MICHAEL PLOWMAN, Plaintiff-Appellant, v. THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES and GEORGE H. SHELDON, in His Official Capacity as Acting Director of Children and Family Services, Defendants-Appellees.
No. 1-16-0860
Appellate Court of Illinois, First District, Sixth Division
July 28, 2017
Rehearing denied August 29, 2017
2017 IL App (1st) 160860
Hon. Neil H. Cohen, Judge, presiding.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 15-CH-7703. Judgment: Affirmed.
Bruce A. Slivnick, of Deerfield, for appellant.
Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Janon E. Fabiano, Assistant Attorney General, of counsel), for appellees.
Presiding Justice Hoffman and Justice Delort concurred in the judgment and opinion.
OPINION
¶ 1 The plaintiff, Michael Plowman, appeals from an order of the circuit court of Cook County that affirmed a final administrative decision of the Department of Children and Family Services (DCFS) denying his request to expunge an indicated finding of neglect that was entered against him pursuant to the Abused and Neglected Child Reporting Act (Reporting Act) (
¶ 2 The following factual recitation is taken from the pleadings, testimony, and exhibits of record.
¶ 3 The plaintiff and L.D., who were never married, are the parents of the minor children Mo. D., V.D., and Ma. D. (collectively, the children). On September 1, 2014, the plaintiff called DCFS and alleged that, a few days earlier, L.D. threw a knife at V.D. at the family‘s house in Chicago. Following an investigation, DCFS indicated the plaintiff for neglect based upon the existence of an environment injurious to the health and welfare of the children under allegation No. 60 from its regulations (
¶ 4 At the hearing, DCFS called Ida Lane, a child protection investigator; L.D.; and her niece, I.D. Lane testified that she interviewed L.D., Mo. D., V.D., Ma. D., and I.D. and wrote notes based upon each interview. During her testimony, she used her notes to refresh her memory and they were entered into evidence. Per Lane‘s notes and testimony, she met L.D. at the family‘s house in Chicago on September 2, 2014, and observed fingerprints around her neck, scratches on her neck and face, swelling, and bruising on her left upper arm, knees, and thighs. According to Lane, L.D. stated that the plaintiff arrived home drunk and attacked her in her bedroom on September 1 and also attacked her in the children‘s presence a few weeks earlier. She showed Lane where the plaintiff “slashed her mattress” and wrote phrases on the walls and furniture in the living room, dining room, kitchen, and her bedroom, including “[w]here were you last night,” “[b]itch,” “slut,” and “whore.” Lane testified that she took photographs of the writing, which were not produced at the hearing. During a subsequent interview, L.D. told Lane that V.D. imitated the plaintiff‘s conduct by throwing her possessions on the floor, pouring water on her clothing, and drawing on her bedroom ceiling.
¶ 5 Lane interviewed Mo. D., then age 12, at her school on September 2, 2014. According to Lane, Mo. D. stated that she “heard about abuse but [had] never seen it.” However, Mo. D. also stated that she saw the plaintiff verbally abuse L.D. and “respond physically, usually after [L.D.] has hit him.” Mo. D. also told Lane that the plaintiff drank three days per week and wrote on the walls and furniture. Separately, Lane interviewed Ma. D., then age 5, and V.D., then age 11, at their schools on September 22, 2014. Ma. D. stated that the plaintiff wrote on the walls, often starts fights with L.D., and “hit[s] her sometimes but not that much.” V.D. stated
¶ 6 Lane interviewed I.D., then age 15, by telephone on October 29, 2014. According to Lane, I.D. stated that, on at least six occasions in the summer of 2014, she observed the plaintiff call L.D. names, pull her hair, and hit her arms and face. I.D. explained that Mo. D., V.D., and Ma. D. each “witnessed their dad fight their mom” and that, on one occasion, the plaintiff got drunk, rubbed cat feces on L.D.‘s bed, and wrote on the walls of her room. Lane‘s notes state that she spoke with Mo. D. a second time by telephone a few minutes after interviewing I.D. Mo. D. reiterated that the plaintiff drank several nights per week and that “she has seen lots of fights” in which the plaintiff struck L.D. first. According to Mo. D., the plaintiff grabbed L.D.‘s neck, pulled her hair, and threw her into a wall when he was drunk.
¶ 7 Lane testified that, during her investigation, she did not observe any signs of abuse or neglect as to any of the children. At the conclusion of her investigation, she recommended that the plaintiff be indicated for neglect based upon “the domestic violence, the volatile relationship in the family,” and “the children *** being pulled[ ] *** different ways.”
¶ 8 L.D. testified that the plaintiff physically abused her on numerous occasions, damaged her possessions, and once “dumped water in my closet over my clothing.” One day, in June 2014, when L.D. was in bed with her children and I.D., the plaintiff entered the bedroom, hit L.D. in the side while Mo. D. or Ma. D. was next to her, grabbed her throat, and punched a hole in the closet door. In July 2014, the plaintiff wrote messages on furniture in the living room and dining room, the walls of the kitchen and bathroom, and the walls, floor, ceiling, and door of L.D.‘s bedroom. According to L.D., Mo. D. and I.D. were aware of the writing in the bedroom and knew that the plaintiff smeared cat feces on her bed and bedroom floor. L.D. acknowledged, however, that the children were not home when the plaintiff attacked her on September 1 and that she never pursued criminal charges against him. According to L.D., her children and I.D. lived at the family‘s house in Chicago at the time of the hearing but the plaintiff had forced her out.
¶ 9 I.D. testified that, during her interview with Lane, the telephone was on “speaker” mode and L.D. was “sitting next to me telling me what to say.” I.D. denied telling Lane that she witnessed the plaintiff call L.D. names, that any of the children witnessed the plaintiff and L.D. fight, or that she was present during physical altercations. I.D. acknowledged, however, that, during the summer of 2014, she saw the phrase “[w]here did you sleep last night?” written on a vase in the dining room and that she saw the plaintiff write the same words on a bedroom wall. Mo. D. was present when the plaintiff wrote on the wall, but I.D. did not know whether she saw “what happened” and did not recall whether any of the children commented about the writing. I.D. denied seeing the plaintiff consume alcohol or smear cat feces on L.D.‘s bed but stated that the plaintiff was the only person at the house when the incident occurred.
¶ 10 The plaintiff testified that the children witnessed L.D. attack him “on several occasions” but denied that he attacked her in the bedroom while the children were present, attacked her on September 1, slashed her mattress, forced her from the house, or drank excessively. He admitted that he wrote “[a]re you an asshole or a slut?” in L.D.‘s bedroom, “[w]hy did you do exactly what you said you wouldn‘t do?” in the kitchen, and that he also wrote on furniture in the living room and dining
¶ 11 On April 6, 2015, the ALJ issued an opinion recommending that the plaintiff‘s request for expungement be denied. In her opinion, the ALJ reviewed the evidence adduced at the plaintiff‘s hearing and concluded that he “engaged in a repeated pattern of verbal abuse and domestic violence with [L.D.] in the presence of his children and his niece.” The ALJ found that I.D.‘s testimony lacked credibility because she appeared evasive, uncomfortable, and reluctant to testify, did not maintain eye contact, and her prior statements to Lane were corroborated by Mo. D., V.D., and Ma. D. According to the ALJ, even if L.D. had coached I.D. during the telephone interview, such circumstances “would still be evidence of the injurious environment in the home.” The ALJ rejected the plaintiff‘s testimony and found that his allegations against L.D. did not “justify his behavior” or “diminish the significance of the violence in the home.” The acting director of DCFS adopted both the ALJ‘s findings of fact and her recommendation that the plaintiff‘s request for expungement be denied.
¶ 12 The plaintiff timely filed a complaint for administrative review of the DCFS decision in the circuit court of Cook County. On February 24, 2016, the circuit court affirmed the DCFS decision. This appeal followed.
¶ 13 On appeal, the plaintiff first contends that DCFS exceeded its rulemaking authority by providing, in allegation No. 60 from its regulations (
¶ 14 We briefly set forth the statutory and regulatory framework necessary to understand the plaintiff‘s argument on appeal. Under the Reporting Act (
¶ 15 A person who is subject to an indicated report, like the plaintiff, has the right to an administrative appeal and to request that the report be expunged.
¶ 16 In this case, DCFS indicated the plaintiff for neglect. Section 3 of the Reporting Act (
¶ 17 Section 4 of the Children and Family Services Act (
¶ 18 Per the regulations, an injurious environment exists when “a child‘s environment creates a likelihood of harm to the child‘s health, physical well-being or welfare and *** the likely harm to the child is the result of a blatant disregard of parent or caretaker responsibilities.” (Emphasis omitted.)
¶ 19 Here, the plaintiff contends that section 3 of the Reporting Act (
¶ 20 Initially, DCFS argues that the plaintiff waived his voidness challenge because he did not raise the issue during administrative proceedings. We disagree. An administrative agency “is a purely statutory creature and is powerless to act unless statutory authority exists.” LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 31. As such, a decision entered by an agency that lacks the authority to act is void and may be attacked at any time. Mitchell v. State, 2016 IL App (1st) 141109, ¶ 19. Therefore, we consider whether allegation No. 60 from DCFS‘s regulations is void for exceeding the agency‘s authority to enforce and administer the Reporting Act.
¶ 21 “The scope of powers conferred on an administrative agency by its enabling legislation is a question of statutory interpretation which we review de novo.” Julie Q. v. Department of Children & Family Services, 2013 IL 113783, ¶ 20. The purpose of statutory interpretation is to determine the legislative intent, which is best demonstrated by the statutory language, given its plain and ordinary meaning. Nowak v. City of Country Club Hills, 2011 IL 111838, ¶ 11. “Where a statute is ambiguous, *** courts will give substantial weight and deference to an interpretation by the agency charged with the administration and enforcement of the statute.” Commonwealth Edison Co. v. Illinois Commerce Comm’n, 2014 IL App (1st) 132011, ¶ 20. When the legislature‘s intent is evident from the clear and unambiguous language of the statute, however, courts “will enforce it as written and will not read into it exceptions, conditions, or limitations that the legislature did not express.” In re A.A., 2015 IL 118605, ¶ 21.
¶ 22 Turning to section 3 of the Reporting Act, the statute unambiguously requires that two conditions must exist in order to support a finding that a child is neglected due to an injurious environment. First, the child must be subject to an environment that creates “a likelihood of harm to the child‘s health, physical well-being, or welfare.”
¶ 23 The plaintiff contends, however, that even if allegation No. 60 is not void, the ALJ‘s finding that he abused L.D. in the presence of their children was against the manifest weight of the evidence. More specifically, he argues that Lane lacked credibility because her reliance on her notes while testifying revealed that she did not independently recall her investigation. The plaintiff observes that Lane did not produce photographs that she claimed to have taken of the
writing on the walls of the house and argues that she exhibited bias against him by failing to adequately investigate his allegations against L.D. Additionally, he submits that Lane‘s account of her telephone interview with I.D. is “inherently suspect” due to I.D.‘s testimony and Lane‘s failure to recognize that L.D. coached her answers during the interview. As Lane‘s telephone interview with Mo. D. occurred minutes later, the plaintiff maintains that L.D. also coached Mo. D. and, therefore, her statements from that interview are similarly unreliable.
¶ 24 In raising these arguments, the plaintiff essentially asks us to substitute our judgment for that of the trier of fact by reweighing the evidence and drawing our own conclusion as to the credibility of the witnesses. That is not the function of this court, however, as it is the province of the administrative agency to determine the credibility of witnesses and resolve conflicts in the evidence. See Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 540 (2006). The findings and conclusions of an administrative agency on questions of fact are held to be prima facie true and correct and will not be disturbed on review unless they are against the manifest weight of the evidence, i.e., the opposite conclusion is clearly evident. Beggs v. Board of Education of Murphysboro Community Unit School District No. 186, 2016 IL 120236, ¶ 50;
¶ 25 The record before us contains ample evidence supporting the ALJ‘s finding that the plaintiff abused L.D. in the presence of their children. L.D. testified that, when she was in bed next to the children, the plaintiff hit her in the side, grabbed her throat, and punched a hole in the closet door. Lane testified that Mo. D. saw the plaintiff verbally abuse L.D., grab her neck, pull her hair, and throw her into a wall when he was drunk. Although, as the plaintiff notes, Ma. D. did not identify L.D. by name when she told Lane that the plaintiff hit a female, Ma. D. also stated that the plaintiff started fights with L.D. and, like Mo. D., knew that he wrote on the walls. Moreover, Lane testified that I.D. stated that Mo. D., V.D., and Ma. D. each “witnessed their dad fight their mom.” Although I.D.‘s testimony at the hearing contradicted her statements to Lane, the ALJ determined that her testimony lacked credibility due to her evasive demeanor and the fact that her earlier statements were corroborated by the children. The ALJ made her findings of fact after receiving all the evidence and observing the witnesses, and it is well-established that ” ’ “[c]onflicts in witness testimony do
¶ 26 Notwithstanding, the plaintiff asks this court to take judicial notice of a March 2015 order from the circuit court of Cook County that granted him “physical custody” of the children, which, he argues, establishes that the ALJ‘s findings were against the manifest weight of the evidence. Section 3-110 of the Administrative Review Law (
¶ 27 The plaintiff lastly contends that the ALJ incorrectly determined that his conduct constituted neglect. This argument involves an examination of the legal effect of a given set of
facts and, therefore, presents a mixed question of fact and law. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). Mixed questions of fact and law are reviewed under a ” ‘clearly erroneous’ ” standard, and an agency‘s decision will be deemed clearly erroneous “only where the reviewing court, on the entire record, is ‘left with the definite and firm conviction that a mistake has been committed.’ ” AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). This standard of review “is significantly deferential to an agency‘s experience in construing and applying the statutes that it administers.” Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 143 (2006).
¶ 28 As discussed supra, section 3 of the Reporting Act provides, in relevant part, that a child is neglected when “(i) the child‘s environment creates a likelihood of harm to the child‘s health, physical well-being, or welfare and (ii) the likely harm to the child is the result of a blatant disregard of parent or caretaker responsibilities.”
¶ 29 The plaintiff argues that the ALJ‘s determination of neglect was clearly erroneous because the record contains no evidence that “circumstances in the house”
¶ 30 For all the foregoing reasons, we affirm the order of the circuit court which confirmed the decision of DCFS to deny the plaintiff‘s request to expunge the indicated finding of neglect entered against him.
¶ 31 Affirmed.