and let me start with the one that just emerged from the athletes brief where the state confessed that allegation seventy four was unlawful and they just withdrew any argument on it i don't know how this quarter and here the court could now do a review because allegations have the force hopelessly entangled with allegation fifty one the burdens under each are very disparate under seventy four it's just simple neglect and allegation fifty one it's a place disregard and below before the administrative law judge we were arguing in fact that even under allegation seventy four that there was some sort of volition required whether the indicated actor had to take some action to put a child also a woman a star there but they're not pursuing seven or right for a specific reason that there's some kind of ending class action isn't what the court should face the court in cook county had declared it unlawful to proceed on that and even before this indications ever made merits because there the two are completely intertwined and what really the administrative law judge was the one that sitting in review of the plaintiff's parenting decisions and her parenting manner and criticized her for the how she allowed this child to the roman things which i don't think supported by the record but nonetheless it wasn't that that there was some blatant disregard as is required under fifty one so i really complicates any review now because they withdraw fifty one but if you read the decision of the administrative law judge which was upheld by the supreme court the two are just hopelessly in their tech intermingled and entangled together even to the very end of the decision so i think i hope that that would argue well support the review of this case on its merits the second issue is however the procedure of due process issue which we raised which by rule in the department acknowledges it was required to issue its decision within ninety days of the day the appeal was received by the department did not do so it mistreated law judge and made no pretense of saying why she didn't get it done in time to the record made no pretense of saying or any excuse why she didn't act in time nonetheless the decision was well after the ninety day period of time so on the review and the administrative review the department had to justify some hard others to attribute that delay to the plaintiff herself which ultimately it did by taking the language  rule saying that first available date and saying that she had to demand the first possible date she had to go she had a demand to go to trial within fourteen days of the scheduling order where there was in fact a longer period of time to the seventy day period which came up after the fact we even know about a seventy day rule wasn't disclosed to the scheduling conflict but apparently the department has an internally imposed rule of says we're going to have our hearing within seventy days  to a quarter o u process of law by demanding that she have a hearing with the first possible date and that's what the trial judge and the finding acknowledge and of course this all reviews the situation of the department and not the to the first the preamble day the colloquy is very clear on the scheduling date the admonition that was used we did waive it because we knew about the ninety day rule we demanded that we want to stick fast to the ninety day rule and so we waived the reading of any of the admonition but if the admonition had read it would simply state that we have to decide the case within ninety days and if you cause a delay those days the that those dates can be charged against  get a continuance as required no such thing happened here that it ministry of law judge offered no date whatsoever but finally said well in the best of all possible worlds mr young when would you want to schedule this  i said the first two weeks of december which were within the ninety day period and she said ok let's try for suggested december third fourth or wealth in a ninety day period the department of tourney was ready i was ready and dates chosen were attributable to the plaintiff and she is responsible for that late i just find it offensive under any kind of notion of common sense because the ministry of law judge had a duty to suggest that day she never did do that and to say i would agree that's what i was but to attribute every date before that is being available and therefore chargeable to the plate or as it were a delay just makes no rational sense whatsoever it was the day before we actually went to trial on the seventy first and seventy second day which still left eighteen days for them to make that decision what would you can see since you agreed to the date of december tenth which was will say two days past the seventy day period that those two days would not be counted in the ninety day calculation and we've been told that the arm is operating under a rule that they have to have a hearing within seventy days i could agree with that that was never that never came up until after the fact we didn't know that the department had its own rule and that was not part of the scheduling colloquy at all but even if you say they're chargeable to us the result is the same because the decision was not made within ninety days it was made well after ninety days not only the administrative law judge decision on sixty january but the directors incision  not necessarily but there are no exceptions here in the lion's case which we are relying on the administrative law judge was involved in a car x on the day of the second hearing date and the court said that's excuse we had no such thing in this case and therefore there was no reason for any delay in making the decision and and she was entitle to the enforcement of the department rule i  that when the initial indication is made there's a different burden of proof then when the hearing proceeds to a decision which requires a preponderance in other words the initial indication doesn't require the actual hearing her in nine days i agree that lions has an element of that that was never present in our case we were always on the second and the higher proof within that ninety day period there was never an issue about whether the first indication was sufficient we didn't raise that we just went right to hearing on the final proof which required the department to to prove their case  modicum level of some sort of evidence that right they need to act to remove a perpetrator from endangering children the second state that the department of hearing was asked for an appeal  taken and the department was required to prove by preponderance of the evidence the allegations of the indication both those elements are here as well or that we never challenge the initial indication we went right  move quicker and that wasn't the case here so it was a different procedural posture of the matter there ok so in this case in short there was no delay there was no continuance there was no claim by the department of any excusable with the l j to suggest that she was late for any excusable reason to be the director didn't either and it all this rationale of how to shift back to the point of the burden of providing her own due process of law came after the fact and before the trial court and again i think it's just a very plain confusion of first possible department is as is trying to sort of imperiously overview that the plaintive smothering instincts whatever as opposed to the the requirement for the death by the black his blatant disregard in this case there was no such blatant disregard in this case suddenly the hotline report of saying the child was missing for thirty days thirty minutes becomes a mother was unaware  was even concerned about her child for a thirty minute period that wasn't the case at all her first utterance to the officer of the first responder was i lost sight or for just a moment as if you were calling the testimony was  that they had been out on a family outing walking through the neighborhood they gathered some mushrooms that mrs david mr david fire and then taking that mushrooms out on the back porch to take some photographs of it leaving coral her daughter year old daughter in the house for just a few minutes while she took the pictures she was between the pool and the exit from the home which was the only access that the child could have had then when she went back inside she  called out for the child she searched a three story house from top to bottom then using her motherly instinct said why she must have gone next door to where the neighbors are because they had this relationship with another neighbor yes our kids come back and forth and play with each other so even unconcerned yet she walks down to the neighbors and finds out that coral is not there then she lists all of them and they ran back to the house and looked in the car they searched the house again and then ended up finding coral in the pool in the backyard nobody knows how and when coral ever got to the pool what happened back there no one was able to determine with the exact time of death and so you know what we really have is just a moment when she lost track rich and then using her own motherly instincts and knowledge of her own child the habits of her child searched in the places where she would expect a child to be because the child knew better than  get into the pool and there's no suggestion that she even knew that who'll have been wasn't secured like it should have been it's a mother's own will she just staying with her mother at that house there but she followed what she believed was where she would find her daughter her searchin house maybe she's playing i don't seek whatever after that exiting the door walking down the neighbor's hoping to find her there didn't then the panic set in they came back searched the car searched the house again and lastly looking at the pool which was the last place she expected to find or her daughter so it's our position that regardless of what standard you apply that the way that the investigator the child protective investigator in this situation he spent a few minutes with her psychiatrically which never happened it's just the whole thing is just a train wreck from the very beginning and under the situation we submit that under any reasonable standard of proof that the  miss the finding which is suddenly disappeared and withdrawn by the department is if that solves everything it does if you read that the decision of the administrative law judge i think it's pretty clear the chief confused intermix the two and  a please the court and so i am assistant attorney general end of watch ants on behalf of the department and its director the central issue in this case is whether the department clearly erred in declining to expunge the indicated finding for death by neglect where david's my starter drowned because she left her unsupervised for a period of roughly thirty minutes knowing that the child was anxious to swim and that there was a backyard pool with unrestricted access for the reasons explained in our brief the department's decision was not clearly erroneous on appeal david's meier attempts to shift focus away from the central issue by claiming that her procedural due process rights were violated and that the department's investigation somehow was inadequate and either of those claims has some merit the due process clause protects fundamental justice and fairness procedural due process in particular requires that a party be given a meaningful opportunity to be heard and a meaningful time that happened in this case david's meyer herself asked that the hearing be conducted in the first few weeks of december twenty fifth and it was conducted beginning on december the final administrate of decision was then issued in january of two thousand and sixteen there's nothing about this timeframe that's unreasonable and certainly not violate a due process both the supreme court's decision in  line and the department's regulations contemplate that the ninety day period within which the department should render its decision may be extended plus as the court in lyon recognized due process is a matter of federal constitutional law so even assuming for argument's sake that the department didn't comply with state requirements regarding timing that's not necessarily determinative of whether due process was violated on page five of her reply brief david that the timing of the issuing of the final administrative decision as well as the administrative hearing itself has to a serious pall on the proceedings but she doesn't explain how david's minor doesn't suggest that any of her witnesses were unavailable based on the timing of the hearing or that any evidence turned up missing because the hearing wasn't conducted soon or even put into the side her own role in choosing the hearing date davidson or had the opportunity to present four witnesses at the hearing and she engaged in cross examination of the department's witnesses she had a meaningful opportunity to be heard at a meaningful time and that she received due process david meyers challenges to the department's factual findings and in particular the finding that she left her child unsupervised for thirty minutes also the department's investigator testified that on the night of the incident david's meier told him that she had not seen coral for about thirty minutes and at that point went to look for her at the hearing david's meier denied having made the statement so giving the conflicting testimony it was left to the department to make a credibility determination and the department of term and that the investigators testimony was more credible there isn't that determination was not against the manifest way that the evidence with regard to allegation number seventy four and the department has not  the lower court makes a decision that is at the serial to one party's rights and that benefits another party's rights that is not what happened in this case neither the department nor the circuit court here in declining to expunge the indicated be forthcoming about the fact that this challenge does exist allegations seventy four but under eighty nine illinois administrative code section four thirty one one thirty p one all reports where the allegation involves a child stet shall be retained for fifty years on the register after the report was indicated so is the indicated finding for death by neglect that caused her to place on the register for fifteen years we wanted to remove any sort of doubt or question about the propriety of her placement on the register and that's what made us decide to withdraw any claim regarding allegation seventy four but even without allegation seventy four david's minor situation would remain the same returning to the procedural due process argument this is not a situation where david's meyer requested a hearing and was put off for several months by the a l j or the department david's meyer asked for hearing in the first few weeks of december and she got a hearing in the first few weeks of december eighty nine illinois administrative code section three thirty six point one ten eighty two provides that the administrative hearing must be scheduled within seventy calendar days after receipt of the opponents request unless the parties agree otherwise and if the appellant doesn't agree to hold a hearing on the agency's first available day that time between the first available day and time frame he would like to propose he said first few weeks of december and so within that period she offered a date but it's not clear that she was unavailable to conduct the hearing before that and given that david's meyer why would dav because davis meyer said that she did not need an admonition that she didn't need a reminder about the timing of the hearing provisions so that by not reading their mission there we've a o j from offering the first  again the point of these timing requirements is to ensure that the appellant gets a fair hearing a fair and timely hearing and she got that in this case and returning to lyon again you know even if let's say the department even for and so because of separation of powers concerns the dissent but it was inappropriate for the court to suggest what you know given that cause general assembly had said credible evidence is fine that it was inappropriate for the court to suggest otherwise but the distinguishable in that in line in the entire appeals process before the department took roughly eight months here it took fewer than four months for you know the appeals process to be completed also in line the court noted that some flexibility is appropriate regard to the scheduling of but administrate of hearing and the issuing of the final administrative decision and in this case given that plaintiff was given and hearing within the timeframe that she propose by statute the department is required to issue a final administrative decision sixty days after the hearing in this case the decision was issued forty one days after the hearing there is just simply process concerning here given that given what occurred in this case department then the regulation says that within ninety days this process should occur unless extended by you know actions of the opponent otherwise so even to the extent that and we are our view is that there were actions by the opponent that extended the ninety day period but even if this court sees it differently or due process rights based on the statute the department has issued its final administrative decision within sixty days after the close of the hearing and it did within forty one days so we just don't see how there is that the press is concerned in this case she received a timely hearing within the department and the recommended decision decision despite the fact that the two day administrative hearing at which several witnesses testified and it on december eleventh that somehow she should rush to issue a decision by december twenty ninth but it wouldn't have been in david's miers interest for the l g to rush through a decision there was a lot of testimony presented at the hearing and it was appropriate for the l j to issue a decision that carefully analyzed the evidence that was presented which is you know what is demonstrat turning to the merits of the investigation there's simply no support for david somers claim that the department predetermine she should be and the investigator testified that on the night of the incident david dreier told him that she had not seen for gruffly thirty minutes and at that point started to look for her at the hearing when the import of that admission came clear david's meyer said that it only been about five to ten minute period but the department in its role as fact finder concluded that the investigators testimony was more credible allegation fifty one requires showing a blatant disregard of parental responsibilities which results in a child step here we had a three year old who based on david's meyer's own testimony was anxious to go swimming we also had a pool in the backyard that was unsecured which we know because david meyer testified at page one nineteen of volume four of the record that the safety device was not was not in place that day so knowing in her own words that cora was fussing at her about wanting to go swimming david fire left her and went outside to take pictures of mushrooms when she called for coral and got no response she went through the home which is described in the record as a large three story building with a with a basement then after not finding her in the home david smart thought that the child must have gone by herself to the neighbors house even though the neighbor's house was about four houses away and she said that it was her common practice to do so ultimately david's meyer left unsupervised for roughly thirty meet minute period during which time the child partially disrobed entered into the pool and ultimately drowned that sequence of events demonstrates blatant disregard parental responsibilities this is a tragic situation but anger requires the department to indicate people who have committed blatant the problem here jane made the statement whatever the actual time frame she's talking about those thirty minutes young girl was missing and unsupervised long enough for her to go to the pool climbed the ladder and then again include the fact that the child was anxious to go swimming the backyard pool was unsecured david's mother went into the home to go charge her phone david marr then went back outside to take pictures of mushrooms you know so given all of that i think all of those factors are certainly what played into the factual finding in this case and given that factual circumstance you know the decision that heard again the decision not to expunge that indicated finding for death by neglect which is not clear  or agree that thirty minutes is critical and that's that you just give the record a fair reading with respect to that even the child protective investigator acknowledged you know we don't know what kind of timeframe is really important here fifteen minutes didn't concern him the fact that she could be running around the house didn't concern him and related things but i think the first utterance i love this plaintiff's mouth when the officer rosario showed up was that i just lost sight of her for a minute for a moment i guess was the exact word secondly the safety device yes she acknowledged that it wasn't on there but there's no evidence she knew that it wasn't secured before hand thirdly i'm not sure what confess air really means in this context but it's clear that the department had a court tell them th just i don't know what words you're going to use but it seems to me that the department has in fact confessed serious error by saying you know look let's just try to ignore allegation seventy four here my fourth and last point you read the federal cases upon which lyons was decided afterward there's a series of cases in which the department's taken a spanking from the federal government along due process lines because of the way they were handling these things and delay this whole procedure in the deep you case one of the final ones the court indicated that look you have to decide these cases in thirty five days but we'll put up with your ninety day rule but you've now put up provided if you start messing with it we're going to impose itself executing sanction to no out and that's what we're asking this court to do here