No. 2-08-0958 Filed: 3-29-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ DAUN BO LGER, ) Appeal from the Circuit Court ) of Ka ne Co un ty. Plaintiff -Appella nt, )

) v. ) No. 07--MR--636 ) THE DEPARTMENT OF CHIL DREN ) AND FAM ILY SE RVIC ES and ER WIN ) McEWEN, Director of the Department of ) Children a

nd Family

Service s, ) Honorab le ) Michael

J. Colwell, Defend ants-App ellees. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE SCHOSTOK d

elivere d the opini on of the c ourt: OnOctober 26, 2007, the defendants, the Depar tment of Children and Family Servic es (DCFS) through

its Director, ErwinMcEwen , deni ed pla inti ff Daun Bolger's request to expunge an indicated report of medical neglect. On Nove mber 30, 2007, the plaintiff filed an action f o r administrative review in the circuit court of Kane County . On September 15, 2008, the trial court affirme d the DCF S decision . The pla intiff ap peals fr om that ord

er. We af firm. InJuly 2006, the plaintiff and her husband took physical custody

of a 10-ye ar-old boy

named Robert Villarre al at the req

uest of hi s mother, Carol Ras mussen, w ho was una

ble to ca re for h im. Robert had spina bifida and was mentally and physically

handicapped. The plaintiff also had a 10- ye ar-old son, Trevor, who suffered from Down sy ndrome. On December

24, 2006, the plaintiff gave the two boys a bath. Afte r she had finished washing them, she left the bathroom to retrieve towelsNo. 2--08--0958

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froma linen c loset. When she returned, she found that the hot water was turned on and Robert was sitting und er the runn ing water. The plaintiff removed both boy s from the tub and noticed that Rober t's upper chest, the back of his neck, and his upper ba ck were pink. The plaintiff knew that Robert h ad bee n burned . The pla intiff wa s a licen sed prac tical nurse and tr

eated th e burn wi

th Silvadene cream, hy

dration, and Tylenol. On D ecember 27, 2006, R

obert' s father , Mark Vil larrea l, who had recently

learned that Rasmussenhad turned physica l custody of Robert over to the pla intiff,

cameto the plaintiff's house to retrieve Robert. When Villar real and R obert reached Vill arreal 's house, he sawthat Robert had severe burns. Villarreal took Robert to the emergency room, whe re Robert was hospitalized for three day s to treat the burns. DCFS investigated the incident . As a result of its investigation, DCFS entered indicated findings ag ainst the plaintiff for child neglect and medical neglect. OnSeptember 15, 2007, a hearing was held bef ore an administrative law

judge (ALJ) on the plain tiff's request

to expung e the indi cated r eports of child and

medical neglect. At t he commencement

of the hearin g, the ALJ indicated that he had received a request to quash subpoena s issued to two school district employees who we re Robert's teachers. The AL J indicated t hat h e quashed those subpoenas because he did not think the testimony of thos e witnes ses would be probative of

the is sue to be deci ded. T he pla inti ff's at torne y objecte d. The plain tiff's attorney stated that the witne sses, Ms. Ru

da and Ti na Nicho ls, would b e able to provide probative testimony. The witnesses would testi fy that un der th e plai ntiff 's care, Robert had

gained appropriate weig

ht, stopped falling asleep i

n school, and had no more bed sores. They would also testify

that when they saw

the burns app rox im ate ly on e we ek a fte r th e in cid ent , t he b urn s di d no t ap pea r to be s ign ifi can t. The ALJ noted the objection.No. 2--08--0958

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Thereafter , the pla intiff te stified that her son Trevor and Rober

t were c lassmate s. In

July 2006, Robert' s mother, Carol Ras mussen, in dicated that she c ould no longer car e for Rob ert, bec ause of his handicaps. Robert was in a wheelchair but could crawl. Robert wasable to get in and out of the bathtub on his own. Robert could say wor ds but was unable to speak in sentences. He knew how to scream in case of emerg ency. He could use sign langua ge but w as unable

to use the phone. He could feed himself. In De cember 2006, the plaintiff was Robert's "f oster mother." Onthe afternoon of

December 24, 2006, the plaintiff helped Robert and Tre vor take a bath. The bathtub had

one faucet but separate handles for the hot and cold water. She ran warm water in to the tub and then turned the water off. After the boys washed their bodie s and their hair, she turned the water back on to

rinse the ir hair

with fresh water. After that, she went to g et towels from a linen closet about seven feet away

and heard the water running again. She did not think any thing of it at fi rs t, bu t t he n s he he ar d T re vo r c ry. That's when she realized that only the hot water

was on. She also saw steam

coming up from the water. She did not know which boy turned the water on. She

was at the linen closet for only a c ouple of seconds. When the hot water was running, Robert was under the fauc et with his

head lea ning toone si de. He w as not scream ing. She turned the water off and removed both boys fr

om the tub. She noticed that the back of Robert's neck and s ome of his back and chest were pink. Robert was not cry ing but she could tell from his facial expression that he was in a "little bit" of pain. The pain lasted less than an hour. She dried Robert off and put Silvadene cream on his burns. I t was a prescription burn cream that she had left over from a sunburn she previously suffered. The plaintiff did not know what degreeof burn the crea

m was rec ommended

to treat. After about an hour, Robert did not look like he was in pain. Besides the cream, she was a lso having Robert drink six ounces of fluid every hour.No. 2--08--0958

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She knew that R obert was burned but did not know the degree of the burns. On the evening of December

24, 2006, she gave Robert some Ty len ol for pain. She did not seek any other medical tr ea tm en t f

or Ro be rt on th at da y. The plaintiff further testified that on December 25, 2006, she noticed that the burnswere red and swollen and that Robert's nose also appeared bur ned. Robert did not appear to be inpain on the 25th. She did not seek

any other medical attention that day. She c leaned the burns with Ivory soap and applied more Silva

dene cr eam. She c ontinued t

o give Ro bert fluids but did not give him any Tylenol on that day. On De cember 26, 2006, the burns appeared the sa me . T he y did not appear infected. She did not seek any other medical attention on the 26th. She continued cleaning the burns with Ivor y so ap, apply

ing the b urn cre am, and giving Rob ert extra fluids. The skin on Ro

bert's chest was star ting to pe el a little

bit. The plaintiff

testifie d th at on December 27, 2006, the burns started to appear more red, swollen, and inflamed. The burn on Rob ert's b ack was also peeling. She did not know the degree of burn that Robert ha

d suffer ed. She c ould not te ll at that ti me if the burns had started to heal. On tha tday, she ca

lled Trevor's pediatrician, Dr. Kilani, ar ound 1 p.m. She told Dr. Kilani abo ut th e burns and how she was tre ating th em. Dr. Kilani told her that if the burns started to look infected, Robert would need to be seen, but that it seemed she was doing eve rything she

could. She denied that Dr. Kilani told her twice that Robert should be seen by a doctor. The plaintiff

testified that she was addressing the threat of infec tion by cleaning

the burns with Ivory

soap. Dr. Reda Kilani testified that he was a pediatrician, license d to practice medi cine in I llinois. He knewthe plaintiff because he had provided pediatric care to her son Trevor since Trevor was one month old. He recalled a December 27, 2006, phone conversation with the plaintiff. She informedNo. 2--08--0958

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him of Robert's burns and

how she had been treating them. She asked him whether she was treating the bu rn s p ro pe rl y. She had stated that the child had second degree burns. He told her that apply ing the Silvadene cream was okay but thatth e c hi ld ha d t o b e s ee n b y a doctor. He told her that twice. Dr. Kilani opined that a 10-ye ar-old child with disabilities who may have sustained

second degree burns sh ou ld be se en by a docto r imm ediat ely, if th e burn s are si gnific ant. A ltho ugh Dr. Kila ni did notsee the b

urns, fr om his conversation with the plaintiff he believed that the burns were significant because the plaintiff told him so. He told the plaintiff that Robert had to be seen by a physician and that he could not give a judgment over the phone. Dr. Kilani testified that he told the plaintiff that Robert had to be seen in order to evaluate the possibility of infection. Dr. Louis Bolanos testified that he was a pediatrician and treated Rober t on the morning of December

28, 2006. At that time, Robert was on the pediatric floor of Mercy Hospital. Robert had been brough t to the emergency

room the day bef

ore. Emergency

roompersonnel told Dr. Bolanos that the child had burns but was stable. Robert was admitted to the hospital and stayed there

over night. Dr. Bolanos made his rounds in t he morning. He obser

ved that Ro

bert was burned on his chest and back. When he first saw Robert it was difficult to assess the burns. At first he be lieved that Robert had second and third degree bur ns and that

Robert needed to be sent to a burn unit. After the burns were cleaned up, he saw that Robert had first and second degree burns. The burns were notinfected. The first degree burns were on the chest. Robert had second d egree burns on the chest and back. D r. Bolanos noted that children are not usually admitted to the hospital for first and second d egree burns. Rob ert was a

dmitted be cause of

his disabilities and the possibility of abuse. Robert was in the hospital for three day s. By the time Robert wa s discharged, most of the burned tissue had healed and there was no infection.No. 2--08--0958

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Dr. Bolanos

opined tha

t when a mi

nor child with Robert's special needs sustains a burn that

causes blisters to form, the child should be taken to see a physician immediately . If there ar e no blisters, the burn will usually heal on its own. When he saw Rober t there were some blisters. Dr. Bolanos did not know when Robe rt should have been brought to the hospital or seen by a doctor. When he saw Rob ert, the burns looked ugly a nd painfu l. First a nd second degr

ee burns are usua lly pa inful. Ho we ve r, Ro be rt wa s g iv en Tyl en ol 3, so an y pa in wa s s ub du ed . F ro m t he wa y Rober t looked on the 28th, Dr. Bolanos opined th at Ro be rt sh ou ld ha ve be en ta ke n t o a do ct or im me di at el y. However, he did not know when the blisteringoccurr ed and a cknowle dged th at his opinion wa s in hindsigh t. When aske d ye

t again whether Robert sho

uld have been

brough t to a doct or immedia

tely after the burns occurred, Dr. Bolanos indicate d that to the

best of his ability and from what he saw, he would have to sa

y y es. Oncross-examination, Dr. Bolanos acknowledged tha t it is possible to burn and then blister later. He also acknowledged that it was possible that there were no blisters when Robert sustained the burns. It was possible they just look ed lik e sunburns, and he would not expect Robert to be brought in for a sunburn. Dr. Bolanos testified that Robert had first and sec ond degreeburns and that it was appropriate to treat first degre e burns with Silvadene cream and hy dration. While in the hospital, Robert was given Ty lenol with codeine, treated with Silvadene cream, and given plenty

of fluids. Additionally, the dead skin was re moved. Dr. Bolanos acknowledged tha t Robert was admitted to the hospital primarily because of suspected abuse. He also testified that Robert was admitted because of

the extent of the injury, the nature of his neurological problems, and the need to investigate of th e cause of the bur

ns.No. 2--08--0958

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Mark Villarreal testified that he was Robert's natura l father. The plaintiff was taking car e of his son on December 24, 2 00 6. Although Robert had spina bifida and was in a wheelcha ir, he could am bu la te by c rawling . Robert w as unable to speak. Villarre al first o bserved Robert at his home around 2 p.m. on December 27, 2006. He noticed that Robert had burns on his neck, back, and chest. They

were re d, oozing

pus, and s cabbed . Villarr eal testi fied tha

t R ober t was in pain. Robert was cry ing and wincing. As he removed Robert's shirt, it stuck to his chest. When he took Robert to the hospital, Robert was admitted immediately. He wa s told that Robert's burns were third degreeand that he needed medical attention. Robert was in the hospital for three days. When Robert

was dischar

ged, Vi llarrea

l was instr ucted to t ake Robe rt to a pediatrician the next day and to cha nge Rober t's burn dressings three times a day for six weeks. At

the time of the hearing, the burns were healed but Robert's skin was permanently discolore d. On cross-examina tion, Villarreal admitted that he had rec eived a care pl an tha t the p laint iff's husband had given him when he picked upRobert from the plaintiff's house on December 27, 2006. The care pl an indica

ted that h e should

apply Silvadene cream to Robert' s chest a

nd back. Howeve

r, the pla n did not ind

icate the purpose o f the cr

eam. Monique Boozer

testifie d that she

was employe d by

DCFS as a

child protection investigator. She was assigned

to investigate Robert's burns on December 27, 2006. She observed

Robert at the hospital on that day. She was not able to speak with Robert, because he is noncommunicative. She spoke with the plaintiff onDecemb er 27, 2006, at the plain tiff's home. The plaintiff indicated that Robert was burned acci dentally

during a bath when she left the bathroom to retrieve towels and the hot water was accidentally turned on. The plaintiff also told her that she applied Silvadene cream and bag balm to the burns and was using I vory soap to keep the burns clean. The plaintiff stated that she had tried

to call a pediatrician

on the day of the bur

ns, but because it was Christmas Eve, no oneNo. 2--08--0958

-8-

was availab le. The p laintiff indicate d that s he fi nally spoke to a pediatr ician, Dr. Kilani, on December

27, 2006. The plaintiff

said that she told Dr. Kilani about Robert's burns and how she was treating them. The plaintiff stated that Dr. Kilani told her that nothing e lse needed to be done. Boozer testified that as part of

her in vesti gation she in tervi ewed t he pla inti ff, th e plai ntiff 's husband, Dr. Sanchez (the e merge ncy room doct

or at Mer cy hospital) , Dr. Bo lanos, Vil larrea l, Rasmussen, Robert's teachers, and Robert' s 14-year -old sister. The record also reveals that Boozer spoke wit h Dr. Kilani. As a result of her investigation, Boozer indicate d the plaintiff for burn by neglect and medical neglect. Boozer's supervisor had agr eed with the indications. Boozer testified that the indication for medical neglect was base d onthe fact that after Robert suffered the burns, he was not taken for treatment for three day s. Boozer considered that the plaintiff applied Silvadene cream and gave Robert fluids. Howe ver, the plaintiff did not give Robert an y me dication

for pain and no one was sure if Robert was in pain. Boozer also cons idered other factors. First, Boozer believed that, bec ause the

plaintiff was a nurse, she should have known to bring Robert to a doctor. Second, the plaintiff did not tell Villarreal on the 27th that R obert had be en bur ned. T hird, altho ugh Dr. Kilani had advised the plaintiff t o bring R o bert to a doctor, she had no t done so by the time Robert was picked up by V

illarreal . Add itionally, she considered Rober t's special needs and the degreeof the bur

ns in makin

g her in dication s. Boozer

acknowl edged

that Dr. B olanos tol d

her the burns were second

and third degree. Boozer did not learn tha t the burns were only

first and second degreeuntil the day of the he aring. On cross-examination, Boozer acknowledg ed that she did not know what the burns looked like on the 24th, 25th, or 26th and that she did not have an y sp ecific indication th at Robert

was in pa

in on those

day s. Howev er, she b elieved that burn s like Robe

rt' s would be painful. DCFS rested.No. 2--08--0958

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The plaintiff testified on her own behalf that Rasmussen was at her house on December 24, 2006. She identified pi ctures that were taken as every one was opening Christmas presents. The photos showed red burns on Robert's neck and chin a nd Silv adene c ream on the si de of R obert 's face. Onthe 24th, Robert's burns were pink and red but there were no blisters. They

looked like sunburns. They looked the

same on th e 25th

and 26th. She acknowledged that she told Boozer that she was starting to second

-guess herself onthe 27th. On the 27th, some of Robert's burns had blistered and that is why she call ed Dr. Ki lani. Dr. Kilani told her that Robert needed to be seen. However, she th oughtDr. Kila

ni meant that Robert needed to be seen in gener al, because he had never trea ted Robert before. Nonetheless, she intended to take Rob ert to the

doctor. H owever , within two hours of speak ing with Dr. Kilani , Villarr eal came to get

Robert. The plaintiff further testified that on December 27, 2006, R o bert had been living with her family for about six months. When Rober t cameto live with her in June 2006, he was malnourished and underweight, had bedsores, was noncommunica tive, did not know sign language, never smiled

or laughed, and would not

move from his wheelchair. While Robert was living with her, he gained almost 30 pounds, no longe

r had bed sores, le arned si gn lang uage, and stoppe d falling asl e ep in school. She cured his bedsores with bag balm. She never pu t bag ba lm on his burns. On the day that Robert was burned she was only seven feet away

at the linen closet

retrieving towels. I

t took only about 30 seconds to get the towels. The p l aintiff testified that Robert was not noncommunicative. He coul d show you that he was in pain by sig n language, cry

ing, or facial expressions. She heard hi m ye ll out once

when he had surg ery . He would also cry fr

om pain if he and Trevor were wrestling. On the da y of the burns and

the two da

ys f ollowing , Robert w as "not i n any sort of distress."No. 2--08--0958

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The plaintiff testified that although Rasmussen had tol d h er that Robert's father was not around, the plain

tiff did no t believe

her. The plaintiff 's husba nd did some

investig ation and

was able to track down Villarreal. On December 22, 2006, they inv ited V illarre al to their home to vis it Robert. The ALJ asked the plaintiff what her legal relationship was to Robert. T he plaintiff' s attorney indicated that they ha

d filed a petition for guardianship of Robert. The petition was pending at the time

of the bur

n inciden t. Finall y, t he plaint iff testif ied that she did

nottell Villarreal about Rober t's burns on D ecembe r 27, 2006 , becau se she wa s t oo up se t t ha t R ob er t w as be in g t ak en aw ay. OnOct obe r 18 , 20 07, th e ALJ issued a written recommendation and opinion. The ALJ found that on December 24, 2006, Robert was living with the plaintiff beca use Rasmussen could not meet his comp lex needs. Ro

bert was handica pped ment

ally and phy sically . Althoug

h Robert c ould

scream fo r h el p, he wa s n ot al wa ys cognitive of when he needed help. The AL J found that Robert had been burned while he was bathing with the plaintiff's son Trevor. Theplaintiff went to the linen closet seven feet

away to re

trieve towels. One of the boys turned the hot wa ter on. Robert was under the running hot water, which caused burns on his upper ba ck and chest, right

shoulder/neck area, and nose. Robe

rt was in p ain but did

not scre am. The ALJ noted that the plaintiff testified that the burns looked like sunburns. The plaintiff treated them wi th

burn ointment and regular hy dration. The plaintiff also gave Robert Ty lenol before he went to bed that night. The ALJ noted that this was "appr opriate action to take for a burn injury ." However, the AL

J further n

oted that the plain tiff was not aware of the degree of burn she wa s treat ing. The next two days the burns were mo re red and swol len. By the 27th, t

he burns were als o peelingand

inflamed. The plaintiff called Dr. Kilani but the plaintiff stated that Dr. Kilani did notNo. 2--08--0958

-11-

tell her to bringRobert in for examination. The ALJ note d that Dr. Kilani te stified that he twic e told the plaintiff to bring Robert in for examination because there wa s a risk of infection. The AL J noted that V

illarre al went to

the plaintiff's home on the 27th to regain custody of Robert. The plaintiff di d not tell Villarreal that Robert needed to be seen by a doctor. When Villarreal got home with Robert he realized the extent of Robert's burns and took Robert to the emergency

room. Rober

t was admi tte d to the hospital for evaluation, treatment, and his own protect ion until the cause of the burns could be determined. Robert was initially diagnos ed wit

h second and third degre e burns, but the amended diagno sis indica

ted first and seco nd degr ee burns

. At the hospital, Robert's burns were cleaned e very eig ht hours with a sodium chloride flush and then Silvadene cream was applied. The burns were then rebandag ed with nonsticking gauze. Robert was discharged three day

s later and recovered from his burn in

juries. The ALJ noted that Dr. Bolanos testified that the plaintiff should have brought Robert in for treatment when the injuries occurred and certainly whe

n blisters formed. The ALJ commented that DCFS had indicated the plaintiff for c hild neglect allegation

No. 55, burns, and child neglect allega tion No. 79, medical neglect. The DCFS rationale f or burn by neglect was the finding that the p laintiff was not in the vicinity of the bathtub when the burns occurred. The DCFS rationale for medical negle ct was the fact that the plaintiff did not take Robert for tre atm ent bet wee n De cem ber 24 a nd 2 7, 2 006 . Th e ALJ determined that DCFS had not proven that the p laintiff

had acte d in blata

nt disreg ard of Ro

bert's safety , an element nece ssary

to meet its evidentiary

burden for

burn by neglec t. The ALJ determined that the plaintiff was nea r the bathroom at all times and that the threat of harm was not imminent or a pparent when

she went to the linenNo. 2--08--0958

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closet to retrie ve towels

. Accord ingly, th e ALJ rec ommen ded th at the plain tiff's reques t to ex punge the indicated finding for burn by neglect be granted. With respect to the finding of medicalneglect, the ALJ noted that DCFS had to prove that the plaintiff's failure to seek medical treatment f or Robert could have caused the injury to constitu

te

a serious or long-term harm, a premise that had to be ve rified by a phy

sician or registered

nurse. The ALJ noted tha

t both Dr. Bolanos and Dr. Kilani testified that, based on the exte

nt of Robe

rt's bur ns, the plaintiff

should hav e taken h

im to a doc to r im med iat ely f

or e val uat io n an d t rea tm ent . Th e ALJ found that the plaintiff misdiagnosed the severity of Robert's burns and that the plaintiff was not qualified to evalua te the de gree t

o which Robert was burned. The AL J determined thatthe plaintiff

was not qualif

ied to det ermine the approp

riate pa inrelief a nd did not have t

he medic al traini

ng to determine that Robert did not need treatment by a doc

tor. The ALJ determ ined t hat du e to Ro bert's special needs and

particular vulnerability , it was imperative that he be taken to a physician when the burns occurred. Because Rober t was unable to fully communica te, it was necessary

for a doctor to

assess Ro ber t's lev el o f pa in and pre scr ib e th e ne ces sar y tre atm ent . Th e ALJ noted that if a burn is nottr ea te d p ro pe rl y, there is a risk of infection and permanent skin damag e. The ALJ concluded that the plaintiff's failure to tak e Robertto be evaluated by a doctor constituted medical neglect and recommended

that the plaintiff's request to expunge the indicated finding for me dical neglect be denied. OnOctober 26, 2007, DCFS issued its final determination granting the plain tiff's r equest to expu nge the indicated finding for burn by neglect but deny

ing the requ

est to expunge the indicated finding for medical n eglect. DCFS adopted and incorporated the AL J's specific findings of

fact and conclusions of law. The plaintiff sought judicial review of the DCFS decision. On September 15,No. 2--08--0958

-13-

2008, the circuit court of Kane County affirmed the DCFS decision. Thereafter, the plaintiff filed a timely notice of appeal. On appeal, the plaintiff first argues that the AL J erred in quashing the subpoenas of tw o independent

witnesses who were going to testify that Robert's burns did not app ear to be signi ficant. Sp ec if ic al ly, the plaintiff argues that "there is no provision containe d in the Illinois Administrative Code, nor the DCFS rule s of proc edure, t hat allow s an admin

istrative agenc y to quash a properly issued subpoena." Whether the AL J had the le gal aut hority to quash the properly issued subpoe nas is a legal question that we review de novo . Cinkus v. Village of Stickn ey Municipal Off icers Electoral Board , 228 Ill. 2d 200, 210 (2008). At the outset, we note that the plaintiff ha s forfeited this argument by

failing to raise it before DCFS. See City of Washingt

on v. I llinois Labor Relations Board , 383 Ill. App . 3d 1112, 1123 (2008) (an argument not raised during the pendency

of an administrative proceeding is deemed forfe ited and cannot be asserted for the first time on judicial review). At the hearing, the plaintiff objected to the ALJ's decision to quash the subpoena s on the merits, arguing that the testimony would be probative of

the issues to be determined. The plaintiff did not ar gue tha t the AL J lacked th e lega

l authorit y to quash the

subpoena s. Even absent forfeiture, we find the plaintiff's argument to be without merit. In support of her contention, the plain

tiff cite s to section 14.30 of the I llinois Admi

nistrativ e Code, Ti

tle 89, chapter IV, s ubchapte r A, par t 14, subpa

rt A, whic

h states: "Subpoenas must be requested by the appellant prior to the hearing. Subpoenas may be granted at the discreti on of the hearing office r or othe r assista nt heari ng admin istrator if a hearing officer ha s not been appointed." 89 Ill. Adm. Code §14.30.No. 2--08--0958

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However, this provis ion applie s to "Public Assistance appeals filed by or on behalf of applicants or recipie nts of assistance under the Department of Human Service s." 89 Ill. Adm. Code §14.1. The plaintiff fails to reco gnize that D CFS rules expressly authorized the AL J to quash the subpoenas issued b y the pl aintiff. The admin istrative hearing and revi ew proc ess that D CFS gua rantee s to persons requesting to expunge an indicated finding from the State Central Register is governed by the Illinois Administrative Code, Title 89, chapter II I, subchapter B , part 336. See 89 Ill. Adm. Code §336.10. Section 336.120(b)(8) of Title 89 of the Illinois Administrative Code expressly authorizes

anALJ to "quash or modify subpoenas for good cause, including but not limited to releva nce, scope, materia lity and emotional harm or trauma to the subpoenaed witne ss." 89 Ill. Adm. Code §336.120(b)(8), amended at 24 I ll. Reg. 7660, 7681, eff. June 1, 200 6. In th e pr ese nt cas e, t he A LJ properl y quashed the subpoe

nas beca use the testimony of two teache rs that Robert's burns did not appear to be significant

one week after he was hospitalized would not be releva nt to a determination of medical neglect pursuant to the Illinois Administrative Code. The teache rs were not qualif

ied to

assess the proper medical treatment or to give a n opinion on the serious or long-term harm. See 89 Ill. Adm. Code §300 app. B, amended at 24 I ll. Reg. 12781, 12806, eff. October 1, 2001. As such, the ALJ properly

quashed the subpoenas as a matter of law. The plaintiff

's second conten

tion on app eal is that DCFS and the trial court erred in deny

ing her request to expunge the indicated finding ag ainst her for medicalneglec t. When DCFS enters an indicated finding against a person for medic al neglect, that person may administratively

appeal the determination

by requesting

in writing that DC FS "amend the record or remove the record of the report" from the central register. 325 I LCS 5/7.16 (West 2008); see also 89 I ll. Adm. Code §336.40(c) , am ended at 24 Ill. Reg. 7668, e ff. June 1, 2000. On appeal, DCFS carries the burdenNo. 2--08--0958

-15-

of proof in j ustify

ing the r efusal to expunge and it must p

rove tha t a preponderanceof the evidence supportsthe indic ated finding. 89 Ill. Adm. Code §336.100(e), amended at 24 Ill. Reg. 7675, eff

. June 1, 2000. DCFS defines "medical neglect" as the:

"Lack of medical or dental treatment for a h ealth problem or conditio n that, if untreated, could bec ome severe enough to constitu te a ser ious or lon

g-ter m harm to the child ***." 89 Ill. Adm. Code §300 app. B, amended at 25 Ill. Reg . 12806, eff. October 1, 2001. A number of

factor s sh ould be consider ed when d

etermini ng whet her a ch ild was me dically neglected: "- [the] child' s age, particu larly as it relates to the abi lity

to obtain tr

eatment. - child's developmental stage. - child's phy sical condition. - seriou sness of t

he curr ent heal th proble m.

- probabl e outcome

if the cu rrent he alth prob lem is not tr eated a nd the ser iousness of that outcome. - gene rally accept ed medic al benef

its of the prescrib ed trea

tment. - gene rally recog nized side

effec ts/harms a ssociate d with the prescrib ed trea tment. [Furthermore,] [i]t must be verified that the child has/ha d an untreated h ealth problem ***. Such verification must come from a physician, re gistered nurse, dentist, or by a direct admission from the alleged perpetrator. It must further be verified by

a physician, re gistered

nurseor dentis t that the problem or condition , if untre ated, co uld resul tin serious or lon gtermharm t o the c hild ." 89 Ill . Adm. Code § 300 ap p. B, am ended at 25 Ill . Reg. 12807, eff. October 1, 2000.No. 2--08--0958

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Inreviewing a final decision under the Administrative Review Law ( 735 IL CS 5/3--101 et seq. (West 2006)), we review the administrative age ncy' s decision and not the trial cou rt' s determination. XL Disposal Corp. v. Z ehnder , 30 4 Il l. App. 3d 202, 207 (1999). There are three typesof questions that a court may encounter on adm inistra tive review of an agency decision: questions of fact, questions of law, and mixed questions of fact and law. Cinkus , 228 Ill. 2d at 210. "An administrative agency 's findings and conclusions on questions of fact are deemed prima facie true and correct." Cinkus , 228 Ill. 2d at 210. A reviewing court is limited to

determining whether the agency

's findings of fact are a

gainst the manifest weight of the evidenc e. Cinkus , 228 Ill. 2d at 210. An administrative agency 's decision is against the manifest weig ht of the evidence "only

if the opposite conclusio n is clearly evident ." Abrahamson v. Il linois Department of Professional Regulation , 1 53 Ill. 2d 76, 88 (1992). "I f there is any thing in the record which fairly supports the age ncy's decision, such decision is not against the manifest weight of the e vidence and mus t b e sustained upon review. " Grams v. Ryan , 263 Ill. App. 3d 390, 396 (1994). Incontrast, an agency

's decision

on a question of law is not binding on a reviewing court and is reviewed de novo . City of Belvidere v. Illinois State Labor Relations Board , 181 Ill. 2d 191, 205 (1998). When a case involves an examination of the legal effect of a given set of facts, it involves

a mixed question of fact and law. City of Belvidere , 181 Ill. 2d at 205. Mixed questions of fact and law are reviewed under a " clearly e rr oneous" standard. Cinkus , 228 Ill . 2d at 211. A n agency's decisio nis clearly e

rroneous when the reviewing cour t is left with the " ' "definite and fi r m convictionthat a mist ake has been com mitted." ' " Cinkus , 228 Ill . 2d at 211, q uoti ng AFM Messenger

Service, Inc. v. Department of Employme ntSecurity

, 198 Ill. 2d 380, 393 (2001), quoting United States v. United States Gypsum Co. , 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525,No. 2--08--0958

-17-

542 (1948). I

n th e p resent case, a determ inati on of w hethe r DCFS erred i n denying t he pla inti ff's request to ex punge the indicated finding against her for medical neglect involves a determination of whether the fac ts s atisfy theagency's legal standard for med ical neglect. Ac cordingly, the DCFS determination is reviewed under the clearly -erroneous standard. Uponreview

of the record , we can not s ay that th e agency's decision was clea rly errone ous. The AL J's findin gs of fa ct, adopt ed by DCFS, ar

e not ag ainst

the manifest weight of the evidence. The ALJ found tha

t the plain tiff was not qualif

ied to asses s the d egree of Rober t's bu rns. A ltho ugh the plaintiff was a licensed practical nurse, ther e was no evidence that

this designation qualified her to assess Rob ert's b

urns. Fu rthermor e, the AL J noted that b oth Drs. Kilani and Bolanos testified that the plaintiff should have brought Robert to a doctor for m edical treatment immediately after the injury occurred. The doctors' testimony indicated that due to the significant size of the burns, Robert needed to be evaluated for

risk of infe ction, the

degre e of the b

urns, and the nece ssary

treatme nt. We acknowledge that Dr. Bolanos also testified that

generally first and second degree burns do not need treatment by

a physician

unless blisters start to form and that blisters can form day s after the

or iginal bur n. Dr. Bolanos acknowledged that he did not know when Robert's burns had formed blisters. The plaintiff testified that the blisters did not appear until December 27. Nonetheless, we cannot reverse administrative findings on the "mere fact that an

opposite c onclusion

is reasonable

or that [we] might have ruled differen tly." Abrahamson , 153 Ill. 2d at 88. Accordingly , based on

our review o f the test

imony in th e p resent case, we conclude that the AL J's findings of fact as contained in his October

18, 2007, recommendation and opinion are not against the manifest weig ht of the evidence.No. 2--08--0958

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Furthermore, the agency

's determination that these find ings satisfied the requirements of medical neglect was not clearly erroneous. The agency

was required

to prove (1) that Robert lacked

me dical t reatmen

t for a he alth prob lem (2) " that, if un treated , could be come sev ere eno ugh to constitute a seriou s or long -term ha rm" to him . Both pr

ongs had t o be verified by a physician or registered nurse. See 89 I ll. Adm. Code §300 app. B, amended at 25 Ill. Reg. 12806, eff. October 1, 2001. I

t is clear that Rober

t had a he alth prob lem, burn s from sca ldin g hot bath water. Dr. Bolanos testified that Robert sustained first and second degre e burns across l arge p ortions of his chest, neck, and

upper back. It is also clea r that Robert lacked appropriate medical trea tment. As stated above, both Drs. Ki lani and Bolanos testified that Robert's condition required that he be eval uated by a doctor to dete

rmine the proper course of medical trea tment. This was based on a consider ation of Ro

bert's age, h is specia l needs, a nd the exte

nsive ar ea of the burns. The plaintiff

argue s that Robe

rt did not la

ck medic al treat

ment, because

she was tr

eating him with Silvadene cream and hy

dration. She f

urther argues that this was the same treatment Robert received in the hospital and that both the ALJ an d Dr. Bolanos indicated that this treatment was appropriate. As stated above, the ALJ found as a matter of fac t that the plaintiff was not qualified to treat Rob ert's b

urns, and this findin

g was no t again st the mani fest wei ght o f the evi d ence. The plaintiff testi fied t hat sh e did n ot kn ow the degree o f Robe rt's burns and did not know what degree of burn the Silvadene cream was meant to treat. She knew only that the cream had been prescribe d to he r for a previous sunburn and that Robert's burns initially looked like sunburns. The A L J commented

only that Silvadene

cream a nd hy dration w ere app

ropriate for a bur n injury in gene ral, notthat this treatment was approp riate for Robert's burns, because the plaintiff did not know the degreeof the bur

ns. Dr. B olanos te stified that Silvade ne crea m and hy drati on were appro priateNo. 2--08--0958

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treatment for first degree burns. Howe ver, Dr. Bolanos also testified that Robert had first and second degre e burns. Moreover, when Robert was in the hospital, the treatment he received was more e xtensive thanthe treatment

he had received from the plaintiff. The hospital staff cleane d Robert' s burns wit h

a sodium chloride flush, applied Silvadene cream, redressed his burns w

ithnonsticking gauze every eight hours, gave him intravenous fluids and pa in med icati on, an d remo ved th e dead s kin. Alth ough the plaintiff applied Silvadene cream, increased Rober t's flui d in take, an

d cleane d the burn s with Ivory soap, she

did not tre at him for

pain aft er the f irst nigh t, remove the dead skin, or dr

ess his burns. The plaintiff argues that there was no evide nce that Robert was in pain after she applied the Silvadene cream (

which wa s less thanone hour after the incident). However, V illarreal testified that when he brought Robert

home and removed

Robert's shirt, the shirt stuck to the burns and Robert

was cry in g and wincing in pain. Additionally , Dr. Bolanos testified that first and second degr ee burns, with which Robert was diagnosed, are painful. F inally, the plaintiff arg ues that she h a d intende d to take Rob ert to a d

octor unt il Villarr eal show ed up to cl aim Rober t. Noneth eless , altho ugh she gave Villarreal a written care plan f

or Rob ert, s he did not t ell Vi llarr eal abo ut Ro bert's burns or that Rob ert nee ded to be taken to a doctor. Moreover, the plaintiff denied tha tDr. Kilani had instructe d her to br

ing Robe rt i n for an eval uatio n. Thu s, th e evid ence su pport s the A LJ's determination tha

t Robert ha

d a healt h problem

that lack ed prope r medica l treatme nt. Additi on al ly, there wa s testimony supportin

g a dete rmination that Rober

t's cond ition, if untreated, could hav e cause d serious or long- term har

m. Dr. Kila

ni testifie d that the

burns had

to be treated by a doctor immediately

because of

the risk of infection. Dr. Bolanos testified that Robert suffer ed first a nd second degr

ee burns

. However, when he first saw Robert on the 28th, the burnsNo. 2--08--0958

-20-

looked so serious that Dr. Bolanos thought they were third degree burns a n d considered sending Robert to a burn unit. Dr. Bolanos testifie d that, by

the time Robert was discharged from the hospital three days later, the

burned tissue was healed and there was n o infection. We acknowledge that neither doctor specifically

testified that R obert 's burn injuries, "if untreated, could result in serious

or long-term harm." However , D r. Kilani's testimony supports a de termination that if untreated, Rober t's injuries could become infected. Additionally , Dr. Bolanos' testimony supports a determination

that after the burns had lacked proper medical treatment for three day s, the condition became very ser ious and the long-term risks included tissue damage and infection. Accor dingly, we are not left with the "definite and firm conviction that a mistake ha s been committed." We ac kn ow le dg e t he pl ai nt if f' s g en er os it y i n providing extraordinary care and support for Robert. Through the plaintiff's care Robert was able to gain we ight, pa

y be tter atte ntion at sc

hool, and learn new

skills. As found by

the ALJ, Robert's overall phy sical and mental condition improved while he lived with the plaintiff. Nonetheless, we arebound by our standard of review and cannot say that the DCFS decision denying the plain tiff's request

to expung e the indi cated f inding a gainst her for medical neglect wa s clearly e rroneous. See Cinkus , 228 Ill. 2d at 211. For the foregoing r

easons, the judgment of the circuit court of Kane County is affirmed. Affirmed. BOWMAN and BURKE, JJ., concur.