                             2015 IL App (2d) 131037
                                  No. 2-13-1037
                           Opinion filed March 11, 2015
 ____________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

L.F.,                                  ) Appeal from the Circuit Court
                                       ) of Lake County.
       Plaintiff-Appellant,            )
                                       )
v.                                     ) No. 12-MR-1538
                                       )
THE DEPARTMENT OF CHILDREN             )
AND FAMILY SERVICES and RICHARD        )
H. CALICA, as Director of Children and )
Family Services,                       ) Honorable
                                       ) Christopher C. Starck,
       Defendants-Appellees.           ) Judge, Presiding.
______________________________________________________________________________

        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,
2015 IL App (2d) 131037


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



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2015 IL App (2d) 131037


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.            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.



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2015 IL App (2d) 131037


¶ 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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2015 IL App (2d) 131037


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,




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2015 IL App (2d) 131037


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.”

¶ 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,




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2015 IL App (2d) 131037


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.”




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2015 IL App (2d) 131037


¶ 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

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



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2015 IL App (2d) 131037


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



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2015 IL App (2d) 131037


¶ 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).

¶ 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. Admin 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,



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2015 IL App (2d) 131037


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



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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 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



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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.



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¶ 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, 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 [we]re 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).




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¶ 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



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2015 IL App (2d) 131037


¶ 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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