different angles of school hallways. In one video, Wright is

seen giving E.B. a hug with one arm while three other individuals enter or exit the frame. After

standing near each other for several seconds, Wright leaves the view of the surveillance camera.

E.B. also leaves the view of the surveillance camera immediately after and in the same direction

-8- as Wright. E.B. then reenters the hallway followed by Wright. They appear to speak to each other,

during which they give each other a “fist bump,” and they eventually leave the frame again.

¶ 38 Wright appears to enter and leave the frame multiple times before entering one

more time and standing against the wall on the far end of the hallway. E.B. reenters the frame and

crosses the hallway toward a doorway to another wing of the school. As she does so, Wright and

E.B. appear to see each other. After E.B. crosses the threshold to the other wing, she abruptly turns

around to return to the hallway while Wright simultaneously walks toward E.B. They meet in the

middle of the hallway and appear to have a brief conversation before they walk away from each

other.

¶ 39 Additionally, Aguilar recounted his interview with Wright and testified the videos

corroborated E.B.’s statements more than Wright’s. Aguilar explained Wright had told him he and

E.B. went into the stairwell because E.B. wanted to show him her tattoo and, afterwards, he was

going to meet a faculty member on the second floor. However, that did not occur because he “went

to the nurse to get a Band-Aid for a hangnail.” Aguilar acknowledged he did not interview any of

the other individuals who were near the scene.

¶ 40 Aguilar further testified that during his investigation, there was “nothing I could

find in her background from any of the administrators at the school” suggesting she had anything

against Wright. Aguilar testified this was significant because he “often” found in similar cases that

the juvenile “sometimes has something against or something motivating them basically, to make

this type of allegation.”

¶ 41 On cross-examination, Aguilar acknowledged E.B. and Wright were in the stairway

for six or seven seconds and after reentering the hallway, E.B. walked back toward Wright to

engage in conversation with him and exchange a “fist bump” with him.

-9- ¶ 42 Following Aguilar’s testimony, DCFS informed the ALJ it was unable to obtain the

video of Aguilar’s forensic interview of E.B. in time to disclose it for the hearing.

¶ 43 2. Johnson’s Testimony

¶ 44 Johnson testified she was a child protection specialist for DCFS and was assigned

to the report involving E.B. She learned the police were also investigating the incident shortly after

it was assigned to her. According to Johnson, it was her experience that, when the police conducted

a criminal investigation of the same incident that was the subject of a hotline report, the criminal

investigation took precedence. She agreed that in those cases, DCFS takes a “hands off” approach

while the police perform the investigation and police reports are collected from the investigating

officer. Accordingly, in conducting DCFS’s investigation, Johnson collected and summarized

Aguilar’s police report of the incident, reviewed E.B.’s forensic interview, viewed the school

surveillance video footage, and interviewed Wright. She confirmed she did not personally

interview E.B. Johnson explained Wright’s indicated finding came after determining E.B.’s

statements to school staff and to Aguilar during her forensic interview were “consistent

throughout,” while Wright’s statements “were inconsistent and also not entirely consistent with

the camera footage.”

¶ 45 The ALJ admitted DCFS’s investigative file over Wright’s objection that portions

of the file contained irrelevant and prejudicial information relating to unfounded reports.

¶ 46 3. Wright’s Testimony

¶ 47 Wright testified he knew E.B. from “around school” and would talk with her about

“going into the military,” but he did not learn her name until after the investigation began.

According to Wright, on March 1, 2022, he saw E.B. and hugged her, which was a common

practice for school employees. Following a conversation with her, he entered the stairwell to leave,

- 10 - but E.B. said she had a tattoo. Wright said, “[W]ell, let me see it,” and was about to exit the

stairwell when E.B. stepped in. E.B. then “pulled the little thing over and she showed [him] the

tattoo,” and Wright said, “[T]hat’s really nice.” Wright asked, “[W]ho did it,” and E.B. responded,

“[S]ome guy.” They exited the stairway and joked with each other before Wright went back to his

classroom to check on students.

¶ 48 After doing so, Wright let the teacher know he was going to get a bandage for a

hangnail and then went to the nursing station. When he arrived, he saw E.B. there, and he asked

her, “[W]hat’s wrong with you?” E.B. responded that medicine she was taking was upsetting her

stomach. He told E.B. to “get better” and then left for his classroom.

¶ 49 Upon receiving a phone call, Wright went into the hallway and was talking on the

phone when he saw E.B. walking by. E.B. told Wright she was feeling better, and Wright went

back to class.

¶ 50 Wright denied touching E.B., pulling at her spaghetti strap, seeing her breasts, and

telling her he would “hit that.” According to Wright, he had “no idea” why E.B. made these

accusations against him, but he felt “sorry for her because there is something that happened that

made her do this.”

¶ 51 4. Closing Arguments

¶ 52 During its closing argument, DCFS acknowledged that the ALJ’s decision was

“going to be a lot tougher without the benefit of viewing the CAC interview and hearing this from

the victim’s mouth.” Even so, it did not believe “any good reason” was given as to why E.B. would

have fabricated her allegation. Wright, however, argued E.B.’s statements were inconsistent

because she apparently told some individuals that Wright pulled her breast out of her shirt but told

others Wright pulled her shirt down. Wright further argued that although he was not required to

- 11 - prove why E.B. might have fabricated the allegations, the evidence showed E.B. did so as a way

of getting attention.

¶ 53 5. The ALJ’s Findings

¶ 54 In February 2023, the ALJ issued its order recommending the denial of Wright’s

request to expunge the indicated report for sexual exploitation against him. The ALJ acknowledged

it was a “close case” because (1) the incident was not captured on video, (2) Wright denied E.B.’s

allegations, and (3) there was evidence E.B. showed many people her tattoo. The ALJ further noted

it was “difficult” to assess E.B.’s credibility because her forensic interview was not entered into

evidence. Even so, the ALJ concluded E.B.’s disclosure “was credible” because she immediately

disclosed the encounter to T.S. Additionally, E.B.’s “disclosures were consistent with each other

and with the footage recovered from the high school’s surveillance cameras,” although the ALJ

acknowledged “the cameras did not capture what happened in the stairwell.”

¶ 55 By contrast, the ALJ found Wright’s statements “did not have the same coherence”

because he claimed “he’d gone into the stairwell to go upstairs, but that is not what he did.” Instead,

he exited the stairwell with E.B. because he claimed the bell rang. However, the ALJ noted, “[I]t

is clear from the surveillance video that no bell rang.” Moreover, Wright “was not able to suggest

any reason [E.B.] might have had to fabricate the incident.” Accordingly, the ALJ concluded that

(1) E.B.’s version was more credible and (2) the indicated finding against Wright for sexual

exploitation was supported by a preponderance of the evidence.

¶ 56 D. Judicial Review

¶ 57 In March 2023, Wright filed a complaint for judicial review in the circuit court

requesting reversal of DCFS’s decision. See 735 ILCS 5/art. III (West 2022); 325 ILCS 5/11.6

(2022). Wright contended DCFS violated his due process rights by failing to complete its

- 12 - investigation within the time frames established by statute and administrative rules. Wright further

argued DCFS’s case relied upon improper hearsay from E.B., and therefore, DCFS’s decision was

against the manifest weight of the evidence and violated his due process rights.

¶ 58 In response, DCFS claimed its decision was not against the manifest weight of the

evidence because E.B.’s statements were properly admitted under DCFS’s administrative rules.

Additionally, DCFS asserted Wright’s due process rights were not violated because it was

permitted to obtain extensions of time to complete its investigation.

¶ 59 In December 2023, the circuit court reversed DCFS’s decision and granted

Wright’s request to expunge the indicated finding against him. The court concluded that DCFS’s

case was based upon hearsay because the evidence was simply what Aguilar testified E.B. had told

him. The court further noted the investigative report admitted over Wright’s objection “was

essentially statements that were provided by [E.B.]” and E.B. did not herself testify. Accordingly,

because (1) Wright provided direct testimony denying wrongdoing and (2) E.B.’s own hearsay

statements contained inconsistencies about what occurred, the ALJ’s decision was against the

manifest weight of the evidence.

¶ 60 This appeal followed.

¶ 61 II. ANALYSIS

¶ 62 On appeal, DCFS argues the circuit court erred by reversing DCFS’s final decision

and granting Wright’s request for expunction because (1) its decision was not against the manifest

weight of the evidence or clearly erroneous; (2) Wright forfeited his challenge to E.B.’s hearsay

testimony, which DCFS was free to consider; and (3) DCFS’s investigation complied with the

relevant statutory and administrative timing requirements.

- 13 - ¶ 63 Wright counters that (1) DCFS’s failure to complete its investigation within

statutory time limits deprived it of jurisdiction over the matter, (2) DCFS’s finding was against the

manifest weight of the evidence, and (3) his due process rights were violated by both DCFS’s

investigatory delays and the ALJ’s consideration of E.B.’s hearsay testimony. Additionally,

Wright asserts he did not forfeit these arguments.

¶ 64 In response to Wright’s jurisdictional argument, DCFS contends the relevant timing

requirements were merely directory, such that DCFS maintained jurisdiction over the matter.

¶ 65 A. The Burden of Proof and Standard of Review

¶ 66 1. The Burden of Proof

¶ 67 In Lyon v. Department of Children & Family Services, 209 Ill. 2d 264, 268 (2004),

a case procedurally similar to the present one, Lyon was employed as a choral director at a high

school. After DCFS conducted an investigation into a report that he had abused two students,

DCFS determined that the report of abuse was indicated. Id.

¶ 68 Lyon sought reversal of the indicated report through the administrative appellate

process (id. at 266), as did Wright in the present case. In Lyon, the supreme court, when describing

that administrative appellate hearing, wrote the following:

“At the hearing on appeal, the Department has the burden of proving that the

indicated finding is supported by a preponderance of the evidence. 89 Ill. Adm.

Code § 336.100(e) (2002); see 325 ILCS 5/7.16 (West 1998). ‘Preponderance of

the evidence’ is defined as ‘the greater weight of the evidence or evidence which

renders a fact more likely than not.’ 89 Ill. Adm. Code § 336.20 (2002).” Id. at 279.

¶ 69 2. The Standard of Review

- 14 - ¶ 70 The Act provides that all final administrative decisions of DCFS are subject to

judicial review under the Administrative Review Law (735 ILCS 5/art. III (West 2022)). 325 ILCS

5/11.6 (West 2022). When considering an appeal from a judgment in an administrative review

proceeding, we review the administrative agency’s decision, not that of the circuit court, and we

“will reverse where the agency’s decision is legally erroneous.” City of East Peoria v. Board of

Trustees of the Police Pension Fund of East Peoria, 2023 IL App (4th) 220816, ¶ 13. “Review

extends to all questions of law and fact presented by the record.” Western Illinois University v.

Illinois Educational Labor Relations Board, 2021 IL 126082, ¶ 30.

¶ 71 The standard of review to be applied is dictated by the question presented on appeal.

Leone v. Department of Financial & Professional Regulation, 2024 IL App (4th) 220753, ¶ 60.

We review questions of law de novo. Id. However, DCFS’s findings of fact are considered

prima facie true and correct unless they are against the manifest weight of the evidence. Id. “A

finding is against the manifest weight of the evidence if ‘the opposite conclusion is clearly evident’

or where it is ‘unreasonable, arbitrary, and not based upon any of the evidence.’ ” Lyon, 209 Ill.

2d at 271 (quoting Snelson v. Kamm, 204 Ill. 2d 1, 35 (2003)). Finally, we review a mixed question

of law and fact for clear error. Leone, 2024 IL App (4th) 220753, ¶ 60.

¶ 72 Because this court will not reach constitutional questions if a case can be resolved

on other grounds, we consider the parties’ nonconstitutional arguments first. Lyon, 209 Ill. 2d at

271.

¶ 73 B. DCFS’s Jurisdiction

¶ 74 The parties first dispute whether DCFS lost jurisdiction over the matter, thereby

rendering its indicated finding against Wright void. Specifically, Wright argues the eight-month

period that transpired between the initial hotline report and DCFS’s indicated finding far exceeded

- 15 - the 60-day period within which DCFS must, under section 7.12 of the Act, determine whether a

report is indicated or unfounded. See 325 ILCS 5/7.12 (West 2022).

¶ 75 DCFS responds the time frame in section 7.12 is directory, not mandatory, and

therefore, its failure to adhere to it did not deprive it of jurisdiction. We agree with DCFS.

¶ 76 1. The Applicable Law

¶ 77 Section 7.12 of the Act provides:

“The Child Protective Service Unit shall determine, within 60 days, whether the

report is ‘indicated’ or ‘unfounded’ and report it forthwith to the central register;

where it is not possible to initiate or complete an investigation within 60 days the

report may be deemed ‘undetermined’ provided every effort has been made to

undertake a complete investigation. The Department may extend the period in

which such determinations must be made in individual cases for additional periods

of up to 30 days each for good cause shown. The Department shall by rule establish

what shall constitute good cause.” Id.

¶ 78 For an administrative agency’s findings and orders to be valid, the agency must

abide by the procedures and rules set forth by the legislature. Stull v. Department of Children &

Family Services, 239 Ill. App. 3d 325, 332 (1992). This is because administrative agencies derive

their powers only from the statutes that create them, and where an agency fails to comply with a

mandatory provision of a statute, the proceeding relating to that provision is void. Id. When an

agency adopts rules pursuant to the statutory authority, they have the force of law and bind the

agency to them, particularly where the agency’s failure to adhere to those rules results in prejudice

to the individual who is subject to the agency’s authority. Id.

- 16 - ¶ 79 A mandatory statutory provision is one where, when not followed, the proceeding

to which it relates is rendered illegal and void. Cooper v. Department of Children & Family

Services, 234 Ill. App. 3d 474, 481 (1992). By contrast, a directory statutory provision is one where

the failure to follow it will not render the proceeding relating to it invalid. Id. “[W]hether a

particular statutory provision is mandatory or directory depends upon the intent of the legislature,

which is ascertained by examining the nature and object of the statute and the consequences which

would result from any given construction.” Id.

¶ 80 Statutory language issuing a procedural command to a government official is

presumed to be directory. In re M.I., 2013 IL 113776, ¶ 17. That presumption is overcome and the

provision is considered mandatory “under either of two conditions: (1) when there is negative

language prohibiting further action in the case of noncompliance or (2) when the right the

provision is designed to protect would generally be injured under a directory reading.” Id. Because

whether a statute is mandatory or directory is a question of statutory construction, our review is

de novo. Id. ¶ 15.

¶ 81 2. This Case

¶ 82 Upon our review of section 7.12, we conclude the 60-day time frame within which

DCFS is to determine whether a report is indicated or unfounded is directory. Section 7.12 contains

no language prohibiting DCFS from continuing with its proceedings if it fails to complete its

investigation within the allotted time limit. Similarly, the Act does not contemplate sanctions or

grant the subject of an indicated report expungement when DCFS fails to comply with the time

requirement. See Cooper, 234 Ill. App. 3d at 481-82 (stating a statute’s timing requirements were

directory where the provision lacked negative language that provided sanctions or denied

performance by DCFS upon its failure to comply).

- 17 - ¶ 83 Nor would a directory reading of section 7.12 injure a right the Act is designed to

protect. The purposes of the Act are “to protect children from neglect and abuse” and “to protect

subjects [of reports of suspected child abuse or neglect] from the detrimental effect of inaccurate

reports.” Shawgo v. Department of Children & Family Services, 182 Ill. App. 3d 485, 490 (1989).

Under Wright’s mandatory view of section 7.12, DCFS’s failure to abide by the 60-day

investigatory time period would result in the agency’s loss of jurisdiction to address charges of

abuse or neglect, thereby frustrating its purpose of protecting children. By contrast, a directory

construction would balance the Act’s dual purposes, maintaining its interests in protecting children

by facilitating the investigation of reports of abuse or neglect while ensuring accused individuals

obtain prompt and accurate determinations that are the result of thorough investigations. Because

(1) section 7.12 sets forth no sanctions for failing to comply with the 60-day time limit and (2) a

directory construction of the provision would not injure any right the Act is designed to protect,

we conclude the time limit is directory.

¶ 84 Wright nevertheless argues DCFS lost jurisdiction over the matter because the

eight-month delay constituted a “gross deviation” of section 7.12’s 60-day time limit and was,

therefore, unreasonable under either a mandatory or directory construction of the statute. Wright

relies upon Stull, 239 Ill. App. 3d 325, in making this argument.

¶ 85 In Stull, the appellate court reversed DCFS’s denial of a teacher’s request for

expungement of the indicated finding against him because the 347-day delay between the teacher’s

request for expungement and the hearing on said request, plus an additional 80 days before DCFS

rendered its final decision, constituted a “gross deviation” from the time limitation in section 7.16

of the Act (Ill. Rev. Stat. 1989, ch. 23, ¶ 2057.16). Stull, 239 Ill. App. 3d at 334-35. Section 7.16

then provided that DCFS’s hearing on a request for expungement “shall be held within a reasonable

- 18 - time after the subject’s request” and a decision must be made “within 30 days” of the close of the

hearing. Ill. Rev. Stat. 1989, ch. 23, ¶ 2057.16. The Stull court concluded that irrespective of

whether the time limitations in the Act were mandatory or directory, the delay at issue was so gross

a deviation that it could not be considered reasonable; accordingly, the teacher’s constitutional

right to procedural due process had been violated. Stull, 239 Ill. App. 3d at 335-36.

¶ 86 Wright’s reliance on Stull is misplaced for several reasons. First, the appellate

court’s reversal in Stull of DCFS’s refusal to expunge the record was premised upon a violation of

the teacher’s due process rights as a result of the delay, not because the delay deprived DCFS of

jurisdiction over the matter. Id. at 334-36. Accordingly, Stull has no bearing upon the question of

DCFS’s jurisdiction here.

¶ 87 Second, unlike here, where Wright contests the length of the pre-deprivation

investigatory process as provided in section 7.12, Stull’s conclusion rested upon the

unreasonableness of the length of the appeal process in light of section 7.16. Id. at 335.

Accordingly, just as Stull does not speak to DCFS’s jurisdiction, it also does not speak to whether

strict compliance with the pre-deprivation timing requirement in section 7.12 is required.

¶ 88 Because section 7.12’s 60-day time frame within which DCFS had to determine

whether the report against Wright was indicated or unfounded was merely directory and not

mandatory, we reject Wright’s argument that DCFS’s failure to complete its investigation and

issue its determination within that time deprived DCFS of jurisdiction over the matter.

¶ 89 C. Manifest Weight of the Evidence

¶ 90 DCFS argues that the ALJ’s indicated finding was not against the manifest weight

of the evidence. It also argues that Wright forfeited his argument that the ALJ improperly

considered E.B.’s hearsay statements because he did not object to the use of E.B.’s statements

- 19 - during the hearing. DCFS further argues, in any event, (1) its regulations authorized the admission

of E.B.’s statements and (2) the ALJ was within its power to find them credible. Therefore, DCFS

asserts that because its indicated finding was supported by E.B.’s statements, it was not against the

¶ 91 Wright argues the ALJ’s decision was premised upon unreliable, inconsistent

evidence—namely, E.B.’s hearsay statements that were testified to during the hearing and

compiled in DCFS’s investigative report. Accordingly, Wright contends that (1) the ALJ’s reliance

upon those statements was improper and (2) his own testimony regarding the events in the stairwell

was the only competent, reliable evidence of what occurred. Thus, Wright asserts that the indicated

finding was against the manifest weight of the evidence.

¶ 92 1. Forfeiture

¶ 93 Initially, we reject DCFS’s contention that we should not consider Wright’s

argument regarding E.B.’s hearsay statements. Although Wright’s objection to the introduction of

DCFS’s investigative report was premised predominantly on the irrelevance and prejudicial nature

of unfounded reports discussed therein, we decline to apply forfeiture to Wright’s hearsay

arguments.

¶ 94 We recognize that Wright did not formally raise an explicit hearsay objection.

Nevertheless, he challenged the introduction of the investigative report, which was comprised

predominantly of E.B.’s hearsay statements, and the ALJ admitted the report over Wright’s

objection. DCFS itself acknowledged before the ALJ that because DCFS was unable to obtain a

video recording of E.B.’s forensic interview, the ALJ’s decision would be “a lot tougher without

the benefit of viewing the CAC interview and hearing this from the victim’s mouth.”

¶ 95 Moreover, forfeiture is a limitation on the parties, and “we may relax the forfeiture

- 20 - doctrine when necessary to maintain a uniform body of precedent or where the interests of justice

so require.” Weipert v. Department of Professional Regulation, 337 Ill. App. 3d 282, 286 (2003);

see Kimble v. Illinois State Board of Education, 2014 IL App (1st) 123436, ¶ 80 (considering the

plaintiff’s hearsay arguments despite absence of a formal hearsay objection during the

administrative hearing). This case presents one of those occasions.

¶ 96 Important to our relaxation of the forfeiture rule is an argument raised by DCFS’s

counsel at oral argument. Counsel asserted that even if Wright had explicitly raised a hearsay

objection to E.B.’s statements before the ALJ, DCFS nevertheless would have successfully argued

for their admission on the basis that its administrative rules permit the introduction into evidence

of all prior statements of an abused minor when determining whether the abuse occurred. Implicit

in counsel’s argument is the suggestion that DCFS has carte blanche authority to admit any prior

statements of that minor without regard to the statements’ reliability or the availability of the minor

to testify at the hearing. As we explain below, that cannot be so. Thus, in the interests of justice,

we relax the forfeiture rule and address DCFS’s consideration of E.B.’s hearsay statements.

¶ 97 2. The Applicable Law

¶ 98 The Act authorizes DCFS to maintain a registry of individuals found to have abused

or neglected a child. 325 ILCS 5/1 et seq. (West 2022). An entry in the registry is considered an

“indicated finding.” Julie Q. v. Department of Children & Family Services, 2011 IL App (2d)

100643, ¶ 29. DCFS will make an indicated finding if it determines there is credible evidence of

abuse or neglect. Id.; 89 Ill. Adm. Code 300.110(i)(3)(A) (1998). “Credible evidence” exists when

the available facts, viewed in light of the surrounding circumstances, would cause a reasonable

person to believe the child was abused or neglected. 89 Ill. Adm. Code 300.20 (2018).

- 21 - ¶ 99 The subject of an indicated finding has the right to challenge the finding in a hearing

before an ALJ (89 Ill. Adm. Code 336.60(a) (2017)), and DCFS bears the burden to prove that the

indicated finding is supported by a preponderance of the evidence. (89 Ill. Adm. Code

336.115(c)(2) (2017)). After the hearing, the ALJ makes a recommendation to the Director of

DCFS, and the Director makes a final administrative decision (89 Ill. Adm. Code 336.220(a)

(2017)), which is subject to judicial review under the Administrative Review Law (325 ILCS

5/11.6 (West 2024)).

¶ 100 This case involves an allegation of child abuse under allegation of harm No. 20,

sexual exploitation, which DCFS regulations define as “the use of a child for sexual arousal,

gratification, advantage, or profit.” 89 Ill. Adm. Code 300.Appendix B (2017). Sexual exploitation

includes, but is not limited to, indecent solicitation of a child or explicit verbal enticement,

exposing sexual organs to a child for the purpose of sexual arousal or gratification, or “[o]ther

behavior by an eligible perpetrator that, when considered in the context of the circumstances,

would lead a reasonable person to conclude that sexual exploitation of a child has occurred.” Id.

¶ 101 3. The ALJ’s Consideration of Hearsay

¶ 102 DCFS argues that, contrary to Wright’s assertion, the ALJ’s consideration of E.B.’s

hearsay statements was proper because the admission of those statements was authorized by

administrative rule. In support of this argument, DCFS notes that by its rules, in an administrative

hearing, “the strict rules of evidence do not apply.” 89 Ill. Adm. Code 336.120(b)(1) (2017).

Accordingly, an ALJ may “allow into evidence all inculpatory and exculpatory evidence helpful

in determining whether an indicated perpetrator abused or neglected a child, including oral and

written reports and the investigative file, that the ALJ and the Director may rely upon to the extent

of its probative value.” Id. § 336.120(b)(9). Additionally, an ALJ may “allow into evidence

- 22 - previous statements made by the child relating to abuse or neglect as hearsay exceptions.” Id.

§ 336.120(b)(10). DCFS contends, therefore, the ALJ properly admitted and relied upon E.B.’s

hearsay statements such that its indicated finding against Wright was not against the manifest

weight of the evidence. We disagree.

¶ 103 “An administrative agency’s authority to adopt rules and regulations is defined and

limited by the enabling statute.” Julie Q., 2011 IL App (2d) 100643, ¶ 35. Thus, an agency’s rules

must conform with the scope of the enabling statute and cannot extend or alter that scope. Id. If a

rule does not conform to the enabling statute, it is void ab initio. Id. To determine whether an

agency’s rule conforms to the enabling statute, we look to the legislature’s intent, and if the

language of the statute is plain, we need not conduct any additional inquiry. Id.

¶ 104 Section 4 of the enabling statute here, the Children and Family Services Act,

provides that DCFS has the authority “[t]o make all rules necessary for the execution of its

powers.” 20 ILCS 505/4 (West 2022). However, section 4 also provides that the “provisions of the

Illinois Administrative Procedure Act [5 ILCS 100/1-1 et seq. (West 2022)] are hereby expressly

adopted and shall apply to all administrative rules and procedures of [DCFS] under this Act.” 20

ILCS 505/4 (West 2024). The Illinois Administrative Procedure Act, in turn, provides in a

contested hearing, the

“rules of evidence and privilege as applied in civil cases in the circuit courts of this

State shall be followed. Evidence not admissible under those rules of evidence may

be admitted, however, (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 2022).

¶ 105 4. This Case

- 23 - ¶ 106 We find Julie Q. instructive. In Julie Q., the ALJ admitted the entirety of DCFS’s

investigative file, which included notes of an investigator about out-of-court statements made by

the minor, who had accused her mother of locking her in a bedroom and drinking alcohol. Julie

Q., 2011 IL App (2d) 100643, ¶¶ 3, 17. The minor did not testify at the administrative hearing, and

the only other evidence of what occurred during the alleged incident came from the mother, who

testified she did not consume alcohol on the day of the alleged incident and did not lock the minor

in her room. Id. ¶ 8. The Appellate Court, Second District, concluded the minor’s hearsay

statements, which came from the notes of a DCFS employee regarding what the minor, who had a

history of untruthfulness, had told her, were inadmissible. Id. ¶¶ 17, 48. The court explained,

contrary to section 10-40(a) of the Illinois Administrative Procedure Act, the minor’s out-of-court

statements were not “of the type commonly relied upon by reasonably prudent persons in the

conduct of their affairs.” Id. ¶ 52. Accordingly, because the only competent evidence about the

alleged incident came from the mother, the court concluded DCFS’s indicated finding of child

neglect was against the manifest weight of the evidence. Id.

¶ 107 Here, E.B.’s hearsay statements were even more attenuated than the minor’s in

Julie Q. Because E.B. did not testify, the evidence to support E.B.’s allegations of what occurred

in the stairwell consisted predominantly of Johnson’s notes in DCFS’s investigative file. Notably,

because Johnson did not personally interview E.B., Johnson’s notes simply relayed what E.B. had

told others about the incident. For example, the evidence presented to support E.B.’s version of

the events amounted to (1) Johnson’s summary of Aguilar’s police report, which itself relayed

what E.B. told Aguilar, (2) Johnson’s summary of what E.B. told Aguilar during her forensic

interview, and (3) E.B.’s written statement.

- 24 - ¶ 108 Importantly, E.B.’s hearsay statements were inconsistent with each other.

According to the investigative file, on some occasions, E.B. asserted Wright “pulled [her] whole

breast out [of her] shirt,” while on other occasions, she claimed Wright merely pulled down the

front of her spaghetti strap tank top with his finger and did not physically touch her. Additionally,

E.B. had claimed on one occasion that Wright asked her why she did not wear a bra before Wright

entered the stairwell, while on a different occasion, she claimed Wright asked her that question

while they were in the stairwell. Moreover, in her written statement, E.B. claimed Wright told her

to come into the stairwell because “he doesn’t want anybody to think no weird stuff.” However,

E.B. did not claim Wright told her that during her forensic interview.

¶ 109 On top of these inconsistencies, Wright asserted, and the record suggests, E.B. may

have had a reason to fabricate the allegations. During Wright’s testimony, he denied E.B.’s

allegations and claimed that, although he had only ever been “nice to” E.B., “something ***

happened that made her do this.” To that point, the record indicated E.B. and her grandmother

“clashed” because E.B. “wanted more space and freedom,” which led to E.B.’s living with T.S.

“to make things easier” for E.B. and her grandmother. Although Aguilar testified he found nothing

in E.B.’s background “from the administrators at the school” to suggest she had any reason to

fabricate the allegations, he made no mention of the “clash” between E.B. and her grandmother,

which Wright argued could have contributed to attention-seeking behavior in the form of

fabricating the allegations.

¶ 110 In contrast to the inconsistencies in E.B.’s hearsay statements, the record contained

evidence suggesting Wright’s statements were reliable. For example, when Wright spoke with

Aguilar, Wright claimed E.B. pulled down part of her shirt to show him her shoulder tattoo, which

he identified as a “Manual Ram.” No evidence beyond Wright’s own statements was presented

- 25 - explaining how Wright otherwise could have known E.B.’s tattoo was of a “Manual Ram.” Indeed,

the record indicated the school principal believed Wright’s claim was “credible” because E.B. was

known to show her tattoo to other teachers and was “not bashful about” doing so.

¶ 111 We earlier mentioned that DCFS bore the burden to prove that the indicated finding

was supported by a preponderance of the evidence (supra ¶ 68). Given that burden, we find

shocking Johnson’s failure to determine whether Wright was telling the truth when Wright told

Johnson that Wright learned only after the fact that the stairwell he and E.B. were in when this

incident allegedly occurred was the only stairwell in the school without a security camera in it. It

seems inconceivable to us that Wright would engage in this improper conduct with a student if he

knew a security camera would capture it. Johnson should have made some effort during her

investigation to ask school personnel (1) about what they knew about the locations of security

cameras in the building, (2) whether these locations were ever discussed by the faculty, and

(3) whether any of the faculty knew the stairwell in question was the only one in the school without

a security camera in it.

¶ 112 And, of course, Johnson should have pursued these same questions directly with

Wright when he said he learned only after the fact that the stairwell in question was without a

security camera.

¶ 113 In light of the foregoing, we conclude the ALJ erred by considering E.B.’s hearsay

statements. Although DCFS contends its administrative rules allowed the ALJ to consider E.B.’s

hearsay statements, those rules cannot expand the powers granted to DCFS under the enabling

statute. That enabling statute adopted the Administrative Procedure Act to apply to DCFS’s

administrative rules and procedures (20 ILCS 505/4 (West 2024)), which in turn allows evidence

that is otherwise inadmissible under the rules of evidence as applied in civil cases only “if it is of

- 26 - a type commonly relied upon by reasonably prudent men in the conduct of their affairs” (5 ILCS

100/10-40(a) (West 2024)). E.B.’s hearsay statements do not meet that definition. E.B. did not

testify, and the video of her forensic interview was not entered into evidence. Without more, we

determine no reasonably prudent person would rely on the notes in the investigative file regarding

E.B.’s allegations, which consisted of little more than Johnson’s relaying what E.B. told others.

This is particularly so considering Johnson did not herself interview E.B.

¶ 114 Accordingly, we conclude the indicated finding against Wright was against the

manifest weight of the evidence. Absent E.B.’s hearsay statements, the only competent evidence

from someone with personal knowledge of what occurred in the stairwell was Wright. He testified

E.B. told him she got a tattoo, and he responded, “[W]ell, let me see it.” As he was about to exit

the stairwell, E.B. stepped in and “pulled the little thing over and she showed [him] the tattoo.”

After Wright complimented the tattoo, E.B. told him “some guy” did it, and they exited the

stairway.

¶ 115 Wright denied making sexual comments to E.B., touching her, or exposing her

breasts. There was no competent evidence from anyone else with personal knowledge of what

happened in the stairwell to support E.B.’s claim that Wright exposed her breast. Thus, we

conclude DCFS’s indicated finding was against the manifest weight of the evidence such that the

trial court properly reversed DCFS’s denial of Wright’s request for expungement. Julie Q., 2011

IL App (2d) 100643, ¶ 52 (holding and indicated finding was against the manifest weight of the

evidence where, absent improperly considered hearsay testimony, the only competent evidence of

someone with personal knowledge of the alleged incident was that of the plaintiff, who denied the

allegations).

- 27 - ¶ 116 Because we affirm the trial court’s reversal of DCFS’s indicated finding on the

basis it was against the manifest weight of the evidence, we need not address the parties’ due

process arguments.

¶ 117 III. CONCLUSION

¶ 118 For the reasons stated, we affirm the decision of the trial court.

¶ 119 Affirmed.

¶ 120 JUSTICE DOHERTY, specially concurring:

¶ 121 I concur with the majority that DCFS’s extensive—and almost exclusive—reliance

on hearsay evidence necessitates relaxation of the rules of forfeiture and reversal of the agency’s

determination. Where I pause is the question of remedy: is it proper to reverse outright the

determination based almost entirely on hearsay evidence or should the matter be reversed and

remanded for a new hearing?

¶ 122 “[E]videntiary errors are generally remedied by ordering a new trial.” Timothy

Whelan Law Associates, Ltd. v. Kruppe, 409 Ill. App. 3d 359, 365 (2011); see also Tzystuck v.

Chicago Transit Authority, 124 Ill. 2d 226, 243 (1988) (noting that improperly admitted evidence

requires a new trial only where it appears to have affected the outcome of the trial). If the argument

is that hearsay evidence was improperly admitted in the administrative hearing below, the remedy

would normally be reversal and remandment for a new trial at which such evidence would not be

received.

¶ 123 Here, Wright seeks a different course by alternatively framing the question as

whether the administrative decision was against the manifest weight of the evidence, and in that

regard, he asks us to examine the manifest weight of the evidence without the improperly admitted

- 28 - hearsay. Whether we consider the hearsay evidence in assessing the manifest weight of the

evidence will in all likelihood control the conclusion of our inquiry.

¶ 124 The path suggested by Wright has been followed by other courts. In Julie Q. v.

Department of Children & Family Services, 2011 IL App (2d) 100643, ¶¶ 48, 56, for example, the

court found that certain hearsay evidence was improperly admitted, and it reversed the

department’s finding outright. The court’s analysis appears to indicate that it disregarded the

improperly admitted evidence when assessing the manifest weight issue. Id. ¶ 52. Unfortunately,

the court cited no authority for that approach and did not even discuss why outright reversal, as

opposed to reversal and remandment for a new hearing, was appropriate.

¶ 125 On the other side of the ledger, other courts have held that in assessing the manifest

weight of the evidence, all of the evidence—including improperly admitted evidence—should be

considered. In Kruppe, the court relied on the general rule that the remedy for improperly admitted

evidence is a new trial, not reversal outright:

“Defendant next complains of several of the trial court’s evidentiary rulings.

He argues that the trial court’s erroneous evidentiary rulings resulted in the jury’s

verdict being contrary to the manifest weight of the evidence. However, evidentiary

errors are generally remedied by ordering a new trial. [Citation.] We will not strike

any improperly admitted evidence, reweigh the balance of the evidence, and render

a decision. Evidentiary rulings are reviewed for an abuse of the trial court’s

discretion. [Citation.] Hence, we will examine defendant’s arguments, but we deem

the proper remedy, should a remedy be necessary, to be a new trial.” Kruppe, 409

Ill. App. 3d at 365.

- 29 - ¶ 126 Later, the court in In re Zariyah A., 2017 IL App (1st) 170971, ¶ 114, relied on

Kruppe to conclude that, when examining the sufficiency of the evidence, the reviewing court must

“consider all of the evidence that was before the trial court.” (Emphasis in original.) The court also

relied on People v. Lopez, 229 Ill. 2d 322, 366-67 (2008), for the same proposition.

¶ 127 At first blush, reliance on Lopez may be suspect because the issue there was one

peculiar to criminal cases: determining whether, for purposes of avoiding the constitutional

prohibition against double jeopardy, a defendant might be retried after an appellate reversal of his

conviction. However, it should be noted that, even with a defendant’s constitutional right at stake,

the determination of outright reversal versus reversal for a new trial is made by reference to all of

the evidence, not just the evidence properly admitted. Id. The approach taken in cases like Julie

Q.—which considers only the properly admitted evidence in assessing manifest weight—actually

puts a civil litigant in a more favorable position than a criminal defendant, even though only the

latter carries a specific constitutional right against double jeopardy.

¶ 128 The foregoing demonstrates that there is a disparity in the approaches being taken

in various cases when undertaking manifest weight review. Assessing whether the decision below

is against the manifest weight of the evidence is an exercise undertaken by reviewing courts in a

variety of different settings, and there is obvious reason why the nature of that review should

change based on the type of case involved. Although the nature of the inquiry should be universal

rather than case specific, we should also be cognizant of how reversing outright will ultimately

operate under the facts of this case. DCFS went to the hearing in reliance on a specific rule

permitting it to utilize hearsay evidence to make its case, and the application of that rule was not

challenged at the administrative level. While we have relaxed the rules of forfeiture to find that the

rule is invalid, we cannot reasonably expect that DCFS should have foreseen this turn of events at

- 30 - the time of the hearing. It seems harsh to deny DCFS the opportunity, should it so choose, to make

its case at a new hearing with proper evidence now that it knows it cannot rely on the rule allowing

hearsay.

¶ 129 However, I have concluded that the Illinois Supreme Court’s decision in Fletcher

v. Industrial Comm’n, 44 Ill. 2d 359 (1970), suggests that the proper approach in this case is to

disregard the inappropriately admitted hearsay evidence when assessing whether the decision

below is against the manifest weight of the evidence. Fletcher stated as follows:

“The principal issue before this court is whether the decision of the

Industrial Commission is against the manifest weight of the evidence. Petitioner

argues that the court should not consider the testimony concerning the X ray taken

in 1952 because it was not produced at the hearing and therefore there was no basis

for cross-examination by him. Lacking this opportunity the testimony should not

have been admitted. Accordingly, we do not consider the testimony of Dr. Goldman

with respect to the pathology revealed on that X ray.” Id. at 361-62.

I note that Fletcher, like this case, arises out of an administrative setting (though, as noted above,

it is unclear why that would make a difference to the manner in which manifest weight review is

conducted).

¶ 130 Because Fletcher constitutes the supreme court’s best available guidance on the

point at issue, I concur with the majority’s approach of assessing the manifest weight of the

evidence by reference to only the properly admitted evidence. Following this approach, I agree

that the administrative decision is against the manifest weight of the evidence and that outright

reversal is required.

- 31 - Wright v. Department of Children & Family Services, 2025 IL App (4th) 240049

Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 23-MR- 78; the Hon. Lisa Yvette Wilson, Judge, presiding.

Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, and Alex S. Moe, Assistant Attorney General, Appellant: of counsel), for appellants.

Attorneys Stephen A. Yokich and Elizabeth L. Rowe, of Dowd, Bloch, for Cervone, Auerbach, & Yokich, LLP, of Chicago, for appellee. Appellee:

- 32 -