                         Illinois Official Reports

                                Appellate Court



                  L.F. v. Department of Children & Family Services,
                              2015 IL App (2d) 131037



Appellate Court     L.F., Plaintiff-Appellant, v. THE DEPARTMENT OF CHILDREN
Caption             AND FAMILY SERVICES and RICHARD H. CALICA, as Director
                    of Children and Family Services, Defendants-Appellees.



District & No.      Second District
                    Docket No. 2-13-1037



Filed               March 11, 2015



Decision Under      Appeal from the Circuit Court of Lake County, No. 12-MR-1538; the
Review              Hon. Christopher C. Starck, Judge, presiding.




Judgment            Reversed with directions.




Counsel on          Alyssa E. Ramirez, of Winston & Strawn LLP, of Chicago, for
Appeal              appellant.

                    Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                    Solicitor General, and Laura A. Ward, Assistant Attorney General, of
                    counsel), for appellees.
     Panel                    JUSTICE BURKE delivered the judgment of the court, with opinion.
                              Justices Hutchinson and Birkett concurred in the judgment and
                              opinion.




                                               OPINION


¶1         After the Department of Children and Family Services (DCFS) entered against plaintiff,
       L.F., an indicated finding of child neglect due to inadequate supervision (89 Ill. Adm. Code
       300.Appendix B (Allegation 74), amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011)), she
       administratively appealed the finding and requested that it be expunged from the state central
       register. Following an evidentiary hearing, the administrative law judge (ALJ) recommended
       to deny the expungement request. Defendant Richard H. Calica, as Director of DCFS
       (Director), agreed and denied plaintiff’s expungement request. The circuit court of Lake
       County affirmed the Director’s decision. Plaintiff timely appeals from that order. For the
       following reasons, we reverse the trial court’s decision and order the Director to expunge the
       indicated finding from the state central register.

¶2                                                 I. FACTS
¶3                                              A. Background
¶4         The record reveals the following undisputed facts and procedural history. Plaintiff is the
       single parent of S.H., who was born July 27, 2006. Plaintiff and S.H. lived in a two-bedroom
       apartment in Round Lake Beach, Illinois.
¶5         In 2009, plaintiff was diagnosed with a dependency on drugs and alcohol. She received
       inpatient and outpatient treatment for her dependency, attended Alcoholics Anonymous (AA)
       meetings, and met with a sponsor. Plaintiff also received psychiatric treatment from Dr.
       Katherine Singer for depression, anxiety, obsessive-compulsive disorder, and
       dermatillomania–a condition that caused her to obsessively pick at her skin.
¶6         Plaintiff also began therapy with Nancy Friedman, a licensed professional counselor.
       Friedman diagnosed her with and treated her for an anxiety disorder, other psychological
       conditions, and substance abuse. Plaintiff met with Friedman weekly in 2011.
¶7         On July 3, 2011, while camping with friends, plaintiff was injured in a fall, suffering a
       hematoma to her tailbone. Plaintiff was prescribed Tylenol with codeine. Plaintiff only took
       the medicine briefly because it made her sleepy. She asked her mother, Carol M., to care for
       S.H. while she was taking the Tylenol with codeine, but her mother refused.
¶8         After her mother refused, plaintiff stopped taking the Tylenol with codeine and switched
       to smoking “K3,” which was considered to be legal synthetic marijuana at the time. She
       testified at the administrative hearing that K3 gave her a feeling similar to a marijuana
       “high,” making her feel relaxed and “happy.” The first time she smoked K3, her son was
       with a friend of hers. Plaintiff testified that she smoked K3 again a few days later but that she
       could not recall whether S.H. was at a friend’s house or asleep in plaintiff’s apartment. She
       began smoking K3 on a nightly basis, and in total she smoked K3 between 10 and 20 times.

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       During those times, S.H. was either asleep at home or with a friend, but she could not
       remember which of those times S.H. was with her.
¶9         Plaintiff became concerned that she was addicted to K3. During an alcohol and substance
       abuse assessment, she told the evaluator that up to five days before the evaluation she was
       smoking two grams of K3 daily.
¶ 10       On August 5, 2011, plaintiff sought help from her friends George Kinser and Natalie
       Brooks at an AA meeting. Kinser was plaintiff’s AA sponsor. Brooks had been her sponsor
       but had not seen her for at least two months, because plaintiff had no longer desired to work
       on her 12-step program. Brooks had “detached” from plaintiff when plaintiff decided to “go
       back out.” Brooks knew that plaintiff was seeking help for a substance abuse problem,
       because, after Brooks broke things off, they both knew that Brooks was not allowed to talk to
       her unless she wanted help.
¶ 11       Plaintiff told Kinser and Brooks that she was smoking K3 and wanted help to stop,
       because she was experiencing withdrawal symptoms. Kinser and Brooks agreed to help
       plaintiff. Kinser agreed to keep S.H. while Brooks took plaintiff to the Highland Park
       Hospital emergency room. Plaintiff admitted to smoking K3 on the way to the hospital.
¶ 12       The hospital records indicate that plaintiff told hospital staff that she wished to “detox”
       from alcohol and K3. Plaintiff told staff that she was drinking in excess of 10 shots per day
       and that she was shaking and had diarrhea from attempting to withdraw from K3. The
       hospital’s toxicology screen of plaintiff came back negative.
¶ 13       The next morning, while waiting to transfer to a treatment center, plaintiff had an anxiety
       attack. She left the hospital despite advice to stay. Plaintiff called Friedman and told her of
       the panic attack. Friedman advised her to return to the hospital.
¶ 14       Plaintiff also called Kinser, who was concerned that she would continue to use K3. He
       refused to pick her up from the hospital. He thought that it would be in plaintiff’s best
       interest if she stayed at the hospital. Plaintiff began walking to Kinser’s home, which was
       about 15 miles away.
¶ 15       After he spoke with plaintiff, Kinser called Carol M. and told her that plaintiff was on the
       way to his house, because she had left treatment prematurely. He told Carol M. that he did
       not want S.H. to be at his house when plaintiff arrived. Kinser is a school teacher and a
       mandated child-abuse reporter and he was afraid that he would have to call DCFS if plaintiff
       showed up while under the influence and S.H. was still there. Carol M. agreed to have S.H.
       stay with her, and Brooks drove him to Carol M.’s house.
¶ 16       Police officers saw plaintiff as she walked away from the hospital and they took her to
       Kinser’s home. When plaintiff discovered that S.H. was not there, she drove to Carol M.’s
       house. Carol M. offered to care for S.H. while plaintiff received assistance for her substance
       abuse problems and plaintiff became angry and refused.
¶ 17       Carol M. called the police before plaintiff arrived, because she thought that it was not
       safe for S.H. to be with plaintiff when plaintiff was so agitated. Carol M. also called Sandra
       Blank, a DCFS supervisor, for advice on what to do. Blank had been Carol M.’s supervisor
       when Carol M. worked for DCFS in the same office that conducted the investigation of
       plaintiff.
¶ 18       When plaintiff arrived at Carol M.’s home, she saw the police officers. Plaintiff became
       very upset when Carol M. accused her of being drunk and refused to release S.H. to her. The

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       police officers tested plaintiff for alcohol, and the test came back negative. Carol M. still
       refused to allow S.H. to leave with plaintiff. Plaintiff yelled, threw her cell phone, and then
       drove away. She experienced an anxiety attack but, after speaking with an officer and being
       checked by paramedics, she agreed to leave S.H. with her mother for the night.
¶ 19       On August 6, 2011, the DCFS hotline received a call from Carol M. regarding suspected
       child abuse or neglect on August 6, 2011. Marianne Zimmer took the call and Jane
       Postlewait, a child protection investigator, was assigned to investigate.
¶ 20       Postlewait interviewed S.H. at Carol M.’s home. He appeared healthy, clean, and
       well-dressed. He complained only that his mother kissed him too much and would not allow
       him to play outside by himself. Postlewait also observed plaintiff and S.H. together. She
       noted that plaintiff was very supportive and had positive interactions with S.H. She also went
       to plaintiff’s apartment and reported it as clean, neat, and adequately furnished.
¶ 21       Postlewait interviewed plaintiff, who admitted to having a history of substance abuse and
       to smoking K3, relapsing, and leaving the hospital against advice to stay. Plaintiff told
       Postlewait that K3 had similar effects to marijuana.
¶ 22       Plaintiff signed a safety plan, in which she agreed to take part in a drug-treatment
       program while S.H. remained at Carol M.’s house. A week later, plaintiff tested negative for
       drugs and the safety plan was dismissed.
¶ 23       Postlewait received a report from S.H.’s primary-care physician that he was healthy and a
       report from his school that he was doing well in school. Postlewait also learned that plaintiff
       had been a victim of child abuse in 2004 and a victim of domestic violence. Postlewait also
       discovered that plaintiff’s paramour had been indicated for child abuse in 2010 for hitting,
       kicking, and choking plaintiff when S.H. was present and for encouraging S.H. to participate
       in the domestic violence.
¶ 24       At the conclusion of her investigation, Postlewait recommended entering against plaintiff
       an indicated finding under Allegation 60, titled “Substantial Risk of Physical
       Injury/Environment Injurious to Health and Welfare by Neglect.” 89 Ill. Adm. Code
       300.Appendix B (Allegation 60), amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011). Postlewait
       did not recommend an indicated finding under Allegation 74.
¶ 25       DCFS notified plaintiff that it was indicating her under Allegation 60 and that the report
       would be retained in the state central register. Plaintiff requested an appeal of the indicated
       finding on October 19, 2011, and requested a hearing within DCFS’s administrative hearings
       unit. On January 23, 2012, DCFS notified plaintiff that it was amending its allegations
       against her to add an indicated finding under Allegation 74.

¶ 26                             B. July 9, 2012, Administrative Hearing
¶ 27       On July 9, 2012, the ALJ presided over the hearing on plaintiff’s appeal, which
       encompassed a challenge to both indicated findings.
¶ 28       Plaintiff testified that she successfully obtained sobriety on April 20, 2009, but
       acknowledged that she used K3 for a short period of time in July and August 2011, while
       S.H. was asleep. When asked how smoking K3 affected her, plaintiff replied, “[i]t’s similar
       to a marijuana high so you get relaxed and like happy, but I’m still coherent and can
       function.”


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¶ 29       Plaintiff testified that she does everything for S.H. She makes sure he is clean and
       dressed, has clean clothes, and gets to school. She picks up S.H. from school in Libertyville.
       S.H. attended a Montessori school during the 2010-11 school year, which cost plaintiff
       $11,000, even though her income was only $13,000. Plaintiff sent him to an expensive school
       because he was at an important stage of development and she wanted him to have a good
       start.
¶ 30       Carol M. testified that, by July 2011, plaintiff was showing signs of a relapse. Carol M.
       reported that plaintiff had been making fewer phone calls, had been cutting and scratching
       herself, and had quit her job.
¶ 31       Carol M. and plaintiff signed a safety plan in which plaintiff agreed to undergo drug
       treatment while S.H. remained with Carol M. for one week. The plan was dismissed a week
       later when plaintiff completed all the requirements and tested negative for drugs.
¶ 32       Carol M. further admitted that, in July 2011, while she believed that plaintiff was using
       drugs again, she allowed her 14-year-old son to stay overnight at plaintiff’s home. She also
       acknowledged that she had worked at the same DCFS office that investigated plaintiff. Carol
       M. had called Blank to discuss her legal right to keep S.H., because she was worried that
       plaintiff would take S.H. away from her and never let her see him again.
¶ 33       Carol M. testified that, in the months prior to August 2011, plaintiff was “doing a great
       job” at “being a single mother.” In August 2011, Carol M. noticed that plaintiff had less
       contact with her family, her housekeeping dwindled, and S.H. seemed needier than usual.
       Because of this, Carol M. stated, she believed that plaintiff was using drugs again. She
       admitted that although she had her suspicions she could not prove it at that point.
¶ 34       Postlewait testified that she saw no signs of abuse or neglect of S.H. She stated that S.H.
       was “dressed appropriately, clean, [and had] no unusual marks or bruises.” She further stated
       that “mom and S.H. *** have a positive relationship, positive interaction. He is not fearful of
       her. And [plaintiff] was concerned about her son’s safety.”
¶ 35       During cross-examination, Postlewait could not pinpoint a date on which plaintiff was
       under the influence of K3 while S.H. was in her custody. However, she stated that plaintiff
       admitted to using K3 in July and August 2011, and she inferred that, because plaintiff is
       S.H.’s primary caretaker, there must have been a time when plaintiff was under the influence
       of K3 while supervising S.H.
¶ 36       Friedman testified that she saw plaintiff weekly and that S.H. attended about 30% of the
       sessions. Regarding the July and August 2011 sessions, Friedman testified that plaintiff was
       very engaged with S.H. Friedman noted that plaintiff had motivation for positive change,
       healthy parenting, and healthy behavior. Friedman further stated that plaintiff manifested
       some tremendously healthy parenting behaviors. When asked if she noticed a change in
       plaintiff’s mood during July and August 2011, Friedman responded that she remembered
       plaintiff feeling a little bit down. “But *** it wasn’t a crisis.” Friedman further stated that
       S.H. appeared happy, well adjusted, and cooperative and that he was a very healthy child.
       When asked if she considered calling DCFS during July or August 2011, Friedman, who is a
       mandated child-abuse reporter, responded: “Absolutely not.” Friedman stated that K3 is an
       “intoxicant” but said that she knew little else about it.
¶ 37       Blank testified that she received a phone call from Carol M. on August 6, 2011, because
       Carol M. was concerned that plaintiff was using drugs. Blank was familiar with this issue


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       because she was aware of plaintiff’s history of substance abuse. Blank had no other
       involvement with the investigation of plaintiff.
¶ 38       Kinser and Brooks testified that they were plaintiff’s AA sponsors. Brooks stated that she
       told plaintiff to exaggerate her drug and alcohol use in order to be permitted to detox at the
       hospital. She further testified that plaintiff was a really good mother and did anything and
       everything she could for S.H. and his well-being. Kinser testified that, when plaintiff arrived
       at the AA meeting on August 5, 2011, she did not appear to be under the influence. He
       further stated that after learning that plaintiff left the hospital on August 6, 2011, he called
       Carol M. because he is a mandated child-abuse reporter and was concerned that he might
       have to make a report. However, when plaintiff arrived at his house later that morning,
       Kinser did not feel that he would have needed to call DCFS.
¶ 39       On August 17, 2012, the ALJ issued her recommendation to deny expungement of the
       indicated findings of neglect due to an injurious environment (Allegation 60) and inadequate
       supervision (Allegation 74). As to Allegation 74, she concluded that DCFS carried its burden
       of proving by a preponderance of the evidence that plaintiff had “inadequately supervised her
       son when she was [his] primary caregiver, [because she] had a history of mood disorder and
       substance abuse, relapsed, and admitted smoking K3 on a daily basis, including occasions
       while her son slept in their apartment.” The Director adopted the ALJ’s recommendation as
       his final decision and denied plaintiff’s request to expunge the indicated findings.
¶ 40       On September 25, 2012, plaintiff filed a complaint in the trial court for administrative
       review of the Director’s decision denying her request to expunge the indicated findings of
       neglect. On January 22, 2013, the administrative-review action was stayed pending resolution
       of Julie Q. v. Department of Children & Family Services, 2013 IL 113783. As a result of the
       supreme court’s decision in Julie Q., the indicated finding of neglect due to an injurious
       environment (Allegation 60) was expunged from the record. On September 10, 2013, the trial
       court affirmed the Director’s decision to deny plaintiff’s request to expunge the indicated
       finding of neglect due to inadequate supervision (Allegation 74). This timely appeal
       followed.

¶ 41                                        II. ANALYSIS
¶ 42       Plaintiff raises several arguments on appeal, including that (1) DCFS erred in denying
       plaintiff’s request to expunge the indicated finding of inadequate supervision; and (2) the
       administrative decision is void because DCFS lacked the statutory authority to indicate
       plaintiff for inadequate supervision. Because we find that DCFS’s indicated finding was
       clearly erroneous, we need not address any of plaintiff’s other arguments.
¶ 43       Under the Abused and Neglected Child Reporting Act (Reporting Act) (325 ILCS 5/1
       et seq. (West 2010)), DCFS maintains a central register of all reported cases of suspected
       child abuse or neglect. 325 ILCS 5/7.7 (West 2010); Shilvock-Cinefro v. Department of
       Children & Family Services, 2014 IL App (2d) 130042, ¶ 20. DCFS operates a 24-hour
       telephone hotline for reports of suspected abuse or neglect. 89 Ill. Adm. Code 300.30(a),
       amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011). When DCFS investigates a report of
       neglect, it must determine whether the report is “indicated,” “unfounded,” or
       “undetermined.” 325 ILCS 5/7.12 (West 2010).



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¶ 44       A report is indicated “if an investigation determines that credible evidence of the alleged
       abuse or neglect exists.” 325 ILCS 5/3 (West 2010); Shilvock-Cinefro, 2014 IL App (2d)
       130042, ¶ 20. Credible evidence of abuse or neglect exists whenever “the available facts, ***
       viewed in light of surrounding circumstances, would cause a reasonable person to believe
       that a child was abused or neglected.” 89 Ill. Adm. Code 336.20 (2005). An indicated report
       must be entered on the State central register, where it will remain for a minimum of five
       years. Julie Q. v. Department of Children & Family Services, 2011 IL App (2d) 100643, ¶ 29,
       aff’d, 2013 IL 113783.
¶ 45       The subject of an indicated report has the right to an administrative appeal and to request
       that the report be expunged. 325 ILCS 5/7.16 (West 2010); 89 Ill. Adm. Code 336.40,
       336.50, 336.60 (2000); Bolger v. Department of Children & Family Services, 399 Ill. App. 3d
       437, 447 (2010). DCFS bears the burden of proof in justifying its refusal to expunge the
       indicated report and must prove that a preponderance of the evidence supports the indicated
       finding. 89 Ill. Adm. Code 336.100(e) (2000); Shilvock-Cinefro, 2014 IL App (2d) 130042,
       ¶ 21. Following the hearing, the ALJ makes a recommendation to DCFS’s Director, who may
       accept, reject, amend, or return the recommendation. 89 Ill. Adm. Code 336.220(a) (2005);
       Slater v. Department of Children & Family Services, 2011 IL App (1st) 102914, ¶ 24. The
       Director’s decision is the final administrative decision. 89 Ill. Adm. Code 336.220(a) (2005);
       Shilvock-Cinefro, 2014 IL App (2d) 130042, ¶ 21.
¶ 46       Judicial review of the Director’s decision is governed by the Administrative Review Law
       (735 ILCS 5/3-101 et seq. (West 2010)). Jurisdiction to review a final administrative decision
       is vested in the trial court, from which a party may appeal to this court. 735 ILCS 5/3-104,
       3-112 (West 2010). As in all cases of administrative review, it is the decision of the agency,
       not the determination of the trial court, that is the subject of our review. Bolger v. Department
       of Children & Family Services, 399 Ill. App. 3d 437, 448 (2010).
¶ 47       On administrative review, the applicable standard of review depends on whether the
       question presented is one of fact, one of law, or a mixed question of fact and law. Id. “An
       administrative agency’s findings and conclusions on questions of fact are deemed prima facie
       true and correct.” Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d
       200, 210 (2008). A reviewing court is limited to determining whether the agency’s findings
       of fact are against the manifest weight of the evidence. Id. An agency’s decision is against
       the manifest weight of the evidence “only if the opposite conclusion is clearly evident.”
       Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). “If
       there is anything in the record which fairly supports the agency’s decision, such decision is
       not against the manifest weight of the evidence and must be sustained on review.” Grams v.
       Ryan, 263 Ill. App. 3d 390, 396 (1994).
¶ 48       In contrast, an agency’s decision on a question of law is not binding on a reviewing court
       and is reviewed de novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d
       191, 205 (1998). When a case involves an examination of the legal effect of a given set of
       facts, it involves a mixed question of fact and law. Id. Mixed questions of fact and law are
       reviewed under the “clearly erroneous” standard. Cinkus, 228 Ill. 2d at 211;
       Shilvock-Cinefro, 2014 IL App (2d) 130042, ¶ 23. The 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.” (Internal quotation marks
       omitted.) Id. “The clearly erroneous standard of review affords more deference to the agency

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       than de novo review but less deference than manifest weight review. Therefore, applying the
       clearly erroneous standard to mixed questions yields some deference to administrative
       expertise.” Du Page County Airport Authority v. Department of Revenue, 358 Ill. App. 3d
       476, 482 (2005). In the present case, determining whether DCFS erred in denying plaintiff’s
       request to expunge the indicated finding of inadequate supervision involves determining
       whether the facts satisfy the agency’s legal standard for inadequate supervision. Accordingly,
       the DCFS determination is reviewed under the “clearly erroneous” standard.
¶ 49        The Reporting Act defines a neglected child as one who is not receiving the “care
       necessary for his or her well-being.” 325 ILCS 5/3 (West 2010); Slater, 2011 IL App (1st)
       102914, ¶ 39. Appendix B of DCFS’s regulations delineates specific allegations of harm
       sufficient to trigger an investigation of reported child neglect. 89 Ill. Adm. Code
       300.Appendix B, amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011). “Inadequate supervision”
       occurs when a “child has been placed in a situation or circumstances that are likely to require
       judgment or actions greater than the child’s level of maturity, physical condition, and/or
       mental abilities would reasonably dictate.” 89 Ill. Adm. Code 300.Appendix B (Allegation
       74), amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011). Allegation 74 includes a nonexhaustive
       list of examples of inadequate supervision. Relevant to the present case is the example of the
       caregiver being present but unable to supervise because of the caregiver’s condition, which
       includes (a) where the parent or caregiver repeatedly uses drugs or alcohol to the extent that
       it has the effect of producing a substantial state of stupor, unconsciousness, intoxication, or
       irrationality, and (b) where the parent or caregiver cannot adequately supervise because of his
       or her medical condition or behavioral, mental, or emotional problems. 89 Ill. Adm. Code
       300.Appendix B (Allegation 74), amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011).
¶ 50        Allegation 74 further provides factors to be considered, which are categorized into
       “child,” “caregiver,” and “incident” factors. Child factors include “[t]he child’s age and
       developmental stage, particularly related to the ability to make sound judgments in the event
       of an emergency” and “[t]he child’s physical condition, particularly related to the child’s
       ability to care for or protect himself.” Id. Caregiver factors consist of the amount of time it
       takes the caregiver to reach the child, whether the caregiver can see or hear the child, and the
       caregiver’s maturity, physical condition, emotional condition, and cognitive ability to make
       appropriate judgments on the child’s behalf. Incident factors include the frequency and
       duration of the occurrence, whether it occurs in the day or night, whether there are other
       people overseeing the child, and whether there are any “other factors that may endanger the
       health and safety of the child.” Id.
¶ 51        The basis for DCFS’s indicated finding against plaintiff was that she “inadequately
       supervised her son when she was the primary caregiver [and that she] had a history of mood
       disorder and substance abuse, relapsed, admitted smoking K3 on a daily basis, including
       occasions while her son slept in their apartment.” DCFS points to the following evidence in
       support of the ALJ’s conclusion that plaintiff inadequately supervised her son: (1) plaintiff
       used K3 daily for approximately two weeks while S.H. was either asleep at home or at
       someone else’s home; (2) plaintiff admitted that her use of K3 made her high, similar to the
       effects of marijuana; (3) Friedman testified that K3 is an “intoxicant” and that plaintiff was
       “sensitive” to such chemicals; (4) plaintiff sought help to detoxify and to stop using K3, yet
       she checked out of the hospital against medical advice; and (5) despite testifying that S.H.
       sometimes stayed with plaintiff’s friends or with plaintiff’s mother when plaintiff used K3,


                                                  -8-
       plaintiff did not deny that S.H. was in her custody at least some of the times when she was
       high on K3. The ALJ essentially adopted DCFS’s findings in her determination that plaintiff
       inadequately supervised S.H. when she was the primary caregiver.
¶ 52        The question before us is whether, based on the application of the law to these undisputed
       facts, DCFS’s decision was clearly erroneous. Pursuant to Allegation 74, DCFS was tasked
       with presenting evidence to show that plaintiff had placed S.H. “in a situation or
       circumstances that [were] likely to require judgment or actions greater than the child’s level
       of maturity, physical condition, and/or mental abilities would reasonably dictate” and that
       such circumstances existed because she repeatedly used K3 to the extent that it had the effect
       of producing a substantial state of stupor, unconsciousness, intoxication, or irrationality. 89
       Ill. Adm. Code 300.Appendix B (Allegation 74), amended at 35 Ill. Reg. 2861 (eff. Feb. 8,
       2011).
¶ 53        We find that DCFS did not meet its burden of proof. DCFS did not provide any evidence
       that plaintiff’s use of K3 produced a substantial state of stupor, unconsciousness, or
       irrationality such that she placed S.H. in a situation that would likely require judgment or
       actions greater than his level of maturity. Plaintiff’s testimony that her use of K3 made her
       “high” and that it was “similar to marijuana” did not establish a basis to conclude that this
       use resulted in a state such that plaintiff could not adequately supervise S.H. DCFS never
       introduced any evidence on the chemical effects of K3 and whether it causes an individual to
       become unconscious, irrational, or in a state of stupor such that the individual is unable to
       adequately care for a child. When asked about the effects of K3, plaintiff testified that she
       could still function after using it. While the ALJ was free to disbelieve plaintiff’s testimony,
       DCFS did not present any evidence to refute it. In fact, the evidence supported it. Plaintiff
       tested negative for drugs and her safety plan was dismissed. Additionally, neither Friedman
       nor Kinser, who were mandated child-abuse reporters, felt the need to report plaintiff to
       DCFS. Furthermore, Carol M. allowed her 14-year-old son to stay overnight at plaintiff’s
       house during the relevant time period.
¶ 54        In sum, there was no evidence that plaintiff’s use of K3 rendered her unable to adequately
       supervise S.H. See In re N.B., 191 Ill. 2d 338, 351 (2000) (in the context of a child-protection
       proceeding, DCFS must show a nexus between respondent’s conduct and the care of the
       children). Based on the record, we are left with the definite and firm conviction that a
       mistake has been committed, as DCFS failed to meet its burden by a preponderance of the
       evidence. Therefore, we find that DCFS’s decision to deny expungement of plaintiff’s
       indicated finding of neglect was clearly erroneous.

¶ 55                                      III. CONCLUSION
¶ 56      DCFS’s decision that plaintiff inadequately supervised S.H. was clearly erroneous.
       Accordingly, the indicated finding of neglect should be expunged.

¶ 57      Reversed with directions.




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