MANUAL FOR EDUCATIONAL INF O

PART III
SAMPLE DOCUMENTS FOR APPEALS

STATE OF ILLINOIS
DEPARTMENT OF CHILDREN AND FAMILY SERVICES ADMINISTRATIVE HEARINGS UNIT

IN RE: EXPUNGEMENT APPEAL OF ) ) _________________________ ) [Your Name] ) ) Appellant. ) )

TO: Administrative Hearings Unit Expungement Appeals

406 E. Monroe St., Station #15 Springfield, Illinois 62701-1498 Fax: 217-557-4652

SCR# __________________

REQUEST FOR AN EXPEDITED ADMINISTRATIVE EXPUNGEMENT APPEAL
I, ________________________, hereby appeal the indicated finding against me in the cause involving the following minor(s): _______________________________. Because I work as a [teacher / day care provider / nurse / bus driver / etc.] and have regular contact with children through my work, I am requesting an expedited appeal. I am requesting a hearing decision within 35 days of DCFS receiving this request. I also request that a copy of the investigative file

page2image9128 page2image9288

be sent to my attention at the following address:

[Your Name]
1234 W. Main St. Chicago, Illinois 60616 Phone: 312-555-1234

Respectfully submitted,

______________________________ [Your Signature]

A-1

STATE OF ILLINOIS
DEPARTMENT OF CHILDREN AND FAMILY SERVICES ADMINISTRATIVE HEARINGS UNIT

IN RE: EXPUNGEMENT APPEAL OF ) ) _________________________ ) [Your Name] ) ) Appellant. ) )

TO: Administrative Hearings Unit Expungement Appeals

406 E. Monroe St., Station #15 Springfield, Illinois 62701-1498 Fax: 217-557-4652

SCR# __________________

REQUEST FOR AN ADMINISTRATIVE EXPUNGEMENT APPEAL
I, ________________________, hereby appeal the indicated finding against me in the cause involving the following minor(s): _______________________________. I am requesting a timely hearing and that a copy of the investigative file be sent to my attention at the following

address:

[Your Name]
1234 W. Main St. Chicago, Illinois 60616 Phone: 312-555-1234

Respectfully submitted,

______________________________ [Your Signature]

A-2

STATE OF ILLINOIS
DEPARTMENT OF CHILDREN AND FAMILY SERVICES ADMINISTRATIVE HEARINGS UNIT

IN RE: EXPUNGEMENT APPEAL OF ) )

_________________________ ) SCR# [Your Name] ) AHU# ) DKT#

      __________________
      __________________
      __________________

[Name of Attorney] Attorney for Department Illinois DCFS
[Street Address]
[City, State, Zip Code] Fax: 312-555-1234

Appellant.

TO: Administrative Law Judge [First and Dep’t of Children & Family Servs. Administrative Hearings Unit [Street Address]

[City, State, Zip Code] Fax: 312-555-1234

) )

Last Name]

page4image8112 page4image8272

APPELLANT’S LIST OF WITNESSES AND EXHIBITS

NOW COMES the Appellant ______________________, and states that she may call the following individuals to testify as witnesses and may present the following exhibits at the hearing on this matter:

A. WITNESSES

[Your Name]
1234 W. Main St. Chicago, Illinois 60616
Jenny Smith
111 Arbor Circle Cincinnati, OH 45255
Dr. Melinda Johnson
Advocate Christ Medical Center 4440 West 95th Street
Oak Lawn, Illinois 60435
Barbara Garcia
Counselor, Behavioral Health Center 3701 Woodfield
Chicago, IL 60098

A-3

page4image15040

5. Any and all witnesses listed by the Department of Children & Family Services. B. EXHIBITS

Photographs of the living room in which the incident is alleged to have occurred
Medical Records from Advocate Christ Medical Center
Excerpts from the DCFS investigative file
Any and all exhibits listed by the Department of Children & Family Services.

[Your Name] Respectfully submitted,
1234 W. Main St.
Chicago, Illinois 60616
Phone: 312-555-1234 ______________________________

[Your Signature]

VIA FACSIMILE to: 312-814-5602

To: Debra Martin and/or Australia Gray-Rogers From: [YourName]
Re: Request for Subpoenas
Date: April 12, 2010

In the matter of ________________________ (SCR#: ______________), for which an administrative hearing is set to take place in the [Name of City] DCFS office on Tuesday, May 18, 2010, please issue subpoenas to the following persons for 1:00 p.m. on the day of hearing:

Dr. Melinda Johnson
Testimony May Be Given Via Telephone Advocate Christ Medical Center
4440 West 95th Street
Oak Lawn, Illinois 60435

Barbara Garcia
Counselor, Behavioral Health Center 3701 Woodfield
Chicago, IL 60098

Thank you, and please contact me with any questions.

__________________________________ [Your Signature]

[Your Name]
1234 W. Main St. Chicago, Illinois 60616 Phone: 312-555-1234

page6image8736 page6image8896

A-4

STATE OF ILLINOIS
DEPARTMENT OF CHILDREN AND FAMILY SERVICES ADMINISTRATIVE HEARINGS UNIT

IN RE: EXPUNGEMENT APPEAL OF ) )

_________________________ ) SCR# [Your Name] ) AHU# ) DKT#

      __________________
      __________________
      __________________

[Name of Attorney] Attorney for Department Illinois DCFS
[Street Address]
[City, State, Zip Code] Fax: 312-555-1234

Appellant.

TO: Administrative Law Judge [First and Dep’t of Children & Family Servs. Administrative Hearings Unit [Street Address]

[City, State, Zip Code] Fax: 312-555-1234

) )

Last Name]

page7image8112 page7image8272

MOTION FOR TESTIMONY BY TELEPHONE
NOW COMES the Appellant, ________________________, and respectfully requests

that this Court, pursuant to Rule 336.170, grant her Motion for Testimony by Telephone, and in support thereof states the following:

1. Appellant has an administrative hearing scheduled for May 18, 2010.

2. As part of her case, Appellant will call several material witnesses for whom testifying in person would be a significant burden.

3. Appellant’s witness Jenny Smith resides in Cincinnati, Ohio, approximately five hours away. Traveling to and from Chicago for this hearing would be a hardship for her.

4. Appellant’s witness Dr. Melinda Johnson is a medical doctor at Advocate Christ Medical Center. Her work schedule and responsibilities do not permit her the time to travel to the administrative hearing.

A-5

page7image15840

WHEREFORE, having demonstrated good cause, Appellant respectfully requests that the above witness be permitted to provide their testimony by telephone.

[Your Name] Respectfully submitted,
1234 W. Main St.
Chicago, Illinois 60616
Phone: 312-555-1234 ______________________________

[Your Signature]

PART IV
TEXT OF DCFS RULES

Introduction to Rules

PART IV. TEXT OF DCFS RULES

The rules and procedures defining how abuse and neglect investigations are to be conducted are at: (1) Rule 300; (2) Procedure 300; (3) Appendix B to Rule 300; and (4) Appendix B to Procedure 300. Appendices B to Rule and Procedure 300 also contain definitions of each of the specific allegations of abuse and neglect. Note that there are both rules and procedures. The rules are codified within the official Illinois Administrative Code at 89 Ill. Admin. Code § 300. The procedures—the numbers of which are identical to the corresponding rule—are internal guidelines and requirements that DCFS has created in order to expand upon the rules found in the Administrative Code. The procedures are only codified in the DCFS Manual and its web page. The process for appealing an indicated finding is in DCFS Rule 336, which is available in Part IV of this Manual.

We have re-printed the text of some of these rules below. The text was obtained from the DCFS Web Resource website on April 12, 2010: http://dcfswebresource.dcfs.illinois.gov/. The DCFS Web Resource website will always contain the most recent version of all documents. Please refer to the DCFS website for the full text and for updates before relying on previously downloaded or printed documents.

page10image11864 page10image12024 page10image12184 page10image12344 page10image12504

B-1

List of DCFS Child Abuse and Neglect Allegations

From Rule 300, Appendix B
For the full text of the definitions of the Allegations, please refer to Rule 300, Appendix B and Procedure 300, Appendix B found on the DCFS Web Resource website at: http://dcfswebresource.dcfs.illinois.gov/.

This Appendix 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 Abused and Neglected Child Reporting Act before the Department will accept a report of child abuse or neglect. The allegation definitions focus upon the harm or the risk of harm to the child. Many of the allegations of harm can be categorized as resulting from either abuse or neglect. All abuse allegations of harm are coded with a one or two digit number under 30. All neglect allegations of harm are coded with a two digit number greater than 50. The allegations of harm are defined as follows:

#1/51 Death
#2/52 Head Injuries
#4/54 Internal Injuries
#5/55 Burns
#6/56 Poison/Noxious Substances
#7/57 Wounds
#9/59 Bone Fractures
#10/60 Substantial Risk of Physical Injury/Environment Injurious to Health and Welfare #11/61 Cuts, Bruises, Welts, Abrasions and Oral Injuries
#12/62 Human Bites
#13/63 Sprains/Dislocations
#14 Tying/Close Confinement
#15/65 Substance Misuse
#16 Torture
#17/67 Mental and Emotional Impairment

#18 Sexually Transmitted Diseases
#19 Sexual Penetration
#20 Sexual Exploitation
#21 Sexual Molestation
#22 Substantial Risk of Sexual Injury

B-2

page11image14712 page11image14872

#74 Inadequate Supervision
#75 Abandonment/Desertion
#76 Inadequate Food

#78 Inadequate Clothing
#79 Medical Neglect

#81 Failure to Thrive (Non-Organic)
#82 Environmental Neglect
#83 Malnutrition (Non Organic)
#84 Lock-Out
#85 Medical Neglect of Disabled Infants

Rule 336:
Appeal of Child Abuse and Neglect Investigation Findings

Section 336.10 Purpose

The purpose of these rules is to explain the review and administrative hearing process the Department guarantees to persons requesting to amend/expunge identifying information from or remove the record of a child abuse or neglect report from the State Central Register.

Section 336.20 Definitions

“Abused child” means a child whose parent or immediate family member, or any person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent:

inflicts, causes to be inflicted, or allows to be inflicted upon such child physical or mental injury, by other than accidental means, which causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function;

creates a substantial risk of physical or mental 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;

commits or allows to be committed any sex offense against such child, as such sex offenses are defined in the Criminal Code of 1961, as amended, and extending those definitions of sex offenses to include children under 18 years of age;

commits or allows to be committed an act or acts of torture upon such child; or

inflicts excessive corporal punishment, or

commits or allows to be committed the offense of female genital mutilation, as defined in Section 12-34 of the Criminal Code of 1961, against the child. [325 ILCS 5/3]

“Administrative hearing” in the context of this Part means a formal review of a decision made by a Department child protection investigator.

“Administrative Law Judge” means a licensed attorney who is appointed by the Director of the Department and is responsible for conducting the administrative hearing, including pre-hearings, and issuing a recommended decision.

B-3

“Amend” as used in this Part means changing an allegation contained in an indicated report of child abuse or neglect or changing identifying information regarding the subjects of an indicated child abuse or neglect report.

“Appeal process” means the prehearing conference and formal administrative hearing.

“Appellant” means the person who requests a review or administrative hearing or in whose behalf a review and administrative hearing is requested.

“Authorized representative” means a person, including an attorney, authorized in writing by a party to assist in the appeals process. If the party is unable to reduce such authorization to writing, the Department, on request, shall assist the party in doing so.

“Chief Administrative Law Judge” means the person who is responsible for the supervision of the Administrative Law Judges and the coordination of the administrative hearing appeal process.

“Child” means any person under the age of 18 years, unless legally emancipated by reason of marriage or entry into a branch of the United States armed services. [325 ILCS 5/31].

“Credible evidence of child abuse or neglect” means that the available facts, when viewed in light of surrounding circumstances, would cause a reasonable person to believe that a child was abused or neglected.

“Date of action” means the date on which any Department action becomes effective.

“Day”, for purposes of computation of time, means calendar day.

“Department” means the Illinois Department of Children and Family Services.

“Department’s representative” means the person who is responsible for presenting the Department’s case.

“Discovery,” for purposes of this Part, means the rights of any party to request and have access to, in advance of the pre-hearing, any documents and list of witnesses in the possession of any other party.

“Expedited Appeals” means appeals that may be requested only by child care workers. Expedited appeals require that the Director issue a final administrative decision within 35 days from the receipt of a written request for an Expedited Appeal in the Department’s Administrative Hearings Unit. The 35-day time period excludes any time attributable to

an appellant’s request for a continuance or any continuance or date set by the agreement of the parties. A Child Care Worker must specifically request an Expedited Appeal in writing at the time of the initial request for an appeal filed with the Department’s Administrative Hearings Unit. Any written request for an appeal that is received by the Department’s Administrative Hearings Unit that does not expressly request an Expedited Appeal will automatically be treated as a regular appeal.

“Expunge”, as used in this Part, means removing identifying information regarding the subjects of an indicated child abuse or neglect report from the computer file of the State Central Register and from paper records kept by the Department.

“Final administrative decision” means the Department’s final decision, order or determination on an appealed issue rendered by the Director in a particular case, which affects the legal rights, duties or privileges of participants and which may be further appealed to the circuit court under the Administrative Review Law.

“Indicated report” means any report of child abuse or neglect made to the Department for which it is determined, after an investigation, that credible evidence of the alleged abuse or neglect exists.

“Individual legally acting on a person’s behalf” means an individual who has been appointed by a court of competent jurisdiction to act on behalf of a person when the person is incompetent, incapacitated, or otherwise determined unable to represent himself or herself.

“Neglected child” means any child who is not receiving the proper or necessary nourishment or medically indicated treatment including food or care denied solely on the basis of present or anticipated mental or physical impairment as determined by a physician acting alone or in consultation with other physicians or otherwise is not receiving proper or necessary support or medical or other remedial care recognized under State law as necessary for a child’s well-being (including where there is harm or substantial risk of harm to the child’s health or welfare), or other care necessary for a child’s well-being, including adequate food, clothing and shelter; or who is abandoned by his or her parents or other person responsible for the child’s welfare without a proper plan of care; or who is a newborn infant whose blood, urine or meconium contains any amount of controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act or a metabolite thereof, with the exception of a controlled substance or metabolite thereof whose presence in the newborn infant is the result of medical treatment administered to the mother or the newborn infant. A child shall not be considered neglected for the sole reason that the child’s parent or other person responsible for his or her welfare has left the child in the care of an adult relative for any period of time. A child shall not be considered neglected or abused for the sole reason that such child’s parent or other person responsible for his or her welfare depends upon spiritual means through prayer alone for the treatment or cure of disease or remedial care under Section 4 of the Abused and Neglected Child Reporting Act. Where the circumstances indicate harm or substantial risk of harm to the child’s health or welfare

and necessary medical care is not being provided to treat or prevent that harm or risk of harm because such parent or other person responsible for the child’s welfare depends upon spiritual means alone for treatment or cure, such child is subject to the requirements of this Act for the reporting of, investigation of, and provision of protective services with respect to such child and his health needs, and in such cases spiritual means through prayer alone for the treatment or cure of disease or for remedial care will not be recognized as a substitute for such necessary medical care, if the Department or, as necessary, a juvenile court determines that medical care is necessary. A child shall not be considered neglected or abused solely because the child is not attending school in accordance with the requirements of Article 26 of the School Code. [325 ILCS 5/3]

“Parents” means the child’s legal parents whose rights have not been terminated.

“Parties” means the Department and those persons who have appealed the final decision(s) made by the Department. No person may join in an appeal unless that person would have standing to appeal the decisions himself or herself.

“Perpetrator” means a person who, as a result of investigation, has been determined by the Department to have caused child abuse or neglect. [325 ILCS 5/3]

“Person responsible for the child’s welfare” means the child’s parent, guardian, foster parent, operator, supervisor, or employee of a public or private residential agency or institution, or public or private profit or not-for-profit child care facility, or any other person responsible for the child’s welfare at the time of the alleged abuse or neglect, or any person who came to know the child through an official capacity or position of trust, including but not limited to health care professionals, educational personnel, recreational supervisors, and volunteers or support personnel in any setting where children may be subject to abuse or neglect. [325 ILCS 5/3]

“Preponderance of the evidence” means the greater weight of the evidence which renders a fact more likely than not.

“Regular appeals” means appeals that may be requested by a child care workers or any other person who has been indicated for child abuse or neglect. Regular appeals require that the Director issue a final administrative decision within 90 days from the receipt of a written request for any appeal in the Department’s Administrative Hearings Unit. The 90- day time period excludes any time attributable to an appellant’s request for a continuance or any continuance or date set by the agreement of the parties. Any written request for an appeal that is received by the Department’s Administrative Hearings Unit that does not expressly request an expedited appeal will automatically be treated as a regular appeal.

“Request for an appeal” means the written request by an appellant for an administrative hearing to determine whether the record of the report should be amended, expunged, or removed on the grounds that it is inaccurate or being maintained in a manner inconsistent with the Abused and Neglected Child Reporting Act. If the appellant is unable to request an appeal in writing, the Agency shall help the appellant put the request in writing.

“State Central Register” means the specialized Department unit that receives and transmits reports of alleged child abuse and neglect.

“Stipulation” means an agreement by the parties that certain facts are true and can be introduced into evidence without further proof.

“Subject of report” means any child reported to the State Central Register, and his or her parent, personal guardian, or other person responsible for the child’s welfare, who is also named in the report. [325 ILCS 5/3]

“Timely written notice” means a notice which complies with the requirements of Section 336.80(b) of this part.

“Unfounded report” means any report of child abuse or neglect for which it is determined, after an investigation, that no credible evidence of the alleged abuse or neglect exists. [325 ILCS 5/3]

“Unknown perpetrator” means a person who may have caused specific abuse or neglect, but has not been identified or made known to the authorities.

Section 336.30 Notice of Department Decision

The State Central Register shall provide a written notification of final disposition of each child abuse and neglect investigation to mandated reporters who reported suspected child abuse or neglect as well as the child’s parent, personal guardian, or legal custodian; the Juvenile Court Judge (when a State ward is involved); the Cook County Public Guardian, Juvenile Division (Cook County Department wards only); and the alleged perpetrator. The notice shall provide the following information:

a) a specific statement whether the Department has determined the report indicated or unfounded as a result of an investigation;

b) thenameoftheperpetrator;
c) the allegation(s) determined indicated;
d) length of time the indicated case shall be retained by the Department;
e) a statement that a Department review of an indicated decision is available;

f) a statement that, if a review of the Department’s decision is desired, it must be requested in writing within 60 days after notification of the completion of the investigation by the Child Protective Service Unit, as determined by the date of the notifications sent by the Department; and

g) the name and address of the individual who must be contacted in order to request a review of the Department’s decision.

Section 336.40 Notice of the Right to Appeal and Receive an Administrative Hearing

a) The Department shall provide clear instructions on how to request and receive an administrative hearing. This explanation shall be provided within 10 days after the final determination has been entered into the State Central Register.

b) Language of Notices

All written notices used in this Part shall be in the primary language of the person to whom the notice is sent.

c) To begin the appeal process the subject shall request in writing that the Department review its decision. The request must be mailed or faxed to the address or fax number designated in the written notice within 60 calendar days after notification of the completion of the investigation by the Child Protective Services Unit, as determined by the date of the notification sent by the Department.

d) Upon receipt of a timely request for an appeal, the Department shall send the appellant within 20 days of the receipt of the request a copy of the investigative file from which confidential information has been deleted in accordance with 89 Ill. Adm. Code 431, Confidentiality of Personal Information of Persons Served by the Department.

e) When requested, Department staff shall assist the subjects of a child abuse or neglect report in preparing a written brief of appeal.

f) The Department shall not hinder an appellant who wishes to proceed with the appeal process.

g) Other Notices

The following notices shall be hand-delivered with a certificate of delivery or sent by certified mail, return receipt requested, to “the addressee only”:

1) notice of pre-hearing conference and administrative hearing dates; and 2) notice of final administrative decision.

Section 336.50 Who May Appeal

Any person who has been named as a subject in an indicated or unfounded report of child abuse or neglect has the right to appeal any of the actions or inactions listed in Section 336.60 of this Part. The appeal may be filed by:

a) the appellant personally; or

b) the appellant’s authorized representative; or

c) an individual legally acting on a person’s behalf. If the appeal is filed by an individual legally acting on a person’s behalf, the individual must provide a certified copy of the court order authorizing the individual to act on behalf of the appellant.

Section 336.60 What May Be Appealed
The following issues may be appealed through the appeal process:

a) an indicated finding of child abuse or neglect;

b) failure to remove an unfounded report of child abuse or neglect from the State Central Register involving the death of a child, the sexual abuse of a child, or serious physical injury to a child after the passage of three years from the date the final finding is entered into the State Central Register, unless the report is being retained as a false report at the subject’s request;

c) failure to remove an unfounded report made by a mandated reporter involving a report designated as a Priority One or Two in Appendix B of 89 Ill. Adm. Code 300 (Reports of Child Abuse and Neglect) after the passage of 12 months from the date the final finding is entered into the State Central Register, unless the report is being retained longer under (b) of this Section or the report is being retained as a false report at the subject’s request;

d) failure to remove an unfounded report made by a mandated reporter involving a report designated as a Priority Three in Appendix B of 89 Ill. Adm. Code 300 (Reports of Child Abuse and Neglect) after passage of 60 days from the date the final finding is entered into the State Central Register, unless the report is being retained longer under (b) or (c) of this Section or the report is being retained as a false report at the subject’s request;

e) failure to remove any other unfounded report, not retained for a longer period of time under any of the preceding subsections, within 30 days from the date thefinal finding is entered into the State Central Register, unless the report is being retained as a false report at the subject’s request;

f) failure to expunge or remove information about an indicated report of child abuse or neglect that the appellant believes is maintained in a manner inconsistent with the Abused and Neglected Child Reporting Act; and

g) whether the Department determined retention period assigned to the indicated report is in accordance with 89 Ill. Adm. Code 431 (Confidentiality of Personal Information of Persons Served by DCFS).

Section 336.70 Appearance/Authorization to Represent

a) During the appeal, parties may represent themselves or may be represented by an Authorized Representative.

b) No person shall be allowed to act as an Authorized Representative in any matter before the Administrative Hearings Unit without first filing a written authorization with the Administrative Hearings Unit. The authorization shall be effective only for the particular matter in which it is filed, unless the matter has been consolidated with other proceedings by order of the Chief Administrative Law Judge or the assigned Administrative Law Judge.

c) No particular form is required to file a written authorization for representation. However, all authorizations filed with the Administrative Hearings Unit shall be notarized, signed by the appellant and Authorized Representative, and identify:

1) the name, address, and phone number of the party represented;
2) the name, address, and phone number of the authorized representative; and 3) the appeal in which representation is authorized.

d) An Authorized Representative may exercise the rights of the appellant in the appeal process. These rights include the right to:

1) review and copy material placed in record during the proceeding;

2) receive Department and Administrative Hearing notices;

3) request and receive discovery materials:

4) speak, or otherwise be heard, on behalf of the appellant in the administrative hearing process;

5) have an interpreter at the Department’s expense; and
6) take any other actions permitted an appellant during the appeal process.

Section 336.80 How to Request a Hearing/Sufficiency

After the Department has indicated a report and issued a notice of a right to an administrative hearing, a subject of a report may appeal by filing a timely and sufficient written Request for Appeal at the offices of the Administrative Hearings Unit.

a) For purposes of determining timeliness, an appeal shall be deemed filed:

1) as of the date of the postmark; or

2) as of the date of receipt by the Administrative Hearings Unit, if the appeal was filed in person at the office of Administrative Hearings Unit; or

3) the date the appeal was received by electronic facsimile transmission at the Administrative Hearings Unit office.

b) When the last day for the filing of an appeal falls upon a day on which the Administrative Hearings Unit is not open for business, an appeal shall be deemed timely if filed by the first regular business day thereafter.

c) An appeal shall be deemed sufficient if it provides the following information in legible form:

1) name, address and phone number (if any) of the appellant and the SCR number; and

2) name, address and phone number of the appellant’s representative (if applicable).

d) In the event that the Chief Administrative Law Judge finds an appeal to be timely but not sufficient (see subsection c (1) and (2) above), the appeal and a request for the required missing information shall be returned to the appellant within five days of receipt by the Administrative Hearings Unit. If the appellant re-files a sufficient appeal within five days from the postmark of the date that appeal is returned, the appeal shall be considered timely. The Administrative Hearings Unit shall not consider an appeal actionable until receipt of a sufficient appeal. If the appeal does not have a legible name or address, the Chief Administrative Law Judge may dismiss the appeal.

e) Appellants unable to file a written request for an appeal may request and receive appropriate assistance from Department field office staff to ensure that a proper written request for an appeal is made.

Section 336.85 Expedited Appeals

a) Child care workers who are the subject of a Department finding that an allegation of child abuse and/or neglect is indicated may request from the Department’s Administrative Hearings Unit an expedited appeal. The written request for an appeal must specifically state that an expedited appeal is being requested. The Department may request that an appellant requesting an expedited appeal provide documentation to confirm his or her status as a child care worker.

b) Within seven days after the Unit’s receipt of the request for an expedited appeal, the Department will set pre-hearing and hearing dates and send the appellant and his or her

page21image21208

representative a notice by certified mail of the dates, along with a copy of the investigative file.

c) The pre-hearing date will be set within 14 days after receipt of the request for expedited appeal. The parties should be prepared to have the Department issue any subpoenas after the conclusion of the pre-hearing conference.

d) The hearing date will be set within seven days after the pre-hearing conference and within 21 days after receipt of the request for expedited appeal. The Department will set aside two consecutive days for the administrative hearing.

e) The Administrative Law Judge will provide the Director with a recommended decision within seven calendar days or five working days after completion of the expedited appeal hearing.

f) The Director will issue a final administrative decision within seven days after receipt of the Administrative Law Judge’s recommended decision and the Director’s decision will be sent to the appellant and his or her representative by certified mail within 35 days after the date on which the expedited appeal request was received.

Section 336.90 Confidentiality During the Expungement Process

a) The Department has an affirmative duty to protect the confidentiality of personal information, in accordance with 89 Ill. Adm. Code 431, Confidentiality of Personal Information of Persons Served by the Department, and the Adoption Assistance and Child Welfare Act of 1980 [42 U.S.C. par 671 9 (a)(8)]. Confidentiality shall be preserved throughout the administrative hearing, the transmittal of the Administrative Law Judge’s recommendation to the Director and the release of the final administrative decision.

b) The Administrative Law Judge has the right to exclude any individual or agency who does not have the right of access to the information being presented in accordance with the Adoption Assistance and Child Welfare Act of 1980, the Children and Family Services Act, the Abused and Neglected Child Reporting Act, and any other pertinent Act.

c) The Administrative Law Judge has the authority to bifurcate the hearing into separate segments which deal with issues of other parties in order to preserve confidentiality as mandated under applicable statutes and rules and to prohibit discussion or introduction of evidence that is outside of the scope of the issues being presented in that segment.

Section 336.100 Rights and Responsibilities in Administrative Hearings

a) An appellant may bring an Authorized Representative to the hearing. Expenses of a representative or of an appellant’s witnesses shall be paid by the appellant.

b) At the appellant’s request, the Department shall arrange for an interpreter at no cost to the appellant if English is not the appellant’s primary language or shall provide a sign interpreter or other assistance for communication if the appellant is hearing impaired.

c) During the administrative hearing, the appellant and the Department have the right to:

1) present and question witnesses;

2) present any information relevant to the issues;

3) question or disprove any information, including an opportunity to question opposing witnesses; and

4) dispose of any disputed issue by mutually agreeing to a resolution any time prior to the conclusion of the administrative hearing.

d) Before and during the administrative hearing:
1) the appellant may withdraw the appeal; and

2) the Department may expunge the indicated finding or amend the indicated finding to delete any information which identifies the appellant as a perpetrator.

e) In an administrative hearing concerning child abuse or neglect reports:

1) the Department carries the burden of proof of justifying the refusal to amend, expunge or remove the record; and

2) the Department must prove that a preponderance of the evidence supports the indicated finding, or that the record of the report is being maintained in a manner consistent with the Abused and Neglected Child Reporting Act and in accordance with Department Rules, 89 Ill. Adm. Code 300, Reports of Child Abuse and Neglect.

f) Hearings shall be recorded on audiotapes. However, any party wishing to have the proceedings recorded by a certified court reporter may do so at the party’s own expense.

g) The Department has an obligation to present evidence which creates a full and complete record, subject to Department rules and statutes on confidentiality.

h) At any time prior to the commencement of the administrative hearing, the Department representative may add or amend the allegations which support the indicated finding against the appellant. The Department representative must notify the appellant and the Administrative Hearings Unit, in writing, of the new or amended allegation and provide the appellant with a concise statement of the facts that form the basis for the new or amended allegation. If the Department representative adds or amends an allegation after

the pre-hearing conference, but prior to the commencement of the administrative hearing, the appellant, upon request, shall be entitled to a continuance for a reasonable period of time. This continuance shall not be attributed to the appellant.

Section 336.110 The Administrative Hearing and Pre-hearing Conference a) The Chief Administrative Law Judge shall:

1) upon notification from the Department’s representative that a criminal or juvenile court action is pending based on the same facts as the administrative expungement appeal, issue a stay of the appeal process for all appellants named as defendants or respondents until a final judicial decision has been made. The time period, from the filing of the criminal charges or the juvenile petition, shall not be considered a delay on the part of the Department in issuing and implementing its final administrative decision.

A) If the circuit court makes a final decision favorable to the appellant, the appellant shall notify the Administrative Hearings Unit in writing that a final order has been entered in the criminal or juvenile case and the Administrative Hearings Unit shall schedule a hearing on the appeal. The appellant shall notify the Administrative Hearings Unit within 45 days after any such decision. If the appellant fails to notify the Administrative Hearings Unit of these findings of fact within 45 days, the appellant shall not be entitled to a hearing under this Part.

B) If the circuit court makes a finding that the alleged perpetrator abused or neglected a child, the Chief Administrative Law Judge or an Administrative Law Judge shall enter an order upholding each indicated finding based on the same facts as the court finding of abuse or neglect and the alleged perpetrator shall not be entitled to a hearing on those indicated findings. If, after entering such an order, there are no remaining indicated findings of abuse or neglect, the Chief Administrative Law Judge or an Administrative Law Judge shall dismiss the appeal.

C) The Administrative Hearings Unit may schedule status hearings to determine the status of any appeal stayed because of circuit court action;

2) in the absence of a pending criminal or juvenile court action or an agreement of the parties, schedule a pre-hearing conference at least 15 days before the first hearing date and a hearing at a date within 70 calendar days after the date of receipt of the appellant’s request for an administrative hearing;

3) ensure that the administrative hearing is scheduled at a time and place reasonably convenient for all parties;

page24image21816 page24image21976

4) provide a written notice to the parties within 10 calendar days after the receipt of a sufficient request for an administrative hearing, which shall contain the following information:

A) the date and time of the pre-hearing conference; B) the date, time, place and the nature of the hearing;

C) the reasons which may be deemed an abandonment of the request for a hearing, thus constituting a waiver of the right to a hearing;

D) a citation to the provision in the Abused and Neglected Child Reporting Act which grants the Department of Children and Family Services the legal authority and jurisdiction to hold this hearing;

E) a reference to the particular Sections of the statutes and administrative rules involved;

F) the allegation(s) that was indicated;

G) the consequences of the appellant’s failure to appear at the pre-hearing conference;

H) the docket number assigned to this case;

I) the name and mailing address of the Administrative Law Judge and all parties, unless the names or addresses are confidential under the Abused and Neglected Child Reporting Act or Department of Children and Family Services Act; and

J) a statement of the parties’ rights during the administrative hearing.

b) The Administrative Law Judge shall address the following issues during the pre- hearing conference:

1) Whether parties have exchanged lists of the persons who will provide testimony during the administrative hearing.

2) Whether children under 14 years of age may testify or be involved in the hearing.

A) Either party requesting that a child under 14 years of age be subpoenaed to testify or be involved in the hearing process must demonstrate at the pre-hearing conference that:

i) the child’s testimony or involvement is essential to a determination of an issue on appeal; and

ii) there is no likelihood of inflicting emotional harm to the particular child involved; and

iii) no alternatives, such as stipulations or transcripts from prior court hearings, exist which may be used as a substitute for the child’s testimony.

B) If
Administrative Law Judge may set any conditions or restrictions, and may use any techniques allowed in any juvenile, civil or criminal court (including but not limited to in camera interviews, questions submitted in writing, exclusion of parties to the proceedings including but not limited to the parents, or change of hearing room or location) that will help minimize any emotional impact on the child.

3) Whether witnesses should be scheduled to testify at specific times.

4) Whether the parties have or will have exchanged records or documents prior to the administrative hearing.

5) Whether the parties can agree upon any facts as true. 6) Motions filed by any party.

A) Any motions from the appellant or the Department shall be filed with the Administrative Law Judge at least 10 calendar days before the pre- hearing.

B) Copies of the motion shall be served upon the Administrative Law Judge, the Administrative Hearings Unit, and the opposing party at least 10 days before the date set for pre-hearing.

C) Any motion that is consistent with administrative practice and procedure and does not infringe upon the Director’s authority may be heard.

7) The need for an interpreter for a party whose primary language is not English or who requires communication assistance.

8) Whether any juvenile or criminal cases related to the indicated finding on appeal are pending in circuit court.

an Administrative Law Judge allows a child to testify, the

c) The pre-hearing conference shall be convened by telephone unless the Administrative Law Judge and the parties agree that the pre-hearing conference shall be held in person. The Administrative Law Judge shall place all telephone calls. The cost of telephone calls shall be borne by the Department. The Administrative Hearings Unit shall arrange for the appellant to use a telephone at a Department Field Office if the appellant has previously notified the Department that he/she does not have access to a telephone.

d) The Administrative Law Judge may order the parties to attend the pre-hearing conference in person without the consent of all parties. If the Administrative Law Judge orders personal attendance, the Administrative Law Judge shall:

1) give written notice to the parties of the date, time and place of the pre-hearing conference; and

2) hold the pre-hearing conference at a place and time convenient for the parties.

Section 336.120 The Administrative Law Judge a) Appointment of the Administrative Law Judge

The Chief Administrative Law Judge shall select a trained, impartial Administrative Law Judge from the available pool to conduct the appeal hearing.

The Administrative Law Judge shall:

1) be an attorney licensed to practice law in the State of Illinois;

2) possess knowledge and information acquired through training and/or experience relevant to the field of child and family welfare law, including familiarity with Department rules, procedures and functions;

3) not have been involved in the decision to take the action being appealed or have rendered legal advice to the decision-maker on the issue; and

4) not have a personal or professional interest that interferes with exercising objectivity or have any bias against the parties or issues appealed. An adverse ruling, in and of itself, shall not constitute bias or conflict of interest.

b) Functions of the Administrative Law Judge

The Administrative Law Judge shall have all authority allowed under the Illinois Administrative Procedure Act [5 ILCS 100]. This authority shall include, but is not limited to, the following:

1) conduct a fair, impartial and formal hearing in which the strict rules of evidence do not apply;

2) provide for the recording of the hearing;

3) inform participants of their individual rights and their responsibilities;

4) conduct pre-hearing telephone conferences between the parties or their authorized representative to provide information about the procedural aspects of the hearing, narrow the issues and discuss possible stipulations and contested points of law, in order to expedite the actual hearing;

5) have the authority to recommend changes in the child abuse and neglect report in the State Central Register;

6) take necessary steps to develop a full and fair record that contains all relevant facts;

7) administer an oath or an affirmation to all witnesses;

8) quash or modify subpoenas for good cause, including but not limited to, relevance, scope, materiality and emotional harm or trauma to the subpoenaed witness;

9) allow into evidence all evidence helpful in determining whether an alleged perpetrator abused or neglected a child, including oral and written reports, which the Administrative Law Judge and the Director may rely upon to the extent of its probative value, even though not competent under the civil rules of evidence;

10) allow into evidence previous statements made by the child relating to abuse or neglect as hearsay exceptions;

11) preserve all documents and evidence for the record;

12) rule upon evidentiary issues and contested issues of law at the hearing or take matters under advisement pending issuance of the written opinion and recommendation;

13) order the removal of any person from the hearing room who is creating a disturbance whether by physical actions, profanity or conduct which disrupts the hearing;

14) identify the issues, consider all relevant facts and receive or request any additional information necessary to decide the matter in dispute, including but not limited to the submission of briefs, memoranda of law, affidavits or post-hearing briefs; and

page28image17208

15) present a written opinion and recommendation to the Director within 15 calendar days after the record of the administrative hearing is completed or transcript is received, whichever is later. This report shall include a recommended decision on whether there is a preponderance of evidence of abuse or neglect based on information in the administrative record. The opinion shall contain findings of fact, conclusions of law and a recommendation.

Section 336.130 Consolidating and Severing Issues and Parties

a) When common issues of fact or law are raised in more than one appeal, the Chief Administrative Law Judge may consolidate the appeals into a single group hearing. Individuals shall be permitted to present their own cases separately. Nothing in this section shall override confidentiality considerations.

b) The Chief Administrative Law Judge may also combine all appeals and issues involving a single appellant, whether arising under this Part or any other part, into one hearing.

c) The Chief Administrative Law Judge, if required for the fair and efficient administration of the hearing or to prevent possible prejudice to the appellant, may sever any party or any issue from the consolidated hearing. The party or issue severed from the consolidated hearing shall be heard separately.

d) The Chief Administrative Law Judge shall decide the order in which to hear any appeal or issue which has been severed.

e) The Chief Administrative Law Judge may delegate any decision under this section to any Administrative Law Judge who has been assigned to hear one or more of the appeals.

Section 336.140 Exchange of Information

a) All requests for information must be in writing and sent to the party from whom the information is sought at least 10 days in advance of the pre-hearing conference. The requestor must send a copy of the request to the Administrative Hearings Unit. A party, without leave of the Administrative Law Judge, may request from any other party:

1) a list of witnesses to be called at the hearing; and

2) copies of all documents that a party intends to present to the Administrative Law Judge at the hearing. The Department does not need to send a copy of the investigative file to the appellant when the Department has previously sent a copy of the investigative file to the appellant pursuant to Section 336.40 (d).

b) A party may not request this information until the first hearing date has been set. All requests for information shall be served on all other parties or their authorized representative. Copies of all requests for information shall be filed with the

Administrative Hearings Unit. All requests for information shall be answered within 10 calendar days after receipt unless, upon good cause shown, leave is sought for additional time to answer.

c) A party may exercise any rights to access any Department record under 89 Ill. Adm. Code 431 (Confidentiality of Personal Information of Persons Served by the Department).

d) No discovery, described in Supreme Court Rule 201 et seq., shall be permitted prior to a hearing except by permission of the Administrative Law Judge.

e) Hearings shall not be delayed to permit the exchange of information unless timeliness and due diligence is shown by the party seeking the information.

f) If a party fails to answer a request for information, the Administrative Law Judge may enter any just and appropriate order to advance the disposition of the matter, including but not limited to:

1) stay any further proceeding until the request for information is answered;

2) bar the testimony of any witness not disclosed in the answer to the request for information; or

3) prohibit the introduction of, or any testimony concerning, any document or evidence not disclosed in an answer to the request for information.

Section 336.150 Continuances

a) No continuance of a scheduled hearing or pre-hearing conference shall be granted by the Administrative Law Judge to any party except for good cause shown. Good cause includes, but is not limited to:

1) sickness or death in the immediate family of the appellant, the Department representative or the authorized representative of the appellant;

2) court or administrative hearing dates scheduled prior to the issuance of the notice of hearing; and

3) the unavailability of a witness.

b) No request for a continuance shall be granted without notice to all parties and an opportunity to object on the record. All motions for continuance shall be disposed of by written order.

c) If a continuance is requested or agreed to by an appellant, the time period between the request for continuance and the continued hearing date shall not be considered a delay on the part of the Department in issuing and implementing its final administrative decision.

d) If a continuance is requested due to the lack of a certified court reporter or interpreter, the party seeking a continuance must demonstrate due diligence in seeking such service for the hearing date.

e) Notices of a continued hearing date need not include any restatement of the rights of the parties.

Section 336.160 Attendance of Witnesses

a) An appellant may require any child protective investigator who was part of the investigation being appealed to attend the hearing by writing to the Department representative no earlier than receipt of the notice of hearing and no later than 14 days before the hearing and requesting that the investigator, who must be identified by name, attend the hearing.

b) The appellant may subpoena any other witness, no earlier than receipt of the notice of hearing and no later than 14 days before the hearing, by requesting that the Chief Administrative Law Judge issue a subpoena to compel the attendance of the witness. Witness fees and travel expenses for persons other than Department employees are the responsibility of the party requesting the subpoena.

Section 336.170 Testimony by Telephone

For good cause shown, the Administrative Law Judge may, on the judge’s own motion or the motion of any party, allow a witness to testify at the administrative hearing by telephone.

Section 336.180 Interpreters

A party whose primary language is not English, or who requires communication assistance, may request an interpreter. The Department shall provide an interpreter at no cost to the party. Unless the interpreter has been requested at least 14 calendar days before the hearing, the time between the request for the interpreter and any continued hearing date occasioned by that request shall not be construed as delay on the part of the Department in issuing and implementing its decision.

Section 336.190 Grounds for Dismissal

a) The Chief Administrative Law Judge or the Administrative Law Judge shall dismiss the appeal on his or her own motion or on the motion of any party when:

1) the Department has already made a final administrative decision on the issue as a result of a previous appeal;

2) the issue is not regarding a child abuse or neglect report as defined in 89 Ill. Adm. Code 300 (Reports of Child Abuse and Neglect);

3) a court has made a judicial decision on the issue being appealed or a judicial finding of child abuse or neglect has been made on the issue and the appellant is requesting that the record of the report of child abuse or neglect be expunged, amended or removed;

4) the request for the appeal was not received within 60 calendar days of the postmarked date of the notice that the report was indicated;

5) the appeal has been withdrawn in writing;
6) the appeal has been abandoned pursuant to 336.200; or

7) the issue is not within the jurisdiction of the Administrative Hearing Unit as set forth in Section 336.60 of this Part.

b) If the Chief Administrative Law Judge finds that the issue is not appealable under this Part but can be appropriately heard through another appeal process, in accordance with 89 Ill. Adm. Code 435 (Administrative Appeals and Hearings), the Department shall forward the appeal to the proper hearing authority and notify the appellant of this action.

Section 336.200 Abandonment of Appeal/Default

a) The Administrative Hearings Unit will declare that the appellant has abandoned the appeal when:

1) the appellant or the appellant’s authorized representative, without good cause, fails to appear at a hearing or pre-hearing without having received a continuance; or

2) the appellant failed to notify the Chief Administrative Law Judge of a change of address and a notice of the administrative hearing, sent to the appellant’s last known address, was returned as “undeliverable,” “unclaimed,” “refused,” “moved,” or “no forwarding address.”

b) Good cause for failure to appear includes, but is not limited to:

1) death or serious illness in the immediate family of the appellant or the appellant’s representative;

2) failure of the Administrative Hearings Unit to give notice of the proceeding to the appellant or the appellant’s representative at the last known address available to the Administrative Hearings Unit; or

3) failure of the Administrative Hearings Unit to give notice by fax, inter-office mail or electronic mail, to the Department representative or the present supervisor of the child protection team with primary case responsibility for the investigation.

c) When the Department fails to appear at a pre-hearing conference or hearing, without good cause, and without having received a continuance, the Administrative Law Judge may issue such orders as are appropriate, including, but not limited to, a finding of default for failure to appear.

d) Any party seeking to vacate an order of abandonment shall file a motion within 14 days of notice of the entry of an order of abandonment or default, showing good cause why the party failed to appear or participate.

Section 336.210 Record of an Administrative Hearing

The record of the administrative hearing and the final administrative decision shall be maintained by the Chief Administrative Law Judge. All final administrative decisions shall be available to any party for public inspection during regular business hours. However, confidential information shall be deleted in accordance with 89 Ill. Adm. Code 431 (Confidentiality of Personal Information of Persons Served by the Department).

Section 336.220 Final Administrative Decision a) Making the Final Administrative Decision

1) The Director of the Department shall receive the Administrative Law Judge’s recommended decision within 35 days after receipt of a timely and sufficient request for an expedited appeal, unless extended by action of the appellant or a stay pending a final judicial decision of a criminal or juvenile court proceeding based upon the same set of facts. Within the same 35 day time period, the Director shall receive and accept, reject, amend or return to the Administrative Hearings Unit for further proceedings the Administrative Law Judge’s recommendation with respect to the expedited appeal. The Director’s decision is the final administrative decision of the Department. If the decision requires corrective action by the Department, the Director shall insure compliance with the decision.

2) The Director of the Department shall receive the Administrative Law Judge’s recommended decision 90 days after receipt of a timely and sufficient request for an appeal, unless extended by action of the appellant or a stay pending a final judicial decision of a criminal or juvenile court proceeding based upon the same set of facts. Within the same 90 day period, the Director shall receive and accept, reject, amend or return to the Administrative Hearings Unit for further proceedings the Administrative Law Judge’s recommendation. The 90 day time period may be extended by the actions of the appellant. The Director’s decision is the final administrative decision of the Department. If the decision requires

corrective action by the Department, the Director shall appoint a Department staff person who shall be responsible for insuring compliance with the decision.

b) Notice of the Availability of Judicial Review

The Department shall include a notice to appellants as part of the final administrative decision. This notice shall include the name of the person responsible for compliance, if applicable, and shall advise the appellants that, under the provisions of the Administrative Review Law [735 ILCS 5/Art. III], they may seek judicial review of the Department’s decision if it is unfavorable to them, within the statutory time frame.

c) Who Receives Copies of the Final Administrative Decision

The appellant or authorized representative, the Department child protective investigation unit, the Department’s representative, the Department’s Office of Legal Services, the Administrative Law Judge, the Chief Administrative Law Judge, and the State Central Register shall receive a copy of the final administrative decision.

d) Notifying Others of the Decision

1) The following persons shall receive a notice of the final administrative decision from the State Central Register:

A) the Illinois Department of Professional Regulation, district, regional and private school superintendents and the State Board of Education when they have been notified that an appeal has been filed in accordance with 89 Ill. Adm. Code 300 (Reports of Child Abuse and Neglect), Section 300.140;

B) administrators of child care facilities and Department licensing staff when the appellant is an employee of a child care facility; and

C) supervisors or administrators notified in accordance with 89 Ill. Adm. Code 300.100 (i).

2) The following persons shall receive a notice of the final administrative decision, if the decision amends, expunges or removes any record made under Section 7.11 of the Abused and Neglected Child Reporting Act [325 ILCS 5/7.17]:

A) parents or personal guardians of the child victims if they are not the same as the appellant;

page34image17784

B) the mandated reporter who originally made the report of child abuse or neglect;

C) the juvenile court judge and guardian ad litem (when a State ward is involved).

Section 336.230 Severability of This Part

If any Court of competent jurisdiction finds that any Section, clause, phrase, or provision of this Part is unconstitutional or invalid for any reason whatsoever, this finding shall not affect the validity of the remaining portions of this Part.

Rule 300:

Reports of Child Abuse and Neglect
Selected Portions—for the full text of this Rule 300 (including full text of the definitions of the Allegations found in Rule 300, Appendix B), please refer to the DCFS Web Resource website at: http://dcfswebresource.dcfs.illinois.gov/.

Section 300.20 Definitions
“Abandonment” means parental conduct that demonstrates the purpose of relinquishing all parental rights and claims to the child. Abandonment is also defined as any parental conduct that evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.

commits or allows to be committed an act or acts of torture upon such child; or inflicts excessive corporal punishment; or

commits or allows to be committed the offense of female genital mutilation, as defined in Section 12-34 of the Criminal Code of 1961, against the child. [325 ILCS 5/3]

“Act” means the Abused and Neglected Child Reporting Act [325 ILCS 5].

“CANTS/SACWIS 8” or “C/S8” means the Department’s document titled Notification of a Report of Suspected Child Abuse and/or Neglect. This document explains the Department’s child abuse/neglect allegation investigation process.

B-4

“CANTS/SACWIS 9” or “C/S9” means the Department’s document titled Notification of Intent to Indicate Child Care Worker for Report of Child Abuse and/or Neglect. This document is used to notify a person that the Department plans to indicate that person as a perpetrator of child abuse/neglect.

“CANTS/SACWIS 10” or “C/S10” means the Department’s document titled Notice of Intent to Indicate a Child Care Worker for Report of Child Abuse and/or Neglect- Questions and Answers. This is an informational document explaining the impact of a determination of indicated child abuse/neglect and the appeal process.

“CANTS/SACWIS 11” or “C/S11” means the Department’s document titled Notification of Indicated Decision in an Employment Related Report of Suspected Child Abuse and/or Neglect. This is the document by which the Department notifies a person that the Department has determined that there is credible evidence that he or she is responsible for the child abuse or neglect described in that document.

“Caregiver” means the child’s parents, guardian, custodian or relative with whom the child lives and who has primary responsibility for the care and supervision of the child.

“Child” means any person under the age of 18 years, unless legally emancipated by reason of marriage or entry into a branch of the United States armed services. [20 ILCS 515/107]

“Child care facility” means any person, group of persons, agency, association or organization, whether established for gain or otherwise, who or which receives or arranges for care or placement of one or more children, unrelated to the operator of the facility, apart from the parents, with or without the transfer of the right of custody in any facility as defined in the Child Care Act of 1969, established and maintained for the care of children. Child care facility includes a relative who is licensed as a foster family home under Section 4 of the Child Care Act of 1969 [225 ILCS 10/2.05].

“Child care worker” means any person that works directly with children, or owners/operators of child care facilities regardless of whether the facility is licensed by the Department of Children and Family Services. Types of facilities include child care institutions; child welfare agencies, day care/night care centers; day care/night care homes; day care/night care group day care homes; group homes; hospitals or health care facilities; school personnel, including school teachers or administrators, but not tenured school teachers or administrators who have other processes available to them; and employees who work with children before and after school programs, recreational programs summer camps or as full-time nannies. Child care workers may also include any person employed in one of these settings but is alleged to be responsible for child abuse or neglect outside of their employment. Child care workers include persons currently engaged in the job placement process as a child care worker; persons currently enrolled in an academic program which leads to a position as a child care worker position; or persons that have applied for a license required for a child care worker position. Persons shall qualify only if, at the time of the notice of the investigation, that

person has applied for or will apply within 180 days for a position as a child care worker; or is enrolled in or will commence within 180 days an academic program which leads to a position as a child care worker; or has applied for a license as a child care worker.

“Child-placing agency” means a licensed public or private agency that receives a child for the purpose of placing or arranging for the placement of the child in a foster family home or other facility for child care, apart from the custody of the child’s parents. [325 ILCS 2/10]

“Child Protective Service Unit” (CPS) means certain specialized State employees of the Department assigned by the Director or his or her designee to perform the duties and responsibilities described under this Part. CPS staff is also referred to as investigative staff. [325 ILCS 5/3]

“Children for whom the Department is legally responsible” means children for whom the Department has temporary protective custody, custody or guardianship via court order, or children whose parents have signed an adoptive surrender or voluntary placement agreement with the Department.

“CPSW” means a Child Protective Service Worker.

“Collateral contact” means obtaining information concerning a child, parent, or other person responsible for the child from a person who has knowledge of the family situation but was not directly involved in referring the child or family to the Department for services.

“Credible evidence of child abuse or neglect” means that the available facts when viewed in light of surrounding circumstances would cause a reasonable person to believe that a child was abused or neglected.

“Delegation of an investigation” means the investigation of a report of child abuse or neglect has been deferred to another authority. The Department maintains responsibility for determining whether the report is indicated or unfounded, entering information about the report in the State Central Register and notifying the subjects of the report and mandated reporters of the results of the investigation.

“Department” or “DCFS” means the Department of Children and Family Services.

“Determination” means a final Department decision about whether there is credible evidence that child abuse or neglect occurred. A determination must be either “indicated” or “unfounded.”

“Disfigurement” means a serious or protracted blemish, scar, or deformity that spoils a person’s appearance or limits bodily functions.

“Emergency medical facility” means a freestanding emergency center or trauma center, as defined in the Emergency Medical Services (EMS) Systems Act. [325 ILCS 2/10]

“Emergency medical professional” includes licensed physicians, and any emergency medical technician-basic, emergency medical technician-intermediate, emergency medical technician-paramedic, trauma nurse specialist, and pre-hospital RN, as defined in the Emergency Medical Services (EMS) Systems Act. [325 ILCS 2/10]

“Fire station” means a fire station within the State that is staffed with at least one full- time emergency medical professional. [325 ILCS 2/10]

“Formal investigation” means those activities conducted by Department investigative staff necessary to make a determination as to whether a report of suspected child abuse or neglect is indicated or unfounded. Such activities shall include: an evaluation of the environment of the child named in the report and any other children in the same environment; a determination of the risk to such children if they continue to remain in the existing environments, as well as a determination of the nature, extent and cause of any condition enumerated in such report, the name, age and condition of other children in the environment; and an evaluation as to whether there would be an immediate and urgent necessity to remove the child from the environment if appropriate family preservation services were provided. After seeing to the safety of the child or children, the Department shall forthwith notify the subjects of the report in writing, of the existence of the report and their rights existing under the Act in regard to amendment or expungement. [325 ILCS 5/3]

“Godparent” is a person who sponsors a child at baptism or one in whom the parents have entrusted a special duty that includes assisting in raising a child if the parent cannot raise the child. The worker shall verify the godparent/godchild relationship by contacting the parents to confirm the fact that they did, in fact, designate the person as the godparent. If the parents are unavailable, the worker should contact other close family members to verify the relationship. If the person is considered to be the child’s godparent, in order for placement to occur, the same placement selection criteria as contained in 89 Ill. Adm. Code. 301.60 (Placement Selection) must be met. If the godparent is not a licensed foster parent, all the conditions currently in effect for placement with relatives in 89 Ill. Adm. Code. 301.80 must be met.

“Hospital” has the same meaning as in the Hospital Licensing Act [210 ILCS 85].

“Initial investigation” means those activities conducted by Department investigative staff to determine whether a report of suspected child abuse or neglect is a good faith indication of abuse or neglect and, therefore, requires a formal investigation. Good faith

in this context means that the report was made with the honest intention to identify actual child abuse or neglect.

“Initial oral report” means a report alleging child abuse or neglect for which the State Central Register has no prior records on the family.

“Involved subject” means a child who is the alleged victim of child abuse or neglect or a person who is the alleged perpetrator of the child abuse or neglect.

“Legal custody” means the relationship created by a court order in the best interest of a newborn infant that imposes on the infant’s custodian the responsibility of physical possession of the infant, the duty to protect, train, and discipline the infant, and the duty to provide the infant with food, shelter, education, and medical care, except as these are limited by parental rights and responsibilities. [312 ILCS 2/10]

“Local law enforcement agency” means the police of a city, town, village or other incorporated area or the sheriff of an unincorporated area or any sworn officer of the Illinois Department of State Police.

“Mandated reporters” means those individuals required to report suspected child abuse or neglect to the Department. A list of these persons and their associated responsibilities is provided in Section 300.30 of this Part.

“Member of the clergy” means a clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs [325 ILCS 5/3]

“Neglected child” means any child who is not receiving the proper or necessary nourishment or medically indicated treatment including food or care not provided solely on the basis of present or anticipated mental or physical impairment as determined by a physician acting alone or in consultation with other physicians or otherwise is not receiving the proper or necessary support or medical or other remedial care recognized under State law as necessary for a child’s well-being (including where there is harm or substantial risk of harm to the child’s health or welfare), or other care necessary for a child’s well-being, including adequate food, clothing and shelter; or who is abandoned by his or her parents or other person responsible for the child’s welfare without a proper plan of care; or who is a newborn infant whose blood, urine or meconium contains any amount of controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act or a metabolite thereof, with the exception of a controlled substance or metabolite thereof whose presence in the newborn infant is the result of medical treatment administered to the mother or newborn infant. A child shall not be considered neglected for the sole reason that the child’s parent or other person responsible for his or her welfare has left the child in the care of an adult relative for any period of time. A child shall not be considered neglected or abused for the sole reason that such child’s parent or other person responsible for his or her welfare depends upon spiritual means through prayer alone for the treatment or cure of disease or remedial care under Section 4 of the Abused and Neglected Child Reporting Act. Where the

circumstances indicate harm or substantial risk of harm to the child’s health or welfare and necessary medical care is not being provided to treat or prevent that harm or risk of harm because such parent or other person responsible for the child’s welfare depends upon spiritual means alone for treatment or cure, such child is subject to the requirements of this Act for the reporting of, investigation of, and provision of protective services with respect to such child and his health needs, and in such cases spiritual means through prayer alone for the treatment or cure of disease or for remedial care will not be recognized as a substitute for such necessary medical care, if the Department or, as necessary, a juvenile court determines that medical care is necessary. A child shall not be considered neglected or abused solely because the child is not attending school in accordance with the requirements of Article 26 of The School Code. [325 ILCS 5/3]

“Newborn infant” means a child who a licensed physician reasonably believes is 7 days old or less at the time the child is initially relinquished to a hospital, police station, fire station, or emergency medical facility, and who is not an abused or a neglected child. [315 ILCS 2/10]

“Perpetrator” means a person who, as a result of investigation, has been determined by the Department to have caused child abuse or neglect.

“Person responsible for the child’s welfare” means the child’s parent, guardian, foster parent, relative caregiver, an operator, supervisor, or employee of a public or private residential agency or institution or public or private profit or not-for-profit child care facility; or any other person responsible for the child’s welfare at the time of the alleged abuse or neglect, or any person who came to know the child through an official capacity or position of trust, including but not limited to health care professionals, educational personnel, recreational supervisors, members of the clergy and volunteers or support personnel in any setting where children may be subject to abuse or neglect. [325 ILCS 5/3]

“Police station” means a municipal police station or a county sheriff’s office. [315 ILCS 2/10]

“Private Guardianship” means an individual person appointed by the court to assume the responsibilities of the guardianship of the person as defined in Section 1-3 of the Juvenile Court Act of 1987 [705 ILCS 405/1-3] or Article XI of the Probate Act of 1975 [755 ILCS 5/Art. XI].

“Relative”, for purposes of placement of children for whom the Department is legally responsible, means any person, 21 years of age or over, other than the parent, who:

is currently related to the child in any of the following ways by blood or adoption: grandparent, sibling, great-grandparent, uncle, aunt, nephew, niece, first cousin, first cousin once removed (children of one’s first cousin to oneself), second cousin (children of first cousins are second cousins to each other), godparent (as defined in this Section), great-uncle, or great-aunt, or

is the spouse of such a relative, or

is the child’s step-father, step-mother, or adult step-brother or step-sister,

Relative also includes a person related in any of the foregoing ways to a sibling of a child, even though the person is not related to the child, when the child and its sibling are placed together with that person. [20 ILCS 505/7(b)]

“Relinquish” means to bring a newborn infant, who a licensed physician reasonably believes is 7 days old or less, to a hospital, police station, fire station, or emergency medical facility and to leave the infant with personnel of the facility, if the person leaving the infant does not express an intent to return for the infant or states that he or she will not return for the infant. In the case of a mother who gives birth to an infant in a hospital, the mother’s act of leaving the new born infant at the hospital without expressing an intent to return for the infant or stating that she will not return for the infant is not a “relinquishment” under the Act. [325 ILCS 2/10]

“State Central Register” is the record of child abuse and/or neglect reports maintained by the Department pursuant to the Act.

“Subject of a report” means any child reported to the child abuse/neglect State Central Register, and his or her parent, personal guardian or other person responsible for the child’s welfare who is named in the report.

“Temporary protective custody” means custody within a hospital or other medical facility or a place previously designated by the Department, subject to review by the Court. Temporary protective custody cannot exceed 48 hours excluding Saturdays, Sundays and holidays.

“Undetermined report” means any report of child abuse or neglect made to the Department in which it was not possible to complete an investigation within 60 days on the basis of information provided to the Department.

“Unfounded report” means any report of child abuse or neglect for which it is determined, after an investigation, that no credible evidence of the alleged abuse or neglect exists.

Section 300.90 Time Frames for the Investigation

The following activities must be completed within the time frames indicated, except as exempted in Section 300.110(d). The time the report was received at the State Central Register begins the investigative process.

In-person contact with alleged child victim or in-person examination of the environment for inadequate shelter and environmental neglect reports only or in-person contact with mothers of infants who are hospitalized with controlled substances in their systems. Contact with mother of hospitalized infants shall be in the environment in which the mother intends to reside with the infant.

Good faith attempt/Begin the initial investigation. The investigation shall begin immediately if the child is believed to be in immediate danger of physical harm or it is likely that the family may flee with the child.

24 hours

page43image10504 page43image10664 page43image10824 page43image10984 page43image11304 page43image11784

In-person contacts with the alleged perpetrator, the children’s caretaker and the alleged child victim if not completed sooner

7 days

page43image14112 page43image14272 page43image14432 page43image14592 page43image14912 page43image15392

Begin the Formal Investigation (Written)

14 days

page43image17096 page43image17256 page43image17416 page43image17576 page43image17896 page43image18376

Final Determination — Formal Investigation (Written)

60 days

Preliminary Investigation Report — If a 30-day extension to the formal investigation is necessary

B-5

Section 300.100 Initial Investigation

a) When a report of child abuse or neglect is received, Department investigative staff will make an initial investigation to validate whether there is reasonable cause to believe that child abuse or neglect exists.

b) The initial investigation will consist of the following steps:

1) in-person contact with all alleged child victims or in-person examination of the environment for inadequate shelter and environmental neglect reports only, and

2) in-person or telephone contact with the reporter, if the reporter’s identity and whereabouts are available and

3) data checks of Departmental and law enforcement records.

4) If the initial investigation is not completed within seven days, the alleged perpetrator and the children’s caretaker shall be contacted.

c) Investigative staff shall begin an investigation within 24 hours after the Department receives a report alleging child abuse or neglect. An investigation shall begin immediately when:

1) a child is believed to be in immediate danger of physical harm; or

2) it is likely that the family may flee with the child.

d) An investigation normally shall be started by in-person contact with all the children alleged to have been abused or neglected. When the incident occurred in a group setting and a number of perpetrators or children are alleged to be involved, contact may be delayed while a comprehensive investigative plan is developed with other investigative bodies (e.g. local law enforcement, the Department of State Police, out-of-state law enforcement, the Federal Bureau of Investigation) as long as the children’s safety can be assured during the delay.

e) However, in some instances, the Department’s good faith attempt to contact the children alleged to have been abused or neglected shall be sufficient to start the investigation. The following constitute good faith attempts to begin the investigation:

B-6

1) when investigative staff learns, upon proceeding to the location given for the children alleged to have been abused or neglected, that the children have disappeared, the family has fled, the address does not exist, no one is at the location, or not all of the children alleged as abused or neglected are at the location; or

2) when the involved child subjects are not accessible; or

3) when the adult caretaker refuses to let child protective service staff see or speak with the involved child subject.

f) Although a good faith attempt to contact the children alleged to be abused or neglected begins the investigation, this good faith attempt does not relieve investigative staff of the responsibility to complete the contacts required by Department rule. Investigative staff will continue to attempt to establish in-person contact with the alleged child victim, conducting a diligent search to locate the child.

g) Investigative staff will examine the following criteria to determine whether there is a good faith indication to believe that abuse or neglect exists:

1) the alleged victim(s) must be less than 18 years of age; and

2) the alleged victim(s) must either have been harmed or must be in substantial risk of harm; and

3) there must be an abusive or neglectful incident or set of circumstances as defined in Appendix B of this Part which caused the alleged harm or substantial risk of harm to the child.

4) for abuse, the alleged perpetrator must be the child’s parent, foster parent, guardian, immediate family member, any individual who resides in the same house as the child, the paramour of the child’s parent or any person responsible for the child’s welfare at the time of the alleged abuse;

5) for neglect, the alleged perpetrator must be the child’s parent, guardian, foster parent or any person responsible for the child’s welfare at the time of the alleged neglect.

h) If any one of the above criteria is not present, a determination will be made that the report does not provide a good faith indication that child abuse or neglect exists, and the investigation will be terminated. If the above criteria are present, investigative staff will begin a formal investigation.

i) If, after the initial investigation, investigative staff determine that:
1) there is good faith indication that child abuse or neglect exists, and

2) the person who is alleged to have caused the abuse or neglect is employed or otherwise engaged in activity resulting in frequent contact with children; and

3) the alleged child abuse or neglect occurred in the course of that employment or activity; then upon commencement of the formal investigation the Department

shall inform the appropriate supervisor or administrator of that employment or activity that a formal investigation has been commenced which may or may not result in an indicated report unless the Director determines that such notification would be detrimental to the Department’s investigation. The Department may also notify the person being investigated, unless the Department determines that such notification would be detrimental to the Department’s investigation.

j) The Department will notify the following persons when an initial investigation determines that a report does not contain a good faith indication that child abuse or neglect exists and, therefore, a formal investigation will not be commenced:

1) mandated reporters,

2) custodial parents, personal guardians and legal custodians of the alleged child victims, and

3) alleged perpetrators.

k) The subjects of the report may request that a report which was not validated by the initial investigation be retained in the Department’s computer and local index files, if the subjects of the report believe that the report was made for harassment purposes. The Department shall honor all such written requests and shall retain these records for five years, as allowed in the Abused and Neglected Child Reporting Act.

Section 300.110 The Formal Investigative Process a) Beginning the Formal Investigation

The formal investigation begins as soon as investigative staff make a determination following the initial investigation that there is reasonable cause to believe that child abuse or neglect exists. Any actions described below which were taken during the initial investigation need not be repeated. Any time frames listed in Section 300.90 which apply to the formal investigation mentioned below are retroactive to the beginning of the initial investigation.

b) Notifications During the Formal Investigation

1) During the first contact, after the formal investigation has begun, with the child’s custodial parent, personal guardian, or legal custodian and the alleged perpetrator, the investigative staff shall notify them in writing that:

A) the Department has received a report alleging abuse or neglect of their child; and

B) the Department is legally mandated to investigate all child abuse or neglect reports; and

C) information concerning the report has been entered into the Department’s files; and

D) the Department will work confidentially with them unless it becomes necessary to share information with authorized individuals or agencies as provided by law in 89 Ill. Adm. Code 431; and

E) the subjects have the right of access to the information in the report with the exception of information which would identify the reporter or persons who cooperated in the investigation.

2) Department investigative staff shall not give Miranda warnings to alleged perpetrators.

c) Required Investigative Contacts

B-7

Investigative staff shall have direct, in-person contact with the alleged child victim, the alleged perpetrator, and the child’s caretaker within seven days after the date the report was received, except in those situations noted in Section 300.110(d). If the subjects of the report do not speak the English language, an interpreter shall be obtained or a worker assigned who speaks the same language as the subjects of the reports.

d) Situations Where the Contact Requirement is Waived 1) In-person contact is not required when:

A) any subject of a child abuse or neglect report refuses to meet with or speak to the investigative worker; and

B) the worker has attempted to involve the local law enforcement agency or the State’s Attorney, but this has failed to gain cooperation.

2) In-person contact is not required when it is documented that a child abuse or neglect subject is inaccessible.

3) In-person contact is not required when it is documented that the investigative worker has made a good faith attempt to locate the subjects of the report, but cannot, after a diligent search, locate them.

e) Collateral Contacts

The Department may make collateral contacts with persons other than the subjects of the report or the reporter to obtain further information regarding suspected child abuse or neglect. When determining whether collateral contacts should be made, the Department shall weigh:

1) the allegations contained in the report; 2) the severity of the incident; and

3) the likelihood that the collateral contact will have relevant information about the allegations or the incident.

f) Administrative Subpoenas

If a mandated reporter who is believed to have information about the subject of a report is not allowed or refuses to speak with or provide documents to a child protective service worker about the reported child or family, an administrative subpoena may be issued to obtain the necessary information. This applies regardless of whether the mandated reporter made the report being investigated. In addition, if a parent, personal guardian, legal custodian, or alleged perpetrator refuses to meet with or speak to a child protective service worker, a subpoena may be issued to obtain the necessary information.

g) Photographs and X-rays

1) Department investigative staff may take or obtain color photographs and x-rays of a child who is the subject of an abuse or neglect report when the child has

observable marks or injuries believed to be caused by abuse or neglect. When the child’s environment creates a substantial risk of injury or other harm, photographs may be taken of the child’s environment.

2) If the child’s parents, personal guardian, or legal custodian can be located, he or she shall be notified of the Department’s intent to secure the photographs or x- rays.

h) Immunity from Liability

1) Any persons, institutions, or agencies shall have immunity from any liability if they, in good faith:

A) report suspected child abuse or neglect;
B) assist in the investigation of a child abuse or neglect report;

C) take temporary protective custody in accordance with Section 300.120; or

D) take photographs or x-rays to substantiate the abuse or neglect report.

2) For purpose of any civil or criminal liability, a person’s good faith in taking the above actions shall be presumed.

i) Final Determinations Regarding Child Abuse or Neglect

1) Investigative staff in their role as mandated reporters may add allegations of abuse or neglect or subjects to a report during the course of the investigation.

2) Upon completion of a formal investigation of abuse or neglect, investigative staff shall make a final determination as to whether a child was abused or neglected. This determination shall be based upon whether the information gathered from other persons during the investigation and the direct observations made by the investigative staff during the investigation constitute credible evidence of child abuse or neglect.

3) Allegations may be determined to be indicated, undetermined, or unfounded.

A) When credible evidence of abuse or neglect has been obtained pertinent to an allegation, the allegation is indicated.

i) If any allegation of child abuse or neglect is indicated, the report is indicated;

ii) investigative staff shall not determine that a report is indicated based solely upon the existence of a prior unfounded report or reports.

iii) A court finding of child abuse or neglect shall be presumptive evidence that the report is indicated.

B) When credible evidence of abuse or neglect has not been obtained, the allegation is unfounded. If all allegations of child abuse or neglect are unfounded, the report is unfounded.

C) When investigative staff have been unable, for good cause, to gather sufficient facts to support a decision within 60 days after the date the report was received, the allegation shall be considered undetermined. Additional periods of 30 days shall then be permitted to complete the investigation, after which a determination shall be made. In the absence of credible evidence of abuse or neglect, the allegations and the report shall be designated unfounded.

D) Good cause for extending the period for making a determination an additional 30 days may include but is not limited to the following reasons:

i) State’s attorneys or law enforcement officials have requested that the Department delay making a determination due to a pending criminal investigation.

ii) Medical or autopsy reports needed to make a determination are still pending after the initial 60 day period.

iii) The report involves an out-of-state investigation and the delay is beyond the Department’s control.

iv) Multiple alleged perpetrators or victims are involved necessitating more time in gathering evidence and conducting interviews.

PART V

ADVANCED ADVOCACY TECHNIQUES TO PROTECT YOUR RIGHT TO A SPEEDY DECISION

PART V. ADVANCED ADVOCACY TECHNIQUES TO PROTECT YOUR RIGHT TO A SPEEDY DECISION

General Overview

The Illinois Supreme Court (in the case Lyon v. Ill. Dep’t of Children & Family Svcs., 209 Ill. 2d 264, 807 N.E.2d 423 (2006)), and the federal court (in the case Dupuy v. Samuels, 141 F. Supp. 2d 1090 (N.D. Ill. 2001)) have said that the right to a timely decision is constitutionally protected. For a standard appeal (i.e., a non-expedited appeal; see pp. 13-14 of this Manual for information on expedited appeals), DCFS is required to issue its final decision within 90 days from the date it received the appellant’s request for an appeal. This means that DCFS is supposed to hold the pre-hearing teleconference, hold the hearing, and issue its decision all within a 90-day timeframe. See Example #1 below. THE CONSEQUENCE OF DCFS’ FAILURE TO MEET THE 90-DAY TIME LIMIT IS THAT THE APPELLANT (YOU) SHOULD WIN EXPUNGEMENT REGARDLESS OF THE MERITS OF THE CASE.

In the usual case, whether or not DCFS has violated this 90-day deadline is not actively debated unless you lose the administrative hearing, and want to seek further review of DCFS’ decision (through an Administrative Review Action filed in Illinois Circuit Court). However, you must remain constantly mindful of the 90-day timeframe in order to make sure that you are not unknowingly giving up (i.e., waiving) the right to have a decision within 90 days. Therefore, this is an issue that you must raise with the ALJ and protect for the record in case you lose your hearing and want to appeal further.

Certain actions on your part will stop the “90-day clock” from ticking (stopping this clock is also known as “tolling” the time). If you request a “continuance” (i.e., a postponement

C-1

page52image15536 page52image15696 page52image15856 page52image16016

of the pre-hearing or hearing), the time between the date of your request and the next date everyone meets (either by phone for a pre-hearing or in-person for the hearing) will be excluded from the 90-day count. In other words, if at any time during the course of the appeal you need to reschedule a date or request more time, the time between the previously scheduled date and the newly scheduled date (either a pre-hearing or hearing) will not be counted as part of the 90-day deadline. See Example #3 below. Also, if you affirmatively agree to a continuance requested by the DCFS attorney, that will also be excluded from the 90-day count. See Example #4 below. You need to be careful; you have no duty or obligation to agree to DCFS requests for continuances. Feel free to object to any requests by the DCFS attorney for later pre-hearing or hearing dates. If you object, the time caused by such DCFS requests should not “stop the clock” on the 90-day deadline.

DCFS has a motive to try to get around the 90-day deadline (35-day deadline for expedited appeals), as this takes pressure off of them to hold hearings and get decisions issued. DCFS attorneys and ALJs may sometimes engage in efforts to persuade appellants to agree to continuances. If the DCFS attorney tells you that they need a later hearing or pre-hearing date, you should make it clear (in a courteous and polite manner) that you are not agreeing to the delay that may be caused by such a request.

page53image12960

Scheduling the Hearing Date

A particularly tricky area in connection with preserving your right to a decision within 90 days is scheduling the hearing date. The best way to protect your right to a decision within 90 days is to “accept” the first date that the ALJ offers you. When it comes time to schedule the hearing date, the ALJ may begin by asking you what date you would like. YOU SHOULD NOT OFFER A DATE!! If you do respond to this question by offering a date, DCFS can later argue that any time between the pre-hearing and the hearing date you chose should be excluded from the 90-day count because by choosing the hearing date, you were essentially requesting a delay of the appeal process.

Instead, if asked by the ALJ what date you want for your hearing, you should politely respond that you will consider the first date that the ALJ has to offer you. See Example #5 below. Keep in mind that the date the ALJ offers cannot be sooner than 14 days from the pre- hearing date (so as to give you and the DCFS attorney time to subpoena your witnesses). If the ALJ tries to offer a date that is less than 14 days from the date of the pre-hearing, you should politely state that your understanding of DCFS Rule 336 is that all parties are entitled to a 14-day window in which to subpoena witnesses.

If you know that the first date the ALJ offers you would be beyond 90 days from the date DCFS received your appeal (again, excluding any delays caused by your own requests for additional time), you must clearly notify the ALJ of that fact, either in writing or during a recorded pre-hearing. You must also state that while you will “accept” that date if it is the earliest the ALJ has to offer, you are not waiving your right to a timely decision. For this reason, it is beneficial for you to keep your own record of how much time is passing so that you can give

C-2

clear notice (preferably in a written letter addressed to both the ALJ and the DCFS attorney) if you have reason to believe that an offered hearing date would violate the 90-day deadline. See Example #6 below.

Finally, one confusing tactic that may be used is for the ALJ to ask if a date that is offered for the hearing is “by agreement.” See Example #7 below. You need to draw the following distinction: being “agreeable” to a date is fine, but having your agreement treated as a request for more time beyond the 35- or 90-day deadlines is not. Therefore, if you are asked whether a proposed date is “by agreement,” you need to say that the date is “acceptable” to you, but that you are not waiving your rights to a timely hearing. You may need to repeat this statement to make it clear on the ALJ’s recording (assuming the ALJ is keeping a tape, which she or he should be doing).

The only time you should waive your rights to a decision within 90 days (or 35 days for an expedited hearing) is when you are the one who needs more time. If you need more time, then you should request a date as soon as possible after the earliest date by which you would be ready for your hearing. For example, if you will be ready for a hearing on January 22, you should say, “Your Honor, I am requesting a continuance to the soonest date you have available after January 22, and I am agreeing to toll the time for the hearing until January 22.”

If you receive an Order in the mail saying a continuance or hearing date was “by agreement” when it was not, you should file a “Motion to Clarify.” In that motion, you should state that you did not agree to the continuance (or that as to scheduling the hearing date, you simply accepted the first date the ALJ offered). Send your motion to the DCFS lawyer and the ALJ. By sending this motion, you will create a written record that you did not give up your right to a timely decision.

page55image17840 page55image18000 page55image18160 page55image18320 page55image18480

Special Note Regarding Expedited Hearings

As explained in the Manual (see pp. 13-14), persons who have contact with children as part of their job (or who are engaged in seeking or training for a job that involves working with children) have the right to a decision within 35 days, instead of 90 days. Generally, all of the guidelines that have been discussed in this section as to preserving your right to a decision within 90 days also apply to preserving your right to a decision within 35 days for expedited hearings. However, there is one difference: in expedited appeals, certain requests you may make for additional time will convert your expedited appeal to a regular 90-day appeal.

When an appellant is receiving an expedited appeal, the first notice that the appellant receives will include:

1. The date and time of the telephonic pre-hearing
2. Two pre-assigned hearing dates (the second date is reserved just in case more time is

needed)
Consistent with DCFS policy, these dates will comply with the 35-day deadline. If the pre- assigned hearing dates simply will not work for you (or one of your essential witnesses) you are free to request a different date. However, if the new date that you request is more than seven days from the pre-assigned hearing date, you will give up your right to receive an expedited appeal and, instead, your appeal will be treated as a regular appeal (and must still be decided within 90 days). In addition, as with a regular 90-day appeal, any time between the pre-assigned hearing date and the new hearing date will not be counted within the 90-day deadline. See Examples #8-10 below for illustrations of this information.

C-3

Counting Time: EXAMPLES

EXAMPLE #1
Let’s say you received notice of your indicated finding on June 1. You decided to appeal the decision and mailed your appeal letter by certified mail on June 10. (Remember, you can follow- up with a fax to speed up the process.) Assuming you did not fax a copy of your appeal letter, let’s assume that DCFS receives your mailed appeal on June 15. You receive a letter from DCFS on June 20 (dated June 16) that states your appeal has been received and your pre-hearing conference will be held on July 3 at 2:30 p.m.

QUESTION: Assuming there are no continuances during the course of your appeal, by what date should you receive the final DCFS decision on your appeal?
ANSWER: September 12, because that is 90 days from June 15 (the date when DCFS received your request for an appeal).

EXAMPLE #2
Same facts as above. Let’s say that at the July 3 pre-hearing, the ALJ offers a hearing date of August 10 and asks if you accept that date.

QUESTION: Should you accept that date? When should you “accept” a hearing date that is offered by the judge?
ANSWER: You should accept the soonest date that is convenient for you, leaving at least 14 days for you to request that DCFS issue subpoenas to your witnesses. (See p. 22 of this Manual for more information regarding subpoenas.) Because a hearing date of August 10 will give you at least 14 days to subpoena your witnesses, you should accept that date so long as you do not have a major scheduling conflict for that day.

C-4

page57image14576 page57image14736 page57image14896 page57image15056

QUESTION: Assuming the hearing takes place on August 10, by what date should you get the decision?
ANSWER: September 12 (90 days from June 15, the date that DCFS received your request).

EXAMPLE #3
Same facts as above. But let’s say that on July 25, you learn that you have to be out of town for work on the day of the hearing. You file a request for a continuance that the ALJ grants, and a new hearing date of August 25 is set.

QUESTION: By what date should you get your decision now?
ANSWER: September 27, which would be 90 days from June 15, plus the extra 15 days resulting from your continuance request (which are considered to “count against” you—in other words, stopping the clock or “tolling” the time).

EXAMPLE #4
Same facts as Example #2, with the ALJ offering a hearing date of August 10. Both you and the DCFS attorney accept that hearing date. Let’s say that on July 25, the DCFS attorney sends a written request for a continuance because she has had knee surgery scheduled for August 10.

QUESTION: Should you agree to the DCFS attorney’s request for a continuance? ANSWER: NO. If you agree, the delay caused by the request will be excluded from the 90- day deadline. Of course, you still want to be courteous, though! You should state the following: “While I have no position as to the DCFS attorney’s request—which seems reasonable in light of the circumstances—I cannot agree to a delay of the hearing and am not waiving any of my rights under Lyon.”

page58image13960 page58image14120 page58image14280 page58image14440 page58image14600 page58image14760 page58image14920

EXAMPLE #5
Same facts as above, but let’s say that at the July 3 pre-hearing instead of offering you a date, the ALJ asks you what date you would like for the hearing.

QUESTION: Do you pick a date that is good for you?
ANSWER: NO! By you picking the date, it could easily be construed as you requesting a delay and, therefore, waiving your right to a timely hearing.
QUESTION: How should you respond to the ALJ’s question?
ANSWER: You should state as follows: “Judge, I would consider whatever date the Administrative Hearings Unit has to offer that still gives me 14 days to request subpoenas.” (See p. 22 of this Manual regarding subpoenas.)

EXAMPLE #6
Same facts as above, but let’s say that at the pre-hearing (taking place on July 3), instead of offering you a hearing date of August 10, the ALJ offers you a hearing date of September 15. The DCFS attorney quickly agrees to that date and the ALJ asks if you will also agree to that date for the hearing. You know that because DCFS received your appeal request on June 15, a hearing date of September 15 would be beyond the 90-day time limit.

QUESTION: What do you say?
ANSWER: First, you should tell the judge and the DCFS attorney that according to your count, that date would be beyond the 90-day deadline required by Lyon and, therefore, you are requesting a sooner date if possible (that would still allow you 14 days in which to issue your subpoenas).
QUESTION: What if the ALJ says that September 15 is the only date that works for her and asks if you “agree” to this date?

page59image14704 page59image14864 page59image15024 page59image15184 page59image15344 page59image15504 page59image15664 page59image15824

ANSWER: You should state the following: “Since it is the earliest date AHU has to offer, I accept the date, but I do not waive any of my rights or objections under Lyon.” If the judge keeps asking you to agree, just keep repeating the same as above: you accept the date.

EXAMPLE #7
Same facts as in Example #2. Let’s say that at the July 3 pre-hearing, the ALJ offers you a hearing date of August 10. When you state that you find that date acceptable, the ALJ says, “Okay, so that date is by agreement?”

QUESTION: Should you say anything?
ANSWER: As noted above, it is important to make clear the distinction between a date that is “acceptable” and a date that is “by agreement” in order to fully preserve your rights. If the ALJ is repeatedly asking you to state that the date is by agreement, just keep repeating the following: “I am accepting the date offered by AHU of August 10, and I am not waiving any of my rights to a timely decision.”

EXAMPLE #8
New facts: Let’s say that you are a child care worker and that on April 1, you faxed in a request for an expedited hearing. On April 3, you receive a letter from DCFS informing you that your pre-hearing will take place April 10 and that the two hearing dates that have been reserved for your hearing are April 15 and April 16.

QUESTION: Assuming there are no requests for continuances during the course of your appeal, by what date should you receive the final DCFS decision on your expedited appeal? ANSWER: May 5, because that is 35 days from April 1 (the date when DCFS received your request for an appeal).

page60image15128 page60image15288 page60image15448 page60image15608 page60image15768

EXAMPLE #9
Same facts as in Example #8, but let’s say that you have an unavoidable conflict for April 15 and April 16.

QUESTION: If you request a new hearing date of either April 19, 20, 21, or 22, do you waive your right to an expedited appeal?
ANSWER: No—because the new hearing date you are requesting falls within 7 days from the originally-assigned date, you are still entitled to your expedited appeal.

QUESTION: If the hearing is re-scheduled for April 20 and April 21, by what date should you receive the final decision?
ANSWER: May 10, which would be 35 days from April 1, plus the extra 5 days resulting from your request for a new hearing date.

EXAMPLE #10
Same facts as Example #9, except let’s say that you request a new hearing date no earlier than April 30.

QUESTION: By requesting a continuance until at least April 30, do you waive your right to an expedited appeal?
ANSWER: YES—because the soonest hearing date you are requesting falls beyond 7 days from the originally-assigned date, your appeal will convert to a regular appeal. You will still be entitled to a hearing decision within 90 days from when DCFS received your appeal. QUESTION: Let’s say that after receiving your request, the hearing is re-scheduled for May 5. By what date should you receive the final decision?

ANSWER: July 19, which would be 90 days from June 1, plus the extra 20 days resulting from your request for a new hearing date.

page61image13768 page61image13928 page61image14088 page61image14248 page61image14408 page61image14568 page61image14728 page61image14888

PART VI
SAMPLE DCFS INVESTIGATIVE FILE

PART VI. SAMPLE DCFS INVESTIGATIVE FILE Introduction and Description (D-1)

We include below a list of the sections of the sample DCFS file we are including, as well as a brief description of how each section may be useful to you (the number following the title of the section corresponds with the number listed in the Table of Contents at the beginning of this Manual). Following this set of descriptions you will find the actual sample sections (which will have the corresponding number stamped in the lower left-hand corner of the page). Keep in mind that because these sample sections have been taken from the actual DCFS investigative files of some of our clients, they have been heavily redacted. The DCFS investigative file you receive for your case should only have the name of the Hotline reporter redacted.
Standard Notice of Indicated Finding (D-2)

This Notice is used to inform people of an indicated finding. (Please note that we do expect DCFS to soon be using a revised version of this Notice.) This Notice informs you of the specific allegation(s) for which DCFS has indicated you. Although each allegation has an assigned number in the DCFS allegation system (see p. 1 in the Manual for a description of the DCFS allegation system and document B-2 for a full list of DCFS allegations), the number is not stated on the Notice of Indicated Finding. This Notice also tells you for how long the allegation will be kept in the State Central Register if you do not successfully appeal it.

As explained in the Manual (see p. 10), you have a 60-day deadline by which you must file your Request for Appeal. The 60 days begins according to the date listed at the top of this Notice of Indicated Finding. For the sample included at C-2 of this Manual, the date listed on the

D-1

Notice is January 25, 2010. Therefore, in this sample case the Request for Appeal must be filed no later than March 25, 2010.

Do keep in mind the 90-day deadline by which DCFS must issue its final decision begins from the day that DCFS receives your Request for Appeal. Faxing your Request to the Administrative Hearings Unit (217-557-4652) is the best way to trigger the 90-day deadline quickly. (See pp. 17-18 and Part V of this Manual for more information on preserving your right to a timely hearing.) Faxing your Request will also enable you to have a fax confirmation sheet, providing proof that you faxed your Request. For these reasons, we recommend faxing your Request as well as mailing it.
Investigation Summary (D-3)

The investigation summary is the central decision-making document DCFS uses to justify its indicated reports. This form will tell you a lot of useful information. First, the top of this form documents when the Hotline call was made (next to “Report Date/Time”) and when the indicated finding was made (next to “Date”). It also reveals whether or not the investigation due dates were met, which can be useful to know when you are analyzing how careful, thorough, and timely DCFS investigators were in handing the investigation.

The middle section of p. 1 just relates to whether there is a “follow-up” case for intact services. The bottom section of p. 1 includes the names and demographic information for the subjects of the investigation. Both children and adults are considered “subjects.”

On p. 2 there is a statement of which DCFS Allegation of Harm was investigated. This page also includes a Narrative from the Hotline report. Although there will be some redactions in order to protect the identity of the child abuse reporter, there should be enough narrative for you to know the main factual claims that started the investigation.

There will be references to “reporter/source/OPWI.” “OPWI” means “other person with information.” These names may be redacted. You may also see the word “Burgos,” which is a code DCFS utilizes to identify those persons who speak primarily Spanish. DCFS is expected to provide notices in Spanish for these individuals.

The heart of this form is found under “Allegations/Relationships” (bottom section of p. 3 in the sample file). In this section, you will find a summary of the reasons why DCFS decided to indicate or unfound each allegation. DCFS lists each allegation it investigated and makes a determination as to each one (this includes separate determinations for each possible alleged victim). Then DCFS is required to “List all evidence that suggests an incident occurred and that the alleged perpetrator is responsible.” This list should include the main reasons DCFS had for indicating you.

The next section—“List all evidence that suggests an incident did not occur or that the alleged perpetrator is not responsible”—is where the main evidence in your favor should be listed. DCFS OFTEN FILLS THIS PART OUT INCORRECTLY. This will be important for you to review, especially if this section fails to mention important and favorable information that DCFS obtained during the investigation or if this section actually lists unfavorable information.

Finally, there is also a section where DCFS should provide a “Rationale” for indicating you. In some cases that are well-handled, the rationale will actually discuss the reasons. But in many cases this section will just repeat the evidence against you and not explain why that evidence was stronger than the evidence in your favor. If the “Rationale” in your case is incomplete or inaccurate, you can bring this out in your cross-examination of the investigator.

page65image14720

Risk and Safety Assessments (D-4)
The “Risk Assessment Summary” is completed at the end of an investigation, while a

“Safety Determination Form” is completed at the very beginning of an investigation. Sometimes, there may be multiple “Safety Determination Forms” completed during the course of an investigation. These forms are not used in the determination of whether or not to indicate a report of child abuse or neglect. It may be that the information DCFS included on these forms in your case is inaccurate. However, because DCFS does not use these forms to determine the indicated finding, we do not recommend that you focus your energy on analyzing or asking questions about these forms when you prepare for your hearing.

Contact Notes (D-5)
These notes are the heart of the case because they show every contact DCFS made—or

didn’t make—during the investigation. You need to read these carefully. Note the date and time of the contact to make sure that there is not a huge gap between the date of the contact and the date the Note was created. If you find a huge gap, you can ask about it and then argue that the file was not kept “contemporaneously” and should not be admitted into evidence.

The notes themselves tell you the information DCFS gathered and (in most instances) from what source DCFS gathered that information. If there are errors in the notes (because they were mistranscribed or misunderstood by DCFS), you will want to bring that out in your hearing.

Look for what is missing as well as what is there. If a note of an essential witness does not have detailed information that would have been important to ask, you can bring that out in your cross-examination. We recommend making notes on the file that you bring with you to your hearing.

Domestic Violence Screen (D-6)
DCFS policies require that the investigator fill out this form (as well as the Substance

Abuse Screen) in each case, and they are usually contained towards the end of the investigative file. However, DCFS investigators often fill out these forms very quickly and without any real questions having been asked. If DCFS filled out these forms incorrectly, you may wish to bring out these errors.

Redaction Checklist (D-7)
This lists all the laws that allow DCFS to black out information in the file. This form will

be included in your packet. If you think there was over-redaction (too much blacking out of information so that you cannot read the file sufficiently), you can ask the judge to order disclosure of overly-redacted parts. Keep in mind that DCFS will not reveal who was the “child abuse reporter” except under very unusual circumstances. For that reason, it is generally not worthwhile to try to get disclosure of that information.

Police Report Redaction Notice (D-8)
This form simply tells you if the case had a police report associated with it. If DCFS

never obtained a police report in connection with the investigation, option “b” will be checked. However, if option “a” is checked, that means that DCFS does have a copy of a police report. If this is the case, then you will need to request a copy of that police report either from the DCFS attorney (if he or she has it) or from the police department itself. DCFS does not include the police reports in the files it sends to appellants but getting the report may be important to prepare your appeal. Sometimes police reports are very helpful because the police version of the same event may be very different from DCFS’ version. In other cases you will simply need the police report in order to prepare your own cross-examination of a police officer.

Notice of Pre-Hearing (D-9)
This is the notice you will receive when your “pre-hearing” conference is scheduled. This

notice will list the date and time that the DCFS ALJ will call you at the telephone number you listed on your Request for Appeal. (If you have requested an expedited appeal, this notice should also include the date of the hearing—if you have requested an expedited appeal and you believe that you are eligible to receive one, you should immediately contact the DCFS Administrative Hearings Unit (217-782-6655) if this notice does not include a hearing date.)

This notice will also tell you the name of the assigned ALJ and the assigned DCFS attorney. DCFS frequently assigns an attorney different from the one listed after this notice is sent to you, but you can call the attorney whose name you are given to find out if that attorney will be handling the case for DCFS or if you should contact another DCFS attorney. You should contact DCFS attorneys in order to (a) get missing file information; (b) provide your own witness and exhibit list and get the DCFS list from them; and (c) discuss the possibility of settlement, which could include DCFS voluntarily unfounding the indicated report.

Will County Pro-se