ILLINOIS OFFICIAL REPORTS
Appellate Court
Julie Q. v. Department of Children & Family Services, 2011 IL App (2d) 100643
Appellate Court JULIE Q., Plaintiff-Appellant, v. THE DEPARTMENT OF CHILDREN
Caption AND FAMILY SERVICES and ERWIN McEWEN, as Director of the
Department of Children and Family Services, Defendants-Appellees.
District & No. Second District
Docket No. 2-10-0643
Filed December 22, 2011
Held An indicated finding of neglect arising from an incident in 2008 in which
(Note: This syllabus plaintiff was allegedly intoxicated and locked her child in her bedroom
constitutes no part of was reversed, since the finding was against the manifest weight of the
the opinion of the court evidence where the administrative law judge improperly relied on other,
but has been prepared unfounded incidents involving plaintiff’s abuse of alcohol to impeach
by the Reporter of plaintiff’s testimony that she had been sober since 2006.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Lake County, No. 09-MR-1461; the
Review Hon. Raymond J. McKoski, Judge, presiding.
Judgment Vacated and reversed.
Counsel on Elizabeth Butler and Melissa L. Staas, both of Family Defense Center,
Appeal and Michael T. Brody and Michael F. Otto, both of Jenner & Block, LLP,
both of Chicago, for appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Jan E. Hughes, Assistant Attorney General, of
counsel), for appellees.
Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Justice Zenoff concurred in the judgment and opinion.
Justice Birkett specially concurred, with opinion.
OPINION
¶1 In this administrative review proceeding, plaintiff, Julie Q., appeals the trial court’s
judgment affirming the indicated finding of defendants, the Department of Children and
Family Services (DCFS) and Erwin McEwen, in his capacity as director of DCFS, which
found that plaintiff neglected her minor child, M.Q. This appeal stems from DCFS’s March
13, 2009, determination that plaintiff should be indicated for child neglect in the State
Central Register. Plaintiff appealed the indicated finding through DCFS administrative
procedures, and DCFS denied plaintiff’s appeal. Plaintiff brought an administrative review
action in the trial court. On June 2, 2010, the trial court affirmed the administrative ruling.
Plaintiff now appeals from the trial court’s judgment.
¶2 Plaintiff contends that we should reverse the trial court’s judgment and vacate DCFS’s
indicated finding. In support, plaintiff argues that (1) DCFS’s indicated finding is invalid
because the allegation that forms the basis of the finding is void as a matter of law; (2)
DCFS’s indicated finding was against the manifest weight of the evidence; and (3) DCFS’s
indicated finding must be expunged because DCFS failed to provide plaintiff with a timely
resolution of her appeal. We reverse the trial court’s decision and vacate the indicated
finding.
¶3 The indicated finding of child neglect stemmed from an incident that took place on
January 29, 2009. At approximately 9 p.m. on that date, plaintiff, a recovering alcoholic, and
M.Q., plaintiff’s nine-year-old child, had a disagreement after M.Q. repeatedly left her bed
and asked to sleep with plaintiff. Plaintiff insisted that M.Q. sleep in her own bed. The
following day, M.Q. informed her father Chris Q., plaintiff’s estranged husband, that plaintiff
had locked her in her room and that she believed that plaintiff had been drinking. Chris
reported the incident to DCFS.
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¶4 On February 17, 2009, plaintiff received a phone call from DCFS investigator Lavern
Robinson. Robinson informed plaintiff that DCFS had received a complaint that on the
evening of January 29, 2009, plaintiff had locked M.Q. in her bedroom. DCFS was
investigating whether plaintiff should be indicated as neglecting M.Q., based on allegation
No. 10/60 as found in title 89, appendix B, of the Illinois Administrative Code. Allegation
No. 10/60 is entitled, “Substantial Risk of Physical Injury/Environment Injurious to Health
and Welfare,” and provides that a parent has harmed a child in such a manner that:
“the total circumstances lead a reasonable person to believe that the child is in substantial
risk ***. This allegation of harm also includes *** placing a child in an environment that
is injurious to the child’s health and welfare ***.” 89 Ill. Adm. Code 300, app. B, No.
10/60 (2011).
Plaintiff denied the allegation and informed Robinson that M.Q.’s bedroom door did not
have a lock. Plaintiff admitted to Robinson that she had a history of alcohol addiction but
stated that she was not drinking on January 29, 2009. The following day, Robinson visited
plaintiff’s home. M.Q. reported to Robinson that she was not locked in her room on January
29, 2009, but that she was frightened and could not use the telephone that evening because
she was told not to come out of her room. She further reported that she believed that plaintiff
was drinking that evening because plaintiff slurred her speech. Robinson believed that M.Q.
was credible.
¶5 Robinson requested that plaintiff be evaluated by the Northern Illinois Council on
Alcohol and Substance Abuse (NICASA). Ana Ramos, a substance abuse counselor with
NICASA, counseled plaintiff from March 24, 2009, until April 28, 2009. During this time,
plaintiff attended classes at NICASA twice weekly and was tested for drugs and alcohol; all
tests were negative.
¶6 Robinson spoke with her supervisor and determined that, due to plaintiff’s history of
drinking in the home, the injurious environment it created, and the substantial risk of injury
to M.Q., plaintiff should be indicated for neglect. Robinson made the determination “based
on [plaintiff’s] history of drinking in the home is where the alleged incident takes [sic] place,
the substantial risk of injury or environment is [sic] risk to the health of the child.”
¶7 On March 13, 2009, DCFS entered its initial indicated finding of neglect against plaintiff.
On March 27, 2009, plaintiff filed a notice of appeal with DCFS. Numerous continuances
followed; the parties dispute which party caused the various continuances. On June 23, 2009,
an administrative hearing commenced.
¶8 Plaintiff testified regarding the events of January 29, 2009. She admitted that she and
M.Q. became engaged in a disagreement sometime after 9 p.m. because M.Q. repeatedly left
her bed, but she stated that M.Q. was not physically prevented from leaving her room.
Plaintiff testified that she did not drink alcohol on January 29, 2009, but admitted that she
was a recovering alcoholic.
¶9 Plaintiff testified that, in 2004, she was acquitted of driving under the influence. She
testified that, in 2005, she pleaded guilty to driving under the influence and was charged with
but not convicted of domestic violence. Thereafter, she received inpatient substance abuse
treatment twice: in July 2005 and in January 2006. She testified that in early 2009 she was
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attending Alcoholics Anonymous meetings two to four times per week and attending
sessions once a week with a substance abuse therapist, David Gates, where she was randomly
tested for alcohol. Plaintiff testified that without prior warning, Gates would test her saliva
for any trace of alcohol; all tests were negative. Plaintiff further testified that she had been
sober for three years prior to the alleged January 2009 incident.
¶ 10 After plaintiff testified regarding her sobriety, DCFS inquired about an incident in July
2008, when the Lake Bluff police came to her home. Counsel for plaintiff objected, arguing
that the incident was irrelevant to the January 2009 incident. DCFS responded that, because
plaintiff testified that she had been sober since 2006, the July 2008 incident was “dispositive
as to whether she’s been maintaining her sobriety or not.” DCFS’s administrative law judge
(the ALJ) overruled the objection.
¶ 11 Plaintiff testified that, in July 2008, M.Q. called 911 claiming that she found an open
bottle of wine and a full glass of wine in their home while plaintiff was asleep. Plaintiff
testified that she was not drinking that night and that she refused to take a Breathalyzer test
when the police offered her one, because she was angry that the police were in her home,
going through her cabinets.
¶ 12 Over further objection by plaintiff’s counsel, opposing counsel questioned plaintiff
regarding another incident, in May 2009. Plaintiff testified that, after plaintiff grounded M.Q.
because she lied about doing her homework, M.Q. called Chris, and Chris called the police.
The police arrived at plaintiff’s home and asked her to take a Breathalyzer test. Plaintiff
testified that she agreed to the test but that the officers left without administering it, after
receiving an emergency dispatch. Plaintiff testified that she agreed to let the police take M.Q.
and place her in Chris’s custody, although she was not happy about it. Plaintiff testified that
DCFS had investigated the events of July 2008 and May 2009 and that on both occasions the
reports were deemed unfounded.
¶ 13 Over further objection by plaintiff’s counsel that the incidents were collateral, the ALJ
permitted DCFS to introduce police testimony regarding the July 2008 and May 2009
incidents. Lake Bluff police sergeant Keith Landy testified that, on July 26, 2008, he and
another officer responded to a call at plaintiff’s address. According to the dispatch, a minor
child could not wake her mother and was frightened. Upon the officers’ arrival, M.Q. told
the officers that she was unable to wake her mother and thought that her mother was drunk.
M.Q. showed the officers a glass containing a liquid that Landy believed was wine. Landy
testified that, although plaintiff was awake when he entered the home, he believed that she
was under the influence of alcohol, because she had glassy eyes, had slurred speech, and
smelled of alcohol. Landy testified that plaintiff did not take a Breathalyzer test, but he could
not recall why the test was not administered. Landy testified that he did not take M.Q. into
protective custody, because the house was neat, there was food in the refrigerator, and “there
was no imminent danger to [M.Q.]; her mom was just sleeping in the bedroom.”
¶ 14 Lake Bluff police officer Lisa Davidson testified that, in May 2009, she responded to a
call at plaintiff’s home for an “unknown problem.” Davidson testified that, when she arrived,
M.Q. met her outside the house and told her that plaintiff was drinking. M.Q. also told
Davidson that “her mom had ‘slurped’ her words” and “threw a glass towards her.”
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According to Davidson, plaintiff denied that she was drinking and denied that she threw a
glass at M.Q. Davidson testified that she did not observe plaintiff slur her words, did not
smell alcohol on plaintiff’s breath, and observed nothing that indicated that plaintiff had been
drinking. Davidson testified that plaintiff agreed to take a Breathalyzer test but that the test
was never administered because Davidson received another dispatch call and never returned.
¶ 15 Dr. Frances Pacheco, a court-appointed custody evaluator, testified on behalf of DCFS.
Pacheco testified that she recommended that Chris be granted sole custody because, based
on statements by Chris, M.Q., and plaintiff’s other child, Pacheco “had some concerns that
[plaintiff] had relapsed, that she was drinking alcohol.” Pacheco admitted that Chris had told
M.Q. “many things that are inappropriate to tell a child,” including “inappropriate things
about [plaintiff’s] alcoholism” which could have caused M.Q. to have an increased level of
fear regarding alcoholism. Pacheco also admitted that she was aware that M.Q.’s school had
identified M.Q. as having behavioral issues relating to untruthfulness.
¶ 16 Chris testified that plaintiff had received inpatient treatment for alcoholism and he
testified regarding plaintiff’s struggles with alcohol. He admitted that he was not at plaintiff’s
home on January 29, 2009. He testified that from 2006 through 2009, M.Q. complained to
him that plaintiff was drinking. Chris admitted that M.Q. had lied about being locked in her
room on the evening of January 29, 2009. The June 23, 2009, hearing recessed at 6 p.m.,
before DCFS concluded its case in chief. The matter was continued to July 20, 2009.
¶ 17 On July 20, 2009, DCFS continued its case in chief. Robinson testified regarding her
investigation. DCFS offered into evidence plaintiff’s entire DCFS file, including the notes
of another DCFS investigator, Analia Cobrda, from a prior interview with M.Q. Plaintiff
objected to the admission of those notes on hearsay grounds, as Cobrda did not testify.
Plaintiff’s objection was overruled, and the entire file was admitted into evidence because
the notes concerned M.Q.’s statements regarding abuse and neglect. According to Cobrda’s
notes, M.Q. told her that on January 29, 2009, she did not see any alcoholic beverages but
believed that her mother was drunk because she was slurring her words, smelled like alcohol,
and was not acting like herself. Robinson admitted that she had not met Cobrda. She further
admitted that she considered Cobrda’s notes when determining that plaintiff should be
indicated for neglect.
¶ 18 After DCFS rested, plaintiff called several witnesses. Gates testified as a stipulated expert
in family therapy and alcohol and substance abuse. He testified that he counseled plaintiff
between December 2008 and April 2009. In his opinion, in 2006, plaintiff was in the late
stage of alcoholism. He testified that it was highly unlikely that plaintiff could drink
intermittently, because late-stage alcoholics have completely lost control. Gates testified that
he administered random alcohol tests to plaintiff during February and March of 2009. All
tests were negative. Gates testified that, as far as he knew, plaintiff was a recovering
alcoholic. Although he could not guarantee that plaintiff was not drinking, he testified that
she was regularly attending her Alcoholics Anonymous meetings and therapy. He testified
that he believed that Robinson mischaracterized his statement to her and that he left multiple
phone messages for Robinson in an attempt to correct matters, but that she never returned
his calls.
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¶ 19 Ana Ramos testified that, since March 24, 2009, she had been plaintiff’s substance abuse
counselor at NICASA. She testified that plaintiff had perfect attendance at her twice-weekly
NICASA sessions. At NICASA, plaintiff was subject to urine tests for alcohol and drugs, and
the tests always came back negative. She testified that there was never any indication that
plaintiff was actively abusing alcohol. Ramos testified that, although she attempted numerous
times to contact Robinson, Robinson never returned her calls.
¶ 20 Magrit Burke testified by telephone that she was plaintiff’s Alcoholics Anonymous
sponsor and had been for three years. She testified that she was familiar with the symptoms
of intoxication. Burke testified that she saw plaintiff “a couple of times each week” and that
plaintiff never appeared intoxicated.
¶ 21 Jennifer Perlis-Glassman testified that she was a social worker at M.Q.’s school and
spoke to plaintiff approximately once a month. She testified that plaintiff was an involved
parent, concerned about M.Q.’s education and well-being. Perlis-Glassman further testified
that plaintiff was open with her regarding her alcoholism, treatment, and recovery. Perlis-
Glassman testified that, in November and December of 2007, M.Q. told her that she did not
feel safe with her mother. Perlis-Glassman believed M.Q. at the time but had never seen any
indication that plaintiff was drinking. Perlis-Glassman testified that M.Q. had made false
statements to her, which she believed was common with kids.
¶ 22 On August 13, 2009, the ALJ issued his or her recommendations and opinion. The ALJ
found that plaintiff was not a credible witness and rejected her contention that she had been
sober since 2006. The ALJ recommended that the appeal be denied because DCFS “carried
the burden of proof with regard to Allegation #60, Environment Injurious to Health and
Welfare.” On September 1, 2009, McEwen issued the final DCFS decision, adopting the
ALJ’s finding and following his or her recommendation.
¶ 23 On October 2, 2009, plaintiff filed a complaint in the trial court, seeking administrative
review. DCFS filed the administrative record under seal as its answer to the complaint.
Plaintiff filed a memorandum of law in support of her complaint and defendants filed a
memorandum in support of the administrative decision.
¶ 24 On June 2, 2010, the trial court held that DCFS’s decision was not against the manifest
weight of the evidence, that “injurious environment (allegation #60) is a valid allegation of
neglect pursuant to [the Abused and Neglected Child Reporting Act],” and that “[t]he hearing
was timely filed and within 90 days.” Plaintiff timely appealed.
¶ 25 As an initial matter, we note that on July 18, 2011, plaintiff and defendants filed a joint
motion to cite additional authorities. The parties ask this court to consider People v. Burris,
2011 IL App (1st) 101364, as well as the newly amended version of allegation No. 10/60,
which was effective February 8, 2011. See 89 Ill. Adm. Code 300, app. B. We grant the
motion.
¶ 26 Plaintiff contends that the indicated finding was improper. In reviewing a final decision
under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2008)), we review
the administrative agency’s decision and not the trial court’s determination. Bolger v.
Department of Children & Family Services, 399 Ill. App. 3d 437, 448 (2010). An agency’s
decision on a question of law is not binding on a reviewing court and is reviewed de novo.
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Id. Interpretation of agency regulations is a question of law, which we review de novo. Walk
v. Department of Children & Family Services, 399 Ill. App. 3d 1174, 1181 (2010). However,
an agency’s interpretation of its own rules and regulations enjoys a presumption of validity.
Id.
¶ 27 Plaintiff argues that the DCFS rule (allegation No. 10/60) upon which the indicated
finding was based exceeds the authority granted to DCFS by its enabling statute. See 20
ILCS 505/4 (West 2008). Defendants counter that the indicated finding is valid because the
legislature authorized DCFS to make all rules necessary for the execution of its powers. We
agree with plaintiff.
¶ 28 We review de novo the question of the validity of allegation No. 10/60. See Hadley v.
Illinois Department of Corrections, 224 Ill. 2d 365, 370 (2007) (whether an agency rule
appropriately implements a statute or conflicts with it raises an issue of law subject to de
novo review). Although the review is de novo, the agency’s construction of a statute that it
administers and enforces is entitled to substantial weight and deference. Provena Covenant
Medical Center v. Department of Revenue, 236 Ill. 2d 368, 387 & n.9 (2010).
¶ 29 The Abused and Neglected Child Reporting Act (Act) (325 ILCS 5/1 et seq. (West
2008)) authorizes DCFS to maintain a registry of all persons found to have abused or
neglected a child. An entry in the registry is an “indicated finding” and requires certain
procedures set out in the Act and the DCFS rules. DCFS maintains a 24-hour hotline number
for reports of suspected child abuse or neglect. 89 Ill. Adm. Code 300.30(a) (2011). DCFS
must then investigate and determine whether the report of child abuse or neglect is
“indicated,” “unfounded,” or “undetermined.” 325 ILCS 5/7.12, 7.14, 3 (West 2008).
Indicated reports remain on the registry for a minimum of five years. 325 ILCS 5/7.12 (West
2008). DCFS will indicate a report if it determines that there is “credible evidence” of abuse
or neglect. 89 Ill. Adm. Code 300.110(i)(3)(A) (2011). “Credible evidence” means that the
available facts, when viewed in light of the surrounding circumstances, would cause a
reasonable person to believe that the child was abused or neglected. 89 Ill. Adm. Code
300.20 (2011).
¶ 30 When DCFS determines that a finding should be indicated, the subject of the finding has
the right to challenge the finding in a hearing before an ALJ. 89 Ill. Adm. Code 336.60(a)
(2011). At the hearing, DCFS has the burden of proving that the indicated finding is
supported by a preponderance of the evidence. 89 Ill. Adm. Code 336.100(e) (2011); 89 Ill.
Adm. Code 300.20. Following the hearing, the ALJ makes a recommendation to the Director
of DCFS, who renders a final administrative decision. 89 Ill. Adm. Code 336.220(a) (2011).
All final administrative decisions are subject to judicial review under the Administrative
Review Law. 325 ILCS 5/11.6 (West 2008).
¶ 31 This case involves an allegation of neglect. Section 3 of the Act defines a “neglected
child” in terms of four circumstances: (1) children who are not receiving care necessary for
their well-being, such as medical treatment, food, clothing, or shelter; (2) children who have
been abandoned; (3) children who have received crisis intervention services and cannot
return home; and (4) infants born with controlled substances in their systems. 325 ILCS 5/3
(West 2008). When the statute took effect on July 1, 1975, “neglect” was defined, in part, as
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“subjecting a child to an environment injurious to the child’s welfare.” Pub. Act 79-65, § 2
(eff. July 1, 1975). In 1980, that phrase was deleted from the Act by Public Act 81-1077
(Pub. Act 81-1077 (eff. July 1, 1980)), due to concerns as to its meaning.
¶ 32 Section 4 of the Children and Family Services Act (DCFS Act) provides that DCFS has
the authority “[t]o make all rules necessary for the execution of its powers.” 20 ILCS 505/4
(West 2008). Pursuant to this authority, DCFS has promulgated rules for the enforcement and
administration of the Act. See 89 Ill. Adm. Code 300.10 through 300.180. Specifically,
DCFS promulgated “Appendix B,” which describes the specific incidents of harm that must
be alleged to have been caused by the acts or omissions identified in section 3 of the Act
before DCFS will accept a report of child neglect. 89 Ill. Adm. Code 300, app. B. The
allegation definitions, which focus on the harm to the child, have assigned numbers. Id. Each
neglect allegation is coded with a two-digit number greater than 50.
¶ 33 The allegation at issue here, allegation No. 10/60, is entitled “Substantial Risk of
Physical Injury/Environment Injurious to Health and Welfare.” Id. DCFS identifies a number
of actions that fall within its definition of neglect, including exposure of the child to the use
of alcohol in the home. Id. The factors to be considered to justify indicating a report are the
child’s age, medical condition, and behavioral, mental, or emotional problems; any
developmental or physical disability; the alleged perpetrator’s physical, mental, and
emotional abilities; and a history of the alleged perpetrator’s being indicated for abuse or
neglect. Id.
¶ 34 In the current matter, plaintiff argues that allegation No. 10/60 impermissibly expands
upon section 3 of the Act. Specifically, plaintiff asserts that DCFS did not find that M.Q. was
not receiving necessary medical care, food, clothing, or shelter, or that M.Q. was abandoned,
had received crisis intervention services, or was born with controlled substances in her
system. Instead, DCFS found M.Q. to have been subjected to an “environment injurious,”
a definition of neglect found only in the DCFS rule under allegation No. 10/60. Plaintiff
asserts that allegation No. 10/60 is invalid because DCFS cannot, by rule, expand the
legislature’s definition of a neglected child.
¶ 35 An administrative agency’s authority to adopt rules and regulations is defined and limited
by the enabling statute. Department of Revenue v. Civil Service Comm’n, 357 Ill. App. 3d
352, 363 (2005). Agency rules cannot extend or alter the scope of the enabling statute, but
must conform thereto. Id. at 364. Rules that fail to conform to the enabling statute are void
ab initio. Id. at 367. In evaluating whether an agency’s rule conforms to the enabling statute,
courts look to the legislature’s intent. Illinois RSA No. 3, Inc. v. Department of Central
Management Services, 348 Ill. App. 3d 72, 77 (2004). To the extent that the language is
plain, no further inquiry is necessary. Id.
¶ 36 Defendants argue that the DCFS rule is consistent with the Act. Administrative
regulations have the force and effect of law. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351,
368 (2009). Like statutes, they are presumed valid, and the party challenging them has the
burden of showing that they are invalid. People v. Molnar, 222 Ill. 2d 495, 508 (2006). An
agency has the inherent authority and is given wide latitude and discretion to adopt
regulations that are reasonably necessary to perform its statutory duties. Resource
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Technology Corp. v. Commonwealth Edison Co., 343 Ill. App. 3d 36, 44 (2003). Agency
authority extends to that conferred by “fair implication and intendment *** for the purpose
of carrying out and accomplishing the objective for which agencies were created.” Briggs v.
State, 323 Ill. App. 3d 612, 617 (2001). An administrative rule is valid if it follows the
statute. Illinois RSA No. 3, Inc., 348 Ill. App. 3d at 77. If it can be reasonably done, a court
has a duty to affirm the validity of administrative regulations. Minifee v. Doherty, 333 Ill.
App. 3d 1086, 1088 (2002).
¶ 37 Defendants further argue that allegation No. 10/60’s categorization of neglect as a
“Substantial Risk of Physical Injury/Environment Injurious to Health and Welfare” is valid
because DCFS’s authority to promulgate regulations is provided for in the DCFS Act (see
20 ILCS 505/4 (West 2008)) and also referenced by the Act. As the statutory definition of
neglect focuses on whether the child is receiving necessary care, allegation No. 10/60 is
consistent with the plain language of that definition because the regulatory examples listed
by DCFS to further define the allegation all involve situations where a child might not be
receiving the care necessary for his or her well-being. According to defendants, the language
of the statutory definition is broad and encompasses circumstances such as the “environment
injurious” described in allegation No. 10/60. Furthermore, there is nothing in the plain
language of the Act that suggests that allegation No. 10/60 is an improper definition of a
neglected child.
¶ 38 Defendants also assert that plaintiff’s argument negates the need for administrative
regulations and is contrary to well-settled legal principles such as that agencies must have
wide latitude to adopt regulations that are reasonably necessary to effectuate their statutory
functions. See City of Chicago v. Illinois Labor Relations Board, Local Panel, 396 Ill. App.
3d 61, 73 (2009) (agencies have the authority to determine, define, and implement statutes
through the adoption of rules and regulations). Defendants assert that plaintiff places undue
importance on the legislature’s removal of the phrase “environment injurious.”
¶ 39 In the present matter, although DCFS has the authority to adopt regulations that are
reasonably necessary to perform its statutory duties, these regulations are defined and limited
by the enabling statute and cannot extend or alter the scope of the enabling statute, but must
conform to its confines. See Department of Revenue, 357 Ill. App. 3d at 363. Here, the
legislature specifically removed the “environment injurious” language from the statute. See
KSAC Corp. v. Recycle Free, Inc., 364 Ill. App. 3d 593, 597 (2006). Although agencies enjoy
wide latitude to adopt regulations that are reasonably necessary to effectuate their statutory
functions (see City of Chicago, 396 Ill. App. 3d at 73), they are not at liberty to adopt
language that the legislature specifically chose to remove. See Department of Revenue, 357
Ill. App. 3d at 364. As it is well established that, when the legislature deletes language, it
intends to change the law, allegation No. 10/60 impermissibly expanded upon the enabling
statute by including language that the legislature purposely chose to remove.
¶ 40 A comparison between the Act and the Juvenile Court Act of 1987 further convinces us
that by deleting “environment injurious,” the legislature intended to change the law. The Act
is essentially a reporting act. Its central feature is the requirement that all mandated reporters
inform DCFS whenever they have “reasonable cause to believe a child known to them in
their professional or official capacity may be an abused or neglected child.” 325 ILCS 5/4
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(West 2008); 89 Ill. Adm. Code 300.30(b)(1) (2011). Failure to report possible abuse or
neglect can be charged as a Class A misdemeanor, or even a Class 4 felony for repeated
violations, and can also lead to professional disciplinary actions including license revocation.
325 ILCS 5/4 (West 2008); 89 Ill. Adm. Code 300.30(b)(4), (b)(5) (2011).
¶ 41 In light of this mandate, and the penalties for failure to report, it is necessary that the
Act’s definitions of abuse and neglect be clear enough for mandated reporters to apply. See
Richard T. Cozzola, Towards an Upstream Model of Child Abuse Legislation in Illinois, 11
Loy. U. Chi. L.J. 251, 258 n.52 (1980) (“the Reporting Act concerns the identification and
reporting of suspected instances of child abuse and neglect and, thus, requires very specific
standards”). The special concurrence argues that DCFS allows its caseworkers “considerable
discretion when determining whether there is a real and significant danger to justify taking
a report.” Supra ¶ 62. We agree with reservation. The basis for our reservation is found in
the House Proceedings cited by the special concurrence. The legislature was clearly
concerned with what “environment injurious” might be interpreted to mean. The lack of
specificity in the phrase “environment injurious” creates shadows wherein fit parents and
functional families could suffer debilitating consequences, including the loss of custody,
harm to reputation, and needless destruction of stable family units. As this court has
recognized, “injurious environment is an amorphous concept that cannot be defined with any
specificity.” In re Z.Z., 312 Ill. App. 3d 800, 804 (2000). This lack of specificity was the
concern that led the legislature to clarify that, for the purposes of the Act, children are not
to be considered neglected by virtue of being subjected to an “environment injurious.” See
81st Ill. Gen Assem., House Proceedings, June 22, 1979, at 100 (statements of
Representative Peters) (“the interpretation of what environment injurious may mean” could
cause “a lot of misunderstandings”); 81st Ill. Gen. Assem., Senate Proceedings, May 25,
1979, at 202 (statements of Senator Daley) (amendment made definition “more specific, so
people understand what abuse and neglect is”). Furthermore, the legislature deleted the
“environment injurious” language at the request of DCFS. 81st Ill. Gen. Assem., Senate
Proceedings, July 1, 1979, at 5 (statements of Senator Buzbee) (“This was the child abuse
bills. The department had requested some tightening up language in House Amendment 6
and 8 which we accepted.”).
¶ 42 The Juvenile Court Act of 1987, in contrast to the Act, specifically provides that a child
can be found to be neglected based on an injurious environment. See 705 ILCS 405/2-3(1)(b)
(West 2008) (“[t]hose who are neglected include *** a minor under 18 years of age whose
environment is injurious to his or her welfare”). However, a neglect proceeding under the
Juvenile Court Act, unlike a proceeding under the Act, is a civil, nonadversarial action, the
purpose of which is to serve the minor’s best interests. In re J.J., 142 Ill. 2d 1, 8 (1991). A
broad definition of neglect for the purposes of the Juvenile Court Act allows these courts to
take action to help juveniles, without imposing a reporting requirement on mandated
reporters, as is the case with the Act. Cozzola, supra, at 258 n.52 (“[r]etention of the
language in the Juvenile Court Act maintains the broad jurisdictional base which the
[Juvenile Court] Act confers on the Juvenile Court”).
¶ 43 Here, the omission of “environment injurious” from the neglect definition in the Act
makes sense when considered in the context of the reporting requirement that the statute was
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enacted to impose. That the legislature continues to allow a finding of neglect based on an
injurious environment in the Juvenile Court Act, while having deleted that language from the
Act, indicates that the legislature intended different results in the two different contexts. As
it is well established that, when the legislature uses certain language in one instance and
different language in another, it intends different results; we are further persuaded that the
legislature intended that, pursuant to the Act, “environment injurious” should not serve as
a basis for a neglect finding. See Pinilla v. Harza Engineering Co., 324 Ill. App. 3d 803, 810
(2001). Thus, we determine that allegation No. 10/60 exceeds the scope of the authority
granted by the Act and that it is void ab initio. See Department of Revenue 357 Ill. App. 3d
at 367.
¶ 44 Although the special concurrence suggests that our ruling would have devastating
consequences on neglected children in that the ruling would “bind the hands of DCFS
caseworkers” and prevent them from properly investigating reports of neglect, we
respectfully disagree. The removal of allegation No. 10/60 will not prevent DCFS
caseworkers from investigating reports. Under our holding, DCFS caseworkers would
continue to investigate all reports of abuse and neglect pursuant to section 7.3 of the Act (325
ILCS 5/7.3 (West 2008)). The critical aspect of our holding, however, allows DCFS to draw
from specific allegations and not from a subjective phrase. Under clearly defined allegations,
a family is less likely to suffer disruption because a DCFS caseworker subjectively
determined that the family’s minor children were placed in an “environment injurious.”
Under our holding, caseworkers remain free to investigate all reports of abuse and neglect,
but DCFS would need to indicate perpetrators for abuse or neglect pursuant to one of the
numerous allegations that the legislature has not determined to lack the necessary specificity.
¶ 45 Plaintiff’s second argument is that the indicated finding was against the manifest weight
of the evidence. Plaintiff first asserts that DCFS failed to introduce any competent evidence
that M.Q. was neglected on January 29, 2009. We will affirm DCFS’s final decision unless
its findings were against the manifest weight of the evidence. Bolger, 399 Ill. App. 3d at 448.
¶ 46 Plaintiff asserts that the evidence DCFS offered as to the January 29, 2009, incident was
inadmissible double hearsay. Specifically, plaintiff asserts that the only evidence was the
notes of Cobrda, who did not testify, regarding the out-of-court statements of M.Q. Plaintiff
also argues that the notes were offered to show the truth of the matter asserted. Moreover,
plaintiff asserts that no reasonably prudent person would rely, without more, on the notes of
a person they do not know as to the statements of a nine-year-old child. Defendants respond
that the evidence was admissible in the administrative proceeding because it was of the type
commonly relied upon by reasonably prudent persons in the conduct of their affairs.
Moreover, pursuant to the DCFS rules, the ALJ has the authority to:
“allow into evidence all evidence helpful in determining whether an alleged perpetrator
abused or neglected a child, including oral and written reports, which the [ALJ] and the
Director may rely upon to the extent of its probative value, even though not competent
under the civil rules of evidence.” 89 Ill. Adm. Code 336.120(b)(9) (2011).
Furthermore, pursuant to the DCFS rules, the ALJ has the authority to:
“allow into evidence previous statements made by the child relating to abuse or neglect
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as hearsay exceptions.” 89 Ill. Adm. Code 336.120(b)(10) (2011).
Plaintiff argues that these DCFS rules also impermissibly expand the enabling statute.
¶ 47 DCFS procedures are governed by the Illinois Administrative Procedures Act. 5 ILCS
100/1-1 et seq. (West 2008); 20 ILCS 505/4 (West 2008). Under the Administrative
Procedures Act, in a contested hearing, “[t]he rules of evidence and privilege as applied in
civil cases in the circuit court of this State shall be followed.” 5 ILCS 100/10-40(a) (West
2008). Evidence inadmissible under those rules is admissible only “if it is of a type
commonly relied upon by reasonably prudent men in the conduct of their affairs.” Id. In the
current matter, we determine that the evidence offered by DCFS was inadmissible.
¶ 48 Here, the record reflects that the ALJ both admitted into evidence and then considered
the notes of nontestifying, former DCFS investigator Cobrda. Although, under the
Administrative Procedures Act, hearsay is admissible if it is of the type commonly relied
upon by reasonably prudent persons in the conduct of their affairs, the hearsay relied upon
in this matter does not fit this definition. Here, the out-of-court statements relied upon were
from the notes of a former DCFS employee regarding the statements of a nine-year-old child
with a history of untruthfulness. Thus, we determine that the evidence regarding the events
of January 29, 2009, was inadmissible.
¶ 49 Plaintiff next asserts that DCFS relied upon inadmissible and prejudicial collateral
impeachment and bad-acts evidence. Plaintiff asserts that the hearing was “turned into a
referendum on whether [plaintiff] had ever slipped in maintaining her sobriety.” Plaintiff
takes issue with the ALJ’s decision to examine and impeach her regarding the events of July
2008 and May 2009. Defendants counter that, because plaintiff testified that she had been
sober since 2006, the events of July 2008 and May 2009 were admissible to show that
plaintiff’s testimony was not credible.
¶ 50 It is well established that collateral impeachment is not allowed in Illinois. People v.
Santos, 211 Ill. 2d 395, 404 (2004). The test to be applied in determining if a matter is
collateral is whether the matter could be introduced for any purpose other than to contradict.
Id. at 405. A party’s prior misconduct is not admissible for the purpose of establishing his
or her bad character or propensity to commit illegal or immoral acts. People v. Hendricks,
137 Ill. 2d 31, 52 (1990).
¶ 51 In the current matter, we determine that evidence regarding the events of July 2008 and
May 2009 was admissible to impeach plaintiff’s testimony that she had been sober since
2006. However, the ALJ’s reliance on this evidence to find that plaintiff should be indicated
for neglect based on the events of January 29, 2009, was error. See Hendricks, 137 Ill. 2d at
52. The ALJ was not at liberty to consider evidence of the July 2008 and May 2009 incidents
to conclude that plaintiff had the propensity to abuse alcohol and, therefore, must have placed
M.Q. in an injurious environment on January 29, 2009. Id. Furthermore, as both the July
2008 and the May 2009 incidents were deemed unfounded by DCFS, the ALJ could not now
rely on these incidents to determine that, on January 29, 2009, plaintiff placed M.Q. in an
environment that was injurious to the child’s health and welfare. See 89 Ill. Adm. Code 300,
app. B, No. 10/60.
¶ 52 Based on our review of the record, we determine that the indicated finding was against
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the manifest weight of the evidence. Plaintiff was indicated for neglect based on the alleged
conduct of January 29, 2009. However, the only witness with personal knowledge of the
events of that day was plaintiff. Plaintiff testified that she did not consume alcohol on that
day and did not lock M.Q. in her room. All parties agree that on January 29, 2009, plaintiff
did not lock M.Q. in her room, as M.Q.’s door did not possess a lock. Robinson admitted that
she was not present during the alleged incident, and that the only person who told her that
plaintiff had been drinking alcohol on January 29, 2009, was M.Q., whom she had met only
once, on February 18, 2009, and who, other witnesses testified, had a history of
untruthfulness. Robinson admitted that she decided to indicate plaintiff for neglect based on
information she obtained after reading the notes from Cobrda, whom she had never met and
who did not testify. The record reflects that the ALJ both admitted into evidence and
considered Cobrda’s notes. Although, under the Administrative Procedures Act, hearsay is
admissible if it is of the type commonly relied upon by reasonably prudent persons in the
conduct of their affairs, the hearsay relied upon in this matter does not fit this definition.
¶ 53 The remaining testimony against plaintiff revolved around other alleged incidents at
plaintiff’s home, none of which occurred on or around January 29, 2009. Moreover, each of
these alleged incidents had previously been investigated by DCFS and deemed “unfounded.”
Furthermore, the record reflects that the ALJ relied upon testimony regarding the incidents
to show the truth of the matter asserted. See Hendricks, 137 Ill. 2d at 52. The record reflects
that there was no admissible evidence that plaintiff neglected M.Q. by placing her in an
injurious environment on the evening of January 29, 2009. Thus, we determine that the
indicated finding was against the manifest weight of the evidence and must be vacated.
¶ 54 Because we reverse the trial court’s determination that the indicated finding was not
against the manifest weight of the evidence, we need not address the issue of timeliness.
¶ 55 For the reasons stated, we reverse the decision of the circuit court of Lake County and
vacate DCFS’s indicated finding.
¶ 56 Vacated and reversed.
¶ 57 JUSTICE BIRKETT, specially concurring.
¶ 58 Although I concur in the majority’s ruling that the indicated finding here was against the
manifest weight of the evidence, I disagree that allegation No. 10/60 exceeds the scope of
the authority granted by the Act and that it is therefore void ab initio. In its ruling, the
majority characterizes plaintiff’s contention as arguing that, because DCFS did not find that
M.Q. was not receiving necessary medical care, food, clothing, or shelter, or that she was
abandoned, had received crisis intervention services, or was born with controlled substances
in her system, plaintiff could not be the subject of an indicated finding under the Act. The
majority then holds that DCFS erred as a matter of law when it found M.Q. to be a neglected
child on the basis of being placed in an “environment injurious,” because that definition of
neglect is found only in the DCFS rules under allegation No. 10/60, and allegation No. 10/60
impermissibly expanded the legislature’s definition of a neglected child.
¶ 59 I must initially point out that section 3 of the Act does not define a “neglected child” only
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in terms of the four circumstances. The definition of a “neglected child” in section 3 of the
Act provides, in pertinent part:
“ ‘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 the 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, or other care necessary for his or
her 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 has been provided with interim crisis intervention services under
Section 3-5 of the Juvenile Court Act of 1987 and whose parent, guardian, or custodian
refuses to permit the child to return home and no other living arrangement agreeable to
the parent, guardian or custodian can be made, and the parent, guardian or custodian has
not made any other appropriate living arrangement for the child; or who is a newborn
infant whose blood, urine, or meconium contains any amount of a controlled substance
as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act or
a metabolite thereof ***.” (Emphasis added.) 325 ILCS 5/3 (West 2008).
A careful reading of the Act demonstrates that, along with the four circumstances listed, the
definition of a “neglected child” also includes any child who is not receiving “other care
necessary for his or her well-being.” 325 ILCS 5/3 (West 2008). Clearly, then, the legislature
did not intend to limit the definition to children who fall into these four categories alone.
¶ 60 Based on the Act’s definitions of abuse and neglect, DCFS promulgated regulations
describing “specific incidents of harm” that must be alleged in a report of abuse or neglect.
See 89 Ill. Adm. Code 300, app. B. Basically, these allegations define problematic conduct.
Slater v. Department of Children & Family Services, 2011 IL App (1st) 102914, ¶ 25. Some
of these allegations do not fall into the four categories but instead fall under the category of
“other care necessary for [a child’s] well-being.” See 325 ILCS 5/3 (West 2008). For
example, allegation No. 17/67, “Mental and Emotional Impairment,” which is defined as
“injury to the intellectual, emotional or psychological development of a child as evidenced
by observable and substantial impairment in the child’s ability to function within a normal
range of performance and behavior, with regard to his or her culture,” and allegation No. 74,
“Inadequate Supervision,” which is defined as when a child “has been placed in a situation
or circumstances that are likely to require judgment or actions greater than the child’s level
of maturity, physical condition, and/or mental abilities would reasonably dictate.” 89 Ill.
Adm. Code 300, app. B.
¶ 61 Here, the allegation of harm at issue is entitled, “Substantial Risk of Physical
Injury/Environment Injurious to Health and Welfare.” This neglect allegation is defined as
“placing a child in an environment that is injurious to the child’s health and welfare ***
(neglect).” 89 Ill. Adm. Code 300, app. B. Examples of circumstances that support such an
allegation include the following: “[d]omestic violence in the home when the child has been
threatened and the threat is believable, as evidenced by a past history of violence or
uncontrolled behavior”; “[t]he circumstances surrounding the death of one child provides
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reason to believe that another child is at real and significant danger of [physical injury]”;
“[a]nyone in the home exposes child to an environment that significantly affects the health
and safety based on use, sale or manufacturing of illegal drugs or alcohol”; “[p]arent’s or
caretaker’s mental illness and behavior poses a significant danger to the child’s health and
safety”; and “parent has been adjudicated unfit by a court and the parent has not completed
services that would correct the conditions which led to the court finding.” 89 Ill. Adm. Code
300, app. B.
¶ 62 Although the Act is a mandatory reporting statute, allegation No. 10/60 gives the DCFS
caseworker considerable discretion when determining whether there is a real and significant
danger to justify taking a report. Those factors include: (1) the child’s age; (2) the child’s
medical condition; (3) the severity of the occurrence; (4) the frequency of the occurrence; (5)
the alleged perpetrator’s physical, mental, and/or emotional abilities; (6) the dynamics of the
relationship between the alleged perpetrator and the child; and (7) the alleged perpetrator’s
access to the child. All of these factors need not be present to justify taking the report. 89 Ill.
Adm. Code 300, app. B.
¶ 63 Here, the majority agrees that DCFS has the authority to adopt regulations that are
reasonably necessary to perform its statutory duties. However, it points out that an
administrative body cannot extend or alter the scope of the enabling statute by the exercise
of its rulemaking powers. Department of Revenue, 357 Ill. App. 3d at 364. While this is true,
simply because the legislature removed the term “environment injurious” from the Act over
30 years ago does not mean that this removal prohibited DCFS from creating allegation No.
10/60.
¶ 64 A review of the legislative history that the majority cites to only supports the conclusion
that the removal of “environment injurious” from the Act in 1980 did not strip DCFS of its
authority to enact allegation No. 10/60. As the majority points out, the Act is essentially a
reporting act. The failure to report possible abuse or neglect can be charged as a Class A
misdemeanor or a Class 4 felony for repeated violations, and it can also lead to professional
disciplinary actions, including license revocation. 325 ILCS 5/4 (West 2008). Therefore, it
is only logical that DCFS would want the term “environment injurious,” without any further
explanation, removed from the statutory definition of a “neglected child” under the Act. In
fact, the legislative history confirms that the removal of this term was at DCFS’s request. See
81st Ill. Gen. Assem., Senate Proceedings, July 1, 1979, at 5 (statements of Senator Buzbee)
(“This was the child abuse bills. The department has requested some tightening up language
in House Amendment 6 and 8 which we accepted.”). Moreover, Representative Peters, one
of the sponsors of the bill that deleted the “environment injurious” term from the statute, did
not claim that the term was not a proper definition of neglect. Instead, he was concerned only
that there would be confusion and litigation over the term’s meaning. See 81st Ill. Gen.
Assem., House Proceedings, June 22, 1979, at 100 (statements of Representative Peters).
Specifically, he stated:
“What amendment #8 would do is to remove from the definition of neglected child the
words ‘subjected to an environment injurious to his or her welfare’ and the reasons we
are removing that is the concern over the interpretation of what environment injurious
may mean. We are fearful that it may end up in a lot of litigation, a lot of
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misunderstandings and until such time that we can arrive at a more clearer [sic], concise
kind of definition to address this kind of problem, we think it’s better to remove this from
the Bill.”
¶ 65 In promulgating allegation No. 10/60, DCFS did not merely provide that the term alone
defined neglect. Rather, it provided in detail the meaning of the allegation by listing
numerous explanations, examples of incidents or circumstances, and factors to be considered
to justify taking a report of abuse or neglect. 89 Ill. Adm. Code 300, app. B. By defining this
term in such detail, DCFS removed any confusion as to its meaning. Further, all the details
in allegation No. 10/60 are consistent with the definition of neglect in the Act, which
specifically mentions care necessary for a child’s well-being. See 325 ILCS 5/3 (West 2008).
Therefore, allegation No. 10/60 does not conflict with the Act; instead, it implements it. See
325 ILCS 5/3 (West 2008).
¶ 66 Finding allegation No. 10/60 void ab initio, and thereby creating a vacuum by the
removal of these specific incidents of harm, will thwart the legislature’s intent to require
DCFS to protect the health, safety, and best interests of the child in all situations where a
child is vulnerable to child abuse or neglect, as directed in section 2 of the Act. See 325 ILCS
5/2 (West 2008). An example of this type of harm was presented in the instant case.
Although we have found that the indicated finding of neglect was against the manifest weight
of the evidence here, a caseworker should nevertheless have the ability to respond to a
hotline call that a parent is consuming alcohol to the extent that it is causing an injurious
environment for a child or children residing in that parent’s home. This is the exact type of
harm that the Act is supposed to protect against. The two purposes of the Act are to protect:
(1) any abused or neglected child; and (2) any person erroneously accused of such abuse or
neglect. See Kemp-Golden v. Department of Children & Family Services, 281 Ill. App. 3d
869, 874 (1996). If a DCFS caseworker cannot respond to a hotline tip that a child is residing
with a parent who is drinking to the extent that the child’s living environment is injurious,
the primary purpose of the Act is being completely ignored.
¶ 67 This ruling will have devastating consequences on neglected children in Illinois. It will
serve to bind the hands of DCFS caseworkers, whose duty it is to investigate incidents of
neglect and protect children from its destructive consequences. If a caseworker cannot
investigate a reported case of neglect that falls into the category of “environment injurious”
under allegation No. 10/60, then no further action can be taken. Those same DCFS
caseworkers will not be able to use any evidence garnered from an investigation pursuant to
the Act to, in many cases, pursue further proceedings under the Juvenile Court Act to protect
the neglected child. See 705 ILCS 405/1-1 et seq. (West 2008). An example of such illogical
results can be found by reviewing the facts of In re J.W., 289 Ill. App. 3d 613 (1997). In that
case, a woman gave birth in an intoxicated state. The child, J.W., was referred to social
services because he was born prematurely with a low birth weight due to the mother’s
probable alcoholism and smoking during her pregnancy. The State then filed a petition for
adjudication of wardship, alleging that J.W. was neglected under the Juvenile Court Act
because he was a minor whose environment was injurious to his welfare. J.W., 289 Ill. App.
3d at 615. The trial court found that J.W. was a neglected minor, and the appellate court
affirmed, holding that evidence of a mother’s drinking during her pregnancy was relevant to
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the issue of whether the mother had a drinking problem that made the child’s environment
after birth injurious. J.W., 289 Ill. App. 3d at 617-18. The same considerations that applied
in J.W. apply with equal force to a situation where a mandatory reporter has knowledge that
a parent’s drinking might be creating an environment injurious for her child. The majority’s
determination that allegation No. 10/60 is void ab initio simply because the legislature
removed the term “environment injurious” from the Act 30 years ago elevates form over
substance and will cause scores of neglected children to go unprotected in direct
contradiction of the primary purpose of the Act. See 325 ILCS 5/2 (West 2008). For all these
reasons, I strongly disagree with the majority’s ruling that allegation No. 10/60 is void ab
initio.
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