                          NO. 4-08-0835               Filed 3/9/10

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

DEE ANN WALK and MICHAEL HAMMACK,      )    Appeal from
          Plaintiffs-Appellants,       )    Circuit Court of
          v.                           )    Sangamon County
THE ILLINOIS DEPARTMENT OF CHILDREN    )    No. 08MR298
AND FAMILY SERVICES and ERWIN McEWEN,  )
Director,                              )    Honorable
          Defendants-Appellees.        )    Leo J. Zappa, Jr.,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE KNECHT delivered the opinion of the court:

          In November 2007, the Illinois Department of Children

and Family Services (DCFS) made findings of child abuse or

neglect against plaintiffs, Dee Ann Walk and Michael Hammack.

Plaintiffs filed administrative appeals.    Following an eviden-

tiary hearing, a DCFS administrative law judge (ALJ) found

plaintiffs abused or neglected two foster children in their

custody pursuant to part 300, appendix B, of Title 89 of the

Illinois Administrative Code (89 Ill. Adm. Code §300 app. B, as

amended by 25 Ill. Reg. 12781, 12793-94, eff. October 1, 2001) by

forcing the children to remain in a closely confined area re-

stricting physical movement.   In April 2008, defendant Erwin

McEwen, DCFS Director, adopted the ALJ's findings and recommenda-

tions and denied plaintiffs' request to expunge the abuse and

neglect findings pertaining to close confinement from the State

Central Register.   In May 2008, plaintiffs filed a complaint for

administrative review of DCFS's decision in the Sangamon County

circuit court.   In September 2008, the court affirmed the Direc-
tor's decision.    Plaintiffs appealed.   For the following reasons,

we reverse and remand with directions.

                            I. BACKGROUND

            In June 2006, DCFS placed four brothers, ranging in age

from 6 to 10 years old, with Walk, a licensed foster parent and

child-protection investigator employed by DCFS.     Hammack lived

with Walk during this time, though the parties dispute whether

Hammack was Walk's paramour or "simply a lienholder."     After

several months, DCFS removed two of the brothers from the resi-

dence at plaintiffs' request due to aggression and behavioral

problems.    Anthony M., then nine (born August 7, 1997), and

Douglas M., then seven (born April 4, 2000), remained in plain-

tiffs' home.

            Both children were diagnosed with attention deficit

hyperactivity disorder (ADHD), oppositional-defiant disorder, and

possible posttraumatic stress disorder.     Anthony M.'s behavior

was classified as more severe than that of Douglas M., and he was

also diagnosed with adjustment disorder and fetal-alcohol ef-

fects.   Douglas M. received additional diagnoses involving

possible fetal alcohol syndrome and possible reactive-attachment

disorder.    According to plaintiffs, both children required

extensive supervision due to their tendency to (1) fight with

each other; (2) put nonfood items, including tree bark, paper,

and animal feces, in their mouths; (3) sneak out of the house at

night; (4) urinate throughout the house; (5) mutilate and kill

various farm animals present on plaintiffs' property; and (6)


                                - 2 -
commit acts of vandalism, such as starting a fire in the barn and

throwing expensive tools in the swimming pool, the pond, and a

nearby field.   Plaintiffs estimated the boys caused $60,000 in

property damage, due to (1) destruction of the tools; (2) fre-

quent urinating on the furniture and carpet; and (3) harm to

plaintiffs' animals, including (a) killing over 300 chickens by

stabbing them with nails, (b) injuring 2 horses by stabbing 1

with a stick and poisoning the other with rat poison and anti-

freeze, and (c) kicking a 20-pound dog to death.

          Though plaintiffs purchased baby monitors and installed

alarms on the doors and windows of their home, "the young boys

defeated these measures by removing batteries from [the monitors]

and removing pins from door hinges to reach and turn off [the]

door alarms."   In June 2007, after the children killed hundreds

of plaintiffs' chickens, plaintiffs gave the remaining chickens

away and used the chain-link fence panels which once enclosed the

penned chickens to build "an outdoor enclosure" containing an

eight- by eight-foot sandbox.   The record contains conflicting

reports as to the size of the enclosure, ranging from 8 by 10

feet to 12 by 18 feet to 16 by 24 feet.   All accounts agree the

fence was approximately six feet in height.    At the evidentiary

hearing, Melanie Goss, a DCFS caseworker, testified the enclosure

was larger than the 14.5- by 16-foot bedroom the boys shared in

plaintiffs' home.   The ALJ made no determination of the size of

the chain-link enclosure.   (One of the photographs of the enclo-

sure from the record before us is appended.)


                                - 3 -
          The parties agree the enclosure had a top made with the

same chain-link fence materials as the sides but disagree as to

whether the enclosure's gate had a lock.   At the evidentiary

hearing, Hammack testified the gate held no lock whatsoever.

Walk stated the fence had a lock but (1) it was not located on

the gate's latch, (2) its key was missing, and (3) it was never

used while the boys were inside the enclosure.   Bradley Hardick,

Walk's nephew, testified he never saw a lock on the enclosure,

and Walk's friend, David Leach, testified the lock hung on the

fence part of the gate rather than on the latch.   Jason Hasquin,

a system-of-care coordinator with Rutledge Youth Foundation, and

caseworker Goss agreed in their respective testimonies (1) the

enclosure had a latched gate with a lock and (2) Walk informed

them she needed a "stronger lock" to contain the children within

the enclosure.   The ALJ made no determination on whether a lock

was on the enclosure, it was workable, or it was used when the

boys were inside the enclosure.

          The parties also disagree as to the main purpose of the

enclosure.   At the evidentiary hearing, plaintiffs stated the

enclosure was meant to keep feral cats and other animals from

defecating in the sandbox.   However, interview notes taken by

DCFS child-protection investigator Jan Johnson state Walk in-

formed Johnson the enclosure had a top to prevent the children

from climbing out.   Hasquin testified plaintiffs told him the

enclosure was "what they use for the kids when [plaintiffs] do

their chores."   Further, in a July 2007 narrative, plaintiffs


                               - 4 -
wrote the enclosure served "to ensure that when [they could not]

be with the children every second (i.e.[,] if [plaintiffs were]

saddling the horses, using the restroom, et cetera)[, the chil-

dren were] unlikely to do any further damage to animals or

property."   The ALJ determined plaintiffs' testimony was not

credible and the enclosure's main purpose was to confine the

children when plaintiffs were occupied elsewhere.

           From the enclosure's construction the week of June 22,

2007, until DCFS caseworkers visited plaintiffs' residence the

following week, plaintiffs admitted placing Anthony M. and

Douglas M. inside the enclosure on three occasions.    First, the

children spent an undisclosed amount of time in the enclosure

when Anthony M. requested to go inside the enclosure to play in

the sandbox while Walk prepared dinner indoors where she could

not see the children and Hammack worked with a horse 15 to 20

feet away from the enclosure.   Next, the children spent approxi-

mately 10 minutes inside the enclosure while Walk prepared

breakfast and Hammack untied and walked a horse near the barn.

Hammack was at most 55 to 60 feet away from the children during

this time.   The third instance occurred when the boys entered the

enclosure at Hammack's request, as Hammack was leading one of the

horses from the barn to the pasture.    The stallion feared the

boys because they had previously stabbed it with a sharpened

stick, so Hammack separated Douglas M. and Anthony M. from the

animal.   Initially, Hammack did not close the gate.   However, he

later did so after Douglas M. ran out of the enclosure and his


                                - 5 -
proximity caused the horse to "buck, rear up, and land on its

back."    Once Hammack closed the gate, Anthony M. protested by

screaming, "'I'm in prison just like my Dad!'"     Hammack testified

Douglas M. and Anthony M. spent approximately five minutes inside

the enclosure during the incident.      The record does not reflect

whether the enclosure's gate was locked during any of the three

occasions in which the boys were inside.

            In addition to the three incidents in which plaintiffs

testified the boys spent time in the enclosure, Hardick testified

his son played with Douglas M. and Anthony M. inside the enclo-

sure on a separate occasion.    Further, Goss testified Walk told

her she placed Douglas M. and Anthony M. in the enclosure for 20

minutes or less while plaintiffs showed a visitor the horse

stable.    In their testimony, plaintiffs denied the events and

conversation described by Goss.

            On June 27, 2007, Hasquin and Goss met with plaintiffs

at plaintiffs' home.    During this time, plaintiffs showed Hasquin

and Goss the enclosure.    Hasquin testified plaintiffs told him

they used the "'cage'" to supervise the children when plaintiffs

were otherwise occupied.    Goss testified the enclosure resembled

a large kennel, one which she had never before seen in a child-

care or day-care environment.    Goss and Hasquin notified DCFS of

plaintiffs' use of the enclosure.

            On June 30, 2007, DCFS investigator Johnson arrived

unannounced at plaintiffs' home.    As part of her investigation,

Johnson interviewed Anthony M. and Douglas M.     Anthony M. told


                                - 6 -
Johnson plaintiffs "locked" him and his brother in a cage on

three occasions because plaintiffs did not trust them.     Douglas

M. informed Johnson he enjoyed playing in the "cage" with his

brother but also stated plaintiffs used a lock to keep him and

his brother from getting out.   Johnson did not measure the size

of the enclosure during her visit.      Due to illness, Johnson did

not testify at plaintiffs' evidentiary hearing, and DCFS submit-

ted the investigative file she wrote into evidence.     The ALJ

stated the file received limited weight because plaintiffs were

not afforded the opportunity to cross-examine Johnson.

           Following Johnson's investigation, DCFS determined

plaintiffs abused or neglected Anthony M. and Douglas M. via (1)

"tying/close confinement" and (2) inadequate supervision.      DCFS

then removed the children from plaintiffs' home to a foster home

in Springfield.

           Plaintiffs appealed both findings, and in February

2008, the ALJ conducted an evidentiary hearing.     Following the

evidentiary hearing, the ALJ made no determinations on the exact

size of the enclosure or whether the latch on the enclosure's

gate contained a functional lock.    However, the ALJ made a

determination the enclosure was designed and used primarily to

confine the children when plaintiffs could not closely supervise

them.   She also repeatedly referred to the enclosure as a "cage."

The ALJ noted in her recommendation and opinion the enclosure

created a substantial risk of physical harm because (1) photo-

graphs of the enclosure do not show any shade or shelter from


                                - 7 -
sunlight and plaintiffs used the enclosure in mid-summer, (2) the

enclosure contained no food or drink, (3) the children could not

escape the enclosure at will, (4) the children had a history of

fighting violently amongst themselves, and (5) the children were

diagnosed with severe emotional and behavioral problems.    The ALJ

later determined DCFS proved its allegation against plaintiffs

regarding close confinement but failed to prove plaintiffs

inadequately supervised Anthony M. and Douglas M.

            In April 2008, DCFS Director McEwen adopted the ALJ's

recommendations and findings, granting plaintiffs' request to

expunge the indicated findings of inadequate supervision but

denying plaintiffs' request to expunge the close-confinement

findings.

            In May 2008, plaintiffs filed a complaint in the

Sangamon County circuit court for administrative review of the

DCFS Director's decision, naming DCFS and Director McEwen as

defendants.    In their complaint, plaintiffs alleged the abuse and

neglect finding based on close confinement was improper because

defendants relied upon a DCFS policy guide never promulgated

pursuant to the requirements set forth in section 5-40 of the

Illinois Administrative Procedure Act (Procedure Act) (5 ILCS

100/5-40 (West 2006)).    The court agreed with defendants, finding

DCFS properly based its decision on a promulgated DCFS regulation

rather than the challenged DCFS policy guide.

            This appeal followed.




                                - 8 -
                            II. ANALYSIS

          On appeal, plaintiffs contend DCFS erroneously found

plaintiffs abused or neglected Anthony M. and Douglas M.   Specif-

ically, plaintiffs argue (1) DCFS failed to consider whether the

enclosure plaintiffs used to contain the children was not physi-

cally restrictive of the children's movements; (2) in making its

decision, DCFS erroneously relied upon an unpromulgated policy

guide in violation of the Procedure Act; and (3) the manifest

weight of the evidence does not support a finding the enclosure

constituted a cage or was unreasonably confining.   For the

following reasons, we reverse and remand.

                  A. Motion Taken With the Case

          As a threshold matter, we first address DCFS's motion

to strike portions of plaintiffs' reply brief.

          On April 29, 2009, DCFS filed a "Motion to Strike

Portions of Reply Brief," which we ordered taken with the case.

In its motion, DCFS alleged plaintiffs violated Supreme Court

Rule 341(j) (210 Ill. 2d R. 341(j)) by raising issues in their

reply brief not addressed in plaintiffs' opening brief.    Accord-

ing to DCFS, plaintiffs failed to raise the following issues in

their opening brief:   (1) DCFS's alleged violation of sections

10-35 and 10-40 of the Procedure Act, (2) DCFS's treatment of

Walk given her status as a DCFS employee, and (3) plaintiffs'

demand for attorney fees.   Further, DCFS moved to strike portions

of plaintiffs' reply brief pertaining to plaintiffs' objection to

DCFS's inclusion of its own statement of facts in its brief and


                               - 9 -
plaintiffs' "misstatement of the record" regarding the introduc-

tion of the DCFS policy guide in question by witnesses at the

evidentiary hearing before the ALJ.

          On May 5, 2009, plaintiffs filed a response to DCFS's

motion to strike, in which they contend the arguments raised in

their reply brief "either relate back to [plaintiffs'] opening

brief or were made in response to issues raised in [DCFS's]

[o]pening [b]rief."   We agree with plaintiffs: portions of both

the trial record, plaintiffs' opening brief, and DCFS's brief

relate to the above arguments.   Further, while we agree with DCFS

regarding how standard practice permits appellees to draft their

own statement of facts, we find no need to strike plaintiffs'

objection to this or plaintiffs' "misstatement" pertaining to

which witness discussed the DCFS policy guide in question.    See

Spangenberg v. Verner, 321 Ill. App. 3d 429, 432, 747 N.E.2d 359,

361 (2001) (refusing to strike a reply brief for nonflagrant

violations of supreme court rules).    Accordingly, we deny DCFS's

motion to strike plaintiffs' reply brief in whole or in part.

However, we will disregard any inappropriate statements or

arguments made therein.

     B. "Close Confinement" Under Allegation of Harm No. 14

          Plaintiffs first contend DCFS failed to consider proof

of physical restriction as required by the "Allegation of Harm"

No. 14 (hereinafter Definition No. 14)--essentially an offense

number listed in the administrative rules as an appendix--found

in part 300, appendix B, of Title 89 of the Administrative Code


                              - 10 -
(89 Ill. Adm. Code §300 app. B, as amended by 25 Ill. Reg. 12793-

94, eff. October 1, 2001).    Specifically, plaintiffs argue

Definition No. 14 requires proof beyond the mere classification

that an enclosure is in fact a cage; rather, plaintiffs maintain

Definition No. 14 requires the size of the enclosure constitute

an "unreasonable restriction" of the children's mobility.      In

response, DCFS argues (1) Definition No. 14 bars placing children

inside closely confined areas that unreasonably restrict--but do

not totally prohibit--physical movement and thus the size of the

area of confinement is not always determinative and (2) placing a

child in a "cage" is a per se violation of Definition No. 14

because caging a child is never a reasonable restriction of

mobility.

            "In administrative cases, we review the decision of the

administrative agency, not the determination of the circuit

court."   Wade v. City of North Chicago Police Pension Board, 226

Ill. 2d 485, 504, 877 N.E.2d 1101, 1112 (2007).    Further, inter-

pretation of agency regulations is a question of law, which we

review de novo.    Perez v. Illinois Department of Children &

Family Services, 384 Ill. App. 3d 770, 772, 894 N.E.2d 447, 450

(2008).   However, the agency's interpretation of its own rules

and regulations "'enjoys a presumption of validity.'"       Montalbano

v. Department of Children & Family Services, 343 Ill. App. 3d

471, 479, 797 N.E.2d 1078, 1084 (2003), quoting Nolan v. Hillard,

309 Ill. App. 3d 129, 143, 722 N.E.2d 736, 747 (1999).

            The case at bar focuses on Definition No. 14.    Like all


                               - 11 -
DCFS rules and regulations, Definition No. 14 has a statutory

basis in the Abused and Neglected Child Reporting Act (Child

Reporting Act) (325 ILCS 5/1 through 11.7 (West 2006)).     Pursuant

to the Child Reporting Act, an "abused child" includes one whose

caretaker (1) inflicts or 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 func-

tion" or (2) "commits or allows to be committed an act or acts of

torture upon such child."    325 ILCS 5/3(b), (d) (West 2006).   The

Child Reporting Act's definition of "neglected child" includes

children who fail to receive "the proper or necessary support or

medical or other remedial care recognized under [s]tate law as

necessary for a child's well-being, or other care necessary for

[their] well-being, including adequate food, clothing[,] and

shelter."    325 ILCS 5/3 (West 2006).

            Based on these definitions, DCFS promulgated regula-

tions detailing various child-abuse and neglect allegations,

essentially defining problematic conduct.    89 Ill. Adm. Code §300

app. B, as amended by 25 Ill. Reg. 12793-94, eff. October 1,

2001.   Definition No. 14, entitled "Tying/Close Confinement,"

states as follows:

                 "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


                               - 12 -
          remain in a closely confined area which re-

          stricts physical movement.     Examples include,

          but are not limited to:

                       -- locking a child in a closet

               or small room.

                       -- tying one or more limbs to

               a bed, chair, or other object,

               except as authorized by a licensed

               physician.

                       -- tying a child's hand behind

               his or her back.

                       -- putting a child in a cage."

               (Emphases added.)    89 Ill. Adm.

               Code §300 app. B, as amended by 25

               Ill. Reg. 12793-94, eff. October 1,

               2001.

The definitional sections do not appear to define "cage."

Plaintiffs contend (1) the plain language of Definition No. 14

"requires proof of a physical restriction of a child's movement"

and (2) putting a child in a cage and locking a child in a small

room "are only examples" and not per se violations of unreason-

ably restricting a child's mobility.     DCFS does not dispute

Definition No. 14 requires proof a child was physically re-

strained but emphasizes Definition No. 14's plain language does

not require (1) a cage be locked or a certain size or (2) a

complete restriction of a child's mobility.     DCFS further main-


                                - 13 -
tains a cage always constitutes an unreasonable restriction of a

child's physical mobility regardless of its size and, thus,

placing a child in a cage is a per se violation of Definition No.

14.

           While we do not advocate caging children, affirmance

does not logically follow.    DCFS's position in essence elevates

the undefined example over the definition itself.    Casting a

space as a cage does not relieve DCFS of its burden to determine

whether the use of the space on the facts fulfills the definition

of harm stated in Definition No. 14.    As a result, we do not

address the ALJ's finding the enclosure is a "cage."

           As with matters of statutory interpretation, "our

primary objective is to ascertain and give effect to the draft-

ers' intent."   Perez, 384 Ill. App. 3d at 772, 894 N.E.2d at 450.

In doing so, we examine the regulation's language and give it its

plain and ordinary meaning.    Perez, 384 Ill. App. 3d at 772-73,

894 N.E.2d at 450.   Moreover, a court "must construe the statute

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

meaning and not rendered superfluous, avoiding an interpretation

that would render any portion of the statute meaningless or

void."   Cassens Transport Co. v. Illinois Industrial Comm'n, 218

Ill. 2d 519, 524, 844 N.E.2d 414, 419 (2006).

           While we agree the plain language of Definition No. 14

does not require complete immobility for a finding of close

confinement, we find DCFS's interpretation of confinement via

cages as per se unreasonable is overly broad.    Courts have


                               - 14 -
traditionally decided matters involving abuse and neglect of

children on a case-by-case basis.   See In re M.Z., 294 Ill. App.

3d 581, 593, 691 N.E.2d 35, 43 (1998).   Particularly, courts have

determined each case hinges on its own particular set of facts

because abuse and neglect findings rely on "'amorphous concept[s]

which cannot be defined with particularity.'"      In re Edricka C.,

276 Ill. App. 3d 18, 26, 657 N.E.2d 78, 83 (1995), quoting In re

B.M., 248 Ill. App. 3d 76, 79, 618 N.E.2d 374, 376 (1993).

          We decline to hold the language of Definition No. 14

bars placing children in a confined area in every possible

circumstance.   Definition No. 14 bars the "unreasonable restric-

tion of a child's mobility, actions, or physical functioning" by,

inter alia, "placing the child in a cage."   (Emphasis added.)    89

Ill. Adm. Code §300 app. B, as amended by 25 Ill. Reg. 12793-94,

eff. October 1, 2001.   While "caging" children is certainly not

to be tolerated under most circumstances, an unforeseen emergency

may arise in which use of an enclosure would be warranted and

entirely reasonable.    For example, if a small child is playing in

the yard when a rabid dog suddenly approaches, the child's

caregiver may have no other option for the child's safety but to

quickly place the child in a nearby dog kennel to keep the child

out of immediate danger.   Is this unreasonable?    Is it statutory

abuse or neglect?   Therefore, because limited circumstances may

arise where caging may aid in the safety of children, we disagree

with DCFS's assertion caging is a per se unreasonable restriction

of a child's mobility, actions, or physical functioning for


                               - 15 -
purposes of Definition No. 14.    Rather, we find the relevant

inquiry is as follows: do the circumstances of the case render

the confinement unreasonable?

          Definition No. 14 requires a degree of consideration of

an enclosure's size in determining either whether the confining

structure is a cage or where the confinement pertains to closets,

rooms, or other areas or structures, but size alone cannot

determine whether confinement is unreasonable.      Definition No.

14's plain language states unreasonable close confinement re-

stricts--not prohibits--physical mobility.      It further lists

cages and small, locked rooms as examples of closely confining

areas that may be deemed to unreasonably restrict a child's

mobility, actions, or physical functioning.      As previously

stated, unreasonable restriction via confinement must be decided

on a case-by-case basis.   Locking a child in a closet may be a

more unreasonable restriction of movement than placing a child in

a crib, even though the closet may allow a child a wider range of

mobility than the crib.    Therefore, while cages and small, locked

rooms undoubtedly allow children varying degrees of mobility,

this does not automatically indicate whether confining children

in these structures is reasonable.       Rather, the circumstances of

the confinement as a whole, including but not solely limited to

the size of the confining structure, must determine the reason-

ableness of the confinement.

          Plaintiffs argue the enclosure used to confine Anthony

M. and Douglas M. is too large to constitute a closely confining


                                - 16 -
structure.   Plaintiffs further contend categorizing their enclo-

sure as closely confining would render Definition No. 14's plain

language meaningless, allowing any enclosure, such as a fenced-in

backyard, to constitute close confinement.    As discussed below,

we find plaintiff's structure was not unreasonably closely

confining under Definition No. 14.     However, while children may

have limited space to walk or even run back and forth while

forced to remain in an enclosure, this alone does not determine

whether their confinement inside it was reasonable.    Again, we

note findings of abuse or neglect under Definition No. 14 are

decided on a case-by-case basis and require consideration of the

enclosure's size in addition to other factors, such as the

duration in which children are confined and the nature of or

reasoning for the confinement.

           DCFS's interpretation of its own rule receives some

deference.   See Montalbano, 343 Ill. App. 3d at 479, 797 N.E.2d

at 1084.   While DCFS is incorrect caging is per se unreasonable,

we agree cages or enclosures allowing limited movement can

constitute closely confining structures under Definition No. 14.

Further, we note, pursuant to Definition No. 14's plain language,

the reasonableness of the restriction of mobility, physical

movement, and the actions of confined children is determinative

as to whether unreasonable close confinement has occurred, and

while size is one factor used to assess reasonableness, it alone

cannot be the deciding factor.




                              - 17 -
             C. DCFS's Reliance on Policy Guide 2000.14

            Plaintiffs next argue the ALJ and the DCFS Director

improperly based their decisions on Policy Guide 2000.14, which

DCFS failed to properly promulgate in accordance with the Proce-

dure Act.    DCFS responds the policy guide "merely implements

[DCFS's existing] policy regarding close confinement" and does

not constitute an independent rule.

            The Procedure Act requires all agency rules be promul-

gated, i.e., made available for public inspection and filed with

the Secretary of State.    5 ILCS 100/5-10 (West 2006).    Rules not

properly promulgated are invalid, not effective against any

person or entity, and "'may not be invoked by an administrative

agency for any purpose.'    [Citation.]"   Champaign-Urbana Public

Health District v. Illinois Labor Relations Board, State Panel,

354 Ill. App. 3d 482, 488, 821 N.E.2d 691, 696 (2004).

            An agency "rule" is defined as an agency statement of

general applicability "that implements, applies, interprets, or

prescribes law or policy."    5 ILCS 100/1-70 (West 2006).   Pursu-

ant to the Procedure Act, a "rule" does not include the follow-

ing:

            "(i) statements concerning only the internal

            management of an agency and not affecting

            private rights or procedures available to

            persons or entities outside the agency, (ii)

            informal advisory rulings issued under

            [s]ection 5-150, (iii) intra-agency memo-


                               - 18 -
          randa, (iv) the prescription of standardized

          forms, or (v) documents prepared or filed or

          actions taken by the Legislative Reference

          Bureau under [s]ection 5.04 of the Legisla-

          tive Reference Bureau Act."   5 ILCS 100/1-70

          (West 2006).

          In the case at bar, both the ALJ and Director McEwen

repeatedly referenced Policy Guide 2000.14 in their respective

decisions.   In October 2000, DCFS circulated Policy Guide 2000.14

to its child-welfare staff in response to a newspaper article

accusing the agency of permitting the caging of children.    The

guide cited Definition No. 14's definition of "close confinement"

and listed the procedure for taking a report in response to

situations involving tying or close confinement.   Regarding the

investigation of confinement cases, the guide instructs DCFS

employees, in pertinent part, as follows:

          "For confinement cases, a detailed descrip-

          tion of the confining space and the circum-

          stances surrounding the confinement must be

          included in the investigation file[,] includ-

          ing: (1) the size of the space, (2) access to

          help/assistance, (3) heat/ventilation pres-

          ent, (4) duration and frequency of confine-

          ment, (5) presence or absence of lighting,

          [and] (6) reason for confinement."

In relation to referral incidents of caged children to law


                              - 19 -
enforcement, the guide further states:

          "A parent, or other person responsible for

          the child's care, who forces their child to

          remain in a cage of any size while denying

          the child [(1)] use of bathroom facilities

          and/or [(2)] food and/or water commits an act

          of neglect, cruelty[,] and depravity which

          should be referred to law enforcement for

          investigation."

Under the heading "Purpose," the guide states, "[DCFS] has never

approved the caging of children and does find the act abusive,

cruel[,] and neglectful."

          Interpretation of agency regulations is a matter of

law, which we review de novo.    Perez, 384 Ill. App. 3d at 772,

894 N.E.2d at 450.   We find Policy Guide 2000.14 does not consti-

tute a rule for purposes of section 1-70 of the Procedure Act.

Rather, the guide merely alerts its employees of the existing

rule set forth in part 300, appendix B, of Title 89 of the

Administrative Code regarding close confinement and instructs

them how to document and assess confinement cases pursuant to the

definition of "close confinement" found in Definition No. 14.

          While the guide states "DCFS has never approved of the

caging of children," it goes on to specify when placing a child

in a "cage" constitutes unreasonable close confinement, i.e.,

"placing a child in a cage of any size while denying the child

use of bathroom facilities and/or food and/or water commits an


                                - 20 -
act of neglect, cruelty [,] and depravity which should be re-

ferred to law enforcement for investigation."    This language does

not indicate every instance of placing a child in a "cage"

equates abuse and neglect.   These criteria merely specify for

DCFS caseworkers how to determine when restriction of children's

mobility, actions, or physical functioning may be unreasonable

and when the incident should be referred to law enforcement for

investigation.

            Policy Guide 2000.14 does not expand the circumstances

in which DCFS determines abuse or neglect based on close confine-

ment.   Cf. Kaufman Grain Co. v. Director of the Department of

Agriculture, 179 Ill. App. 3d 1040, 1044, 534 N.E.2d 1259, 1262

(1988) (finding a rule unpromulgated because it extended the

Department of Agriculture's authority to adjudicate disputes

regarding the quality of grain).    Moreover, the guide does not

alter private rights or procedures available to plaintiffs

because Definition No. 14 plainly states caging, like locking a

child in a small room, constitutes close confinement only when

unreasonable.    Therefore, we do not find Policy Guide 2000.14

constitutes a rule requiring promulgation pursuant to the Proce-

dure Act.

            DCFS also alleges Walk had specific knowledge of Policy

Guide 2000.14 due to her employment as a DCFS caseworker.

However, because we find Policy Guide 2000.14 is not a rule, we

need not address the parties' dispute regarding Walk's knowledge

of Policy Guide 2000.14 via her employment with DCFS.


                               - 21 -
        D. The Director's Findings Plaintiffs' Enclosure
                    Was Unreasonably Confining

          Finally, plaintiffs contend the Director's determina-

tion the enclosure constituted a cage was clearly erroneous and

its underlying findings of fact were against the manifest weight

of the evidence.   Above, we found Definition No. 14 does not per

se bar placing children in cage-like structures.   Thus, the

relevant inquiry is not whether plaintiffs' structure is a cage

but, rather, whether placing children inside the structure

constituted unreasonable close confinement.

          Review of purely factual findings made by an adminis-

trative agency is conducted under a manifest-weight-of-the-

evidence standard.   MJ Ontario, Inc. v. Daley, 371 Ill. App. 3d

140, 145, 861 N.E.2d 1161, 1166 (2007).   Under such review, a

reviewing court may not substitute its own judgment for that of

the agency, nor does it reweigh the evidence or make an independ-

ent determination of the facts; instead, it should inquire

whether the opposite conclusion is clearly evident.    MJ Ontario,

371 Ill. App. 3d at 145, 861 N.E.2d at 1166.   "However, the 'mere

fact that an opposite conclusion is reasonable or that the

reviewing court might have ruled differently' does not justify

reversal of the agency's decision."    MJ Ontario, 371 Ill. App. 3d

at 145, 861 N.E.2d at 1166, quoting Abrahamson v. Illinois

Department of Professional Regulation, 153 Ill. 2d 76, 88, 606

N.E.2d 1111, 1117 (1992).   "If there is evidence in the record

supporting the administrative agency's decision, it should be

affirmed."   MJ Ontario, 371 Ill. App. 3d at 145, 861 N.E.2d at

                              - 22 -
1166.

          Moreover, the legal effect of a given set of facts

poses a mixed question of law and fact.    See Perez, 384 Ill. App.

3d at 775, 894 N.E.2d at 452.    A reviewing court reverses a

finding as to a mixed question only where it is clearly erroneous

(Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d

497, 532, 870 N.E.2d 273, 293 (2006)), i.e., where the court is

firmly convinced a mistake has been committed.     AFM Messenger

Service, Inc. v. Department of Employment Security, 198 Ill. 2d

380, 395, 763 N.E.2d 272, 282 (2001).     Thus, we review the ALJ's

underlying findings of fact under the manifest-weight-of-the-

evidence standard and the mixed question of law and fact pertain-

ing to whether plaintiffs' structure constitutes unreasonable

close confinement under the clearly-erroneous standard.

          The Director upheld the following factual findings made

by the ALJ: (1) Anthony M. and Douglas M. "have serious mental

[-]health and behavioral problems and it would be difficult for

any adult to parent these children on a full-time basis; (2)

Walk's employment with DCFS and experience as a foster-care

parent provided her with "unique wisdom regarding how to care for

and understand difficult children"; (3) plaintiffs constructed a

"metal enclosure" using chain-link panels and a "swinging metal

gate door"; (4) the appearance of plaintiffs' structure "can best

be described as large metal dog kennel"; (5) plaintiffs used the

enclosure at least three times, one of which caused Anthony M. to

grow upset and scream, "'I'm in prison like my dad!'"; (6)


                                - 23 -
plaintiffs built the structure primarily to contain the children

while plaintiffs were occupied elsewhere; (7) caseworker Goss

credibly testified concerning Walk's discussion of needing a

"stronger lock" for the enclosure and leaving the children inside

for 20 minutes while visitors were on the property; (8) two other

child-welfare professionals confirmed the existence and appear-

ance of the enclosure on plaintiffs' property; and (9) at seven

and nine years old, Anthony M. and Douglas M. "were old enough to

understand that they were being placed in a structure typically

used to confine and restrict the movement of animals."

          While we find none of the above factual findings were

against the manifest weight of the evidence, we disagree with the

ALJ and the Director as to whether those facts indicate plain-

tiffs' structure was unreasonably confining.   The evidence

establishes plaintiffs confined the children within the structure

on several occasions.   However, it does not show the confinement

was unreasonable.

          Imperative to our finding plaintiffs did not act

unreasonably is the fact the Director upheld the ALJ's finding

plaintiffs adequately supervised the children.   Rather than find

plaintiffs left the children unattended for extended periods of

time, the ALJ noted as follows:

          "The evidence has established that [Anthony

          M. and Douglas M.] were placed in a cage

          while at least one of the [plaintiffs] was

          outside either in the barn or upon the prop-


                              - 24 -
          erty. [DCFS's] witnesses and exhibits have

          not presented sufficient evidence to estab-

          lish exactly what distance from the cage the

          [plaintiffs] were while the children were in

          the cage.   There was some evidence presented

          that while the children were in the cage and

          [Hammack] was working, he would check on them

          from time to time.   ***   Because of the poor

          quality of the investigation conducted in

          this case, there is not enough evidence that

          one of the [plaintiffs] could not have heard

          a problem between the children and immedi-

          ately respond[ed,] thereby protecting the

          children from harm."

          Correspondingly, nothing in the record suggests plain-

tiffs left the children in the structure for an extended period

of time during which plaintiffs denied them food or water or use

of bathroom facilities.   For this very reason, we disagree with

the ALJ and Director's determination the structure was unreason-

ably closely confining.   To the contrary, testimony from Walk and

Hammack shows they used the enclosure on several occasions, in

brief intervals, to protect the children.    Hammack testified he

confined the children on one occasion to keep them from approach-

ing a horse after Anthony M. ran at the animal, causing it to

buck up on its hind legs and pose a safety risk.    Hammack also

admitted he placed the children inside the enclosure on two other


                               - 25 -
occasions, again when he was working with the horses.    Walk

testified the children constantly engaged in reckless behavior,

such as sneaking out of the house at night, killing various

animals present on the property, and attempting to burn down the

barn.   The evidence supports an inference plaintiffs briefly used

the structure to protect the children while plaintiffs did chores

nearby, not as a means of imprisonment or punishment.

           Moreover, although one of the DCFS caseworkers likened

the structure to a "dog kennel," this is not accurate.    The

structure contained toys and a sandbox.    The chain-link material

comprising the structure's walls (and top) is often used to fence

in backyards, and fences frequently have latches or locks on

gates, often above the reach of children. to prevent them from

running out of yards and into the street.    Further, the structure

was large enough for the children to run in, as evidenced by the

trampled grass on the ground inside, and, according to caseworker

Goss, its size exceeded the spacial dimensions of the children's

bedroom.   DCFS argues "[a] child's bedroom is primarily [used]

for sleeping[] and is also used for sedentary activities like

homework and board games.   It is not meant to be a place where

children walk and run[] and thus would not need to be large

enough to accommodate such activities."    However, unreasonable

close confinement does not occur simply because children lack

vast space outside to walk and run.    If this were the case,

allowing children to play in a small, fenced-in backyard would

constitute abuse and neglect under Definition No. 14.


                              - 26 -
          Given the specific circumstances of this case--namely,

the children's severe behavioral problems--we find plaintiffs did

not engage in unreasonable close confinement by placing Anthony

M. and Douglas M in a structure for short periods of time to

protect them from harming themselves.   DCFS presented no evidence

supporting unreasonableness; plaintiffs adequately supervised the

children, and the record does not show the structure itself was

closely confining.   Thus, the circuit court erred when it upheld

the ALJ and Director's finding of unreasonable close confinement

under Definition No. 14.

                           III. CONCLUSION

          For the reasons set forth above, we reverse the circuit

court's decision and the agency decision and remand as to the

issue of attorney fees.

          Reversed and remanded with directions.

          APPLETON and POPE, JJ., concur.




                               - 27 -
