June 28, 2001

NO. 4-00-0641

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JUSTICE COOK delivered the opinion of the court:

In April 1998, the Department of Children and FamilyServices (DCFS) indicated a report of child abuse against plaintiff, Stephen Briggs, a first-grade teacher of children withbehavioral disorders, arising from an incident with one of hisstudents. In October 1998, DCFS denied plaintiff's request toexpunge the indicated report. Plaintiff requested a full hearingbefore an administrative law judge (ALJ), which DCFS conducted inFebruary 1999. On June 15, 1999, the ALJ recommended that theDirector of DCFS (Director) deny plaintiff's request forexpungement of the indicated report. On June 23, 1999, theDirector denied plaintiff's request. In July 1999, plaintifffiled a complaint for judicial review of that decision. In June2000, the circuit court entered an order reversing the Director'sdecision.

Defendants appealed, arguing the Director's decisionwas not against the manifest weight of the evidence or contraryto law. Plaintiff argues the Director's decision that plaintiffcaused bruises and scratch marks to C.M. was not supported by thetestimony of any witness and the bruises and scratch marks didnot constitute abuse. We affirm.

In March 1998, C.M., a six-year-old boy, was a studentin plaintiff's class for behaviorally disordered students atHarvard Park School in Springfield, Illinois. On March 10, 1998,C.M. punched another student during class. Plaintiff intervenedand took C.M. to another room, the "Quiet Room." He testifiedthat he placed C.M. in a "basket hold" by grasping the child'shands from behind and then crossing them over his abdomen afterC.M. punched another child.

Plaintiff testified that he released C.M. to escort himto the Quiet Room. However, plaintiff restrained him again onthe way to the room, by placing one of his hands on C.M.'sshoulder at the base of his neck, while placing his other hand onC.M.'s arm. Becky Gordon, the teaching assistant in plaintiff'sclassroom, stated that she observed plaintiff with his hand onthe back of the child's neck when he took him to the Quiet Room.

She could not say whether it was in a forceful way or not. Drucilla Brooks, a teacher at the school, stated that "I think hewas leading him down the hall by his arm[.] I really can'tremember[.]"

Plaintiff testified that once in the room, he placedhis finger and thumb on C.M.'s jawbone so they would look face-to-face. When plaintiff released him, C.M. jumped at him andcalled plaintiff vulgar names. Plaintiff left C.M. with Gordonso that he could accompany the other children to the art room. C.M. had calmed down when he returned. Plaintiff then placed onehand on each of C.M.'s shoulders and moved him sideways threetimes to show him what it felt like to be pushed. Plaintiff thenreturned to his classroom. Plaintiff testified that he raisedhis voice during the incident, but he denied pushing the child orgrabbing him by the neck.

Gordon stated that when she arrived at the Quiet Room 5to 10 seconds after plaintiff did, plaintiff's hands were aroundC.M.'s throat, and plaintiff was shouting at C.M. from closerange and asking him how he liked having someone "in his face." Plaintiff left the room, and C.M. calmed down. Plaintiff thenreturned to the room and began to push C.M. in the chest. Plaintiff was shouting at C.M. at the time. She noticed thatC.M. had red marks on his neck, two on the front and at least oneon the back of his neck, approximately the size of a quarter.Gordon then left the room and joined the children in the artroom. After the children settled down, she went to relate theincident to the principal. Gordon returned to the art room, andC.M. arrived later.

Two teachers who had C.M. in their respective classeslater that afternoon did not notice any redness, scratches, ormarks on any part of C.M.'s neck, and C.M. did not mention thathis neck hurt to either teacher. Neither teacher recalledlooking at C.M.'s neck for any type of injury.

Linda Langheim worked in C.M.'s after-school programand stated that she had observed C.M. try to choke his brother onthe afternoon of the incident and she saw C.M.'s brother try topush him. She separated the boys and at that time noticed themarks on C.M.'s neck and asked C.M. about the marks. C.M.responded that plaintiff had made the marks and not his brother. She stated that she did not see C.M.'s brother at any point havehis hands on C.M.'s neck. Langheim stated that she did notremember seeing any scratches or marks on C.M. when he arrivedfor his after-school program. She also stated that she did nothave any reason to examine him upon his arrival.

That evening, C.M.'s mother contacted DCFS and reportedmarks on C.M.'s neck, and that, according to C.M., plaintiff hadgrabbed him around the neck leaving the marks. DCFS began itsinvestigation the following day.

Mary Boltz, the child-protection investigator, interviewed C.M. the morning after the incident. He stated plaintifftook him to the Quiet Room, put him in the corner, put his handsaround his throat, and pushed him with both hands about fivetimes. Boltz noted that C.M. had two scratches resemblingfingernail marks behind his right ear and small hemorrhagic spotsbehind his left ear and on his neck at the spine. C.M.'s motherinformed Boltz that she noticed the marks when she picked up C.M.and his brother at school, and she stated C.M. told her thatplaintiff had made the marks on his neck.

Nancy Peterson, the school principal, explained toBoltz that she has had complaints about plaintiff in the past andthat on one occasion she verbally reprimanded plaintiff after shewitnessed him grab a child by the arm. Peterson also stated thatthe school had suspended C.M. in the past, he had been in apsychiatric unit this year, and she had known him to be aggressive toward his sibling.

Boltz testified later before the ALJ that she indicatedthe report of abuse because C.M.'s version of the incident wasconsistent with her inquiries and corroborated by witnesses. Shedescribed him as "a very small six-year-old" boy with two smallscratches behind one ear and small reddish marks, of the typethat abuse causes, behind the other ear and on the back of hisneck. C.M. informed her that he had been fighting with anotherstudent and that plaintiff escorted him to another room byplacing a hand on the back of his neck. After they were in theroom, according to C.M., plaintiff pushed him into a corner andthen placed his hands around his throat, choking him. C.M. alsoinformed her that plaintiff pushed him about five times and askedC.M., "[h]ow do you like it when you get pushed?"

At the conclusion of the investigation, DCFS indicatedthe report of abuse. In October 1998, DCFS denied plaintiff'srequest for expungement of the indicated report. Plaintiff thenrequested a formal hearing.

The State brought criminal charges against plaintifffor his actions related to the incident. The trial was heldseveral months after the incident. Plaintiff was acquitted ofthe criminal charges. Moreover, plaintiff points out that C.M.'sstatements during plaintiff's criminal trial were not the same asthose that C.M. made to Boltz after the incident and that C.M.did not at any point testify at the criminal trial that plaintiff's hands were around his neck.

In February 1999, an ALJ conducted a formal hearing. On June 15, 1999, the ALJ issued her decision. Her findings offact were as follows:

"(1) Although [C.M.] was involved inthree altercations on March 10, only thealtercation with appellant could have leftthe fresh bruises and scratch marks on[C.M.]'s neck. The other altercationsinvolved [C.M.] attacking the other personinvolved, rather than [C.M.] being attackedby them.

(2) The appellant's testimony, particularly as it related to his 'demonstrating bymodeling' as opposed to acting in anger orfrustration, was simply not credible."

She found that, in this case, DCFS "has shown by a preponderanceof the evidence that the appellant inflicted abuse[-]levelinjuries upon [C.M.]" and recommended denying plaintiff's requestfor expungement of the indicated report of abuse. On June 23,1999, the Director issued a decision adopting the ALJ's findingsand recommendation.

In July 1999, plaintiff filed a complaint for judicialreview of DCFS' decision not to expunge the indicated report,arguing that it was against the manifest weight of the evidenceand contrary to law.

In June 2000, the circuit court reversed the agency'sdecision and stated as follows:

"The standard of review in this actionis whether the Director's decision that[DCFS] had met its burden of proof to provethe existence of abuse or neglect by apreponderance of the evidence is supported bythe manifest weight of the evidence.

The [ALJ's] decision, adopted by theDirector[,] was based on the following finding of fact:

'Although [C.M.] was involved in threealtercations on March 10, only the altercation with appellant could have left the freshbruises and scratch marks on [C.M.]'s neck. The other altercations involved [C.M.] attacking the other person involved, ratherthan [C.M.] being attacked by them.'

The other finding of fact is irrelevantto the decision made as the [p]laintiff hasno burden of proof.

The [c]ourt does not need to validate[p]laintiff's teaching methods or approach tobehavior modification to determine the issuepresented by this administrative review. Rather[,] the only question is whether [DCFS]proved that [p]laintiff caused the marks onthe back of the child's neck. The findingthat only the [p]laintiff could have left thefresh bruises and scratch marks is the basisupon which the indicated finding was sustained by [DCFS]. The [c]ourt determinesthat said finding was against the manifestweight of the evidence.

In this decision[,] the [c]ourt is mindful that no witness testified that[p]laintiff touched the back (behind the ear)of the child's neck, that no witness havingan opportunity to observe the child's neckimmediately post[]occurrence observed markson the back of the neck and that the childwas involved in at least one altercationbetween the incident with [p]laintiff and thediscovery of marks on the neck.

Judgment is awarded [p]laintiff onadministrative review and the decision of[DCFS] is reversed."

Defendants appeal.

Defendants assert that the Director's decision was notagainst the manifest weight of the evidence, nor were the factualfindings contrary to law. Administrative agencies possess onlysuch authority as is legally conferred by express provisions oflaw or such, by fair implication and intendment, as is incidentto and included in authority expressly conferred for the purposeof carrying out and accomplishing the objective for which agencies were created. Lenard v. Board of Education of FairfieldSchool District No. 112, 57 Ill. App. 3d 853, 863, 373 N.E.2d477, 484 (1978), aff'd, 74 Ill. 2d 260, 384 N.E.2d 1321 (1979);Ill. Const. 1970, art. IV,