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                                      Appellate Court                            Date: 2016.04.08 11:05:46
                                                                                 -05'00'




                      Campbell v. Department of Children & Family Services,
                                    2016 IL App (2d) 150747



Appellate Court           ANIKA CAMPBELL, Plaintiff-Appellant, v. THE DEPARTMENT
Caption                   OF CHILDREN AND FAMILY SERVICES; GEORGE SHELDON,
                          in His Official Capacity as Acting Director of Children and Family
                          Services; and DEVION C., NARIAH C., EDWARD G., AMYA G.,
                          and CADARO R., Minors, Defendants-Appellees.



District & No.            Second District
                          Docket No. 2-15-0747



Rule 23 order filed       December 16, 2015
Rule 23 order
withdrawn                 February 23, 2016
Opinion filed             February 23, 2016



Decision Under            Appeal from the Circuit Court of Kane County, No. 14-MR-1216; the
Review                    Hon. David R. Akemann, Judge, presiding.



Judgment                  Affirmed.




Counsel on                Jaime L. Mosser, of Klein & Mosser, LLC, of Elgin, for appellant.
Appeal
                          Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                          Solicitor General, and Laura M. Wunder and Christina T. Hansen,
                          Assistant Attorneys General, of counsel), for appellees.
     Panel                    JUSTICE SPENCE delivered the judgment of the court, with opinion.
                              Presiding Justice Schostok and Justice Burke concurred in the
                              judgment and opinion.




                                               OPINION

¶1         Plaintiff, Anika Campbell, filed an administrative service appeal after defendant the
       Department of Children and Family Services (DCFS) removed five children from her care.
       An administrative law judge (ALJ) ultimately dismissed Campbell’s service appeal in a final
       administrative decision. The ALJ determined that the dismissal was required by a decision in
       the children’s juvenile court proceedings. Campbell filed a complaint in the trial court
       seeking review of the dismissal of her service appeal, and the trial court affirmed the
       dismissal. Campbell appeals, arguing that the decision in the juvenile court did not require
       the dismissal of her service appeal in the administrative proceeding. We affirm.

¶2                                         I. BACKGROUND
¶3         Campbell was a relative with whom the five children, Devion C., Nariah C., Edward G.,
       Amya G., and Cadaro R. had been placed in foster care. According to Campbell, she had
       cared for each child for between 16 months and 8 years, until they were removed from her
       care by DCFS on April 16, 2014, based on allegations of abuse or neglect.
¶4         In response to the children’s removal, Campbell sought a clinical placement review.
       DCFS held a clinical placement review on April 30, 2014, and concluded that the removal
       was in the children’s best interests. Campbell then requested a service appeal of the clinical
       placement review.
¶5         The children also became the subject of juvenile court proceedings on the abuse or
       neglect allegations, and Campbell filed a pro se motion to intervene in those proceedings. See
       705 ILCS 405/1-5(2)(c) (West 2014) (if a minor’s placement in a foster parent’s home is
       being terminated, the “foster parent shall have standing and intervenor status except in those
       circumstances” where DCFS “has removed the minor from the foster parent because of a
       reasonable belief that the circumstances or conditions of the minor are such that continuing in
       the residence or care of the foster parent will jeopardize the child’s health or safety or
       presents an imminent risk of harm to the minor’s life”).
¶6         The juvenile court conducted a hearing at which Campbell, acting pro se, addressed the
       children’s removal. The juvenile court heard testimony from Campbell, a DCFS child-
       protection investigator, and the children’s caseworker. Campbell was allowed to
       cross-examine witnesses and present closing argument.
¶7         On August 27, 2014, the juvenile court denied Campbell’s motion to intervene (August
       order). The juvenile court determined that the removal of the children was based on a
       “reasonable belief that the circumstances or conditions of the minors were such that
       continuing in the residence or care of the foster parent would jeopardize the children’s health
       or safety or present an imminent risk of harm to the minors.”

                                                  -2-
¶8          After the juvenile court denied Campbell’s motion to intervene, DCFS moved to dismiss
       the pending service appeal in the administrative proceeding. An ALJ held a hearing on the
       motion to dismiss on October 14, 2014.
¶9          At the hearing, DCFS argued that the issue raised in the service appeal had been decided
       in its August order and that, as such, the service appeal was prohibited by DCFS regulations
       and had to be dismissed. See 89 Ill. Adm. Code 337.110(a)(4), amended at 36 Ill. Reg. 4388
       (eff. Mar. 7, 2012) (the ALJ shall dismiss a request for a service appeal if a court has made a
       judicial determination or issued an order on the issue being appealed). Campbell responded
       that the abuse or neglect allegations had been deemed unfounded,1 she did not have access to
       those findings when she sought to intervene in the juvenile court proceedings, and the ALJ
       had the authority to determine the best placement for the children. DCFS countered that
       Campbell’s view of the scope of the service appeal was too broad; the only issue in the
       service appeal was whether DCFS had made a mistake in removing the children in the first
       place. DCFS argued that therefore it was irrelevant that the allegations of abuse or neglect
       were ultimately unfounded.
¶ 10        The ALJ granted DCFS’s motion to dismiss on the basis that the juvenile court had made
       “a finding that [was] exactly the issue that [was] here.” The ALJ clarified that he had no
       authority to determine the most appropriate placement for the children. Rather, he was bound
       by the juvenile court’s August order determining that DCFS had properly removed the
       children based on a “reasonable belief that the circumstances or conditions of the minors
       were such that continuing in the residence or care of the foster parent would jeopardize the
       children’s health or safety or present an imminent risk of harm to the minors.” The ALJ’s
       October 15, 2014, order dismissed Campbell’s service appeal on the basis that the juvenile
       court had made “a judicial determination or issued an order on the issue being appealed.” Id.
¶ 11        On November 20, 2014, Campbell filed a complaint in the trial court for administrative
       review of the dismissal of her service appeal. On June 23, 2015, the trial court issued a
       written decision affirming the dismissal. In its decision, the court stated as follows.
¶ 12        The parties agreed that the question presented was whether the juvenile court’s August
       order required the dismissal of Campbell’s service appeal in the administrative proceeding.
       Campbell’s position was that the August order did not require the dismissal of her service
       appeal because the August order was a denial of her motion to intervene and not a decision
       on the issue presented in the service appeal. In addition, Campbell argued that she was
       entitled to a “fair hearing” of her service appeal and that the August order could not be the
       ground for the denial of that right.
¶ 13        DCFS countered that the issue of whether the children should have been removed from
       Campbell was central to the ruling on her motion to intervene in the juvenile court. DCFS
       also argued that the purpose of the service appeal was not to determine whether the children
       should be returned to Campbell; rather, the issue was whether DCFS acted consistently with
       the children’s needs regarding safety, well being, and permanency when it removed the
       children from Campbell.
¶ 14        In affirming the dismissal of the service appeal, the trial court stated that the fact that
       DCFS had eventually deemed “unfounded” the abuse or neglect allegations was “not

          1
            It is undisputed that on July 31 and August 20, 2014, DCFS deemed all of the abuse or neglect
       allegations unfounded.

                                                   -3-
       controlling on the Juvenile Court to make a finding that the removal was based on a
       reasonable belief as to the children’s best interest.” The court further stated that, because
       Campbell was a relative foster parent, she had the right to request DCFS to consider her as a
       placement for the children in the future.
¶ 15       Campbell timely appealed.

¶ 16                                           II. ANALYSIS
¶ 17       In an appeal from an administrative agency’s decision, we review the agency’s
       determination and not the trial court’s determination. Tiller v. Department of Children &
       Family Services, 2013 IL App (4th) 120504, ¶ 27. An agency’s decision on a question of law
       is not binding on a reviewing court and is reviewed de novo. Burris v. Department of Children
       & Family Services, 2011 IL App (1st) 101364, ¶ 30. The interpretation of agency rules and
       regulations is a question of law, which we review de novo. Id. However, an agency’s
       interpretation of its own rules and regulations enjoys a presumption of validity. Id.
¶ 18       Campbell argues that the issue in this case is purely a question of law, entitled to de novo
       review, whereas the State argues that the issue is better characterized as a mixed question of
       law and fact. According to the State, the issue is a mixed question of law and fact because it
       involves whether the facts surrounding the juvenile court proceedings satisfy the regulatory
       standard for dismissing a service appeal. See Lombard Public Facilities Corp. v. Department
       of Revenue, 378 Ill. App. 3d 921, 928 (2008) (a mixed question of law and fact asks whether
       the established facts satisfy a statutory standard or whether the rule of law, as applied to the
       established facts, was violated). The State thus argues that our review should be under the
       “clearly erroneous” standard. See Tiller, 2013 IL App (4th) 120504, ¶ 27 (in administrative
       review cases, this court reviews mixed questions of law and fact under the clearly erroneous
       standard). “The clearly-erroneous standard of review lies somewhere between a de novo and
       a manifest-weight-of-the-evidence standard, but provides some deference to the agency’s
       experience and expertise.” Lombard Public Facilities Corp., 378 Ill. App. 3d at 928.
¶ 19       The juvenile court proceedings are not part of the record, and we are not analyzing the
       propriety of the removal decision. Rather, we are reviewing the propriety of the dismissal of
       the service appeal, and the facts relating to that issue are undisputed. Because that issue
       involves only the interpretation of statutes and administrative rules, we review it de novo while
       recognizing that an agency’s interpretation of its own rules and regulations enjoys a
       presumption of validity.
¶ 20       The Children and Family Services Act provides for DCFS’s establishment of an
       administrative review and appeal process for children and families who request or receive
       child welfare services from DCFS. 20 ILCS 505/5(o) (West 2014); 89 Ill. Adm. Code 337.10
       et seq. (1995). In this case, after the children were removed by DCFS, Campbell requested a
       clinical placement review, which is a process by which DCFS reviews a disputed decision to
       remove a child from the home of a foster family or relative caregiver. See 89 Ill. Adm. Code
       337.20, amended at 36 Ill. Reg. 4388 (eff. Mar. 7, 2012). In a clinical placement review,
       DCFS reviews the current placement, the reason for the child’s removal, and the child’s
       needs regarding safety, well being, and permanency. 89 Ill. Adm. Code 337.30(c)(2) (2012).
       In this case, DCFS’s decision to remove the children was affirmed in the clinical placement
       review.


                                                   -4-
¶ 21       Campbell then requested a service appeal. See 89 Ill. Adm. Code 337.30(c)(6) (2012)
       (when the caregiver disagrees with the final clinical placement review decision, the caregiver
       may request a hearing, i.e., a service appeal). “When the issue is the removal of a child from
       the home of a foster family or relative caregiver, the service appeal process for [DCFS]
       consists of a fair hearing after a clinical placement review of the decision to remove the child
       ***.” 89 Ill. Adm. Code 337.30 (2012). At a fair hearing, conducted by an ALJ, DCFS and
       all parties may present evidence supporting their position. See 89 Ill. Adm. Code 337.30(e)
       (2012). The burden of proof is on the appellant to show by a preponderance of the evidence
       that the decision made by the clinical placement reviewer was not consistent with the child’s
       needs regarding safety, well being, and permanency. See 89 Ill. Adm. Code 337.30(e)(1)
       (2012).
¶ 22       Based on the evidence, the ALJ then makes a recommendation to the director of DCFS.
       89 Ill. Adm. Code 337.30(e) (2012). The Director of DCFS “may agree or disagree with or
       modify” the ALJ’s recommendation (89 Ill. Adm. Code 337.220 (2002)), and the director’s
       final administrative decision is subject to judicial review (89 Ill. Adm. Code 337.240,
       amended at 36 Ill. Reg. 4388 (eff. Mar. 7, 2012)).
¶ 23       In this case, the ALJ made no recommendation to the director because Campbell’s
       service appeal was dismissed. In the administrative review process, the ALJ “shall dismiss a
       request for a service appeal for the following reasons,” one of which is that “a court has made
       a judicial determination or issued an order on the issue being appealed.” 89 Ill. Adm. Code
       337.110(a)(4), amended at 36 Ill. Reg. 4388 (eff. Mar. 7, 2012).
¶ 24       As previously stated, while Campbell’s administrative service appeal was pending, she
       filed a pro se motion to intervene in the proceedings in the juvenile court. Under the Juvenile
       Court Act of 1987 (Juvenile Act), a “foster parent shall have standing and intervenor status
       except in those circumstances where the Department of Children and Family Services ***
       has removed the minor from the foster parent because of a reasonable belief that the
       circumstances or conditions of the minor are such that continuing in the residence or care of
       the foster parent will jeopardize the child’s health or safety or presents an imminent risk of
       harm to the minor’s life.” (Emphasis added.) 705 ILCS 405/1-5(2)(c) (West 2014).
¶ 25       As noted, the juvenile court proceedings are not part of the record. Nevertheless, it is
       undisputed that the juvenile court conducted a hearing at which it heard testimony from
       Campbell, a DCFS child-protection investigator, and the children’s caseworker. In addition,
       Campbell was allowed to cross-examine witnesses and present closing argument. In the
       juvenile court’s August order, it denied Campbell’s motion to intervene, based on a
       “reasonable belief that the circumstances or conditions of the minors were such that
       continuing in the residence or care of the foster parent would jeopardize the children’s health
       or safety or present an imminent risk of harm to the minors.”
¶ 26       Based on the juvenile court’s August order, the ALJ dismissed Campbell’s service
       appeal. According to the ALJ, the juvenile court had made “a judicial determination or issued
       an order on the issue being appealed” in the service appeal. Accordingly, the sole question on
       appeal here is whether the juvenile court’s August order was a judicial determination on the
       issue presented in the service appeal, thus requiring the ALJ to dismiss the service appeal.
¶ 27       Campbell lists several reasons why the ALJ erred by dismissing her service appeal. First,
       she argues that the juvenile court did not decide the issue presented in the service appeal
       because the Juvenile Act prohibited it from doing so. Campbell points out that, while the

                                                  -5-
       juvenile court determines whether a child should be made a ward of the court (705 ILCS
       405/2-22(1) (West 2014)), it is not empowered to order specific placements (705 ILCS
       405/2-28(2) (West 2014)). According to Campbell, given the juvenile court’s limited role, it
       lacked authority to consider the issue in the service appeal, which she characterizes as
       “whether the children should not be returned to” her care.2
¶ 28        Taking this argument a step further, Campbell asserts that, even if the juvenile court
       possessed the authority to consider the issue presented in the service appeal, the juvenile
       court’s inquiry was more limited than the inquiry in the service appeal. Campbell argues that
       the juvenile court was limited to considering only preremoval evidence, involving a narrow
       time period, whereas the service appeal would have involved a broader and more
       comprehensive assessment of the propriety of the clinical placement reviewer’s decision.
       Campbell asserts that, unlike the juvenile court, the ALJ in the service appeal would have
       considered both preremoval and postremoval evidence. In other words, Campbell argues that,
       even though DCFS could have had a “reasonable belief” that the children were in danger
       prior to their removal, she still could have met her burden of showing, in light of both the
       preremoval and postremoval evidence, that the clinical placement reviewer’s decision was
       not consistent with the children’s overall needs regarding safety, well being, and
       permanency. This is particularly true, Campbell argues, where the abuse or neglect
       allegations were ultimately deemed unfounded.
¶ 29        Campbell’s argument that the juvenile court lacked authority to decide the issue
       presented in the service appeal is premised on a misunderstanding of the nature of the service
       appeal. Contrary to Campbell’s assertion, the issue in the service appeal was not “whether the
       children should [or should not] be returned to” her care. Rather, the issue was the propriety of
       the decision to remove the children. As stated, a clinical placement review is the process of
       reviewing a disputed decision to remove a child (89 Ill. Adm. Code 337.20, amended at 36
       Ill. Reg. 4388 (eff. Mar. 7, 2012)), and the service appeal provides a review of the reviewer’s
       decision (89 Ill. Adm. Code 337.30(c)(8) (2012)). In the service appeal, Campbell would
       have borne the burden of showing by a preponderance of the evidence that the clinical
       placement reviewer’s decision to affirm the removal was not consistent with the children’s
       needs regarding safety, well being, and permanency. See 89 Ill. Adm. Code 337.30(e)(1)
       (2012). Therefore, rather than determining whether the children should or should not be
       returned to her care, the service appeal would have determined only whether the affirmance
       of the removal decision was consistent with the children’s needs regarding safety, well being,
       and permanency.
¶ 30        In this sense, Campbell’s argument that the service appeal would have encompassed
       postremoval evidence that the allegations of abuse or neglect were unfounded is without
       merit. Again, the issue in the service appeal was whether the clinical placement reviewer’s
       decision to affirm the removal was consistent with the children’s need for safety, well being,
       and permanency. Thus, the focus of the service appeal was on the propriety of the children’s
       removal and not on evidence that emerged after the removal. Indeed, Campbell cites no
       authority for her argument that a service appeal encompasses postremoval evidence, and the

           2
           In the event that this is a typo, in that Campbell meant to characterize the issue in the service
       appeal as “whether the children should be returned to” her care, our result is the same. (Emphasis
       added.)

                                                     -6-
       ALJ rejected her arguments to this effect. See Burris, 2011 IL App (1st) 101364, ¶ 30 (an
       agency’s interpretation of its own rules and regulations enjoys a presumption of validity).
¶ 31       For example, even if the service appeal had not been dismissed, and the ALJ had
       disagreed with the clinical placement reviewer’s decision to affirm the removal, the remedy
       would not have been to automatically return the children to her. See Benz v. Department of
       Children & Family Services, 2015 IL App (1st) 130414, ¶¶ 16-19 (after the foster parents
       requested a service appeal of the removal of the child, and the ALJ found that the decision to
       remove the child was not consistent with the child’s needs regarding safety, well being, and
       permanency, the DCFS director found that it was in the child’s current best interests to
       remain in his current placement). In other words, although the fact that the allegations against
       Campbell were eventually deemed unfounded will likely be relevant in future proceedings, it
       was not in the service appeal, at which the only issue was whether the removal was
       consistent with the children’s needs for safety, well being, and permanency.
¶ 32       Second, Campbell points to a recent amendment to section 5(o) of the Children and
       Family Services Act (20 ILCS 505/5(o) (West 2014)) as proof that the juvenile court’s
       August order could not be a basis to dismiss her service appeal. The amendment states that
       “[a] court determination that a current foster home placement is necessary and appropriate
       under Section 2-28 of the Juvenile Court Act of 1987 does not constitute a judicial
       determination on the merits of an administrative appeal, filed by a former foster parent,
       involving a change of placement decision.” Pub. Act 98-249, § 5 (eff. Jan. 1, 2014)
       (amending 20 ILCS 505/5(o) (West 2012)).
¶ 33       The amendment does not aid Campbell. The juvenile court’s decision in this case was not
       pursuant to section 2-28 of the Juvenile Act, which requires the juvenile court to conduct a
       permanency hearing within 12 months of the entry of a temporary custody order and at least
       every 6 months thereafter. 705 ILCS 405/2-28(2) (West 2014); In re D.S., 198 Ill. 2d 309, 326
       (2001). Section 2-28 provides that “[a]t the permanency hearing, the court shall determine the
       future status of the child,” and the court complies with this directive by selecting a permanency
       goal, from among several listed in section 2-28, that the court finds to be “in the best interest of
       the child.” 705 ILCS 405/2-28(2) (West 2014). Accordingly, while a judicial determination
       under section 2-28 of the Juvenile Act is not the type of determination requiring dismissal of a
       service appeal (see 89 Ill. Adm. Code 337.110(a)(4), amended at 36 Ill. Reg. 4388 (eff. Mar.
       7, 2012) (the ALJ shall dismiss a request for a service appeal if a court has made a judicial
       determination or issued an order on the issue being appealed)), the juvenile court’s decision
       in this case was made not under section 2-28 of the Juvenile Act but rather under section 1-5
       of the Juvenile Act, which pertains to motions to intervene. See 705 ILCS 405/1-5(2)(c)
       (West 2014).
¶ 34       The trial court reached the same result when denying Campbell’s complaint for judicial
       review of the dismissal of her service appeal. In its written decision, the trial court stated that
       section 2-28 of the Juvenile Act “deals with a periodic review of the goal, tasks and services
       of each case.” According to the court, the juvenile court’s August order “was not simply a
       court review of the case plan under [section] 2-28 of the [Juvenile] Act.” Rather, it was a
       decision under section 1-5(2)(c), entitled “Rights of parties to proceedings,” in response to
       Campbell’s motion to intervene. See id.
¶ 35       As the trial court found, the juvenile court’s denial of Campbell’s motion to intervene
       was a judicial determination on the issue being appealed in the service appeal, which was

                                                    -7-
       whether the removal decision was consistent with the children’s needs regarding safety, well
       being, and permanency. Indeed, the August order stated that “the removal of the children from
       [Campbell’s] home was based on a reasonable belief that the circumstances or conditions of
       the minors were such that continuing in the residence or care of the foster parent would
       jeopardize the children’s health or safety or present an imminent risk of harm to the minors.”
       See id. (foster parent shall have standing and intervenor status except in those circumstances
       where DCFS has removed the minor from the foster parent because of a reasonable belief
       that the circumstances or conditions of the minor are such that continuing in the residence or
       care of the foster parent will jeopardize the child’s health or safety or presents an imminent
       risk of harm to the minor’s life). Because the August order was not made pursuant to section
       2-28 of the Juvenile Act, but was issued in response to Campbell’s motion to intervene,
       pursuant to section 1-5 of the Juvenile Act, and because it contained a judicial determination
       as to DCFS’s decision to remove the children from Campbell’s care, Campbell’s argument to
       the contrary fails.
¶ 36       Third, Campbell argues that “the only way” to seek judicial review of a final
       administrative decision is through the administrative review process. She cites section 9.9 of
       the Children and Family Services Act, which states that “[a]ny responsible parent or guardian
       affected by a final administrative decision of [DCFS] *** may have the decision reviewed
       only under and in accordance with the Administrative Review Law.” 20 ILCS 505/9.9 (West
       2014). Again, Campbell’s argument is easily rejected because it is the administrative review
       process itself that requires the dismissal of a service appeal when a court has made a judicial
       determination or issued an order on the issue being appealed. See 89 Ill. Adm. Code
       337.110(a)(4), amended at 36 Ill. Reg. 4388 (eff. Mar. 7, 2012) (the ALJ shall dismiss a
       request for a service appeal if a court has made a judicial determination or issued an order on
       the issue being appealed).
¶ 37       Fourth, Campbell argues that dismissing her service appeal on the basis of the juvenile
       court’s determination is akin to the application of the res judicata doctrine, which should not
       apply. Res judicata was never a theory advanced by DCFS, and we have determined that,
       under the applicable law, the juvenile court’s August order required the dismissal of the
       service appeal. Accordingly, we need not explore this argument further.
¶ 38       Finally, we note that the juvenile court conducted a hearing on the merits of the
       children’s removal. While the August order resulted in the dismissal of Campbell’s
       administrative service appeal, it was because the issue in the service appeal had been heard
       and decided by the juvenile court. Moreover, as the trial court noted, the dismissal of
       Campbell’s service appeal does not preclude her from seeking to care for the children in the
       future.

¶ 39                                   III. CONCLUSION
¶ 40       For the aforementioned reasons, the judgment of the Kane County circuit court is
       affirmed.

¶ 41      Affirmed.




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