JULIE Q., Plаintiff-Appellant, v. THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES and ERWIN McEWEN, as Director of the Department of Children and Family Services, Defendants-Appellees.
No. 2-10-0643
Appellate Court of Illinois, Second District
December 22, 2011
2011 IL App (2d) 100643
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justice Zenoff concurred in the judgment and opinion. Justice Birkett specially concurred, with opinion.
Appeal from the Circuit Court of Lake County, No. 09-MR-1461; the Hon. Raymond J. McKoski, Judge, presiding.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
An indicated finding of neglect arising from an incident in 2008 in which plaintiff was allegedly intoxicated and locked her child in her bedroom was reversed, since the finding was against the manifest weight of the evidence where the administrative law judge improperly relied on other, unfounded incidents involving plaintiffs abuse of alcohol to impeach plaintiff‘s testimony that she had been sober since 2006.
Decision Under Review
Appeal from the Circuit Court of Lake County, No. 09-MR-1461; the Hon. Raymond J. McKoski, Judge, presiding.
Judgment
Vacated and reversed.
Elizаbeth Butler and Melissa L. Staas, both of Family Defense Center, and Michael T. Brody and Michael F. Otto, both of Jenner & Block, LLP, both of Chicago, for appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of counsel), for appellees.
Panel
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justice Zenoff concurred in the judgment and opinion. Justice Birkett specially concurred, with opinion.
OPINION
¶ 1 In this administrative review proceeding, plaintiff, Julie Q., appeals the trial court‘s judgment affirming the indicated finding of defendants, the Department of Children and Family Services (DCFS) and Erwin McEwen, in his capacity as director of DCFS, which found that plaintiff neglected her minor child, M.Q. This appeal stems from DCFS‘s March 13, 2009, determination that plaintiff should be indicated for child neglect in the State Central Register. Plaintiff appealed the indicated finding through DCFS administrative procedures, and DCFS denied plaintiff‘s appeal. Plaintiff brought an administrative review action in the trial court. On June 2, 2010, the trial court аffirmed the administrative ruling. Plaintiff now appeals from the trial court‘s judgment.
¶ 2 Plaintiff contends that we should reverse the trial court‘s judgment and vacate DCFS‘s indicated finding. In support, plaintiff argues that (1) DCFS‘s indicated finding is invalid because the allegation that forms the basis of the finding is void as a matter of law; (2) DCFS‘s indicated finding was against the manifest weight of the evidence; and (3) DCFS‘s indicated finding must be expunged because DCFS failed to provide plaintiff with a timely resolution of her appeal. We reverse the trial court‘s decision and vacate the indicated finding.
¶ 3 The indicated finding of child neglect stemmed from an incident that took place on January 29, 2009. At approximately 9 p.m. on that date, plaintiff, a recovering alcoholic, and M.Q., plaintiff‘s nine-year-old child, had a disagreement after M.Q. repeatedly left her bed and asked to sleep with plaintiff. Plaintiff insisted that M.Q. sleep in her own bed. The following day, M.Q. informed her father Chris Q., plaintiffs estranged husband, that plaintiff had locked her in her room and that she believed thаt plaintiff had been drinking. Chris reported the incident to DCFS.
“the total circumstances lead a reasonable person to believe that the child is in substantial risk ***. This allegation of harm also includes *** placing a child in an environment that is injurious to the child‘s health and welfare ***.”
89 Ill. Adm. Code 300, app. B, No. 10/60 (2011).
Plaintiff denied the allegation and informed Robinson that M.Q.‘s bedroom door did not have a lock. Plaintiff admitted to Robinson that she had a history of alcohol addiction but stated that she was not drinking on January 29, 2009. The following day, Robinson visitеd plaintiff‘s home. M.Q. reported to Robinson that she was not locked in her room on January 29, 2009, but that she was frightened and could not use the telephone that evening because she was told not to come out of her room. She further reported that she believed that plaintiff was drinking that evening because plaintiff slurred her speech. Robinson believed that M.Q. was credible.
¶ 5 Robinson requested that plaintiff be evaluated by the Northern Illinois Council on Alcohol and Substance Abuse (NICASA). Ana Ramos, a substance abuse counselor with NICASA, counseled plaintiff from March 24, 2009, until April 28, 2009. During this time, plaintiff attended classes at NICASA twice weekly and was tested for drugs and alcohol; all tests were negative.
¶ 6 Robinson spoke with her supervisor and determined that, due to plaintiff‘s history of drinking in the home, the injurious environment it created, and the substantial risk of injury to M.Q., plaintiff should be indicated for neglect. Robinson made the determination “based on [plaintiff‘s] history of drinking in the home is where the alleged incident takes [sic] place, the substantial risk of injury or environment is [sic] risk to the health of the child.”
¶ 7 On March 13, 2009, DCFS entered its initial indicated finding of neglect against plaintiff. On March 27, 2009, plaintiff filed a notice of appeal with DCFS. Numerous continuances followed; the parties dispute which party caused the various continuances. On June 23, 2009, an administrative hearing commenced.
¶ 8 Plaintiff testified regarding the events of January 29, 2009. She admitted that she and M.Q. became engaged in a disagreement sometime after 9 p.m. because M.Q. repeatedly left her bed, but she stated that M.Q. was not physically prevented from leaving her room. Plaintiff testified that she did not drink alcohol on January 29, 2009, but admitted that she was a recovering alcoholic.
¶ 9 Plaintiff testified that, in 2004, she was acquitted of driving under the influence. She testified that, in 2005, she pleaded guilty to driving under the influence and was charged with but not convicted of domestic violence. Thereafter, she received inpatient substance abuse treatment twice: in July 2005 and in January 2006. She testified that in early 2009 she was
¶ 10 After plaintiff testified regarding her sobriety, DCFS inquired about an incident in July 2008, when the Lake Bluff police came to her home. Counsel for plaintiff objected, arguing that the incident was irrelevant to the January 2009 incident. DCFS responded that, because plaintiff testified that she had been sober since 2006, the July 2008 incident was “dispositive as to whether she‘s been maintaining her sobriety or not.” DCFS‘s administrative law judge (the ALJ) overruled the objection.
¶ 11 Plaintiff testified that, in July 2008, M.Q. called 911 claiming that she found an open bottle of wine and a full glass of wine in their home while plaintiff was asleep. Plaintiff testified that she was not drinking that night and that she refused to take a Breathalyzer test when the police offered her one, because she was angry that the police were in her home, going through her cabinets.
¶ 12 Over further objection by plaintiff‘s counsel, opposing counsel questioned plaintiff regarding another incident, in May 2009. Plaintiff testified that, after plaintiff grounded M.Q. because she lied about doing her homework, M.Q. called Chris, and Chris called the police. The police arrived at plaintiffs home and asked her to take a Breathalyzer test. Plaintiff testified that she agreed to the test but that the officers left without administering it, after receiving an emergency dispatch. Plaintiff testified that she agreed to let the police take M.Q. and place her in Chris‘s custody, although she was not happy about it. Plaintiff testified that DCFS had investigated the events of July 2008 and May 2009 and that on both occasions the reports were deemed unfounded.
¶ 13 Over further objection by plaintiff‘s counsel that the incidents were collateral, the ALJ permitted DCFS to introduce police testimony regarding the July 2008 and May 2009 incidents. Lake Bluff police sergeant Keith Landy testified that, on July 26, 2008, he and another officer responded to a call at plaintiffs address. According to the dispatch, a minor child could not wake her mother and was frightened. Upon the officers’ arrival, M.Q. told the officers that she was unable to wake her mother and thought that her mother was drunk. M.Q. showed the officers a glass containing a liquid that Landy believed was wine. Landy testified that, although plaintiff was awake when he entered the home, he believed that she was under the influence of alcohol, because she had glassy eyes, had slurred speech, and smelled of alcohol. Landy testified that plaintiff did not take a Breathalyzer test, but he could not recall why the test was not administered. Landy testified that he did not take M.Q. into protective custody, because the house was neat, there was food in the refrigerator, and “there was no imminent danger to [M.Q.]; her mоm was just sleeping in the bedroom.”
¶ 14 Lake Bluff police officer Lisa Davidson testified that, in May 2009, she responded to a call at plaintiff‘s home for an “unknown problem.” Davidson testified that, when she arrived, M.Q. met her outside the house and told her that plaintiff was drinking. M.Q. also told Davidson that “her mom had ‘slurped’ her words” and “threw a glass towards her.”
¶ 15 Dr. Frances Pacheco, a court-appointed custody evaluator, testified on behalf of DCFS. Pacheco testified that she recommended that Chris be granted sole custody because, based on statements by Chris, M.Q., and plaintiffs other child, Pacheco “had some concerns that [plaintiff] had relapsed, that she was drinking alcohol.” Pacheco admitted that Chris had told M.Q. “many things that are inappropriate to tell a child,” including “inappropriate things about [plaintiffs] alcoholism” which could have caused M.Q. to have an increased level of fear regarding alcoholism. Pacheco also admitted that she was aware that M.Q.‘s school had identified M.Q. as having behavioral issues relating to untruthfulness.
¶ 16 Chris testified that plaintiff had received inpatient treatment for alcoholism and he testified regarding plaintiff‘s struggles with alcohol. He admitted that he was not at plaintiff‘s home on January 29, 2009. He testified that from 2006 through 2009, M.Q. complained to him that plaintiff was drinking. Chris admitted that M.Q. had lied about being locked in her room on the evening of January 29, 2009. The June 23, 2009, hearing recessed at 6 p.m., before DCFS concluded its case in chief. The matter was continued to July 20, 2009.
¶ 17 On July 20, 2009, DCFS continued its case in chief. Robinson testified regarding her investigation. DCFS offered intо evidence plaintiff‘s entire DCFS file, including the notes of another DCFS investigator, Analia Cobrda, from a prior interview with M.Q. Plaintiff objected to the admission of those notes on hearsay grounds, as Cobrda did not testify. Plaintiff‘s objection was overruled, and the entire file was admitted into evidence because the notes concerned M.Q.‘s statements regarding abuse and neglect. According to Cobrda‘s notes, M.Q. told her that on January 29, 2009, she did not see any alcoholic beverages but believed that her mother was drunk because she was slurring her words, smelled like alcohol, and was not acting like herself. Robinson admitted that she had not met Cobrda. She further admitted that she considered Cobrda‘s notes when determining that plaintiff should be indicated for neglect.
¶ 18 After DCFS rested, plaintiff called several witnesses. Gates testified as a stipulated expert in family therapy and alcohol and substance abuse. He testified that he counseled plaintiff between December 2008 and April 2009. In his opinion, in 2006, plaintiff was in the late stage of alcoholism. He testified that it was highly unlikely that plaintiff could drink intermittently, because late-stage alcoholics have completely lost control. Gates testified that he administered random alcohol tests to plaintiff during February and March of 2009. All tests were negative. Gates testified that, as far as he knew, plaintiff was a recovering alcoholic. Although he could not guarantee that plaintiff was not drinking, he testified that she was regularly attending her Alcoholics Anonymous meetings and therapy. He testified that he believed that Robinson mischaracterized his statement to her and that he left multiple phone messages for Robinson in an attempt to correct matters, but that she never returned his calls.
¶ 20 Magrit Burke testified by telephone that she was plaintiff‘s Alcoholics Anonymous sponsor and had been for three years. She testified that she was familiar with the symptoms of intoxication. Burke testified that she saw plaintiff “a couple of times each week” and that plaintiff never appeared intoxicated.
¶ 21 Jennifer Perlis-Glassman testified that she was a social worker at M.Q.‘s school and spoke to plaintiff approximately once a month. She testified that plaintiff was an involved parent, concerned about M.Q.‘s education and well-being. Perlis-Glassman further testified that plaintiff was open with her regarding her alcoholism, treatment, and recovery. Perlis-Glassman testified that, in November and December of 2007, M.Q. told her that she did not feel safe with her mother. Perlis-Glassman believed M.Q. at the time but had never seen any indication that plaintiff was drinking. Perlis-Glassman testified that M.Q. had made false statements to her, which she believed was common with kids.
¶ 22 On August 13, 2009, the ALJ issued his or her recommendations and opinion. The ALJ found that plaintiff was not a credible witness and rejected her contention that she had been sober since 2006. The ALJ recommended that the appeal be denied because DCFS “carried the burden of proof with regard to Allegation #60, Environment Injurious to Health and Welfare.” On September 1, 2009, McEwen issued the final DCFS decision, adopting the ALJ‘s finding and following his or her recommendation.
¶ 23 On October 2, 2009, plaintiff filed a complaint in the trial court, seeking administrative review. DCFS filed the administrative record under seal as its answer to the complaint. Plaintiff filed a memorandum of law in support of her complaint and defendants filed a memorandum in support of the administrative decision.
¶ 24 On June 2, 2010, the trial court held that DCFS‘s decision was not against the manifest weight of the evidence, that “injurious environment (allegation #60) is a valid allegation of neglect pursuant to [the Abused and Neglected Child Reporting Act],” and that “[t]he hearing was timely filed and within 90 days.” Plaintiff timely appealed.
¶ 25 As an initial matter, we note that on July 18, 2011, plaintiff and defendants filed a joint motion to cite additional authorities. The parties ask this court to consider People v. Burris, 2011 IL App (1st) 101364, as well as the newly amended version of allegation No. 10/60, which was effective February 8, 2011. See
¶ 26 Plaintiff contends that the indicated finding was improper. In reviewing a final decision under the Administrative Review Law (
¶ 27 Plaintiff argues that the DCFS rule (allegation No. 10/60) upon which the indicated finding was based exceeds the authority granted to DCFS by its enabling statute. See
¶ 28 We review de novo the question of the validity of allegation No. 10/60. See Hadley v. Illinois Department of Corrections, 224 Ill. 2d 365, 370 (2007) (whether an agency rule appropriately implements a statute or conflicts with it raises an issue of law subject to de novo review). Although the review is de novo, the agency‘s construction of a statute that it administers and enforces is entitled to substantial weight and deference. Provena Covenant Medical Center v. Department of Revenue, 236 Ill. 2d 368, 387 & n.9 (2010).
¶ 29 The Abused and Neglected Child Reporting Act (Act) (
¶ 30 When DCFS determines that a finding should be indicated, the subject of the finding has the right to challenge the finding in a hearing before an ALJ.
¶ 31 This case involves an allegation of neglect. Section 3 of the Act defines a “neglected child” in terms of four circumstances: (1) children who are not receiving care necessary for their well-being, such as medical treatment, food, clothing, or shelter; (2) children who have bеen abandoned; (3) children who have received crisis intervention services and cannot return home; and (4) infants born with controlled substances in their systems.
¶ 32 Section 4 of the Children and Family Services Act (DCFS Act) provides that DCFS has the authority “[t]o make all rules necessary for the execution of its powers.”
¶ 33 The allegation at issue here, allegation No. 10/60, is entitled “Substantial Risk of Physical Injury/Environment Injurious to Health and Welfare.” Id. DCFS identifies a number of actions that fall within its definition of neglect, including exposure of the child to the use of alcohol in the home. Id. The factors to be considered to justify indicating a report are the child‘s age, medical condition, and behavioral, mental, or emotional problems; any developmental or physical disability; the alleged perpetrator‘s physical, mental, and emotional abilities; and a history of the alleged perpetrator‘s being indicated for abuse or neglect. Id.
¶ 34 In the current matter, plaintiff argues that allegation No. 10/60 impermissibly expands upon section 3 of the Act. Specifically, plaintiff asserts that DCFS did not find that M.Q. was not receiving necessary medical care, food, clothing, or shelter, or that M.Q. was abandoned, had received crisis intervention services, or was bоrn with controlled substances in her system. Instead, DCFS found M.Q. to have been subjected to an “environment injurious,” a definition of neglect found only in the DCFS rule under allegation No. 10/60. Plaintiff asserts that allegation No. 10/60 is invalid because DCFS cannot, by rule, expand the legislature‘s definition of a neglected child.
¶ 35 An administrative agency‘s authority to adopt rules and regulations is defined and limited by the enabling statute. Department of Revenue v. Civil Service Comm‘n, 357 Ill. App. 3d 352, 363 (2005). Agency rules cannot extend or alter the scope of the enabling statute, but must conform thereto. Id. at 364. Rules that fail to conform to the enabling statute are void ab initio. Id. at 367. In evaluating whether an agency‘s rule conforms to the enabling statute, courts look to the legislature‘s intent. Illinois RSA No. 3, Inc. v. Department of Central Management Services, 348 Ill. App. 3d 72, 77 (2004). To the extent that the language is plain, no further inquiry is necessary. Id.
¶ 36 Defendants argue that the DCFS rule is consistent with the Act. Administrative regulations have the force and effect of law. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 368 (2009). Like statutes, they are presumed valid, and the party challenging them has the burden of showing thаt they are invalid. People v. Molnar, 222 Ill. 2d 495, 508 (2006). An agency has the inherent authority and is given wide latitude and discretion to adopt regulations that are reasonably necessary to perform its statutory duties. Resource
¶ 37 Defendants further argue that allegation No. 10/60‘s categorization of neglect as a “Substantial Risk of Physical Injury/Environment Injurious to Health and Welfare” is valid because DCFS‘s authority to promulgate regulations is provided for in the DCFS Act (see
¶ 38 Defendants also assert that plaintiff‘s argument negates the need for administrative regulations and is contrary to well-settled legal principles such as that agencies must have wide latitude to adopt regulations that are reasonably necessary to effectuate their statutory functions. See City of Chicago v. Illinois Labor Relations Board, Local Panel, 396 Ill. App. 3d 61, 73 (2009) (agencies have the authority to determine, define, and implement statutes through the adoption of rules and regulations). Defendants assert that plaintiff places undue impоrtance on the legislature‘s removal of the phrase “environment injurious.”
¶ 39 In the present matter, although DCFS has the authority to adopt regulations that are reasonably necessary to perform its statutory duties, these regulations are defined and limited by the enabling statute and cannot extend or alter the scope of the enabling statute, but must conform to its confines. See Department of Revenue, 357 Ill. App. 3d at 363. Here, the legislature specifically removed the “environment injurious” language from the statute. See KSAC Corp. v. Recycle Free, Inc., 364 Ill. App. 3d 593, 597 (2006). Although agencies enjoy wide latitude to adopt regulations that are reasonably necessary to effectuate their statutory functions (see City of Chicago, 396 Ill. App. 3d at 73), they are not at liberty to adopt language that the legislature specifically chose to remove. See Department of Revenue, 357 Ill. App. 3d at 364. As it is well established that, when the legislature deletes language, it intends to change the law, allegation No. 10/60 impermissibly expanded upon the enabling statute by including language that the legislature purposely chose to remove.
¶ 40 A comparison between the Act and the Juvenile Court Act of 1987 further convinces us that by deleting “environment injurious,” the legislature intended to change the law. The Act is essentially a reporting act. Its central feature is the requirement that all mandated reporters inform DCFS whenever they have “reasonable cause to believe a child known to them in their professional or official capacity may be an abused or neglected child.”
¶ 41 In light of this mandate, and the penalties for failure to report, it is necessary that the Act‘s definitions of abuse and neglect be clear enough for mandated reporters to apply. See Richard T. Cozzola, Towards an Upstream Model of Child Abuse Legislation in Illinois, 11 Loy. U. Chi. L.J. 251, 258 n.52 (1980) (“the Rеporting Act concerns the identification and reporting of suspected instances of child abuse and neglect and, thus, requires very specific standards“). The special concurrence argues that DCFS allows its caseworkers “considerable discretion when determining whether there is a real and significant danger to justify taking a report.” Supra ¶ 62. We agree with reservation. The basis for our reservation is found in the House Proceedings cited by the special concurrence. The legislature was clearly concerned with what “environment injurious” might be interpreted to mean. The lack of specificity in the phrase “environment injurious” creates shadows wherein fit parents and functional families could suffer debilitating consequences, including the loss of custody, harm to reputation, and needless destruction of stable family units. As this court has recognized, “injurious environment is an amorphous concept that cannot be defined with any specificity.” In re Z.Z., 312 Ill. App. 3d 800, 804 (2000). This lack of specificity was the concern that led the legislature to clarify that, for the purposes of the Act, children are not to be considered neglected by virtue of being subjected to an “environment injurious.” See 81st Ill. Gen Assem., House Proceedings, June 22, 1979, at 100 (statements of Representative Peters) (“the interpretation of what environment injurious may mean” could cause “a lot of misunderstandings“); 81st Ill. Gen. Assem., Senate Proceedings, May 25, 1979, at 202 (statements of Senator Daley) (amendment made definition “more specific, so people understand what abuse and neglect is“). Furthermore, the legislature deleted the “environment injurious” language at the request of DCFS. 81st Ill. Gen. Assem., Senate Proceedings, July 1, 1979, at 5 (statements of Senator Buzbee) (“This was the child abuse bills. The department had requested some tightening up language in House Amendment 6 and 8 which we accepted.“).
¶ 42 The Juvenile Court Act of 1987, in contrast to the Act, specifically provides that a child can be found to be neglected based on an injurious environment. See
¶ 43 Here, the omission of “environment injurious” from the neglect definition in the Act makes sense when considered in the context of the reporting requirement that the statute was
¶ 44 Although the special concurrence suggests that our ruling would have devastating consequences on neglected children in that the ruling would “bind the hands of DCFS caseworkers” and prevent them from properly investigating reports of neglect, we respectfully disagree. The removal of allegation No. 10/60 will not prevent DCFS caseworkers from investigating reports. Under our holding, DCFS caseworkers would continue to investigate all reports of abuse and neglect pursuant to section 7.3 of the Act (
¶ 45 Plaintiff‘s second argument is that the indicated finding was against the manifest weight of the evidence. Plaintiff first asserts that DCFS failed to introduce any competent evidence that M.Q. was neglected on January 29, 2009. We will affirm DCFS‘s final decision unless its findings were against the manifest weight of the evidence. Bolger, 399 Ill. App. 3d at 448.
¶ 46 Plaintiff asserts that the evidence DCFS offered as to the Jаnuary 29, 2009, incident was inadmissible double hearsay. Specifically, plaintiff asserts that the only evidence was the notes of Cobrda, who did not testify, regarding the out-of-court statements of M.Q. Plaintiff also argues that the notes were offered to show the truth of the matter asserted. Moreover, plaintiff asserts that no reasonably prudent person would rely, without more, on the notes of a person they do not know as to the statements of a nine-year-old child. Defendants respond that the evidence was admissible in the administrative proceeding because it was of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs. Moreover, pursuant to the DCFS rules, the ALJ has the authority to:
“allow into evidence all evidence helpful in determining whether an alleged perpetrator abused or neglected a child, including oral and written reports, which the [ALJ] and the Director may rely upon to the extent of its probative value, even though not competent under the civil rules of evidence.”
89 Ill. Adm. Code 336.120(b)(9) (2011).
Furthermore, pursuant to the DCFS rules, the ALJ has the authority to:
“allow into evidence previous statements made by the child relating to abuse or neglect
as hearsay exceptions.”
89 Ill. Adm. Code 336.120(b)(10) (2011).
Plaintiff argues that these DCFS rules also impermissibly expand the enabling statute.
¶ 47 DCFS procedures are governed by the Illinois Administrative Procedures Act.
¶ 48 Here, the record reflects that the ALJ both admitted into evidence and then considered the notes of nontestifying, former DCFS investigator Cobrda. Although, under the Administrative Procedures Act, hearsay is admissible if it is of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs, the hearsay relied upon in this matter does not fit this definition. Here, the out-of-court statements relied upon were from the notes of a former DCFS employee regarding the statements of a nine-year-old child with a history of untruthfulness. Thus, we determine that the evidence regarding the events of January 29, 2009, was inadmissible.
¶ 49 Plaintiff next asserts that DCFS relied upon inadmissible and prejudicial collateral impeachment and bad-acts evidence. Plaintiff asserts that the hearing was “turned into a referendum on whether [plaintiff] had ever slipped in maintaining her sobriety.” Plaintiff takes issue with the ALJ‘s decision to examine and impeach her regarding the events of July 2008 and May 2009. Defendants counter that, because plaintiff testified that she had been sober since 2006, the events of July 2008 and May 2009 were admissible to show that plaintiff‘s testimony was not credible.
¶ 50 It is well established that collateral impeachment is not allowed in Illinois. People v. Santos, 211 Ill. 2d 395, 404 (2004). The test to be applied in determining if a matter is collateral is whether the matter could be introduced for any purpose other than to contradict. Id. at 405. A party‘s prior misconduct is not admissible for the purpose of establishing his or her bad character or propensity to commit illegal or immoral acts. People v. Hendricks, 137 Ill. 2d 31, 52 (1990).
¶ 51 In the current matter, we determine that evidence regarding the events of July 2008 and May 2009 was admissible to impeach plaintiff‘s testimony that she had been sober since 2006. However, the ALJ‘s reliance on this evidence to find that plaintiff should be indicated for neglect based on the events of January 29, 2009, was error. See Hendricks, 137 Ill. 2d at 52. The ALJ was not at liberty to consider evidence of the July 2008 and May 2009 incidents to conclude that plaintiff had the propensity to abuse alcohol and, therefore, must have placed M.Q. in an injurious environment on January 29, 2009. Id. Furthermore, as both the July 2008 and the May 2009 incidents were deemed unfounded by DCFS, the ALJ could not now rely on these incidents to determine that, on January 29, 2009, plaintiff placed M.Q. in an environment that wаs injurious to the child‘s health and welfare. See
¶ 52 Based on our review of the record, we determine that the indicated finding was against
¶ 53 The remaining testimony against plaintiff revolved around other alleged incidents at plaintiff‘s home, none of which occurred on or around January 29, 2009. Moreover, each of these alleged incidents had previously been investigated by DCFS and deemed “unfounded.” Furthermore, the record reflects that the ALJ relied upon testimony regarding the incidents to show the truth of the matter asserted. See Hendricks, 137 Ill. 2d at 52. The record reflects that there was no admissible evidence that plaintiff neglected M.Q. by placing her in an injurious environment on the evening of January 29, 2009. Thus, we determine that the indicated finding was against the manifest weight of the evidence and must be vacated.
¶ 54 Because we reverse the trial court‘s determination that thе indicated finding was not against the manifest weight of the evidence, we need not address the issue of timeliness.
¶ 55 For the reasons stated, we reverse the decision of the circuit court of Lake County and vacate DCFS‘s indicated finding.
¶ 56 Vacated and reversed.
¶ 57 JUSTICE BIRKETT, specially concurring.
¶ 58 Although I concur in the majority‘s ruling that the indicated finding here was against the manifest weight of the evidence, I disagree that allegation No. 10/60 exceeds the scope of the authority granted by the Act and that it is therefore void ab initio. In its ruling, the majority characterizes plaintiffs contention as arguing that, because DCFS did not find that M.Q. was not receiving necessary medical care, food, clothing, or shelter, or that she was abandoned, had received crisis intervention services, or was born with controlled substances in her system, plaintiff could not be the subject of an indicated finding under the Act. The majority then holds that DCFS erred as a matter of law when it found M.Q. to be a neglected child on the basis of being placed in an “environment injurious,” because that definition of neglect is fоund only in the DCFS rules under allegation No. 10/60, and allegation No. 10/60 impermissibly expanded the legislature‘s definition of a neglected child.
¶ 59 I must initially point out that section 3 of the Act does not define a “neglected child” only
” ‘Neglected child’ means any child who is not receiving the proper or necessary nourishment or medically indicated treatment including food or care not provided solely on the basis of the present or anticipated mental or physical impairment as determined by a physician acting alone or in consultation with other physicians or otherwise is not receiving the proper or necessary support or medical or other remedial care recognized under State law as necessary for a child‘s well-being, or other care necessary for his or her well-being, including adequate food, clothing and shelter; or who is abandoned by his or her parents or other person responsible for the child‘s welfare without a proper plan of care; or who has been provided with interim crisis intervention services under Section 3-5 of the Juvenile Court Act of 1987 and whose parent, guardian, or custodian refuses to permit the child to return home and no other living arrangement agreeable to the parent, guardian or custodian can be made, and the parent, guardian or custodian has not made any other appropriate living arrangement for the child; or who is a newborn infant whose blood, urine, or meconium contains any amount of a controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act or a metabolite thereof ***.” (Emphasis added.)
325 ILCS 5/3 (West 2008).
A careful reading of the Act demonstrates that, along with the four circumstances listed, the definition of a “neglected child” also includes any child who is not receiving “other care necessary for his or her well-being.”
¶ 60 Based on the Act‘s definitions of abuse and neglect, DCFS promulgated regulations describing “specific incidents of harm” that must be alleged in a report of abuse or neglect. See
¶ 61 Here, the allegation of harm at issue is entitled, “Substantial Risk of Physical Injury/Environment Injurious to Health and Welfare.” This neglect allegation is defined as “placing a child in an environment that is injurious to the child‘s health and welfare *** (neglect).”
¶ 62 Although the Act is a mandatory reporting statute, allegation No. 10/60 gives the DCFS caseworker considerable discretion when determining whether there is a real and significant danger to justify taking a report. Those factors include: (1) the child‘s age; (2) the child‘s medical condition; (3) the severity of the occurrence; (4) the frequency of the occurrence; (5) the alleged perpetrator‘s physical, mental, and/or emotional abilities; (6) the dynamics of the relationship between the alleged perpetrator and the child; and (7) the alleged perpetrator‘s access to the child. All of these factors need not be present to justify taking the report.
¶ 63 Here, the majority agrees that DCFS has the authority to adopt regulations that are reasonably necessary to perform its statutory duties. However, it points out that an administrative body cannot extend or alter the scope of the enabling statute by the exercise of its rulemaking powers. Department of Revenue, 357 Ill. App. 3d at 364. While this is true, simply because the legislature removed the term “environment injurious” from the Act over 30 years ago does not mean that this removal prohibited DCFS from creating allegation No. 10/60.
¶ 64 A review of the legislative history that the majority cites to only supports the conclusion that the removal of “environment injurious” from the Act in 1980 did not strip DCFS of its authority to enact allegation No. 10/60. As the majority points out, the Act is essentially a reporting act. The failure to report possible abuse or neglect can be charged as a Class A misdemeanor or a Class 4 felony for repeated violations, and it can also lead to professional disciplinary actions, including license revocation.
“What amendment #8 would do is to remove from the definition of neglected child the words ‘subjected to an environment injurious to his or her welfare’ and the reasons we are removing that is the concern over the interpretation of what еnvironment injurious may mean. We are fearful that it may end up in a lot of litigation, a lot of
misunderstandings and until such time that we can arrive at a more clearer [sic], concise kind of definition to address this kind of problem, we think it‘s better to remove this from the Bill.”
¶ 65 In promulgating allegation No. 10/60, DCFS did not merely provide that the term alone defined neglect. Rather, it provided in detail the meaning of the allegation by listing numerous explanations, examples of incidents or circumstances, and factors to be considered to justify taking a report of abuse or neglect.
¶ 66 Finding allegation No. 10/60 void ab initio, and thereby creating a vacuum by the removal of these specific incidents of harm, will thwart the legislaturе‘s intent to require DCFS to protect the health, safety, and best interests of the child in all situations where a child is vulnerable to child abuse or neglect, as directed in section 2 of the Act. See
¶ 67 This ruling will have devastating consequences on neglected children in Illinois. It will serve to bind the hands of DCFS caseworkers, whose duty it is to investigate incidents of neglect and protect children from its destructive consequences. If a caseworker cannot investigate a reported case of neglect that falls into the category of “environment injurious” under allegation No. 10/60, then no further action can be taken. Those same DCFS caseworkers will not be able to use any evidence garnered from an investigation pursuant to the Act to, in many cases, pursue further proceedings under the Juvenile Court Act to protect the neglected child. See