## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

West-Howard v. Department of Childr en & Fam ily Service s , 2013 IL App (4th) 120782

Appellate Court Caption J ULIA WES T-HOWARD, Plaintiff-Appellant, v. THE DEPARTMENT OF CHI L DREN AND F AMI L Y SERVI CES, Defenda nt-Appellee

.

District & N o. Four th District Docke t No. 4-12-0782

Filed August 29, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The Depa rt ment of Children and Family Service s’ final administrative decision upholding its decision to remove plaintiff’s g randc hildren from her home was proper ly serve d on plaintiff when her attorney was mailed

a cer tified copy of the decision, and the complaint plaintiff filed 45 day s later se ekingadministrative re view of the decision in the trial court was proper ly dismiss ed, notwithstanding the fa ct that plaintiff was never personal l y s erve d with the decision, since the I llinois Administrative Procedur e Act applied to the proce eding s, the Act provided for service on plaintiff’s attorney and require d plaintiff to file her complaint s ee k ing

re v iew within 35 day s of service on her attorney , and in the absen ce o f such a timely filing, the trial court lack ed jurisdiction to revie w the decision.

Dec ision Under Review Appea l from the Circuit Court of C hampaig n County , No. 12-MR -320; the Hon. Thomas J. Difanis, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l J ulia West-Howar d, of Rantoul, appellant pro se

.

L isa Madig an, At torney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and Nadine J

. Wichern, Assistant Attorney Gene ral, of counsel), f

or appe llee.

Panel J US T I CE HOL DER WHI TE delivere d the judgme nt of the court, with opinion. Presiding J ustice Steigmann and J ustice Kne ch t concur red in the judgme nt and opinion.

OP INION

¶ 1 In Marc h 2012, the Direc tor of the Depa rtment of Children and Family Service s (DCFS) issued a final administrative decision, upholding DCFS’s decision to remove the
g randc hildren of plaintiff, J ulia West-Howar d, from plaintiff’s home. DCFS serve d plaintiff’s attorn ey by cer tified mail with a copy of t he decision on Marc h 9, 2012, and 45 day s later plaintiff f

iled a complaint for

administrative re view in the cir cuit court. ¶ 2 Following a J uly 2012 hear ing, the circ uit court g rante d DC FS ’s m o t i o n t o d ismiss plaintiff’s complain t p ursuant to sections 2-619(a )(1) and (a) (5) of the Code of Civil Procedur e (Civi l Code) (735 I L CS 5/2-619(a) (1), (a)( 5) (W est 2012)), ba sed on pl aintiff’s failure to file the complaint within 35 day s fro m t h e date DCFS serve d a copy of its final administrative decision. In August 2012, the circ uit court d en i ed p l aint iff’s motion to

rec onsider. ¶ 3 Plaintiff appea ls, arguing the circ uit court err ed by dismiss ing he r complaint. ¶ 4 We disag ree and af firm.

¶ 5 I . BA CKGROUND ¶ 6 On Marc h 9, 2012, the Direc tor issued a final administrative decision, upholding DCF S’s d e c is io n to r emove plaintiff’s g randc hildren from her home. DCFS serve d plaintiff’s a tt o r n e y by cer tified mail with a copy of the decision on Marc h 9, 2012. On April 23, 2012, plaintiff fi l ed a complaint for administ rative review in the circuit court, seeking revie w of DC FS ’s decision and na

ming DCF S as the defe ndant. ¶ 7 In J une 2012, DCFS filed a motion to dismiss plaintiff’s complaint pursuant to sections 2-619(a )(1) and (a) (5) of the Civil Co d e (7 3 5 I L CS 5/2-619(a) (1), (a) (5) (West 2012)), alleg ing the circ uit court lacke d jurisdiction to consider plaintiff’s c omplaint. Spec ifically
, DCFS asse rt ed u nder the Administrative Review L aw, plaintiff was require d to file her

-2-complaint in the circ uit court and issue summons to DCFS within 35 day s from the date she

was serve d a co p y of the final administrative decision. 735 I L CS 5/3-103 (West 2012). Be cause plaintiff failed t o do so, DCFS argued the circ uit court lacke d subject-matter jurisdiction. Pl aintiff re sponded t o the motion, assertingshe wa s not sent, nor did she eve r

rec eive, notice of the Dire ctor’s de cision. ¶ 8 In J uly

2012, the circuit court held a hearing on DCFS’s m otion. Plaintiff rene wed he r argument that she was not sent notice o f t h e Di rector’s decision. The court explained to p laintiff that notice had been sent to her attorney , who still repr esente d her at the time the Direc tor iss u ed his decision. Acc ording ly
, the court dismiss ed plaintiff’s complaint,

rea soning i t wa s d eprive d of jurisdiction based on plaintiff’s failure to timely file her complaint. ¶ 9 L at er that month, plaintiff filed a motion to rec onsider, asser ting her former

attorney failed to inf

o rm h er o f t he Direc tor’s decision and she never rec eived notice about the decision from DCFS. In August 2012, DCFS fil ed a re s ponse, asserting plaintiff’s m otion failed to prese nt (1) any newly discovere d evidenc e, (2) a chang e in the law, or (3) any err or in the circ uit court’s application of the law. Following a hear ing later that month, the circ uit court de nied plaintiff’s motion to rec onsider, findingDCFS properly serve d the Dire ctor’s decision on plaintiff’s then-attorney , whose failure to inform plaintiff of the decision did not form a ba sis to ex cuse the Administrative Review L aw’ s jurisdictional require ment. ¶ 10 This appea l followed.

¶ 11 I I . ANALYSI S ¶ 12 On appea l, plaintiff argues the circ uit court err ed by dismiss ing her co m p l ai n t

. I n its appellee brief, DCFS asser ts the circ uit court properly dismiss ed plaintiff’s compl ai n t fo r lack of subject- matter jurisdiction. In her r eply brief, plaintiff contends DCFS should ha ve

serve d notice of its dec ision on plainti ff r ather than servingonly

plaintiff’s attorne y

.

¶ 13 A. The Rele vant Statutory Provisions ¶ 14 Be fore addre ssing the fac ts of this case , we first outline the rele vant statutory provisions. ¶ 15 The Children and Family Services Ac t (S er v i ce s Act) expressly adopts the I llinois Administrative Procedur e Act (Proce dure Act). 20 I L CS 505/4 (West 2012). The Procedur e Act provides that “[p] arties or their ag ents appointed to rec eive service of proce ss” shall be notified persona lly or by re gi s t er ed or certified mail of any final decision or order adverse
to a party

. 5 I L CS 100/10-50(a) (West 2012). Upon reque st, a copy of the decision or order shall be delivere d or mailed to the party and the party ’s attorney of re cord. 5 I L CS 100/ 10- 50(a) (West 2012). ¶ 16 Any pare nt or guardia n aff ecte d by a final administrative decision of DCFS may have the decision revie wed “only under and in acc ordanc e with the Administrative Review L aw.” 20 I L CS 505/9.9 (West 2012). Acc ording ly
, the provisions of the Administrative Review L aw “shall apply to and g overn all proce eding s” for judicial revie w of DCFS’s administrative decisions. 20 I L CS 505/ 9.9 (West 2012).

-3-¶ 17 The Administrative Review L aw specifie s that an action to revie w a final administrative

decision is commence d by the filing of a complaint and the issuance of summons within 35 day s from the date that a copy of the decision soug ht to be revie wed was s er v ed up o n t he party aff ecte d by the decision. 735 I L CS 5/3-103 (West 2012). A decision is “dee med to have been serve d” when a copy of the decision is deposited in the United States mail with postag e prepa id “to the par

ty aff ecte d by the dec ision at his or her last known reside nce or place of business.” 735 I L CS 5/3-103 (West 2012). “Unless revie w is soug ht o f an administrative decision” within the time and manner provided in the Administrative R eview L aw, “the parties to the proce eding befor e the administrat i v e age n cy shall be barr ed from obtaining judicial revie w of such a dminist rative de cision.” 735 I L CS 5/ 3-102 (West 2012). ¶ 18 DCFS also sets forth regulations g overning its service appea l proce ss. Those re gulations provide the “ Direc tor shall send t he final administrative decision to those listed in S ection 337.230 of this Part.” 89 I ll. Adm. Code 337.220 (2002). Se ct i o n 3 3 7

. 2 30 lists “[t] he appellant” as a party

who re ceive s a copy

of the fina l administrative decision. 89 I ll. Adm. Code 337.230 (1995). An “appe llant” is define d as “the person who reque sts a service appea l or on whose be half a

service appea l is requested.” 89 I ll. Adm. Code 337.20 (2012).

¶ 19 B. Whether the Circuit Court Had Jurisdi ction
to Consider Plainti ff’ s Appea l ¶ 20 Having revie wed the rele vant statutory provisions, we now consider whether the circ uit court possesse d jurisdiction in thi s case

. ¶ 21 Section 2-619(a )(1) of the Civil Code permits a circ uit court to dismiss a complaint if the
court lacks subject-matter jurisdiction. 735 I L CS 5/2-619(a)(1 ) (W est 2010). In addition, section 2-619(a)( 5) of the C ivil C o de allows the circuit court to dismiss a complaint if the action is “n o t co mmenced within the t ime limit ed by law.” 735 I L CS 5/2-619(a) (5) (West 2010). We revie w de novo a circ uit court’s dismiss al of a complaint under section 2-619 of the Civil Code. Morris v. W illiams
, 359 I ll. App. 3d 383, 386, 834 N.E.2d 622, 626 (2005). ¶ 22 Under the I llinois Constit ution, final administrative decisions are ap p ealable only “as provided by law.” I ll. Const. 1970, art. VI
, § 9; Colli nsville Community Unit School District No. 10 v. Regional Bo a r d o f S ch o o l Trustees
, 218 I ll. 2d 175, 181, 843 N.E.2d 273, 277 (2006). Thus, “a court is sa id to exercise ‘spec ial statutory jurisdiction’ when it r eviews an ad m i nistration decision.” Id. at 182, 843 N.E.2d at 277. I f the statutorily presc ribed
proce dures are not strictly followed, no jurisdiction is confe rre d. Rodriguez v. Sheriff’s Merit Comm’n
, 218 I ll. 2d 342, 3 5 0
, 8 4 3 N. E.2d 379, 383 (2006). Indeed, the Administrative Review L aw expressly provides that “[u] nless revie w is soug ht of an administrative decision within the time and in the manner here in provided, the parties to the proce eding befor e the administrative ag ency shall be barr ed from obtaining judicial revie w of such administrative decision.” 735 I L CS 5/ 3-102 (West 2012). ¶ 23 Bas ed o n the fore g oing, the I llinois Supreme Court has conclude d the Administrative Review L aw’ s 35-day filing require ment is jurisdictional. Fredman Brothers Furniture Co.

v. Departme nt of Rev enue , 109 I ll. 2d 202, 211, 486 N. E

. 2 d 8 9 3
, 896 (1985). Thus, if a “complaint is not timely filed, no jurisd i ct i o n is confe rre d on the circuit court and judicial

-4-revie w of the a dministrative or der is bar red.” Colli nsville Community Unit School District No. 10 , 218 I ll. 2d at 182, 843 N.E.2d at 278. ¶ 24 Plaintiff does not dispute the Direc tor sent its final decision by cer tified mail to pla intiff’s attorney on Marc h 9, 2012. Plaintiff’s j urisdictional arg ument, as we understand it, is that DCFS should have a lso served he r with its decision. We disagr ee. ¶ 25 The Procedur e Act require s DCFS to notify “[p] arties or their ag ents appointed to rec eive service of proce ss” of final decisions or order s adver se to a party

. 5 I L CS 100/10-50(a) (West 201 2 ). L ikewise, DCFS’s regulations require the Direc tor to send final administrative decisions to the appellant. 89 I ll. Adm. Code 337.230 (1995). “Appe llant” is define d as “the
person who reque sts a service appea l or on whose behalf a service appea l is reque sted.” 89 I ll. Adm. Code 337.20 (2012). Under b o t h t h e Procedur e Act and DCFS’s regulations, service on plaintiff’s attorney was proper

. As DCFS points out, the Procedur e Act states an ag ency decision shall be serve d on both the party and his repr esentative “[u] pon reque st” (5 I L CS 100/10-50(a ) (West 2012)), but the rec ord does not indicate plaintiff ever made such

a re quest. ¶ 26 We find support for our conclusion in Massoud v. Board of Educat i o n o f V a l ley Vie w Community District No. 365
, 97 I ll. App. 3d 65, 422 N.E.2d 236 (1981). Th ere, the Third District noted the Procedur e Act, which g overne d service of proce ss, permitted notice to be
sent “t o t h e party or to an agent appointed to rece ive service .” (Emphasis in orig inal.) Massoud
, 97 I ll. App. 3d at 69, 422 N.E.2d at 239. The court rea soned, “[c]ertai nly
, an attorney of rec ord befor e an administrative ag ency is appointed t o re ce i v e service for his client, barr ing an express statement to the contra ry in his entry of appea

ranc e.” Massoud
, 97 I ll. App. 3d at 69, 422 N.E.2d at 239. ¶ 27 Her e, DCFS proper ly serve d plaintiff on Marc h 9, 2012, when DCFS sent the Direc tor’s final decision by cer

tified mail to plaintiff’s attorney

. Plaintiff did not file her complaint until April 23, 2012–45 day s afte r the decision was serve d. Acc ording ly
, the circ uit court lacke d jurisdiction to consider plaintiff’s c omplaint and proper ly dismiss ed it. ¶ 28 Be caus e we co n cl u d e t h e ci rc u i t co u rt lacke d jurisdiction to consider pla intiff’s complaint, we need not addre ss plaintiff’s arg uments conce rning the merits of the Direc tor’s decision. In addition, we decline to ad d re s s the rema ining contentions in plaintiff’s reply brief, as she has waived these contentions by failing to include them in her opening brief. See I ll. S. Ct. R. 341(h)( 7) (ef f. J ul y 1
, 2008) (“Points not argued are waived and shall not be raised in the r eply

brief ***.” ).

¶ 29 I I I . CONCLUSI ON ¶ 30 For

the re asons stated, we aff irm the circ uit court’s judg ment.

¶ 31 Affir

med.

-5-