Ilevbare v. Department of Children and Family Services , 2021 IL App (1st) 200907-U ( 2021 )

2021 IL App (1st) 200907-UFIFTH DIVISION
June 18, 2021
No. 1-20-0907
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THEOPHILUS ILEVBARE, ) Appeal from the Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. ) No. 19 CH 11830
)
DEPARTMENT OF CHILDREN AND FAMILY )
SERVICES, ) Honorable
) Franklin U. Valderrama,
Defendant-Appellee. ) Judge Presiding.
PRESIDING JUSTICE DELORT delivered the judgment of the court.
Justices Hoffman and Cunningham in the judgment.
ORDER
¶1 Held: The decision of the Department of Children and Family Services (DCFS) denying
plaintiff’s request to expunge the indicated finding of neglect of a child is affirmed. DCFS’s
decision was not clearly erroneous. DCFS’s factual findings were not against the manifest
weight of the evidence. The record does not demonstrate that DCFS violated its own rules
and regulations in making its indicated finding of neglect.
¶2 Plaintiff Theophilus Ilevbare appeals the circuit court’s judgment affirming a final
administrative decision to deny expungement of an indicated finding of child neglect against him
from the state’s central register. On appeal, he challenges the finding of child neglect, arguing the
decision was clearly erroneous and that the manifest weight of the evidence, particularly the video
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recording capturing the incident in question, supports a reversal. He also argues that DCFS failed
to prove by a preponderance of the evidence that he committed child neglect and that DCFS failed
to follow its own rules and regulations during its investigation. We affirm.
¶3 BACKGROUND
¶4 Plaintiff is the father of a son, L.I., born on March 30, 2017. Fabia Stafford-Ilevbare is the
child’s mother and plaintiff’s ex-wife. Fabia has primary custody of L.I. and plaintiff has court-
ordered visitation rights. They generally exchanged physical custody of the child in the parking
lot or the lobby of the Hillside police station.
¶5 On April 6, 2019, while they were exchanging custody of L.I., plaintiff and Fabia had an
altercation in the presence of the child, who was then two years old. Hillside police officer Ryan
Hartline responded to the altercation and called the DCFS child abuse and neglect hotline to report
the incident.
¶6 After investigating, DCFS concluded that there was credible evidence to support an
indicated finding of child neglect against plaintiff under the Illinois Administrative Code’s
provision detailing an “Environment Injurious to Health and Welfare (Neglect),” which includes
“situations that place a child at substantial risk of harm due to the effects of being subjected to
participation in or the witnessing of the use of physical force or restraint of another.” 89 Ill. Admin.
Code § 300.Appendix B (Allegation #60). DCFS notified plaintiff of that determination and
informed him that his name would be placed on the state’s central register for five years as a result.
DCFS also informed him that he could request an administrative appeal to amend or remove the
finding from the central register on the grounds that it was inaccurate or was being maintained in
a manner inconsistent with state law. Plaintiff requested an administrative appeal.
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¶7 On August 1, 2019, an administrative law judge (ALJ) conducted a hearing on plaintiff’s
request for expungement of the indicated finding of child neglect. See 325 ILCS 5/7.16 (West
2018). DCFS presented as evidence its investigative file, the police report of the incident, and the
testimony of the responding officers and a DCFS child protection specialist.
¶8 Officer Hartline testified that on the date of the incident, he received a dispatch detailing a
domestic disturbance that occurred in the lobby of the police department. He recognized plaintiff
and Fabia from previous incidents, explaining that they regularly exchanged their child in the
parking lot or lobby and that officers are generally not present during the time of the exchange.
Officer Hartline recalled a few instances of prior verbal altercations between plaintiff and Fabia
which required the intervention of a police officer.
¶9 When Officer Hartline first arrived at the police station, he observed plaintiff exit the lobby
with Sergeant Michael Reed. He did not personally observe the lobby altercation. Officer Hartline
remained with Fabia and L.I. inside the lobby and he spoke to her about the incident. During the
course of the investigation, he reviewed the video footage of the altercation, which was recorded
on a security camera. The footage did not include an audio recording. He observed that plaintiff
moved close to Fabia, who then pushed him away. As plaintiff continually approached her, Fabia
maintained hold of the child’s hand while she pushed plaintiff away. Plaintiff and Fabia continued
to argue and yell at each other, requiring the dispatch officer stationed in the lobby to call for a
responding officer.
¶ 10 Officer Hartline also described the contents of the police report he prepared, which
included an interview with Fabia. She told him that she arrived at the police station to exchange
L.I. with plaintiff and that they started to argue in the parking lot. Fabia told Officer Hartline that
plaintiff spit on her in the parking lot, which upset her. Plaintiff then entered the lobby of the police
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department and Fabia followed him inside with L.I. They continued arguing in the lobby. Plaintiff
approached her. Fabia was afraid that he was going to hurt her and she pushed him away in
response. Officer Hartline stated that he did not speak to plaintiff following the altercation.
¶ 11 Sergeant Reed testified that when he arrived at the police station, he observed plaintiff and
Fabia arguing in the lobby. He was not aware of any prior domestic incidents involving plaintiff
and Fabia. He separated the two, spoke with Fabia, and then escorted plaintiff outside the station.
Fabia told Sergeant Reed that plaintiff had spit on her.
¶ 12 When they were outside the station, plaintiff told Sergeant Reed that he and Fabia had an
argument in the parking lot. Sergeant Reed asked plaintiff if he spit on Fabia. Plaintiff responded
that he “spit in her direction.” Plaintiff would not admit that he spit on her, but stated that he spit
in her direction. The incident escalated thereafter. Plaintiff told Sergeant Reed that Fabia struck
him in the chest. Plaintiff was aggravated to the point where Sergeant Reed told him to move back
and stop yelling. L.I. remained by Fabia’s side inside the lobby.
¶ 13 Sergeant Reed confirmed that Officer Hartline prepared the police report of the incident
and that he was the supervising officer that approved the report. He did not observe Fabia pushing
or hitting plaintiff in the lobby, but reviewed the video footage of the incident. Sergeant Reed
recalled that the argument in the parking lot involved L.I.’s car seat. He did not observe plaintiff
spit on Fabia.
¶ 14 Yvette Booze, a DCFS child protection specialist, testified that on April 8, 2019, she was
assigned to investigate the incident. She reviewed the police report and interviewed plaintiff and
Officer Hartline. She did not interview the dispatcher who was on duty at the police station during
the disturbance, noting that the dispatcher’s input was reflected in the police report.
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¶ 15 In plaintiff’s interview, Booze told him that she was investigating a report of domestic
violence during the exchange of L.I. Plaintiff denied the occurrence of domestic violence and told
Booze that he and Fabia regularly argued during the time of handoff. On that day, he needed the
car seat and Fabia had parked her car far away. He asked her to park closer to him. An argument
ensued, during which Fabia hit him with two belts. He retreated inside the lobby of the station. She
followed him inside, where she pushed, shoved, and yelled at him. He described his relationship
with Fabia as tumultuous and that she was sometimes abusive to him. Plaintiff told Booze that
Fabia had pushed him previously.
¶ 16 Next, Booze described the factors that she and her supervisor discussed and weighed when
deciding to indicate a finding of child neglect. She considered the history of conduct, which
included previous altercations, and the police report that stated plaintiff spit in the direction of
Fabia. When asked why this conduct factored into creating an environment injurious to the child,
Booze stated that “[i]f the child is present and * * * since he did admit he spit in that direction, it
infuriated his ex-wife,” creating “the argument that -- a contentious relationship going back and
forth while the child was there. So this child was witnessing this. And it didn’t escalate to a physical
fight but it could have.” Further, the police report indicated “a push and a shove and the child is
present. He could possibly be hurt in that situation. And since [there] was a history of it and the
police have reported that * * * this happens frequent[ly] and the child is there during this handoff
and that’s where the indication came in.” In Booze’s opinion, the child’s proximity to the physical
exchange between the parents created a risk of harm.
¶ 17 On cross-examination, Booze acknowledged that the video footage of the altercation did
not show plaintiff push Fabia. The video footage also did not show plaintiff spit in the direction of
Fabia. In addition, the police officer who spoke to Booze did not mention whether he observed the
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altercation or spitting incident. Booze did not interview the dispatcher who witnessed the
altercation in the lobby.
¶ 18 On redirect examination, Booze testified that she watched the video recording during her
investigation. She recounted that the footage showed Fabia pushing plaintiff and he stumbled
backward. Plaintiff approached Fabia multiple times and she continued to push him back. At no
time did plaintiff attempt to leave the area. During this time, the child occasionally approached his
parents and at one time during the altercation stood in between them. The child appeared to be
crying. Fabia appeared to console the child and continued to push plaintiff away. Booze stated that
the child could have been hurt during the altercation, even inadvertently.
¶ 19 Plaintiff testified that on the date of the incident, Fabia was 30 minutes late arriving at the
Hillside police station to exchange their child. He parked close to the entrance and when Fabia
arrived, she parked next to him and they spoke to each other while remaining in their cars. Plaintiff
asked Fabia why she failed to notify him that she was going to be late and she became very upset.
She exited her car, took two belts that sat on the front passenger seat of plaintiff’s car, and hit him
with the belts. The child remained in Fabia’s car. Plaintiff exited his car and took the belts away
from Fabia and went inside the police station “so there can be policemen when I’m being assaulted
like this [to] have a witness.” He stated that he entered the police station to deescalate the situation.
He knocked on the glass window where the dispatcher sat and told her that he needed the police,
“somebody is attacking me, my ex-wife is in the parking lot.”
¶ 20 While the dispatcher called officers to the scene, Fabia walked into the lobby with the child.
Plaintiff stated that he tried to tell Fabia to calm down. He stated that Fabia “dropped the child and
she * * * was lunging at me.” Plaintiff stated that he walked back to his position and “maintained
a respectable distance from her,” as supported by the video footage. Plaintiff claimed that Fabia
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tried to grab him by the neck and that she continued to lunge at him. He stated that he tried to
“back off to mitigate the defense on myself * * * [a]nd, unfortunately, I think I did not exercise
my right to self-defense. You know, looking back now, I have no regrets * * * because the problem
is especially [involving] domestic issues, as a man, if you try to defend yourself unless somebody
tr[ies] to strike you and then you defend yourself like this, her hand hit[s] you, then she will say
that you hit her when -- you know, whenever the police come.” In plaintiff’s assessment, the
situation in the lobby was not two people fighting with each other, but rather Fabia fighting him.
He stated that the video footage “speaks for itself.”
¶ 21 On cross-examination, plaintiff acknowledged that he continued to approach and confront
Fabia in the lobby instead of deescalating the situation. Plaintiff stated that “there is no law
anywhere that says you cannot stand in close proximity to anyone. There is no incitement.” He did
not leave the lobby. He stated that Fabia should have waited outside for the officers to arrive.
Plaintiff was aware of the security camera recording the incident in the lobby as it unfolded and
stated that he made Fabia aware of the same. Plaintiff stated that he did not spit on Fabia and that
the police officer did not witness the incident, “[s]o that was just hearsay.” Plaintiff acknowledged
that Fabia told a police officer that he had spit at him. He also stated that during the altercation in
the lobby, “the child was not in the middle of it.” The video footage showed that Fabia “was the
one who was verbally aggressive,” while he “took all of the steps.” Finally, plaintiff acknowledged
that Booze’s assessment upon seeing the footage was that he confronted Fabia after she pushed
him.
¶ 22 On September 12, 2019, the ALJ issued a decision finding that plaintiff was a perpetrator
of child neglect as defined under allegation of harm #60, which details “Environment Injurious to
Health and Welfare.” The ALJ concluded that DCFS met its burden of proof under a
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preponderance of the evidence for the indicated finding of neglect. The ALJ recommended that
plaintiff’s request to expunge the indicated finding of child neglect from the state’s central register
be denied. The ALJ explained the decision as follows:
“The testimony was clear that the appellant did not push or shove Ms. Stafford-
Ilevbare while they were in the lobby, although testimony was that the appellant
did spit on Ms. Stafford-Ilevbare while they were in the parking lot. If we want to
consider that the appellant might be the non-offending party we also need to
determine whether the appellant exercised precautionary steps to prevent or
mitigate the risk of harm to [the child]. In the absence of any other evidence
presented it is clear from the video that the appellant did nothing to prevent or
mitigate the risk of harm to L.I. The video recording showed how the appellant kept
arguing with Ms. Stafford-Ilevbare and kept getting in her face so that she
continued to physically attack him. Both parents failed to take measures to prevent
or mitigate L.I.’s exposure to their physical altercation and their obvious hostility
toward each other.”
¶ 23 On September 25, 2019, the acting director of DCFS issued a final administrative decision
adopting the ALJ’s factual findings and legal conclusions. The acting director concurred with the
ALJ’s recommendation that plaintiff’s request for the expunction of the record of allegation of
harm #60 be denied.
¶ 24 Plaintiff filed a complaint for administrative review in the circuit court, seeking reversal of
the acting director’s final decision. After reviewing the complaint, administrative record, and the
parties’ memoranda, the court entered an order affirming the acting director’s final decision. This
appeal followed.
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¶ 25 ANALYSIS
¶ 26 Plaintiff argues on appeal that: (1) the ALJ’s finding that he committed child neglect was
clearly erroneous; (2) the ALJ’s factual findings were against the manifest weight of the evidence;
(3) DCFS disregarded its own rules and regulations to determine its indicated finding of neglect;
and (4) DCFS failed to meet its burden of proof establishing child neglect under allegation of harm
#60.
¶ 27 Under the Illinois Abused and Neglected Child Reporting Act (Act) (325 ILCS 5/1 et seq.
(West 2018)), “DCFS maintains a central register of all reported cases of suspected child abuse or
neglect.” 325 ILCS 5/7.7 (West 2018). Plowman v. Department of Children and Family Services,
2017 IL App (1st) 160860, ¶ 14. “When DCFS investigates a report of neglect, it must determine
whether the report is ‘indicated,’ ‘unfounded,’ or ‘undetermined.’ ” Id. (citing 325 ILCS 5/7.12
(West 2014)). Under section 3 of the Act, a report is “indicated” if “an investigation determines
that credible evidence of the alleged abuse or neglect exists.” 325 ILCS 5/3 (West 2018). DCFS
enters an indicated report into the state’s central register. 325 ILCS 5/7.12 (West 2018).
¶ 28 Plaintiff in this case, who is the subject of an indicated report, has the right to an
administrative appeal and to request that the report be expunged. 325 ILCS 5/7.16 (West 2018).
“DCFS has the burden of proof in justifying its refusal to expunge the indicated report and must
prove that a preponderance of the evidence supports the indicated finding.” Plowman, 2017 IL
App (1st) 160860, ¶ 15 (citing 89 Ill. Admin. Code § 336.100(e) (2000) (repealed)); see now 89
Ill. Admin. Code § 336.115(c)(2)(B) (eff. Dec. 6, 2017) (“the Department must prove that a
preponderance of the evidence supports the indicated finding”). After a hearing, the ALJ makes a
recommendation to the DCFS director, who may accept, reject, amend, or return the
recommendation. Id. (citing 89 Ill. Admin. Code § 336.220(a) (2005)). “The director’s decision is
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the final administrative decision, review of which is governed by the Administrative Review Law
(735 ILCS 5/3-101 et seq. (West 2014)).” Id. The circuit court has jurisdiction to review final
administrative decisions, from which a party may appeal to this court. Id. “This court, however,
reviews the decision of the agency and not the circuit court.” Id. This court does not reweigh the
evidence, judge the credibility of witness testimony, or substitute its judgment for that of the
agency. Id. ¶ 24.
¶ 29 Section 4 of the Children and Family Services Act grants DCFS the authority “[t]o make
all the rules necessary for the execution of its powers.” 20 ILCS 505/4 (West 2018). “Pursuant to
this authority, DCFS has promulgated rules for the enforcement and administration of the [Act].”
Plowman, 2017 IL App (1st) 160860, ¶ 17. Relevant here, DCFS promulgated Appendix B, which
describes the specific incidents of harm that must be alleged to have been caused by the acts or
omissions identified in section 3 of the Act before DCFS will accept a report of child neglect. See
89 Ill. Admin. Code § 300.Appendix B, amended at 38 Ill. Reg. 13214 (eff. June 11, 2014). “The
regulations categorize the incidents of harm into numbered ‘allegations.’ ” Plowman, 2017 IL App
(1st) 160860, ¶ 17. The allegation at issue in this case, allegation of harm #60, addresses the
existence of an environment injurious to the health and welfare of the child. 89 Ill. Admin. Code
§ 300.Appendix B (Allegation #60).
¶ 30 Appendix B “describes the specific incidents of harm which must be alleged to have been
caused by the acts or omissions of the persons identified in Section 3 of the [Act] before [DCFS]
will accept a report of child abuse or neglect.” Id. Section 3 of the Act defines a “neglected child”
as, among other things, one who “is subjected to an environment which is injurious insofar as (i)
the child’s environment creates a likelihood of harm to the child’s health, physical well-being, or
welfare and (ii) the likely harm to the child is the result of a blatant disregard of parent, caretaker,
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or agency responsibilities.” 325 ILCS 5/3 (West 2018). Under the Act, “blatant disregard” means
“an incident where the real, significant, and imminent risk of harm would be so obvious to a
reasonable parent or caretaker that it is unlikely that a reasonable parent or caretaker would have
exposed the child to the danger without exercising precautionary measures to protect the child
from harm.” Id. Echoing the Act’s definition of “neglected child,” allegation of harm #60 provides
that an injurious environment exists when “a child’s environment creates a likelihood of harm to
the child’s health, physical well-being or welfare and that the likely harm to the child is the result
of a blatant disregard of parent or caretaker responsibilities.” 89 Ill. Admin. Code § 300.Appendix
B (Allegation #60). Further, “[t]his allegation shall be used when the type or extent of harm is
undefined, but the totality of circumstances, including inculpatory and exculpatory evidence, leads
a reasonable person to believe that the child’s environment may likely cause harm to the child’s
health, physical well-being or welfare due to the parent’s or caretaker’s blatant disregard.” Id.
Allegation of harm #60 defines “blatant disregard” as provided in section 3 of the Act. Id.
¶ 31 In addition, allegation of harm #60 details examples of conditions that may create the
contemplated risk of harm. For example, domestic violence may trigger allegation of harm #60:
“An incident of past or current domestic violence may qualify for an allegation of
environment injurious if the domestic violence creates a real, significant and
imminent risk of moderate to severe harm to the child’s health, physical well-being,
or welfare, and the parent or caregiver has failed to exercise reasonably
precautionary measures to prevent or mitigate the risk of harm to the child.” Id.
¶ 32 Allegation of harm #60 also lists the factors to be considered when determining if child
neglect is indicated, including, among other things, the child’s age, medical condition, the severity
of the occurrence, previous history of indicated abuse or neglect, and the precautionary measures
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exercised by the parent to protect the child from harm. Id. “All factors need not be present to justify
taking the report,” and “[o]ne factor alone may present sufficient danger to justify taking the
report.” Id.
¶ 33 Ultimately in this case, the acting director adopted the findings of the ALJ and determined
that plaintiff placed L.I. in an environment injurious to the child’s health and welfare within the
meaning of allegation of harm #60. That determination involved a mixed question of fact and law.
Plowman, 2017 IL App (1st) 160860, ¶ 27. Thus, we review whether the acting director’s decision
was clearly erroneous. Id. An agency’s decision will be deemed clearly erroneous only when the
reviewing court, on the entire record, “is ‘left with the definite and firm conviction that a mistake
has been committed.’ ” AFM Messenger Service, Inc. v. Department of Employment Security, 198
Ill. 2d 380, 395 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948)). This standard of review “is significantly deferential to an agency’s experience in
construing and applying the statutes that it administers.” Elementary School District 159 v.
Schiller, 221 Ill. 2d 130, 143 (2006). With this legal framework in mind, we address plaintiff’s
arguments.
¶ 34 Whether the ALJ’s Findings Were Clearly Erroneous
¶ 35 Plaintiff first argues that the ALJ’s findings were clearly erroneous because he was not an
“eligible perpetrator” under 89 Ill. Admin. Code § 336.20 for purposes of finding child neglect.
He contends that DCFS was required to show that the person indicated was a “person responsible”
for the care of the child at the time of the alleged neglect. He argues that Fabia was the person
responsible for the care of L.I. at the time she allegedly assaulted him in the lobby of the Hillside
police station. His parental responsibility only began at the point of “peaceful physical exchange
of the child by hand from Fabia to [him].” He claims that Fabia “created a substantial risk of
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physical injury to the child” by repeatedly assaulting plaintiff. Further, he contends that he
“exercised precautionary measures to protect the child from harm” by leaving the parking lot and
entering the lobby of the police station to seek assistance. He also argues that the environment
could not have been “injurious” under section 3 of the Act because the exchange occurred at a
police station, which he considered to be a safe location.
¶ 36 In this case, the ample evidence presented by DCFS supports the acting director’s final
decision, as recommended by the ALJ, that plaintiff created an injurious environment under
allegation of harm #60. The ALJ considered the video footage of the altercation in the police
station’s lobby and heard testimony of the officers responding to the incident, the DCFS child
protection specialist assigned to investigate the case, and plaintiff. Plaintiff admitted to Sergeant
Reed that he spit in the direction of Fabia while he argued with her in the parking lot. Fabia told
Officer Hartline that plaintiff spit on her, causing an escalation. When the altercation moved into
the lobby, plaintiff continued to approach Fabia instead of mitigating or deescalating the situation.
During this time, L.I. stood next to his mother and sometimes between his parents as the physical
altercation continued. This environment created “a likelihood of harm to the child’s health,
physical well-being or welfare and * * * the likely harm to the child [was] the result of a blatant
disregard” of the parents’ responsibilities, Fabia’s conduct notwithstanding. 89 Ill. Admin. Code
§ 300.Appendix B (Allegation #60). Here, the conditions created a real, significant, and imminent
likelihood of harm to the child’s health, well-being, or welfare and plaintiff, the parent, blatantly
disregarded his parental responsibility by failing to exercise reasonable precautionary measures to
prevent or mitigate the imminent risk of moderate to severe harm. Id. The existence of an injurious
environment includes “situations that place a child at substantial risk of harm due to the effects of
being subjected to participation or the witnessing of the use of physical force or restraint of
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another.” Id. Here, the video footage shows the child being subjected to participation or witnessing
the use of physical force of another when a physical altercation ensued between his parents in his
presence. We agree with the administrative agency’s decision that the indicated finding of child
neglect was consistent with allegation of harm #60’s provision that the incident of domestic
violence created a real and significant risk of harm to a child, and that plaintiff, as a parent, had
not taken reasonable mitigating measures. We thus find substantial support for the agency’s
finding that the altercation constituted an injurious environment.
¶ 37 On this entire record, plaintiff has not established with definite and firm conviction that a
mistake has been committed. We find the final decision of the DCFS acting director was not clearly
erroneous.
¶ 38 Nevertheless, we briefly address each of plaintiff’s arguments in this section of his brief.
Plaintiff attempts to absolve himself of his responsibility as the parent of L.I. during the exchange
of custody because, in his opinion, Fabia had not completed the exchange. Section 3 of the Act
defines a “[p]erson responsible for the child’s welfare” as the child’s parent. 325 ILCS 5/3 (West
2018). Despite his attempts to claim otherwise, plaintiff, as the father of L.I., is a “[p]erson
responsible for the child’s welfare” under the Act.
¶ 39 Plaintiff also argues that he mitigated the situation by entering the police station lobby.
Conveniently, he withheld the fact that he spit in Fabia’s direction in the parking lot immediately
before he entered the lobby, which instead aggravated the situation. He further inflamed the lobby
altercation by continuing to approach Fabia instead of waiting outside for police officers to arrive.
¶ 40 Finally, he contends he did not subject L.I. to an injurious environment because the
altercation occurred at a police station. Plaintiff argues that the safety of a police station does not
fit the language of injurious environment under section 3 of the Act. The video footage belies
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plaintiff’s argument on this point. Whether the altercation occurred in a police station or elsewhere
is inconsequential. The issues are whether the “child’s environment creates a likelihood of harm
to the child’s health, physical well-being, or welfare,” and whether “the likely harm to the child is
the result of a blatant disregard” of the parent. Id. A physical altercation between the parents in the
immediate presence of the child, which is what occurred here, creates a likelihood of harm to the
child and shows that the likelihood of that harm is the result of a blatant disregard of the parent,
which in this case is plaintiff. We reject plaintiff’s arguments that the administrative agency’s
decision was clearly erroneous.
¶ 41 Whether the ALJ’s Findings Were Against the Manifest Weight of the Evidence
¶ 42 Plaintiff next argues that the ALJ’s findings of fact were against the manifest weight of the
evidence. He denied that he spit on Fabia and that he and Fabia were mutual combatants. He argues
that DCFS falsely claimed that he did not take steps to mitigate the evidence. He contends Fabia
should have waited outside the police station instead of entering the lobby, where she allegedly
committed “a savage and ferocious attack” on him.
¶ 43 In raising these arguments, plaintiff essentially asks us to substitute our judgment for that
of the trier of fact by reweighing the evidence and drawing our own conclusion as to the credibility
of the witnesses. That is not the function of this court, however, as it is the province of the
administrative agency to determine the credibility of the witnesses and resolve conflicts in the
evidence. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 540 (2006). The
findings and conclusions of an administrative agency on questions of fact are held to be prima
facie true and will not be disturbed on review unless they are against the manifest weight of the
evidence. Beggs v. Board of Education of Murphysboro Community Unit School District No. 186,
2016 IL 120236, ¶ 50. An administrative agency’s decision is against the manifest weight of the
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evidence only if the opposite conclusion is clearly evident. Slater v. Department of Children and
Family Services, 2011 IL App (1st) 102914, ¶ 30.
¶ 44 Again, DCFS presented abundant evidence supporting the ALJ’s finding that plaintiff
committed child neglect under allegation of harm #60. Although plaintiff’s testimony contradicted
that of the testifying officers and the DCFS child protection specialist, the ALJ made her findings
of fact after receiving all the evidence and observing the witnesses. It is well-established that
“ ‘[c]onflicts in witness testimony do not constitute a sufficient reason to reverse an administrative
agency’s decision, since the agency’s responsibility is to resolve the conflicting evidence.’ ” Orsa
v. Police Board, 2016 IL App (1st) 121709, ¶ 47 (quoting Collura v. Board of Police
Commissioners, 135 Ill. App. 3d 827, 839 (1985)). Further, the fact that an opposite conclusion is
reasonable or that the reviewing court may have reached a different outcome does not justify the
reversal of the administrative findings. Slater, 2011 IL App (1st) 102914, ¶ 30. “If the record
contains evidence to support the agency’s decision, it should be affirmed.” Id. (citing Abrahamson
v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88-89 (1992)). In this case, the
ALJ reviewed the evidence, including the video footage of the incident, and the record supports
her findings that the agency’s decision was not against the manifest weight of the evidence.
¶ 45 Whether DCFS Exceeded Its Rule-Making Authority
¶ 46 Plaintiff next contends that DCFS disregarded its own rules and regulations, upon which it
based its indicated finding of neglect against him. Plaintiff argues that he was the victim of an
aggravated domestic battery and that DCFS ignored the video footage of Fabia attacking him. He
contends DCFS failed to properly consider all the exculpatory evidence and that DCFS deliberately
concealed that evidence to fabricate its report. Plaintiff, however, fails to provide any evidence or
legal argument supporting these claims, other than making broad accusations against DCFS of
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wrongdoing. Plaintiff again is asking this court to substitute our judgment for that of the trier of
fact by reweighing the evidence and considering “exculpatory evidence” that he failed to present
during the hearing. It is not the function of this court to reweigh the evidence. Marconi, 225 Ill. 2d
at 540. We decline to do so here because it is the province of the administrative agency to determine
the credibility of witnesses and resolve conflicts in the evidence. Id. As the record does not
establish that this evidence was before the ALJ, plaintiff’s reliance on it is unavailing and does not
negate other evidence establishing the agency’s finding that he committed child neglect under
allegation of harm #60.
¶ 47 Whether DCFS Met Its Burden of Proof Under a Preponderance of the Evidence
¶ 48 Finally, plaintiff argues that DCFS failed to meet its burden of proof that he committed
child neglect. He contends that the ALJ allowed testimony from police officers who did not witness
the altercation, which prejudiced him. He also claims the circuit court “did nothing” when he tried
to claim Fabia perpetrated domestic violence.
¶ 49 In an administrative hearing regarding a child neglect finding, DCFS has the burden of
proof justifying the refusal to amend, expunge, or remove the record and must prove that a
preponderance of the evidence supports the indicated finding. 89 Ill. Admin. Code §
336.115(c)(2)(B) (eff. Dec. 6, 2017). Here, the DCFS acting director accepted the ALJ’s finding
that plaintiff was a perpetrator of child neglect under allegation of harm #60 and her
recommendation that plaintiff’s request to expunge the indicated finding of neglect should
therefore be denied.
¶ 50 Under allegation of harm # 60, examples of incidents that can cause a substantial risk of
physical injury include “[s]ubjecting the child to participation in or witnessing the physical abuse
or restraint of another person when it is used by the perpetrator to intimidate the child.” 89 Ill.
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Admin. Code § 300.Appendix B (Allegation #60). Also, examples of circumstances that may
create real, significant and imminent risk of moderate to sever harm include “situations that place
a child at substantial risk of harm due to the effects of being subject to participation in or the
witnessing of the use of physical force or restraint of another,” particularly during incidents of
domestic violence. Id.
¶ 51 In this case, the evidence clearly showed that plaintiff exposed his child to a substantial
risk of harm when L.I. witnessed the altercation in the police station lobby. The police officers’
testimony supports the ALJ’s findings of neglect, particularly considering plaintiff inflamed the
situation when he spat in the direction of Fabia in the parking lot, which apparently led to the
altercation in the lobby. The evidence also demonstrated that plaintiff did nothing to mitigate the
incident in the lobby and instead continued to aggravate the physical altercation by repeatedly
approached Fabia. The altercation in the lobby occurred in the immediate presence of L.I., who
stood either next to or between his parents as Fabia repeatedly pushed plaintiff away, exposing the
child to a “substantial risk of harm.” Fabia’s conduct during the altercation in no way mitigated
plaintiff as a “[p]erson responsible for the child’s welfare.” 325 ILCS 5/3 (West 2018). The crux
of the evidence shows plaintiff blatantly disregarded the welfare of his child such that a finding of
neglect was appropriate under the circumstances. Indeed, during the administrative hearing,
plaintiff specifically testified, “You know, looking back now, I have no regrets * * * because the
problem is especially [involving] domestic issues, as a man, if you try to defend yourself unless
somebody tr[ies] to strike you and then you defend yourself like this, her hand hit[s] you, then she
will say that you hit her when -- you know, whenever the police come.”
¶ 52 We find DCFS met its burden of proof to show that plaintiff had placed L.I. “at a substantial
risk of harm due to the effects of being subjected to participation in or the witnessing of the use of
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physical force or restraint of another.” 89 Ill. Admin. Code § 300.Appendix B (Allegation #60).
We therefore affirm the findings of the ALJ and the decision of the DCFS acting director denying
plaintiff’s request to expunge the indicated finding of neglect from the state’s central register.
¶ 53 CONCLUSION
¶ 54 We affirm the judgment of the circuit court of Cook County affirming the administrative
agency’s decision and its denial of plaintiff’s request to expunge the indicated finding of neglect
from the state’s central register.
¶ 55 Affirmed.
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