                                  Illinois Official Reports

                                         Appellate Court



                  Shilvock-Cinefro v. Department of Children & Family Services,
                                     2014 IL App (2d) 130042




Appellate Court              KAREN SHILVOCK-CINEFRO, Plaintiff-Appellant, v. THE
Caption                      DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
                             Defendant-Appellee.


District & No.               Second District
                             Docket No. 2-13-0042


Filed                        January 22, 2014


Held                         The trial court’s judgment upholding the denial by the Department of
(Note: This syllabus         Children and Family Services of plaintiff’s request for the
constitutes no part of the   expungement of an indicated report of child abuse in connection with
opinion of the court but     a child with behavioral problems she adopted was reversed, since
has been prepared by the     there was no evidence that any abuse occurred for purposes of section
Reporter of Decisions        3(b) of the Abused and Neglected Child Reporting Act.
for the convenience of
the reader.)


Decision Under               Appeal from the Circuit Court of McHenry County, No. 12-MR-79;
Review                       the Hon. Michael T. Caldwell, Judge, presiding.


Judgment                     Reversed.


Counsel on                   Rebecca M. Lee, of Gummerson Rausch Wand Lee Wombacher,
Appeal                       LLC, of Woodstock, for appellant.

                             Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                             Solicitor General, and Sharon A. Purcell, Assistant Attorney General,
                             of counsel), for appellee.
     Panel                     JUSTICE HUDSON delivered the judgment of the court, with
                               opinion.
                               Justices Birkett and Spence concurred in the judgment and opinion.




                                               OPINION


¶1         Plaintiff, Karen Shilvock-Cinefro, appeals the trial court’s judgment upholding an order of
       the Illinois Department of Children and Family Services (the agency) that denied her request
       for the expungement of an indicated report of child abuse. We reverse because there was no
       evidence that abuse occurred under section 3(b) of the Abused and Neglected Child Reporting
       Act (Act) (325 ILCS 5/3(b) (West 2010)).

¶2                                          I. BACKGROUND
¶3         On November 22, 2011, the agency entered on the central register an indicated report of
       abuse for allegation of harm No. 14, tying/close confinement, based on an incident in which
       plaintiff used duct tape, a sheet, and rope to restrain her adopted deaf child, N.C., in a vehicle in
       order to transport her to a hospital for assistance with behavioral problems. Plaintiff filed a
       request to expunge the report, and a hearing was held.
¶4         With the exception of the use of rope as a restraint, the facts are not in dispute. Plaintiff is a
       social worker and a licensed nursing home administrator, with a bachelor’s degree in
       psychology and a master’s degree in sociology and gerontology. Plaintiff and her husband
       have four biological children and, including N.C., three children adopted from China. Plaintiff
       home-schools the four youngest children.
¶5         Plaintiff and her husband became interested in adopting N.C. when they saw her on a video
       from a Chinese orphanage. They could tell that she was hearing impaired and they had
       previously adopted a hearing-impaired child from China. They believed that N.C. should be
       adopted before she turned 14, because, at that time, she would age out of the orphanage. N.C.
       had originally been found at a bus station in China when she was around six years of age, and
       she had been in the orphanage for eight years. Although her birth date based on Chinese
       records placed her at around 14 years of age, a later dental exam estimated that she might be
       two or three years younger. At the time of the events at issue, N.C. was around 5 feet tall and
       weighed 70 to 80 pounds. N.C. did not speak, although there was evidence that she knew some
       limited sign language and had some writing skills. N.C. had been given hearing aids, and
       plaintiff arranged for her to be further evaluated for the possibility of cochlear implants. N.C.
       was also severely nearsighted, and plaintiff got her new glasses.


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¶6         In June 2011, plaintiff, her husband, and two of her biological children traveled to China to
       get N.C. When they arrived, they learned that N.C. spent weekdays at a rehabilitation institute
       and returned to the orphanage on weekends. While they were in China, N.C. exhibited
       behavioral problems. In one instance, she purposely attempted to walk in front of an oncoming
       vehicle, and plaintiff’s husband grabbed her and pulled her out of the way. In another instance,
       N.C. ran up behind plaintiff’s husband and rammed an umbrella into his buttocks. She also bit
       plaintiff and hit plaintiff’s husband. During the plane trip back to the United States, N.C.
       refused to stay in her seat, pinched plaintiff’s husband, and was difficult to control.
¶7         After arriving in the United States, N.C. continued to have behavioral problems, including
       throwing a lamp at plaintiff, spitting, screaming, and crying, and scratching and biting herself.
       N.C. also took off her seatbelt while in the family’s van, causing plaintiff to get in the backseat
       and hold her hands. On other occasions, N.C. bit plaintiff, plaintiff’s husband, and one of the
       other children, causing bruises. One of plaintiff’s other children was afraid of N.C. During the
       incidents, plaintiff would try to comfort N.C. by rubbing her head and arms. Plaintiff would
       use timeouts or hold her. She also would hold her to prevent her from scratching herself. There
       was evidence that the family had been trying to obtain help for N.C.’s behavioral problems.
       Plaintiff said that she was overwhelmed by N.C. at times.
¶8         The incident leading to the finding of abuse occurred on August 29, 2011. On that day,
       N.C. created a disruption by banging her pencil box on a table. Plaintiff sent N.C. to her room,
       where she pounded on the wall and yelled until she became quiet and took a nap. Plaintiff later
       woke up N.C. in order to take her and three of the other children to a learning center. N.C.
       began to yell, refused to put on her shoes, and screamed and kicked. Plaintiff was able to get
       N.C. to the van and into one of the seats. N.C. then began to kick, yell, spit, and scratch herself.
       Plaintiff asked the other children to exit the van. Plaintiff held N.C. for around 10 minutes, but
       N.C. did not calm down, and plaintiff did not think she could get her back into the house for
       another timeout.
¶9         Plaintiff said that N.C. was out of control, that the situation was very intense, and that N.C.
       was more violent than she had ever seen her. Plaintiff had previously discussed with others the
       need to get N.C. help if a particularly bad outburst occurred, and she decided to take N.C. to the
       hospital for help. She had also discussed the need to keep N.C. safe in a car if N.C. could cause
       a distraction to the driver. She said that she had previously discussed with a therapist the
       possibility of needing to restrain N.C., but that tying was not specifically mentioned. That
       therapist, however, told an investigator that she did not discuss tying or confining N.C. with
       plaintiff. Plaintiff did not wish to call 911, because in the past her family had problems with the
       hospital that the ambulance service would use. She also was concerned that N.C. was fearful of
       ambulances and that paramedics strapping her down would be very traumatic.
¶ 10       Because N.C. had previously attempted to get out of the van during outbursts, plaintiff used
       a sheet and duct tape that were already in the van to restrain N.C. to the seat. Plaintiff believed
       that the restraint was necessary in order to safely transport N.C. to the hospital. Plaintiff put
       duct tape over the sheet and N.C.’s clothing but, because N.C. was kicking and flailing around,
       some of the tape stuck on her arms and legs. Plaintiff wrapped tape around N.C.’s middle and
       elbow areas twice and around her legs at the knees two or three times. She used a nylon belt to
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       restrain N.C.’s wrists. In addition, plaintiff placed a piece of duct tape on N.C.’s upper lip to
       prevent her from spitting, but she left it loose and did not cover N.C.’s mouth with it. She
       described it as a 1½-inch flap and said that N.C.’s breathing was not restricted or obstructed.
       The trip to the hospital took about 25 minutes. During the trip, plaintiff pulled over twice and
       checked the tape because N.C. was violently kicking the center console, was trying to open the
       door, and had slid down in her seat. Plaintiff said that she drove responsibly to the hospital and
       she denied using rope to restrain N.C. She said that there was rope in the van and that, during
       the trip, N.C. picked it up and swung it like a whip. Plaintiff admitted that she had never seen
       duct tape used as a method of restraint and was familiar with other forms of restraint. She also
       said that she did not think she could have safely driven N.C. to the hospital using other
       methods.
¶ 11       When plaintiff arrived at the hospital, she parked at the emergency room entrance and went
       inside to seek assistance. Wendy Mitchell, an emergency room nurse, and Matt Randow, a
       hospital security guard, assisted in removing N.C. from the van. Randow reported that N.C.
       had tape around her wrists, legs, chest, and waist, a sheet around her waist, and rope tied
       around her legs and waist. Mitchell reported that N.C. was secured to the seat with duct tape
       around her shoulders, arms, abdomen, thighs, and calves. Mitchell said that N.C.’s wrists and
       ankles were tied with a rope and that she was crying. Trauma shears, which are like large
       heavy-duty scissors, were used to cut through the duct tape. It took around three to five minutes
       to remove N.C. from the van. Mitchell testified that she did not think the restraint was proper
       and that, had there been an accident on the way to the hospital, N.C. would have been in danger
       because she would have been unable to free herself from the van.
¶ 12       Tape residue was found on N.C.’s shoulder, mouth area, thighs, and shins. A physical
       examination showed minor abrasions caused by the removal of the duct tape. N.C. was not
       diagnosed with any other injuries as a result of the restraint. There was no evidence of any
       serious physical consequences.
¶ 13       The hospital staff notified the authorities, and the agency received a report. An
       investigating police officer observed tape residue on N.C.’s chin area and cheeks. The officer
       reported that plaintiff said that she used rope when she restrained N.C. in the van. The officer
       opined that plaintiff was completely overwhelmed during the incident, but she stated that her
       investigation of plaintiff’s home revealed no red flags. The other children corroborated
       plaintiff’s account of the incident. One reported that plaintiff yelled at N.C. when she acted out
       but never spanked her. There was no evidence that plaintiff ever restrained any of the other
       children, and all of them denied ever being restrained by plaintiff.
¶ 14       An agency investigator reported that she saw N.C. in the hospital and that N.C. was eating
       and smiling. Plaintiff told agency investigators about the incident in a manner that was
       generally consistent with her testimony. She told them that she believed her actions were the
       best way to keep N.C. safe and that she had tried to calm N.C. down first through less
       restrictive measures.
¶ 15       After her discharge, N.C. was taken into protective custody. On September 14, 2011, she
       was diagnosed with acute adjustment disorder with disturbance of conduct, posttraumatic
       stress disorder, and attention deficit hyperactivity disorder. She was provided with medication.
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       There was no evidence that criminal charges were ever brought against plaintiff. On
       September 27, 2011, N.C. was discharged to plaintiff’s home, and a caregiver was hired. On
       November 17, 2011, a social worker determined that N.C. was healthy, well cared for, and
       comfortable in plaintiff’s home. Her adoption was finalized in 2012.
¶ 16        The agency argued that abuse was shown because the restraint was unreasonable under the
       Illinois Administrative Code (Code) (89 Ill. Adm. Code 300.Appendix B (Allegation No. 14)
       (2011)). Plaintiff argued that abuse must also be shown under section 3(b) of the Act, which
       requires a showing of a substantial risk of physical injury, by other than accidental means, that
       would be likely to cause death, disfigurement, impairment of physical or emotional health, or
       loss or impairment of any bodily function. 325 ILCS 5/3(b) (West 2010).
¶ 17        The administrative law judge (ALJ) denied the request for expungement, and the agency
       adopted the ALJ’s recommendation. In the order, the ALJ focused on the use of rope, finding
       that plaintiff lacked credibility because she testified that she did not tie N.C. with rope but had
       previously told an officer that she did so and there was other evidence of the use of rope. The
       ALJ found that plaintiff unreasonably restricted N.C.’s movement when, as Mitchell observed,
       N.C. was tied in the vehicle and unable to free herself. The ALJ did not address whether there
       was a substantial risk of physical injury caused by the restraint. Plaintiff appealed to the trial
       court, which affirmed. She now appeals to this court.

¶ 18                                         II. ANALYSIS
¶ 19       Plaintiff argues that the agency failed to establish abuse because it failed to present
       evidence that the restraint caused a substantial risk of physical injury, as required by section
       3(b) of the Act. She also argues that the ALJ’s finding that the restraint was unreasonable was
       clearly erroneous.
¶ 20       The Act requires the agency to maintain a central register of all cases of suspected child
       abuse or neglect reported and maintained under the Act. 325 ILCS 5/7.7 (West 2010). The
       agency investigates all reports and classifies them as “ ‘indicated,’ ” “ ‘unfounded,’ ” or
       “ ‘undetermined.’ ” 325 ILCS 5/7.12 (West 2010); Slater v. Department of Children & Family
       Services, 2011 IL App (1st) 102914, ¶ 23. A report is “indicated” when an investigation
       determines that credible evidence of the alleged abuse or neglect exists. 325 ILCS 5/3 (West
       2010). Credible evidence of abuse or neglect is found when 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 300.20, amended at 35 Ill. Reg. 1599 (eff. Jan. 15,
       2011).
¶ 21       A subject of an indicated report may request the agency to amend the record of the report or
       to remove the record of the report from the central register. 325 ILCS 5/7.16 (West 2010). If
       the agency refuses a request, the subject of the report has the right to an administrative hearing
       before an ALJ to determine whether the record of the report should be amended or removed.
       325 ILCS 5/7.16 (West 2010). The agency has the burden of proof in justifying the refusal to
       amend or remove the record, and it must prove that a preponderance of the evidence supports
       the indicated finding. Slater, 2011 IL App (1st) 102914, ¶ 24. After the hearing, the director of

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       the agency receives the ALJ’s recommendation and may accept, reject, amend, or return the
       recommendation. Id. The director’s decision is the final administrative decision. Id.
¶ 22       Judicial review of the director’s decision is governed by the Administrative Review Law
       (735 ILCS 5/3-101 et seq. (West 2012)). 325 ILCS 5/7.16 (West 2012). “In the case of an
       administrative review action, we review the findings of the ALJ during the administrative
       hearing and not the decision of the circuit court.” Slater, 2011 IL App (1st) 102914, ¶ 28.
¶ 23       “The propriety of the agency’s findings of fact will be upheld unless they are against the
       manifest weight of the evidence.” Id. ¶ 30. An agency’s application of the law to the facts
       presents a mixed question of law and fact. See Lake County Board of Review v. Illinois
       Property Tax Appeal Board, 2013 IL App (2d) 120429, ¶ 8. “An administrative agency’s
       decision on a mixed question of law and fact is reviewed for clear error.” Slater, 2011 IL
       App (1st) 102914, ¶ 33. “This standard of review is deferential to the agency’s expertise in
       interpreting and applying the statutes that it administers.” Id. When presented with a “mixed
       question of law and fact, the agency 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.
¶ 24       Under the Act, as relevant here, a child is abused when a person responsible for the
       child’s welfare:
                   “(b) creates a substantial risk of physical injury to such child by other than
               accidental means which would be likely to cause death, disfigurement, impairment of
               physical or emotional health, or loss or impairment of any bodily function[.]” 325
               ILCS 5/3(b) (West 2010).
       This definition is also in the Code. 89 Ill. Adm. Code 300.20, amended at 35 Ill. Reg. 1599
       (eff. Jan. 15, 2011). In addition, however, the Code lists specific allegations of harm that
       must be made before the agency will accept a report of abuse. 89 Ill. Adm. Code
       300.Appendix B (2011). These specific allegations essentially define problematic conduct.
       Walk v. Department of Children & Family Services, 399 Ill. App. 3d 1174, 1181 (2010). Here,
       plaintiff was indicated under allegation of harm No. 14, which states that tying/close
       confinement “is the unreasonable restriction of a child’s mobility, actions, or physical
       functioning by tying the child to a fixed (or heavy) object, tying limbs together or forcing the
       child to remain in a closely confined area that restricts physical movement.” 89 Ill. Adm.
       Code 300.Appendix B (Allegation No. 14) (2011).
¶ 25       Issues concerning abuse and neglect are decided on a case-by-case basis because abuse
       and neglect findings rely on amorphous concepts that are difficult to define with particularity.
       Slater, 2011 IL App (1st) 102914, ¶ 36; Walk, 399 Ill. App. 3d at 1182. Thus, there is little
       case law exploring these definitions or explaining how the Code relates to the Act. However,
       there are a few cases that provide some guidance.
¶ 26       In Walk, the foster parents of two boys constructed an outdoor enclosure, containing toys
       and a sandbox, in which to confine the boys when they could not keep them under constant
       supervision. The boys had previously engaged in extremely violent and disturbing behavior,
       including eating feces, urinating throughout the house, causing $60,000 in property damage,

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       and mutilating and killing numerous animals, including stabbing 300 chickens with nails,
       poisoning two horses, and kicking a dog to death. The foster parents were indicated for
       abuse, and their petition to expunge was denied. On appeal, the Fourth District determined
       that the finding of abuse under allegation of harm No. 14 for tying/close confinement was
       against the manifest weight of the evidence. The court noted that the allegation focused on an
       unreasonable restriction of a child’s mobility and found that the confinement was reasonable
       given the boys’ severe behavioral problems in comparison with how they were confined. For
       example, they were not confined unnecessarily, the enclosure was large enough for the boys
       to run in, and the foster parents checked on them while they were in the enclosure. The
       evidence supported the inference that the enclosure was used to protect the children while the
       foster parents did chores nearby, not as a form of imprisonment or punishment. Walk, 399 Ill.
       App. 3d at 1188-89. Since the Walk court reversed on the sufficiency of the proof of the
       allegation of harm, it did not discuss whether there was abuse under the Act.
¶ 27       Korunka v. Department of Children & Family Services, 259 Ill. App. 3d 527 (1994), better
       illustrates a court’s separation of a finding of abuse under an allegation of harm under the
       Code and a finding of abuse under the Act. There, a teacher sought to expunge an indicated
       report of abuse in connection with an incident where the teacher grabbed a misbehaving
       student and left red marks. The teacher admitted that he acted inappropriately. In reversing
       the indicated report of abuse, the court stated that, although the ALJ found that the teacher
       inflicted a cut, bruise, or welt under the relevant allegation of harm in the Code, the
       regulation also stated that not every bruise amounts to abuse. The court then specifically
       noted that, beyond the Code, the Act required a finding of abuse. The teacher left marks, but
       his action did not create any form of abuse under the Act. Further, the court noted that the
       agency placed improper weight on the teacher’s admission that he acted inappropriately:
       “While this may be true, inappropriate behavior does not necessarily amount to abuse. We
       need not determine whether [the teacher] could have handled the incident in another way. It
       is against the manifest weight of the evidence to find the level of contact which occurred in
       this case amounted to an indicated level of abuse under the [Act].” Id. at 532; see also Lyons
       v. Department of Children & Family Services, 368 Ill. App. 3d 557, 561 (2006) (teacher’s
       assistant’s actions of taking a behaviorally disordered student to the floor, which caused a
       bump on the student’s head, was not abuse; even if the decision to use that method instead of
       taking the student to a timeout room was not correct, it did not follow that the teacher’s
       assistant was guilty of abuse); Briggs v. State, 323 Ill. App. 3d 612, 619 (2001) (noting that,
       beyond the allegation of harm, abuse was not shown under the Act).
¶ 28       Courts have at times also taken into consideration the history of the person alleged to
       have committed abuse. For example, in Slater, 2011 IL App (1st) 102914, ¶ 39, a report of
       neglect was reversed where a child was injured by falling on a pencil left out by her mother.
       The court noted in part that the mother was normally concerned about the child’s
       whereabouts and that her history of being a good mother was not refuted. Likewise, in Lyons,
       the teacher’s assistant had no previous indicated reports or history of violence. Lyons, 368 Ill.
       App. 3d at 561. However, neither of these cases relied solely on the person’s good character
       or the lack of previous findings of abuse, and, in Lyons, a consideration of the person’s
                                                   -7-
       history was also part of the relevant allegation of harm under the Code (see 89 Ill. Adm.
       Code 300.Appendix B (Allegation No. 10/60) (2011)).
¶ 29       Ultimately, the cases serve to illustrate that (1) abuse cases must be decided on their
       unique facts and circumstances; (2) a bad decision will not always constitute abuse; and (3)
       while the allegation of harm must be proven, the Act cannot be ignored. We note that, since
       appendix B references section 3 of the Act, these provisions are not meant to be read in
       isolation, but are meant to be read together. See In re Marriage of Barile, 385 Ill. App. 3d
       752, 762 (2008). It is apparent that the plain and ordinary meaning of appendix B and section
       3 of the Act shows that an indicated finding of abuse should be made where there is a
       specific harm as described in appendix B that results in abuse as described in section 3 of the
       Act. In other words, where a child has been tied (89 Ill. Adm. Code 300.Appendix B
       (Allegation No. 14) (2011)), creating “a substantial risk of physical injury to such child by
       other than accidental means which would be likely to cause death, disfigurement, impairment
       of physical or emotional health, or loss or impairment of any bodily function” (325 ILCS
       5/3(b) (West 2010)), an indicated finding should be made. Thus, we determine that a finding
       that an allegation of harm is proven cannot be sufficient on its own to find abuse. The
       provisions of the Act, which are also included in the Code, must be met as well.
¶ 30       Here, the ALJ ignored the Act and made findings related only to the question of whether
       the restraint was unreasonable. The ALJ spent the majority of her analysis in finding that
       plaintiff lacked credibility as to the use of rope. That factual finding was not against the
       manifest weight of the evidence, as there was testimony from multiple people that N.C.’s
       wrists and legs were bound with rope. However, it was also inconsequential to the ultimate
       determination of whether abuse occurred, because there is no dispute that N.C. was restrained
       in a manner that heavily impacted her mobility. There was no finding from the ALJ that the
       agency proved by a preponderance of the evidence that the restraint created a substantial risk
       of physical injury, by other than accidental means, that would be likely to cause death,
       disfigurement, impairment of physical or emotional health, or loss or impairment of any
       bodily function–as required by the Act. Failing to apply the Act was error.
¶ 31       Even though the ALJ failed to make a determination about abuse under the Act, we need
       not remand for that determination. On this record, any finding of abuse would be clearly
       erroneous.
¶ 32       The only evidence of a substantial risk of physical injury that would be likely to cause
       death, disfigurement, impairment of physical or emotional health, or loss or impairment of
       any bodily function was the brief opinion testimony from Mitchell that, if an accident
       occurred while plaintiff was driving, N.C. would be unable to get out of the vehicle. Thus, to
       reach a determination that the agency proved by a preponderance of the evidence that the
       restraint created a substantial risk of physical injury, we would be required to conclude that
       there was a substantial risk not only that an accident would occur but also that it would be
       serious enough to require N.C. to be able to immediately get out of the van to avoid physical
       injury. Absent some evidence to support such a conclusion, the agency failed to prove by a
       preponderance of the evidence the existence of a substantial risk of physical injury.

                                                  -8-
¶ 33       In its brief, the agency also points to the use of duct tape on N.C.’s mouth area, stating
       that N.C. could have flailed in a way to cause it to obstruct her breathing or choke her. The
       agency also asserts that N.C. could have been injured by the restraints. But the agency does
       not point to any evidence in the record to support these speculations. In the absence of any
       evidence of a substantial risk of injury, beyond speculation based on hypothetical situations,
       we are unable to hold that the agency showed that abuse occurred under the Act.
       Accordingly, we reverse. Because we reverse on the determination that the agency failed to
       prove abuse under the Act, we do not address whether it also failed to prove that the restraint
       was unreasonable under the Code.

¶ 34                                    III. CONCLUSION
¶ 35      The judgment of the circuit court of McHenry County affirming the denial of plaintiff’s
       request for expungement is reversed.

¶ 36      Reversed.




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