Filed 8/22/08              NO. 4-07-0854

                       IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

LAURA PEREZ,                           )  Appeal from
           Plaintiff-Appellant,        )  Circuit Court of
           v.                          )  Vermilion County
THE ILLINOIS DEPARTMENT OF CHILDREN    )  No. 06MR161
AND FAMILY SERVICES; and ERWIN McEWEN, )
Director of the Illinois Department    )  Honorable
of Children and Family Services,       )  Joseph P. Skowronski,
           Defendants-Appellees.       )  Judge Presiding.
_________________________________________________________________

          JUSTICE TURNER delivered the opinion of the court:

          Plaintiff, Laura Perez, appeals the Vermilion County

circuit court's September 2007 order, which denied her motion for

summary judgment; granted the summary-judgment motion filed by

defendants, the Illinois Department of Children and Family

Services (DCFS) and its Director, Erwin McEwen; and affirmed

DCFS's dismissal of plaintiff's appeal from an indicated finding

of abuse or neglect.   We reverse the circuit court's affirmation

of DCFS's dismissal of plaintiff's appeal and remand with direc-

tions.

                           I. BACKGROUND

          At some point, DCFS indicated plaintiff for (1) ty-

ing/close confinement, (2) sexual penetration, (3) sexual moles-

tation, and (4) substantial risk of sexual injury.

          According to docket sheets, on June 28, 2004, the State

charged plaintiff with one count of predatory criminal sexual
assault of a child (720 ILCS 5/12-14.1(a) (West 1998)) for her

actions between January 1, 1999, and January 1, 2001.    People v.

Perez, No. 04-CF-394 (Cir. Ct. Vermilion Co.) (hereinafter case

No. 394).    A juvenile case was also brought against plaintiff,

which was dismissed on October 21, 2004.

            In a September 24, 2004, letter, plaintiff stated her

desire to appeal DCFS's decision to indicate her.    On October 20,

2004, a DCFS administrative law judge (ALJ) stayed plaintiff's

administrative appeal due to the criminal charge.

            On April 19, 2005, the State made a motion to nol-pros

the criminal charge against plaintiff.    Plaintiff objected, and

the trial court granted the State's motion and canceled plain-

tiff's bond.    The court's nolle prosequi order stated it was

subject to being recommenced.    Eight days later, a bond-refund

check was mailed to plaintiff.    The last entry on the docket

sheets for case No. 394 is a September 23, 2005, motion to

continue, which plaintiff's counsel asserted was an error.

            In an August 11, 2006, letter to DCFS, plaintiff's

counsel noted the dismissal of the criminal charge and requested

a hearing on plaintiff's appeal or the removal of the indicated

report.   On October 13, 2006, the ALJ entered an order, dismiss-

ing plaintiff's appeal from her indicated report.    The order

stated, "[plaintiff]'s notification of the resolution of circuit

court proceedings was received more than 45 days after that


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decision and is untimely."

            On November 13, 2006, plaintiff filed a two-count

complaint against defendants.    The first count was brought under

the Administrative Review Law (735 ILCS 5/3-101 through 3-113

(West 2006)) and sought review of DCFS's dismissal of her appeal.

That count was filed within 35 days of the dismissal order, and

thus was timely.    See 735 ILCS 5/3-103 (West 2006).   The second

count was for mandamus and sought a judgment, directing DCFS to

conduct a hearing on her appeal.    In January 2007, the circuit

court granted defendants' motion to dismiss count II.

            In March 2007, plaintiff filed a summary-judgment

motion, asserting the 45-day deadline did not apply to her

because the circuit court in her criminal case did not make a

final judicial determination in her favor.    That same month,

defendants filed a brief in support of the administrative deci-

sion and requested the brief be considered a cross-motion for

summary judgment.

            In May 2007, DCFS filed a motion to substitute McEwen,

the acting director of DCFS in place of Brian Samuels, the former

director.   The circuit court granted the motion without objec-

tion.

            In June 2007, the circuit court held a hearing on the

summary-judgment motions.    In August 2007, the court wrote a

letter opinion, finding DCFS's decision was not clearly errone-


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ous.    Thus, the court granted defendants' motion for summary

judgment and denied plaintiff's.    On September 13, 2007, the

court entered a written order consistent with the opinion letter.

            On October 9, 2007, plaintiff filed a timely appeal

from the circuit court's September 13, 2007, order.

                             II. ANALYSIS

            Plaintiff argues the circuit court erred in its inter-

pretation of section 336.110(a)(1)(A) of Title 89 of the Illinois

Administrative Code (89 Ill. Adm. Code §336.110(a)(1)(A), as

amended by 26 Ill. Reg. 4175 (eff. March 8, 2002)).    We note the

only remaining count addressed in the summary-judgment order was

brought under the Administrative Review Law, and thus we review

the agency's determination, not the circuit court's (Odie v.

Department of Employment Security, 377 Ill. App. 3d 710, 713, 881

N.E.2d 358, 360 (2007)).    The interpretation of an administrative

regulation presents a question of law, and thus we review the

matter de novo.     People v. Wilhelm, 346 Ill. App. 3d 206, 208,

803 N.E.2d 1032, 1034 (2004).

            Courts construe administrative rules and regulations

under the same principles that govern the construction of stat-

utes.    Thus, our primary objective is to ascertain and give

effect to the drafters' intent.    We begin by examining the

regulation's language since it is the best indication of the

drafters' intent.     Wilhelm, 346 Ill. App. 3d at 208, 803 N.E.2d


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at 1034.   In doing so, we give the language its plain and ordi-

nary meaning (Wilhelm, 346 Ill. App. 3d at 208, 803 N.E.2d at

1034) and read the regulatory scheme as a whole, "so that no part

of it is rendered meaningless or superfluous" (People v. Jones,

214 Ill. 2d 187, 193, 824 N.E.2d 239, 242 (2005)).     When the

regulation's language is clear and unambiguous, our only function

is to apply the regulation as written.   Wilhelm, 346 Ill. App. 3d

at 208, 803 N.E.2d at 1034.   Here, both parties assert the

language is clear and unambiguous.

           Section 336.110 of Title 89 of the Illinois Administra-

tive Code provides, in pertinent part, the following:

           "a) The Chief [ALJ] shall:

                     1) Upon notification from [DCFS]'s

                representative that a criminal or juve-

                nile court action is pending based on

                the same facts as the administrative

                expungement appeal, issue a stay of the

                appeal process for all appellants named

                as defendants or respondents until a

                final judicial decision has been made.

                The time period, from the filing of the

                criminal charges or the juvenile peti-

                tion, shall not be considered a delay on

                the part of [DCFS] in issuing and imple-


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menting its final administrative deci-

sion.

             A) If the circuit court makes

        a final decision favorable to the

        appellant, the appellant shall

        notify the [a]dministrative

        [h]earings [u]nit in writing that a

        final order has been entered in the

        criminal or juvenile case and the

        [a]dministrative [h]earings [u]nit

        shall schedule a hearing on the

        appeal.   The appellant shall notify

        the [a]dministrative [h]earings

        [u]nit within 45 days after any

        such decision.     If the appellant

        fails to notify the

        [a]dministrative [h]earings [u]nit

        of these findings of fact within 45

        days, the appellant shall not be

        entitled to a hearing under this

        [p]art.

             B) If the circuit court makes

        a finding that the alleged perpe-

        trator abused or neglected a child,


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                    the Chief [ALJ] or an [ALJ] shall

                    enter an order upholding each indi-

                    cated finding based on the same

                    facts as the court finding of abuse

                    or neglect and the alleged perpe-

                    trator shall not be entitled to a

                    hearing on those indicated find-

                    ings.    If, after entering such an

                    order, there are no remaining indi-

                    cated findings of abuse or neglect,

                    the Chief [ALJ] or an [ALJ] shall

                    dismiss the appeal.

                            C) The [a]dministrative

                    [h]earings [u]nit may schedule

                    status hearings to determine the

                    status of any appeal stayed because

                    of circuit court action."    89 Ill.

                    Adm. Code §336.110(a), as amended

                    by 26 Ill. Reg. 4175 (eff. March 8,

                    2002)).

          At issue in this case is the meaning of both the

language "final decision" and "favorable to appellant" contained

in section 336.110(a)(1)(A).    We will first address the "final

decision" language and note section 336.110(a)(1) contains


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similar language, i.e., "final judicial decision."    89 Ill. Adm.

Code §336.110(a)(1), as amended by 26 Ill. Reg. 4175 (eff. March

8, 2002)).

          We begin our analysis by looking to the plain meaning

of "final" and "decision."    Our supreme court has defined "final"

as "last; conclusive; pertaining to the end."    Saylor v. Duel,

236 Ill. 429, 432, 86 N.E. 119, 121 (1908).    "'Decision' means

the act of deciding or settling a dispute or question by giving a

judgment; the act of making up one's mind; a judgment or conclu-

sion reached or given; a determination."    Hankenson v. Board of

Education of Waukegan Township High School District No. 119, Lake

County, 10 Ill. App. 2d 79, 94, 134 N.E.2d 356, 363 (1956), rev'd

on other grounds, 10 Ill. 2d 560, 141 N.E.2d 5 (1957).    Thus, the

issue is whether the language refers to the last determination in

the pending criminal or juvenile cases filed or the last determi-

nation resolving the criminal or juvenile matter forever.

             Defendants contend the plain language of a "final

decision" indicates a ruling that renders the filed case no

longer pending or, in other words, terminates it.    Defendants

argue their interpretation makes common sense, since once a final

decision ends the pendency of the current litigation, a stay of

the appeal in the DCFS proceedings is no longer needed.    Plain-

tiff contends that interpretation ignores the "these findings of

fact" language in the last sentence of section 336.110(a)(1)(A)


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of Title 89 of the Illinois Administrative Code (89 Ill. Adm.

Code §336.110(a)(1)(A), as amended by 26 Ill. Reg. 4175 (eff.

March 8, 2002)), which would indicate a final resolution of the

criminal or juvenile matter.    Defendants respond, inter alia,

that "these findings of fact" refer to (1) "a final decision" and

(2) "favorable to appellant."

          Defendants' assertion is flawed because "a final

decision" and "favorable to appellant" are not findings of fact.

"Findings of fact are determinations from the evidence of a case,

either by a court or administrative agency, concerning facts

averred by one party and denied by another."    Resolution Trust

Corp. v. Hardisty, 269 Ill. App. 3d 613, 618, 646 N.E.2d 628, 632

(1995).   Moreover, we note DCFS used the "these findings of fact"

language in referring to what notification it must receive when

it could have simply repeated the "final order" notification

language it used in the first sentence of section

336.110(a)(1)(A).   Thus, that language must have been included

for a reason.   We point out section 336.110(a)(1)(B) also refers

to a "finding."   89 Ill. Adm. Code §336.110(a)(1)(B), as amended

by 26 Ill. Reg. 4175 (eff. March 8, 2002).

          In interpreting a provision, a court "must construe the

statute so that each word, clause, and sentence is given a

reasonable meaning and not rendered superfluous, avoiding an

interpretation that would render any portion of the statute


                                - 9 -
meaningless or void."   Cassens Transport Co. v. Illinois Indus-

trial Comm'n, 218 Ill. 2d 519, 524, 844 N.E.2d 414, 421 (2006).

Defendants' interpretation of the statute is unreasonable as it

renders the "findings of fact" language superfluous.

          Defendants further contend that, if a final order must

have involved findings of fact, then criminal or juvenile cases

in which no findings of fact were made are not addressed in

section 336.110(a)(1) of Title 89 of the Illinois Administrative

Code (89 Ill. Adm. Code §336.110(a)(1)(A), as amended by 26 Ill.

Reg. 4175 (eff. March 8, 2002)).    They contend such a result is

absurd.

          As stated earlier, in interpreting the regulation, we

must construe the regulatory scheme as a whole.    Jones, 214 Ill.

2d at 193, 824 N.E.2d at 242.    Accordingly, the final decision

language in section 336.110(a)(1) must have the same meaning

throughout the provision.   Thus, if a decision is final when

findings of fact have been made, the stay is not lifted under

section 336.110(a)(1) for cases in which the cause was terminated

without findings of fact.   We recognize that result is problem-

atic.

          With section 336.110 of Title 89 of the Illinois

Administrative Code, a reasonable interpretation cannot be

rendered that would recognize all of the language in the section

and not produce an absurd result.    The language used by DCFS in


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the regulation appears to be an oversight by the agency of

termination of cases without an adjudication on the merits.     DCFS

addresses the impact of a decision in a criminal or juvenile case

on the DCFS appeal in only two situations, where the court made a

finding of abuse or neglect and when the court rendered "a final

decision favorable to the appellant."   See 89 Ill. Adm. Code

§§336.110(a)(1)(A), (a)(1)(B), as amended by 26 Ill. Reg. 4175

(eff. March 8, 2002).   DCFS could have made a bifurcation,

addressing (1) findings of abuse or neglect and (2) then all

other resolutions.   Instead, it chose to specify two situations,

leaving some situations not addressed by the regulation.

          Here, the appropriate resolution is for the agency to

address the oversight and amend the regulation, rather than try

to compensate for the oversight with a strained and unreasonable

interpretation.   Since section 336.110(a)(1) fails to address

dismissals without an adjudication on the merits, DCFS's finding

the 45-day provision contained in section 336.110(a)(1)(A)

applied to plaintiff was clearly erroneous.   See City of

Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d

191, 205, 692 N.E.2d 295, 302 (1998) (reviewing a mixed question

of fact and law under the clearly erroneous standard of review).

Accordingly, we reverse the agency's dismissal of plaintiff's

appeal and remand for further proceedings consistent with this

order.


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                           III. CONCLUSION

            For the reasons stated, we reverse both the circuit

court's affirmation of DCFS's dismissal of plaintiff's appeal and

DCFS's dismissal and remand the cause to DCFS for further pro-

ceedings.

            Reversed and remanded with directions.

            MYERSCOUGH and STEIGMANN, JJ., concur.




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