thank you your honor is good morning counsel may it please the court maybe and work on assistant attorney general on behalf of the department of children and family services in this case the department's director of paladin indicated finding under the abuse and neglected child reporting act against julie q because there was evidence that she was an alcoholic who was drinking during the evening of january twenty ninth two thousand and nine to the point that what she was failing to provide adequate supervision protection and care for her then nine year old daughter this indicated finding should not be disturbed by this court for any of the three reasons raised by julie q first allegation of harm sixty under hearing in this case were proper and thus were not against the manifest weight of the evidence finally if a due process right was implicated here julie who received all the processes that was due because the directors decision was rendered within ninety days of her request for a hearing on the first issue your honour's regulation allegation of harm sixty is not void when the department promulgated allegation of harm sixty eight in two thousand and one it had authority to do so based on the x definition of neglect a child that was in the act at the time contrary to the appellate court majority and julie q s interpretation of the act the definition is not limited to only four circumstances if i may i'd like to walk through that definition under the act neglected child is a child who is not receiving proper or necessary nourishment or medically indicated treatment proper or necessary support or medical or other medial care or other care necessary for the child's wellbeing including adequate food clothing and shelter and the acars on to find three more instances that the child has been abandoned by his parents has received crisis intervention services and the parents will not repeat permit him to return home or was born with controlled substance substances in his system that first part of this four part definition contains the phrase other care does to sorry for the child's well being including adequate food clothing and shelter by using that word including in that first part of the definition the general assembly plainly indicated that the subsequent list was not meant to be exhaustive and it was on that basis that the department promulgated allegation of harm sixty but it also promulgated other allegations of harm that do not relate to food clothing and shelter and that is why limiting the definition to just those four instances would not only undermine allegation harm sixty that's at issue in this case but several of the other administrative regulations  promulgated by the department as well which we describe at page twenty five and twenty six of our brief and relevant here are allegation of harm sixty which is intitled environment injurious to the health and welfare of the child provides that placing a child in an environment that is injurious to his or her health and welfare constitutes neglect that regulation was several examples that further define that phrase which include exposing a child to the use of alcohol which is part that's relevant here it also sets forth other factors to consider such as the child's age and the child's ability to protect himself and the parent's ability to control his or her actions it grout is dependent on the circumstances and it may be the case that in some cases not just one day can be looked at to determine if like for example in this case to understand how the the nine year old child reacted to her mother's drinking is only understood by examining the history of the mom's alcoholism and amount of effect on the child so well one day was what precipitated the report i think that in some cases a determination of the gripes can take into account more than what happened on just one day and i would ask the court to you know be careful in how it words and opinion because a lot of these cases as the courts cases and as a juvenile court act make clear do not depend on what happened on one day even the regulation the substantive definition the severity and frequency is to be considered the child's age the parent's  there was the father testified that when he first called he said that the child said that she was locked in her bedroom but then corrected himself to say she was told not to leave her bedroom and the department did investigate to determine whether you corr himself i'm sorry which point did you think it's not totally clear from his testimony but as soon as that apartment went and and looked to see that there was no lock on the outside the mother said she was to the bedroom and in fact when he went to talk to the daughter on january thirty first she said she wasn't after her bedroom so that quickly fell out of the case you notice that w nation the final determination included a that there she was not locked in her bedroom so with the indicated find it was not based on that that allegation at all it was based on the mother drinking to the point of not being able to provide supervision and care for her daughter and on the fact that she told the daughter not to leave the room and as the history of this family became clear at the hearing the reason that the daughter got so anxious about not having access to a phone is because she would have the history of things that happened in the family there had been a house fire when on her fifth birthday because of her mother drinking and falling asleep with a language for this allegation of harm to exist the court does not need to resort to other tools of construction to determine whether this language that was taken out has any effect because there was still language in the act to form a basis for this allegation of harm but even if we were to look at those tools of construction under the courts rule only if a phrase that is unambiguous is removed does that have an impact on the meaning and here everyone agrees that this language was removed because of fear of it being too a big u s for mandated reporters to understand until it could be further defined as it is now under allegation of harm sixty  the language was removed so even the presumption that julie q asked the court to follow cannot be invoked here because the language that were was removed was ambiguous and also reading the allegation of harm in the statute the way that julie q suggests this court two would lead to absurd results as we pointed out and i prefer section seven point one six of the act indicates that if there is a finding of the juvenile court act of neglect on the basis of creating an interest environment then automatically under the buz and neglected child reporting act and indicated fining may be made without a hearing so if under their reading this environment injurious language is problematic then there should have been an exception put in section seven point one six for that kind of situation q in the end i would say it's form over substance because looking at allegation of harm sixty it is clear that the incidence of harm that it sets forth constitutes neglect regarding the second issue of that but i'm sure rowling's first during the administrative hearing in this case julie q objected to the part of the department's investigation notes that constituted an interview with the daughter on january thirty first by the weekend on call investigator and there complera she objected to that being admitted into evidence on the basis corroborate it was not called to testify those notes are in pages are forty four and forty five of the record a threshold matter julie q should not be her to bring this issue to the court because she had the option of subpoena encourage the department presented bob benson to testify about the investigation who was the primary investigator that was assigned to the case if julie q wanted to test the reliability and credibility of cupboard is interview with the daughter she should have subpoenaed her to testify which the department's regulations allow why does this idea that she does have you know and their history of hearing change and l's i think the important part is in the administrative hearing and how these proceedings happened which is the primary investigator puts together the whole report and in this case there were multiple people who participated in compiling the or and that is not unusual especially when a call comes in on the weekend so the primary investigator is the one who looked white we can put forward the report on its own as evidence and if the person wants to challenge the reliability of the report it should be on them to subpoena the person to come and testify because the rules of think i believe just the opposite your honor it is clear that the legislature hadn't done anything since two thousand and one to strip the department of authority to indicate people under this allegation of harm sixty and in the of the appellate court's decision the general assembly was moved to make clear that this language was appropriate and we submit that there was already language in the act to support the salivation of harm and the fact that now we're back to a place where we might have some overlap some duplicative some superfluous language is just a recognition that i think the general someplace feels it's better to be duplicative than ineffective in protecting children from indicated on the allegation of harm sixty and i think the general assembly was trying to protect you know the ability of that apartment to do that going forward regardless of what happens in this in this particular case for cases that have already been indicated so i think that actually supports the idea that the general somebody believe that this phrase injury and joyous environment was proper even under the abused and neglected child reporting act and as we were discussing as the fourth district back in the montevallo case you know form makes all the difference and that's why this these notes and these other incidents that came in during the hearing were proper under the administrative procedure act because even though they were hearsay they were based on a statutory duty to investigate child neglect which makes them more reliable than for example  reply brief in response to some of the cases cited that and you know police reports was one of the samples that was used and under the department's regulation themselves all evidence regarding child neglect may be used  explained that is contrary to the findings that were made by the director and in particular the credibility to determinations that were made and the court sitting on them in a straight of review does not usually undo those and they have given us no reason are they should in this case they admit that there is evidence going both ways that there was some testimony that the daughter had lied about minor things not things having to do with mother but whether she was  she can be when she wasn't supposed to so there was enough evidence for the department it's tractor to make a determination that it was actually julie q his testimony was incredible  so in the end a reasonable jury a reasonable person could rely on the notes submitted by of her interview with the daughter and on the second part of this issue whether the other is incidence could be admitted i think we've discussed that there are at least even a court recognized admissible to the extent of challenging surely cuse credibility she testified i was not drinking on january twenty ninth two thousand and nine because i've been sober since january twenty ninth two thousand and six those incidents could come in to challenge her credibility determination and in fact part of the allegation of harm was whether she was exposing her child to the use of alcohol and so that evidence was also relevant to that on the final issue just make sure i touch on it before i run out of time as a threshold matter julie q pointed to no talk to interest under the due process clause that was implicated in this case as the court in lyon made clear a reputation hormone is not enough in that case the person indicated was a teacher and so the court determined that she had lost a couple of jobs because of the indicated finding and there was a liberty interest was implicated surely she was pointed to nothing in her case that would create a liberty interest but in any event thank you tractors decision was timely rendered there are two periods of time that are in dispute in this case the first is the seven days between may twenty ninth and june third two thousand and nine that time should not be attributable to the department because it was  time rescheduled for seven days later when the presiding ha could be there that's in effect the same thing that happened in the lion case where dale jr was in a car accident and couldn't be at the hearing they tried to have  a substitute l j said to make the determination but because she didn't have other dates available they had to move they hearing seven more days so that that time should not be a triple up to the parliament and second is the forty six days between june twenty fourth and july twentieth two thousand and nine that timeframe also should not count against a department because it was agreed to by the by jury q c counsel they claimed that there was a hobson's choice that had to be made because they couldn't subpoena people within the time but that ignores the fact that they had asked for an expanded expedited subpoena to be issued and it was already so they could have done that or they could have had their witnesses test telephone so any and only eighty nine days should be attributable to the department and that was within the ninety day is required to satisfy any due process thing any due process right that was to make that determination but the department would not be opposed to every man and thank you thank you good morning michael brody on behalf of julie q and may it please the court in any normal sense of the word m q was not an abused or neglected child more importantly as the term neglected child ankara not the juvenile court act under ankara m q was not a neglected child on january twenty ninth two thousand and nine on that date she was receiving proper necessary care for her well being nourishment support medical care clothing housing and all of the other elements contained within the statute she was not abandoned by her parents her parents were fighting over her custody she was not subject to crisis intervention services she was not a newborn with drugs or alcohol in her system so under the statutory definition that the agency was charged with enforcing she was not on the glock to child i use those phrases  advisedly because we are here to apply a particular statutory definition and that's the definition found in ankara that statute does not look to environment it does not have the environmental language found in other illinois statutes that statute looks to the care and well being of the child now here the agency argues that the drinking that julie cuse drinking had gotten to the point there that she was not able to provide care for her daughter there is no evidence in the record for that statement none at all the hearsay report that provides the basis for this charge which is found in the record begins by saying that when the child was seen two days after the report she exhibited no signs of abuse or neglect no signs and there's no evidence that anything that happened on january twenty ninth interfered with julie q s ability to care for her daughter this case arose out of a hotline call placed by a divorcing parent after receiving advice from his divorce lawyer it was placed the week before a custody hearing at which the custody over m q was being address and in that call it was reported that m q was locked in her room by a mother who had been drinking d c f s investigated it by going out three weeks later to investigate the home and found no lock on the door at that point having determined that the child showed no signs of abuse or neglect and that the objective facts found in the report was not supported the c f s should have closed its investigation but in violation of anchorage continued and in the hearing that followed and in this court d c fs relies on primarily conduct involving the lake bluff police department both before and after the incident that issue here interestingly both those incidents resulted in reports that were unfounded and if you look at the statute unfounded means there was a determination by the agency that there was no credible evidence to support the charge and under the statute unfounded reports are inadmissible as a matter of law so at the point we now stand there's no evidence that julie q neglected her daughter this case however presents three legal issues the first is whether under ankara i'm a d c fs by regulation defined conduct within the purview of neglect but the statute excludes and the answer is no the second is may the agency if the statute permits that charge made the agency base its conclusion on double hearsay an unsigned done swore note in a filed by a non testifying witness about a non testifying witness where the other in dish of unreliability again the answer is no and then finally the question of timing which i will address if time permits so turning to the first question the question of what the statute permits and whether allegation sixty is supported by the statute i think the legal principle on which we based our argument is undisputed and that is the legislature gets to define what neglect is and its definition must be respected and i don't believe the c f s to challenge that statement the question though is does nkrumah at the time this conduct took place include injurious environment in the definition of neglect and i would like to look at what the statute said and also what it didn't say what it said was neglect was defined with reference to the care of the child was receiving today d c fs looks to be including language which modifies a portion of the statute but it modifies is whether the child is receiving the proper or necessary care again that was not proven here and that does not open the statute up to a wide ranging injurious environment inquiry isn't juries environment within the definitions of care found in the statute there's no suggestion of that second what the statute used to say and what it no longer says before one thousand nine hundred eighty as the court is well aware the statute was very different it had language that explicitly included injurious environment as an element of neglect for ankara that proved to be unworkable it was primarily unworkable because this is a reporting statute it's a statute that gives guidance to policemen and emergency room workers and teachers as to whether abuse or neglect has happened at a particular time and d c s learned that injurious environment didn't fit within that regime it certainly doesn't fit within the regime if you accept the agency's view now that we're not just looking at an incident we're looking at kind of a lifetime achievement analysis we're looking at whether or the history of the mother's parenting experience she's shown some conduct that somebody might think expose a child to injurious environment that kind of standard does not permit an emergency room worker or a teacher to decide whether they must report and if they must report and fail to they're subject to to not provide clothing or shelter or to abandon a child and the agency has the power to interpret those statutes excuse me that language found within the statute but it doesn't have the power to interpret words that aren't there and it doesn't have the power to interpret words that used to be there and were purposefully removed and does it make any difference department yes well i think it really supports our position yes i think it does make a difference i'm not aware of a can of statutory construction that says when something used to be in a statute and it's purposefully removed because it doesn't make sense the agency therefore has the power to decide what it means if the general assembly wanted to give meaning to injurious environment want to give guidance to those mandatory reporters they have to apply this standard they could have done so but they looked at it different statute the juvenile court act involves judicial proceedings where a judge makes a determination after hearing the evidence it's not an administrative proceeding on this credible evidence standard the juvenile court act has two elements there's an adjudicatory phase and then a dispositional phase in particularly in the dispositional phase where the trial court has statutory discretion to do what is in the best interests of the child and after that determination which is defined by statute the court makes a determination as to whether the child was neglected in this case we're interpret in a statute that they fail they're subject to liability where that standard is different and the procedures are different it's appropriate for the definition of neglect to be different the legislature can reasonably and has reasonably decided to hold mandatory reporters to a different standard than a court after reviewing the law the cases the pronouncements of this court and others can apply and i think we can take some comfort from what the legislature did last year after the appellate court ruled here the post decision ekman by the legislature does not endorse the c f s this position it does not say that injurious environment is an element of neglect that doesn't come flooding back into the statute instead that pronouncement again focused on whether the child was receiving care the statute looks to whether the there was a likelihood of harm again not shown here and the parent blatantly disregarded print a wobble occasions which is defined as an incident with a real significant obvious risk of harm so obvious that a reasonable parent would take action so that's a very different standard than allegation sixty the agency argues here that they put that language back in the statute almost as a belt and suspenders it was in there already but will put it in  again again that's usually called surplusage and we don't respect that and that's why i think the agency's interpretation of what happened back in one nine hundred eighty should be rejected because there the legislature looked at the statute and says it doesn't make sense this injurious environment language it doesn't make sense we have to take it out of there and that decision must be respected the d c fs in effect is arguing that when the language was put in in  five it was unnecessary and when it was taken out in one thousand nine hundred eighty that that action was without effect and when that language was again put back in two thousand and twelve that again was without effect in other words the legislature is acting across the street frivolously them they're passing laws that don't change anything and that's not what our statutory interpretation statutes say are cases rather legislature intend to correct they they didn't put back in allegation sixty they didn't adopt allegation sixty they passed a statute that says ok we'll allow d c fs to pursue injurious environment cases going forward  but in order to do so they have to satisfy two conditions they have to show likelihood of harm that's not an allegation sixty and they have to show a blatant disregard of parental obligations that's not an allegation sixty so i think the legislative action can only be read consistently with the argument that we're making which is when the legislature amended the statute in one nine hundred eighty it did not permit what the agency did when it passed the regulation containing elevation sixty turning to the evidence question i want to address first the agency's argument that this and this charge involved more than one  day that is an argument they raise in this court that is not what they argued below in the hearing and we cite the statement in the brief the agency took the position that this charge was about what happened on january twenty ninth and  really it has to be that that has to make sense under the reporting statute this is not a juvenile court act proceeding where the court has the power to look at more to look at at events that took place over an extended period of time the question here is whether a mandatory reporter was required to report julie q for what happened on that day and and january twenty ninth there were two witnesses to what happened there was  q and there was her daughter m q julie q testified and denied she had been drinking now even if you find that testimony to be incredible for whatever reason the appellate court concluded correctly there was no contrary proof as to what happened on january twenty ninth m q did not testify there was evidence of alcohol testing both before and after not not days but reasonably contemporaneously and all of the alcohol testing was negative there were witnesses who dealt with julie q in the days before and after this her substance abuse advisor her sponsor people in the school they testified she'd been not drink she had not been drinking her therapist testified that her alcoholism in two thousand and six had progressed to the point where she was a late stage alcoholic she could not turn it on and off she cannot drink a little and then stop if she started drinking she wouldn't be able to stop and everyone would have known that she was had relapsed and there was no evidence that that conduct a taking place so that some of the evidence that the hearing examiner had before her was that  julie q deny drinking the extensive evidence supported that and then there was this piece of paper in the record piece of paper written by a non testifying witness about an interview with a non testifying witness the appellate court correctly ruled that that piece of paper was it invisible hearsay and the state concedes it's hearsay it's actually double hearsay and under the administrative procedure act the rules of evidence must apply here but there is an exception if it's the kind of hearsay material that a reasonable person would rely on and we submit and the appellate court we believe correctly found that this is not that kind of evidence the testimony here was the  document wasn't testimony was a statement by testifying witness it wasn't a statement of what that person said or what was told to her summarized and it was a synopsis of a conversation it was a conversation with a nine year old child and there's some question about her truthfulness nine year old children as any children will sometimes say things that aren't true this child had the unfortunate circumstance of being a pawn in her parents divorce and there was testimony below that from the substance abuse counselor that the child was told way too much by her father about her mother and her mother's drinking and that influenced the way in which the child talked if you read the statement about what she said she observed it's the same statement we hear over and over again the child said the same thing that you know other incidents so this evidence particularly with the contrary evidence at the time was inadmissible hearsay and does not best it's propensity evidence excluded by rule for all four and then they argue and they argue today that we have an obligation to call the investigator in order to cross examine her about her no taking calling cobra would not have allowed us to get out what happened because she was not the underlying test fire that was the child and moreover i believe is just as ty stated a party opposing the burden of proof ordinarily does not have the obligation to deal with inadmissible testimony by calling the declarant or the the once removed declarant to testify to explain what would have happened they suggest here as they have before that the argument is waived think an examination of the brief below make clear that we've been arguing this point from the beginning on the question of timing i'll touch on it only briefly i think this case is controlled by lions and lions the court found a due process interest  the question in that case was whether a teacher satisfied the stigma plus standard here the same standard as satisfied by a parent who is now on a registry put out by the state of illinois saying she's in a collectible parent that affects her and her  regulations here attempt to legislate in an area that the legislature has already resolved and under our system the executive carries out the law as it does not pass laws contrary to the will of the general assembly and we submit that's what allegation sixty has done in addition there was no evidence to support a charge even if a charge is permitted under the statute multiple hearsay standing alone cannot support a finding of neglect and that finding of neglect gives rise to the stigma and stigma plus that this court has found to implicate due process protections which were not satisfied here thank you you thank  just a few points on rebuttal your honour's first about the admission of unfounded reports to be clear there were no unfounded reports that were admitted during the hearing in this case and they are not allowed to be admitted under the department's regulations but what was admitted was testimony underlying the incidents that happened in order to not only challenge julie q s credibility but also to put some context into the substance of the law we're talking about here allegation of harm which while one day incident precipitated the report under the regulation itself contemplates looking at more than what happened on just one day as far as mandated reporters it is true that the the act is and at helping them determine whether to report but as we explained in our brief  mandated reporters would only face consequences if they reasonably understood what the allegation of harm meant and willfully failed to report if a mandated reporter has a reasonable reading of the allegation and determined that no report was necessary no consequences would occur and i would also point out that all of these allegations of harm in two thousand and one were created based on a committee which talk about it page twenty nine of our opening brief the best practices committee that it was staffed with doctors teachers lawyers lay people to come up with these allegations of harm to help flush out what the x men so these people who sat on the committee who may become mandated reporters one day hoped to write the regulations that became the allegations of harm as for the evidence re rulings as i was trying to explain to your honor in response to your question we do so fast submit the report the investigation report and cause the primary investigator to testify that has always been the way that these proceedings have happened and if a person wants to challenge someone who helped make the report they should be made to subpoena that person which is contemplated by the department's regulations the department is submitting the report and the primary investigator to satisfy its burden of proof if the other side wants to challenge the credibility of that person who took part of the investigation on they should be made to call that person and ten forty five