2015 IL App (2d) 131037 

No. 2-13-1037 

Opinion filed March 11, 2015 

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

L.F., ) Appeal from the Circuit Court 

) of Lake County. 

Plaintiff-Appellant, ) 

) 

v. ) No. 12-MR-1538 

) 

THE DEPARTMENT OF CHILDREN ) 

AND FAMILY SERVICES and RICHARD ) 

H. CALICA, as Director of Children and ) 

Family Services, ) Honorable 

) Christopher C. Starck, 

Defendants-Appellees. ) Judge, Presiding. 

______________________________________________________________________________ 

JUSTICE BURKE delivered the judgment of the court, with opinion. 

Justices Hutchinson and Birkett concurred in the judgment and opinion. 

OPINION

¶ 1 After the Department of Children and Family Services (DCFS) entered against plaintiff, 

L.F., an indicated finding of child neglect due to inadequate supervision (89 Ill. Adm. Code 

300.appendix B (Allegation 74), amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011)), she 

administratively appealed the finding and requested that it be expunged from the state central 

register. Following an evidentiary hearing, the administrative law judge (ALJ) recommended to 

deny the expungement request. Defendant Richard H. Calica, as director of DCFS (Director), 

agreed and denied plaintiff’s expungement request. The circuit court of Lake County affirmed 

the Director’s decision. Plaintiff timely appeals from that order. For the following reasons, 
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we reverse the trial court’s decision and order the Director to expunge the indicated finding from 

the state central register. 

¶ 2 I. FACTS

¶ 3 A. Background 

¶ 4 The record reveals the following undisputed facts and procedural history. Plaintiff is the 

single parent of S.H., who was born July 27, 2006. Plaintiff and S.H. lived in a two-bedroom 

apartment in Round Lake Beach, Illinois. 

¶ 5 In 2009, plaintiff was diagnosed with a dependency on drugs and alcohol. She received 

inpatient and outpatient treatment for her dependency, attended Alcoholics Anonymous (AA) 

meetings, and met with a sponsor. Plaintiff also received psychiatric treatment from Dr. 

Katherine Singer for depression, anxiety, obsessive-compulsive disorder, and 

dermatillomania—a condition that caused her to obsessively pick at her skin. 

¶ 6 Plaintiff also began therapy with Nancy Friedman, a licensed professional counselor. 

Friedman diagnosed her with and treated her for an anxiety disorder, other psychological 

conditions, and substance abuse. Plaintiff met with Friedman weekly in 2011. 

¶ 7 On July 3, 2011, while camping with friends, plaintiff was injured in a fall, suffering a 

hematoma to her tailbone. Plaintiff was prescribed Tylenol with codeine. Plaintiff only took 

the medicine briefly because it made her sleepy. She asked her mother, Carol M., to care for 

S.H. while she was taking the Tylenol with codeine, but her mother refused. 

¶ 8 After her mother refused, plaintiff stopped taking the Tylenol with codeine and switched 

to smoking “K3,” which was considered to be legal synthetic marijuana at the time. She 

testified at the administrative hearing that K3 gave her a feeling similar to a marijuana “high,” 

making her feel relaxed and “happy.” The first time she smoked K3, her son was with a friend
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of hers. Plaintiff testified that she smoked K3 again a few days later but that she could not 

recall whether S.H. was at a friend’s house or asleep in plaintiff’s apartment. She began 

smoking K3 on a nightly basis, and in total she smoked K3 between 10 and 20 times. During 

those times, S.H. was either asleep at home or with a friend, but she could not remember which 

of those times S.H. was with her. 

¶ 9 Plaintiff became concerned that she was addicted to K3. During an alcohol and 

substance abuse assessment, she told the evaluator that up to five days before the evaluation she 

was smoking two grams of K3 daily. 

¶ 10 On August 5, 2011, plaintiff sought help from her friends George Kinser and Natalie 

Brooks at an AA meeting. Kinser was plaintiff’s AA sponsor. Brooks had been her sponsor 

but had not seen her for at least two months, because plaintiff had no longer desired to work on 

her 12-step program. Brooks had “detached” from plaintiff when plaintiff decided to “go back 

out.” Brooks knew that plaintiff was seeking help for a substance abuse problem, because, after 

Brooks broke things off, they both knew that Brooks was not allowed to talk to her unless she 

wanted help. 

¶ 11 Plaintiff told Kinser and Brooks that she was smoking K3 and wanted help to stop, 

because she was experiencing withdrawal symptoms. Kinser and Brooks agreed to help 

plaintiff. Kinser agreed to keep S.H. while Brooks took plaintiff to the Highland Park Hospital 

emergency room. Plaintiff admitted to smoking K3 on the way to the hospital. 

¶ 12 The hospital records indicate that plaintiff told hospital staff that she wished to “detox” 

from alcohol and K3. Plaintiff told staff that she was drinking in excess of 10 shots per day and 

that she was shaking and had diarrhea from attempting to withdraw from K3. The hospital’s 

toxicology screen of plaintiff came back negative.
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¶ 13 The next morning, while waiting to transfer to a treatment center, plaintiff had an anxiety 

attack. She left the hospital despite advice to stay. Plaintiff called Friedman and told her of 

the panic attack. Friedman advised her to return to the hospital. 

¶ 14 Plaintiff also called Kinser, who was concerned that she would continue to use K3. He 

refused to pick her up from the hospital. He thought that it would be in plaintiff’s best interest 

if she stayed at the hospital. Plaintiff began walking to Kinser’s home, which was about 15 

miles away.

¶ 15 After he spoke with plaintiff, Kinser called Carol M. and told her that plaintiff was on the 

way to his house, because she had left treatment prematurely. He told Carol M. that he did not 

want S.H. to be at his house when plaintiff arrived. Kinser is a school teacher and a mandated 

child-abuse reporter and he was afraid that he would have to call DCFS if plaintiff showed up 

while under the influence and S.H. was still there. Carol M. agreed to have S.H. stay with her, 

and Brooks drove him to Carol M.’s house. 

¶ 16 Police officers saw plaintiff as she walked away from the hospital and they took her to 

Kinser’s home. When plaintiff discovered that S.H. was not there, she drove to Carol M.’s 

house. Carol M. offered to care for S.H. while plaintiff received assistance for her substance 

abuse problems and plaintiff became angry and refused.

¶ 17 Carol M. called the police before plaintiff arrived, because she thought that it was not 

safe for S.H. to be with plaintiff when plaintiff was so agitated. Carol M. also called Sandra 

Blank, a DCFS supervisor, for advice on what to do. Blank had been Carol M.’s supervisor 

when Carol M. worked for DCFS in the same office that conducted the investigation of plaintiff. 

¶ 18 When plaintiff arrived at Carol M.’s home, she saw the police officers. Plaintiff became 

very upset when Carol M. accused her of being drunk and refused to release S.H. to her. The 
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police officers tested plaintiff for alcohol, and the test came back negative. Carol M. still 

refused to allow S.H. to leave with plaintiff. Plaintiff yelled, threw her cell phone, and then 

drove away. She experienced an anxiety attack but, after speaking with an officer and being 

checked by paramedics, she agreed to leave S.H. with her mother for the night.

¶ 19 On August 6, 2011, the DCFS hotline received a call from Carol M. regarding suspected 

child abuse or neglect on August 6, 2011. Marianne Zimmer took the call and Jane Postlewait, 

a child protection investigator, was assigned to investigate. 

¶ 20 Postlewait interviewed S.H. at Carol M.’s home. He appeared healthy, clean, and 

well-dressed. He complained only that his mother kissed him too much and would not allow 

him to play outside by himself. Postlewait also observed plaintiff and S.H. together. She 

noted that plaintiff was very supportive and had positive interactions with S.H. She also went 

to plaintiff’s apartment and reported it as clean, neat, and adequately furnished. 

¶ 21 Postlewait interviewed plaintiff, who admitted to having a history of substance abuse and 

to smoking K3, relapsing, and leaving the hospital against advice to stay. Plaintiff told 

Postlewait that K3 had similar effects to marijuana.

¶ 22 Plaintiff signed a safety plan, in which she agreed to take part in a drug-treatment 

program while S.H. remained at Carol M.’s house. A week later, plaintiff tested negative for 

drugs and the safety plan was dismissed. 

¶ 23 Postlewait received a report from S.H.’s primary-care physician that he was healthy and a 

report from his school that he was doing well in school. Postlewait also learned that plaintiff 

had been a victim of child abuse in 2004 and a victim of domestic violence. Postlewait also 

discovered that plaintiff’s paramour had been indicated for child abuse in 2010 for hitting, 
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kicking, and choking plaintiff when S.H. was present and for encouraging S.H. to participate in 

the domestic violence.

¶ 24 At the conclusion of her investigation, Postlewait recommended entering against plaintiff 

an indicated finding under Allegation 60, titled “Substantial Risk of Physical Injury/Environment 

Injurious to Health and Welfare by Neglect.” 89 Ill. Adm. Code 300.Appendix B (Allegation 

60), amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011). Postlewait did not recommend an 

indicated finding under Allegation 74. 

¶ 25 DCFS notified plaintiff that it was indicating her under Allegation 60 and that the report 

would be retained in the state central register. Plaintiff requested an appeal of the indicated 

finding on October 19, 2011, and requested a hearing within DCFS’s administrative hearings unit. 

On January 23, 2012, DCFS notified plaintiff that it was amending its allegations against her to 

add an indicated finding under Allegation 74. 

¶ 26 B. July 9, 2012, Administrative Hearing

¶ 27 On July 9, 2012, the ALJ presided over the hearing on plaintiff’s appeal, which 

encompassed a challenge to both indicated findings. 

¶ 28 Plaintiff testified that she successfully obtained sobriety on April 20, 2009, but 

acknowledged that she used K3 for a short period of time in July and August 2011, while S.H. 

was asleep. When asked how smoking K3 affected her, plaintiff replied, “[i]t’s similar to a 

marijuana high so you get relaxed and like happy, but I’m still coherent and can function.” 

¶ 29 Plaintiff testified that she does everything for S.H. She makes sure he is clean and

dressed, has clean clothes, and gets to school. She picks up S.H. from school in Libertyville. 

S.H. attended a Montessori school during the 2010-11 school year, which cost plaintiff $11,000, 
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even though her income was only $13,000. Plaintiff sent him to an expensive school because 

he was at an important stage of development and she wanted him to have a good start. 

¶ 30 Carol M. testified that, by July 2011, plaintiff was showing signs of a relapse. Carol M. 

reported that plaintiff had been making fewer phone calls, had been cutting and scratching 

herself, and had quit her job. 

¶ 31 Carol M. and plaintiff signed a safety plan in which plaintiff agreed to undergo drug 

treatment while S.H. remained with Carol M. for one week. The plan was dismissed a week 

later when plaintiff completed all the requirements and tested negative for drugs. 

¶ 32 Carol M. further admitted that, in July 2011, while she believed that plaintiff was using 

drugs again, she allowed her 14-year-old son to stay overnight at plaintiff’s home. She also 

acknowledged that she had worked at the same DCFS office that investigated plaintiff. Carol 

M. had called Blank to discuss her legal right to keep S.H., because she was worried that plaintiff 

would take S.H. away from her and never let her see him again. 

¶ 33 Carol M. testified that, in the months prior to August 2011, plaintiff was “doing a great 

job” at “being a single mother.” In August 2011, Carol M. noticed that plaintiff had less

contact with her family, her housekeeping dwindled, and S.H. seemed needier than usual. 

Because of this, Carol M. stated, she believed that plaintiff was using drugs again. She 

admitted that although she had her suspicions she could not prove it at that point. 

¶ 34 Postlewait testified that she saw no signs of abuse or neglect of S.H. She stated that 

S.H. was “dressed appropriately, clean, [and had] no unusual marks or bruises.” She further 

stated that “mom and S.H. *** have a positive relationship, positive interaction. He is not 

fearful of her. And [plaintiff] was concerned about her son’s safety.”
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¶ 35 During cross-examination, Postlewait could not pinpoint a date on which plaintiff was 

under the influence of K3 while S.H. was in her custody. However, she stated that plaintiff 

admitted to using K3 in July and August 2011, and she inferred that, because plaintiff is S.H.’s 

primary caretaker, there must have been a time when plaintiff was under the influence of K3 

while supervising S.H. 

¶ 36 Friedman testified that she saw plaintiff weekly and that S.H. attended about 30% of the 

sessions. Regarding the July and August 2011 sessions, Friedman testified that plaintiff was 

very engaged with S.H. Friedman noted that plaintiff had motivation for positive change, 

healthy parenting, and healthy behavior. Friedman further stated that plaintiff manifested some 

tremendously healthy parenting behaviors. When asked if she noticed a change in plaintiff’s 

mood during July and August 2011, Friedman responded that she remembered plaintiff feeling a

little bit down. “But *** it wasn’t a crisis.” Friedman further stated that S.H. appeared happy,

well adjusted, and cooperative and that he was a very healthy child. When asked if she 

considered calling DCFS during July or August 2011, Friedman, who is a mandated child-abuse 

reporter, responded: “Absolutely not.” Friedman stated that K3 is an “intoxicant” but said that 

she knew little else about it.

¶ 37 Blank testified that she received a phone call from Carol M. on August 6, 2011, because 

Carol M. was concerned that plaintiff was using drugs. Blank was familiar with this issue 

because she was aware of plaintiff’s history of substance abuse. Blank had no other 

involvement with the investigation of plaintiff. 

¶ 38 Kinser and Brooks testified that they were plaintiff’s AA sponsors. Brooks stated that 

she told plaintiff to exaggerate her drug and alcohol use in order to be permitted to detox at the 

hospital. She further testified that plaintiff was a really good mother and did anything and 
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everything she could for S.H. and his well-being. Kinser testified that, when plaintiff arrived at 

the AA meeting on August 5, 2011, she did not appear to be under the influence. He further 

stated that after learning that plaintiff left the hospital on August 6, 2011, he called Carol M. 

because he is a mandated child-abuse reporter and was concerned that he might have to make a 

report. However, when plaintiff arrived at his house later that morning, Kinser did not feel that 

he would have needed to call DCFS.

¶ 39 On August 17, 2012, the ALJ issued her recommendation to deny expungement of the 

indicated findings of neglect due to an injurious environment (Allegation 60) and inadequate 

supervision (Allegation 74). As to Allegation 74, she concluded that DCFS carried its burden 

of proving by a preponderance of the evidence that plaintiff had “inadequately supervised her 

son when she was [his] primary caregiver, [because she] had a history of mood disorder and 

substance abuse, relapsed, and admitted smoking K3 on a daily basis, including occasions while 

her son slept in their apartment.” The Director adopted the ALJ’s recommendation as his final 

decision and denied plaintiff’s request to expunge the indicated findings. 

¶ 40 On September 25, 2012, plaintiff filed a complaint in the trial court for administrative 

review of the Director’s decision denying her request to expunge the indicated findings of 

neglect. On January 22, 2013, the administrative-review action was stayed pending resolution 

of Julie Q. v. Department of Children & Family Services, 2013 IL 113783. As a result of the 

supreme court’s decision in Julie Q., the indicated finding of neglect due to an injurious 

environment (Allegation 60) was expunged from the record. On September 10, 2013, the trial 

court affirmed the Director’s decision to deny plaintiff’s request to expunge the indicated finding 

of neglect due to inadequate supervision (Allegation 74). This timely appeal followed. 

¶ 41 II. ANALYSIS
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¶ 42 Plaintiff raises several arguments on appeal, including that (1) DCFS erred in denying 

plaintiff’s request to expunge the indicated finding of inadequate supervision; and (2) the 

administrative decision is void because DCFS lacked the statutory authority to indicate plaintiff

for inadequate supervision. Because we find that DCFS’s indicated finding was clearly 

erroneous, we need not address any of plaintiff’s other arguments. 

¶ 43 Under the Abused and Neglected Child Reporting Act (Reporting Act) (325 ILCS 5/1 et 

seq. (West 2010)), DCFS maintains a central register of all reported cases of suspected child 

abuse or neglect. 325 ILCS 5/7.7 (West 2010); Shilvock-Cinefro v. Department of Children & 

Family Services, 2014 IL App (2d) 130042, ¶ 20. DCFS operates a 24-hour telephone hotline 

for reports of suspected abuse or neglect. 89 Ill. Adm. Code 300.30(a), amended at 35 Ill. Reg. 

2861 (eff. Feb. 8, 2011). When DCFS investigates a report of neglect, it must determine 

whether the report is “indicated,” unfounded,” or “undetermined.” 325 ILCS 5/7.12 (West 

2010). 

¶ 44 A report is indicated “if an investigation determines that credible evidence of the alleged 

abuse or neglect exists.” 325 ILCS 5/3 (West 2010); Shilvock-Cinefro, 2014 IL App (2d) 

130042, ¶ 20. Credible evidence of abuse or neglect exists whenever “the available facts *** 

viewed in light of surrounding circumstances, would cause a reasonable person to believe that a 

child was abused or neglected.” 89 Ill. Admin Code 336.20 (2005). An indicated report must 

be entered on the State central register, where it will remain for a minimum of five years. Julie 

Q. v. Department of Children & Family Services, 2011 IL App (2d) 100643, ¶ 29, aff’d, 2013 IL

113783. 

¶ 45 The subject of an indicated report has the right to an administrative appeal and to request 

that the report be expunged. 325 ILCS 5/7.16 (West 2010); 89 Ill. Adm. Code 336.40, 336/50, 
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336.60 (2000); Bolger v. Department of Children & Family Services, 399 Ill. App. 3d 437, 447 

(2010). DCFS bears the burden of proof in justifying its refusal to expunge the indicated report 

and must prove that a preponderance of the evidence supports the indicated finding. 89 Ill. 

Adm. Code 336.100(e) (2000); Shilvock-Cinefro, 2014 IL App (2d) 130042, ¶ 21. Following 

the hearing, the ALJ makes a recommendation to DCFS’s Director, who may accept, reject, 

amend, or return the recommendation. 89 Ill. Adm. Code 336.220(a) (2005); Slater v. 

Department of Children & Family Services, 2011 IL App (1st) 102914, ¶ 24. The Director’s 

decision is the final administrative decision. 89 Ill. Adm. Code 336.220(a) (2005); 

Shilvock-Cinefro, 2014 IL App (2d) 130042, ¶ 21. 

¶ 46 Judicial review of the director’s decision is governed by the Administrative Review Law 

(735 ILCS 5/3-101 et seq. (West 2010)). Jurisdiction to review a final administrative decision 

is vested in the trial court, from which a party may appeal to this court. 735 ILCS 5/3-104, 

3-112 (West 2010). As in all cases of administrative review, it is the decision of the agency, 

not the determination of the trial court, that is the subject of our review. Bolger v. Department 

of Children & Family Services, 399 Ill. App. 3d 437, 448 (2010). 

¶ 47 On administrative review, the applicable standard of review depends on whether the 

question presented is one of fact, one of law, or a mixed question of fact and law. Id. “An 

administrative agency’s findings and conclusions on questions of fact are deemed prima facie

true and correct.” Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 

200, 210 (2008). A reviewing court is limited to determining whether the agency’s findings of 

fact are against the manifest weight of the evidence. Id. An agency’s decision is against the 

manifest weight of the evidence “only if the opposite conclusion is clearly evident.” 

Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88 (1992). “If 
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there is anything in the record which fairly supports the agency’s decision, such decision is not 

against the manifest weight of the evidence and must be sustained on review.” Grams v. Ryan, 

263 Ill. App. 3d 390, 396 (1994). 

¶ 48 In contrast, 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. Id. Mixed questions of fact and law are 

reviewed under the “clearly erroneous” standard. Cinkus, 228 Ill. 2d at 211; Shilvock-Cinefro, 

2014 IL App (2d) 130042, ¶ 23. The agency’s decision will be deemed clearly erroneous “only 

where the reviewing court, on the entire record, is left with the definite and firm conviction that a 

mistake has been committed.” (Internal quotation marks omitted.) Id. “The clearly 

erroneous standard of review affords more deference to the agency than de novo review but less 

deference than manifest weight review. Therefore, applying the clearly erroneous standard to 

mixed questions yields some deference to administrative expertise.” Du Page County Airport

Authority v. Department of Revenue, 358 Ill. App. 3d 476, 482 (2005). In the present case, 

determining whether DCFS erred in denying plaintiff’s request to expunge the indicated finding 

of inadequate supervision involves determining whether the facts satisfy the agency’s legal 

standard for inadequate supervision. Accordingly, the DCFS determination is reviewed under 

the clearly-erroneous standard. 

¶ 49 The Reporting Act defines a neglected child as one who is not receiving the “care 

necessary for his or her well-being.” 325 ILCS 5/3 (West 2010); Slater, 2011 IL App (1st) 

102914, ¶ 39. “Appendix B” of DCFS’s regulations delineates specific allegations of harm 

sufficient to trigger an investigation of reported child neglect. 89 Ill. Adm. Code 300.Appendix 
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B, amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011). “Inadequate Supervision” occurs when a 

“child has been placed in a situation or circumstances that are likely to require judgment or 

actions greater than the child’s level of maturity, physical condition, and/or mental abilities 

would reasonably dictate.” 89 Ill. Adm. Code 300.Appendix B (Allegation 74), amended at 35 

Ill. Reg. 2861 (eff. Feb. 8, 2011). Allegation 74 includes a nonexhaustive list of examples of 

inadequate supervision. Relevant to the present case is the example of the caregiver being

present but unable to supervise because of the caregiver’s condition, which includes (a) where 

the parent or caregiver repeatedly uses drugs or alcohol to the extent that it has the effect of 

producing a substantial state of stupor, unconsciousness, intoxication, or irrationality, and (b) 

where the parent or caregiver cannot adequately supervise because of his or her medical 

condition or behavioral, mental, or emotional problems. 89 Ill. Adm. Code 300.Appendix B 

(Allegation 74), amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011). 

¶ 50 Allegation 74 further provides factors to be considered, which are categorized into 

“child,” “caregiver,” and “incident” factors. Child factors include “[t]he child’s age and 

developmental stage, particularly related to the ability to make sound judgments in the event of 

an emergency” and “[t]he child’s physical condition, particularly related to the child’s ability to 

care for or protect himself.” Id. Caregiver factors consist of the amount of time it takes the 

caregiver to reach the child, whether the caregiver can see or hear the child, and the caregiver’s 

maturity, physical condition, emotional condition, and cognitive ability to make appropriate 

judgments on the child’s behalf. Incident factors include the frequency and duration of the 

occurrence, whether it occurs in the day or night, whether there are other people overseeing the 

child, and whether there are any “other factors that may endanger the health and safety of the 

child.” Id. 
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¶ 51 The basis for DCFS’s indicated finding against plaintiff was that she “inadequately 

supervised her son when she was the primary caregiver [and that she] had a history of mood 

disorder and substance abuse, relapsed, admitted smoking K3 on a daily basis, including 

occasions, while her son slept in their apartment.” DCFS points to the following evidence in 

support of the ALJ’s conclusion that plaintiff inadequately supervised her son: (1) plaintiff used 

K3 daily for approximately two weeks while S.H. was either asleep at home or at someone else’s 

home; (2) plaintiff admitted that her use of K3 made her high, similar to the effects of marijuana; 

(3) Friedman testified that K3 is an “intoxicant” and that plaintiff was “sensitive” to such 

chemicals; (4) plaintiff sought help to detoxify and to stop using K3, yet she checked out of the 

hospital against medical advice; and (5) despite testifying that S.H. sometimes stayed with 

plaintiff’s friends or with plaintiff’s mother when plaintiff used K3, plaintiff did not deny that 

S.H. was in her custody at least some of the times when she was high on K3. The ALJ 

essentially adopted DCFS’s findings in her determination that plaintiff inadequately supervised 

S.H. when she was the primary caregiver. 

¶ 52 The question before us is whether, based on the application of the law to these undisputed 

facts, DCFS’s decision was clearly erroneous. Pursuant to Allegation 74, DCFS was tasked 

with presenting evidence to show that plaintiff had placed S.H. “in a situation or circumstances 

that [we]re likely to require judgment or actions greater than the child’s level of maturity, 

physical condition, and/or mental abilities would reasonably dictate” and that such circumstances

existed because she repeatedly used K3 to the extent that it had the effect of producing a 

substantial state of stupor, unconsciousness, intoxication, or irrationality. 89 Ill. Adm. Code 

300.Appendix B (Allegation 74), amended at 35 Ill. Reg. 2861 (eff. Feb. 8, 2011). 
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¶ 53 We find that DCFS did not meet its burden of proof. DCFS did not provide any 

evidence that plaintiff’s use of K3 produced a substantial state of stupor, unconsciousness, or 

irrationality such that she placed S.H. in a situation that would likely require judgment or actions 

greater than his level of maturity. Plaintiff’s testimony that her use of K3 made her “high” and 

that it was “similar to marijuana” did not establish a basis to conclude that this use resulted in a 

state such that plaintiff could not adequately supervise S.H. DCFS never introduced any 

evidence on the chemical effects of K3 and whether it causes an individual to become

unconscious, irrational, or in a state of stupor such that the individual is unable to adequately 

care for a child. When asked about the effects of K3, plaintiff testified that she could still 

function after using it. While the ALJ was free to disbelieve plaintiff’s testimony, DCFS did 

not present any evidence to refute it. In fact, the evidence supported it. Plaintiff tested 

negative for drugs and her safety plan was dismissed. Additionally, neither Friedman nor 

Kinser, who were mandated child-abuse reporters, felt the need to report plaintiff to DCFS. 

Furthermore, Carol M. allowed her 14-year-old son to stay overnight at plaintiff’s house during 

the relevant time period.

¶ 54 In sum, there was no evidence that plaintiff’s use of K3 rendered her unable to adequately 

supervise S.H. See In re N.B., 191 Ill. 2d 338, 351 (2000) (in the context of a child-protection 

proceeding, DCFS must show a nexus between respondent’s conduct and the care of the 

children). Based on the record, we are left with the definite and firm conviction that a mistake 

has been committed, as DCFS failed to meet its burden by a preponderance of the evidence. 

Therefore, we find that DCFS’s decision to deny expungement of plaintiff’s indicated finding of 

neglect was clearly erroneous. 

¶ 55 III. CONCLUSION
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¶ 56 DCFS’s decision that plaintiff inadequately supervised S.H. was clearly erroneous. 

Accordingly, the indicated finding of neglect should be expunged. 

¶ 57 Reversed with directions.