NO. 4-00-0641

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

STEPHEN BRIGGS,

		Plaintiff-Appellee,

		v.

THE STATE OF ILLINOIS; GEORGE RYAN,

Governor; and JESS MCDONALD,

Director, Department of Children and

Family Services,

		Defendants-Appellants.	)

)

)

)

)

)

)

)	Appeal from

Circuit Court of 

Sangamon County

No. 99MR285

Honorable

Thomas R. Appleton,

Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		In April 1998, the Department of Children and Family

Services (DCFS) indicated a report of child abuse against plain

tiff, Stephen Briggs, a first-grade teacher of children with

behavioral disorders, arising from an incident with one of his

students.  In October 1998, DCFS denied plaintiff's request to

expunge the indicated report.  Plaintiff requested a full hearing

before an administrative law judge (ALJ), which DCFS conducted in

February 1999.  On June 15, 1999, the ALJ recommended that the

Director of DCFS (Director) deny plaintiff's request for

expungement of the indicated report.  On June 23, 1999, the

Director denied plaintiff's request.  In July 1999, plaintiff

filed a complaint for judicial review of that decision.  In June

2000, the circuit court entered an order reversing the Director's

decision.  

		Defendants appealed, arguing the Director's decision

was not against the manifest weight of the evidence or contrary

to law.  Plaintiff argues the Director's decision that plaintiff caused bruises and s cratch marks to C.M. was not supposed rted by the

testimony of any witness and the bruises and scratch marks did

not constitute abuse. and plaintiff argues on appeal

that the Director's decision to deny plaintiff's request to

expunge the indicated report was against the manifest weight of the evidence because (1) no witnesses testified that plaintiff

touched C.M. in a manner that would cause the injuries documented

by DCFS, (2) no witnesses observed the injuries on C.M.'s neck

until after C.M. had fought with his brother, and (3) the inju

ries that C.M. suffered do not qualify as cuts or bruises as

defined by DCFS regulations.   We affirm.

	I. BACKGROUND			

		In March 1998, C.M., a six-year-old boy, was a student

in plaintiff's class for behaviorally disordered students at

Harvard Park School in Springfield, Illinois.  On March 10, 1998,

C.M. punched another student during class.  Plaintiff intervened

and took C.M. to another room, the "Quiet Room."  He testified

that he placed C.M. in a "basket hold" by grasping the child's

hands from behind and then crossing them over his abdomen after

C.M. punched another child.  

		Plaintiff testified that he released C.M. to escort him

to the Quiet Room.  However, plaintiff restrained him again on

the way to the room, by placing one of his hands on C.M.'s

shoulder at the base of his neck, while placing his other hand on

C.M.'s arm.  Becky Gordon, the teaching assistant in plaintiff's

classroom, stated that she observed plaintiff with his hand on

the back of the child's neck when he took him to the Quiet Room.

She could not say whether it was in a forceful way or not. 

Drucilla Brooks, a teacher at the school, stated that "I think he

was leading him down the hall by his arm[.]  I really can't

remember[.]"

		Plaintiff testified that once in the room, he placed

his finger and thumb on C.M.'s jawbone so they would look face-

to-face.  When plaintiff released him, C.M. jumped at him and called plaintiff vulgar names.  Plaintiff left C.M. with Gordon

so that he could accompany the other children to the art room. 

C.M. had calmed down when he returned.  Plaintiff then placed one

hand on each of C.M.'s shoulders and moved him sideways three

times to show him what it felt like to be pushed.  Plaintiff then

returned to his classroom.  Plaintiff testified that he raised

his voice during the incident, but he denied pushing the child or

grabbing him by the neck.  

		Gordon stated that when she arrived at the Quiet Room 5

to 10 seconds after plaintiff did, plaintiff's hands were around

C.M.'s throat, and plaintiff was shouting at C.M. from close

range and asking him how he liked having someone "in his face." 

Plaintiff left the room, and C.M. calmed down.  Plaintiff then

returned to the room and began to push C.M. in the chest. 

Plaintiff was shouting at C.M. at the time.  She noticed that

C.M. had red marks on his neck, two on the front and at least one

on the back of his neck, approximately the size of a quarter.

Gordon then left the room and joined the children in the art

room.  After the children settled down, she went to relate the

incident to the principal.  Gordon returned to the art room, and

C.M. arrived later. 

		Two teachers who had C.M. in their respective classes

later that afternoon did not notice any redness, scratches, or

marks on any part of C.M.'s neck, and C.M. did not mention that

his neck hurt to either teacher.  Neither teacher recalled

looking at C.M.'s neck for any type of injury.

		Linda Langheim worked in C.M.'s after-school program

and stated that she had observed C.M. try to choke his brother on

the afternoon of the incident and she saw C.M.'s brother try to

push him.  She separated the boys and at that time noticed the

marks on C.M.'s neck and asked C.M. about the marks.  C.M.

responded that plaintiff had made the marks and not his brother. 

She stated that she did not see C.M.'s brother at any point have

his hands on C.M.'s neck.  Langheim stated that she did not

remember seeing any scratches or marks on C.M. when he arrived

for his after-school program.  She also stated that she did not

have any reason to examine him upon his arrival.  

		That evening, C.M.'s mother contacted DCFS and reported

marks on C.M.'s neck, and that, according to C.M., plaintiff had

grabbed him around the neck leaving the marks.  DCFS began its

investigation the following day.

		Mary Boltz, the child-protection investigator, inter

viewed C.M. the morning after the incident.  He stated plaintiff

took him to the Quiet Room, put him in the corner, put his hands

around his throat, and pushed him with both hands about five

times.  Boltz noted that C.M. had two scratches resembling

fingernail marks behind his right ear and small hemorrhagic spots

behind his left ear and on his neck at the spine.  C.M.'s mother

informed Boltz that she noticed the marks when she picked up C.M.

and his brother at school, and she stated C.M. told her that

plaintiff had made the marks on his neck. 

		Nancy Peterson, the school principal, explained to Boltz that she has had complaints about plaintiff in the past and

that on one occasion she verbally reprimanded plaintiff after she

witnessed him grab a child by the arm.  Peterson also stated that

the school had suspended C.M. in the past, he had been in a

psychiatric unit this year, and she had known him to be aggres

sive toward his sibling.

		Boltz testified later before the ALJ that she indicated

the report of abuse because C.M.'s version of the incident was

consistent with her inquiries and corroborated by witnesses.  She

described him as "a very small six-year-old" boy with two small

scratches behind one ear and small reddish marks, of the type

that abuse causes, behind the other ear and on the back of his

neck.  C.M. informed her that he had been fighting with another

student and that plaintiff escorted him to another room by

placing a hand on the back of his neck.  After they were in the

room, according to C.M., plaintiff pushed him into a corner and

then placed his hands around his throat, choking him.  C.M. also

informed her that plaintiff pushed him about five times and asked

C.M., "[h]ow do you like it when you get pushed?"  

		At the conclusion of the investigation, DCFS indicated

the report of abuse.  In October 1998, DCFS denied plaintiff's

request for expungement of the indicated report.  Plaintiff then

requested a formal hearing. 

		The State brought criminal charges against plaintiff

for his actions related to the incident.  The trial was held

several months after the incident.  Plaintiff was acquitted of the criminal charges.  Moreover, plaintiff points out that C.M.'s

statements during plaintiff's criminal trial were not the same as

those that C.M. made to Boltz after the incident and that C.M.

did not at any point testify at the criminal trial that plain

tiff's hands were around his neck.  

		In February 1999, an ALJ conducted a formal hearing. 

On June 15, 1999, the ALJ issued her decision.  Her findings of

fact were as follows:

			"(1) Although [C.M.] was involved in

three altercations on March 10, only the

altercation with appellant could have left

the fresh bruises and scratch marks on

[C.M.]'s neck.  The other altercations in

volved [C.M.] attacking the other person

involved, rather than [C.M.] being attacked

by them.

			(2) The appellant's testimony, particu

larly as it related to his 'demonstrating by

modeling' as opposed to acting in anger or

frustration, was simply not credible."

She found that, in this case, DCFS "has shown by a preponderance

of the evidence that the appellant inflicted abuse[-]level

injuries upon [C.M.]" and recommended denying plaintiff's request

for expungement of the indicated report of abuse.  On June 23,

1999, the Director issued a decision adopting the ALJ's findings

and recommendation.  

		In July 1999, plaintiff filed a complaint for judicial

review of DCFS' decision not to expunge the indicated report,

arguing that it was against the manifest weight of the evidence

and contrary to law.  

		In June 2000, the circuit court reversed the agency's

decision and stated as follows:

			"The standard of review in this action

is whether the Director's decision that

[DCFS] had met its burden of proof to prove

the existence of abuse or neglect by a pre

ponderance of the evidence is supported by

the manifest weight of the evidence.

			The [ALJ's] decision, adopted by the

Director[,] was based on the following find

ing of fact:

			'Although [C.M.] was involved in three

altercations on March 10, only the alterca

tion with appellant could have left the fresh

bruises and scratch marks on [C.M.]'s neck. 

The other altercations involved [C.M.] at

tacking the other person involved, rather

than [C.M.] being attacked by them.'

			The other finding of fact is irrelevant

to the decision made as the [p]laintiff has

no burden of proof.

			The [c]ourt does not need to validate [p]laintiff's teaching methods or approach to

behavior modification to determine the issue

presented by this administrative review. 

Rather[,] the only question is whether [DCFS]

proved that [p]laintiff caused the marks on

the back of the child's neck.  The finding

that only the [p]laintiff could have left the

fresh bruises and scratch marks is the basis

upon which the indicated finding was sus

tained by [DCFS].  The [c]ourt determines

that said finding was against the manifest

weight of the evidence.  

			In this decision[,] the [c]ourt is mind

ful that no witness testified that

[p]laintiff touched the back (behind the ear)

of the child's neck, that no witness having

an opportunity to observe the child's neck

immediately post[]occurrence observed marks

on the back of the neck and that the child

was involved in at least one altercation

between the incident with [p]laintiff and the

discovery of marks on the neck.

			Judgment is awarded [p]laintiff on ad

ministrative review and the decision of

[DCFS] is reversed."

		Defendants appeal.

	II. ANALYSIS

	A. Standard of Review

		Defendants assert that the Director's decision was not

against the manifest weight of the evidence, nor were the factual

findings contrary to law.  Administrative agencies possess only

such authority as is legally conferred by express provisions of

law or such, by fair implication and intendment, as is incident

to and included in authority expressly conferred for the purpose

of carrying out and accomplishing the objective for which agen

cies were created.  Lenard v. Board of Education of Fairfield School District No. 112 of Wayne County, 57 Ill. App. 3d 853, 863, 373 N.E.2d 477, 484 (1978), aff'd, 74 Ill. 2d 260, 384 N.E.2d 1321 (1979); Ill. Const. 1970, art. IV, §1.  The findings and conclusions of

an administrative agency on questions of fact are held to be

prima facie true and correct.  735 ILCS 5/3-110 (West 1998); City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204, 692 N.E.2d 295, 302 (1998).  The findings of the

administrative agency on questions of law, by contrast, are not

binding on this court.  DiFoggio v. Retirement Board of the County Employees Annuity & Benefit Fund, 156 Ill. 2d 377, 381, 620 N.E.2d 1070, 1072 (1993). 

		In reviewing an administrative agency's decision, the

circuit court's role, as ours, is restricted to ascertaining

"whether the findings and decisions of the agency are against the

manifest weight of the evidence."  Abrahamson v. Illinois Depart ment of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111, 1117 (1992).  "[O]nly if the opposite conclusion is clearly

evident" is the agency's decision against the manifest weight of

the evidence.  Abrahamson, 153 Ill. 2d at 88, 606 N.E.2d at 1117.  "'If 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 upon review.'"  Grams v. Ryan, 263 Ill. App. 3d 390, 396, 635 N.E.2d 1376, 1380 (1994), quotingciting Christiansen v. Edgar, 209 Ill. App. 3d 36, 43, 567 N.E.2d 696, 700 (1991).  To find an agency's decision against the

manifest weight of the evidence, the court must determine, after

viewing the evidence in the light most favorable to the agency,

that no rational trier of fact could have agreed with the

agency's decision.  Christiansen, 209 Ill. App. 3d at 43, 567 N.E.2d at 700.

		We will carefully consider and review each finding of

fact to ensure that such is not against the manifest weight of

the evidence.  However, we do not substitute our judgment for

that of the administrative agency on fact findings, and we will

not reverse the administrative findings, based on the "mere fact

that an opposite conclusion is reasonable or that [we] might have

ruled differently."  Abrahamson, 153 Ill. 2d at 88, 606 N.E.2d at 1117.  Moreover, the power and duty in courts to determine if

administrative findings and orders have support in the evidence

is not a power to hear new evidence or to reweigh the evidence

adduced before the administrative agency.  West End Savings & Loan Ass'n v. Smith, 16 Ill. 2d 523, 525-26, 158 N.E.2d 608, 609 (1959).

	B. Finding of Abuse

		As we pointed out in Cavarretta v. Department of Children & Family Services, 277 Ill. App. 3d 16, 22, 660 N.E.2d 250, 254 (1996), being placed on the State register of suspected

child abusers implicates a liberty interest.  A subject of an

"indicated" report may be prohibited from working in certain

professions, such as child care and teaching.  225 ILCS 10/8(9)

(West 1998). In addition, a teacher placed on the State register

may have a difficult time retaining or acquiring a teaching

position.  Cavarretta, 277 Ill. App. 3d at 22, 660 N.E.2d at 254.  A teacher placed on the State register of suspected child abusers

may lose his teaching certificate.  105 ILCS 5/21-23(b) (West

1998). 

		Plaintiff argues, among other things, that the injuries

that C.M. suffered do not qualify as cuts or bruises as defined

by DCFS regulation, and thus an indicated finding of abuse is

error.  Plaintiff points to Korunka v. Department of Children & Family Services, 259 Ill. App. 3d 527, 631 N.E.2d 759 (1994), for support.  In Korunka, 259 Ill. App. 3d at 532, 631 N.E.2d at 762, this court held that a finding of abuse by DCFS was against the

manifest weight of the evidence and, although the teacher's

actions there did leave a mark, the injury did not amount to

abuse.  There, a teacher with no prior indicated reports caused bruising on the shoulders and neck of a junior high school

student with behavioral problems when he held the student down in his seat for his own safety and that of other students.  Korunka, 259 Ill. App. 3d at 528-30, 631 N.E.2d at 760-61.  The case at

hand is similar in that C.M., a student with behavioral problems,

struck another student and plaintiff intervened in the alterca

tion.  The ALJ then found that plaintiff left marks on C.M.'s

neck either during the walk to the Quiet Room or while in the

Quiet Room.

		We hold the finding of abuse is against the manifest weight of the evidence.  First, as the DCFS regulations state,

not every bruise results in a finding of harm.  89 Ill. Adm. Code

§300 app. B (West CD-ROM December 1998).  Although the ALJ did

find plaintiff left the marks on C.M., such action does not

necessarily amount to abuse.  "Beyond the regulation which states

not every bruise amounts to abuse, the [Abused and Neglected

Child Reporting Act (Ill. Rev. Stat. 1991, ch. 23, pars. 20513(a),

(e) et seq.)] requires for a finding of abuse 'death, disfigurement, impairment of physical or emotional health, or loss or impairment

of any bodily function,' substantial risk of such injury, or

corporal punishment which is 'excessive.'"  Korunka, 259 Ill. App. 3d at 5321, 631 N.E.2d at 762.  The actions here by plaintiff

evidentlyperhaps caused marks but did not cause death, disfigurement, any

impairment of health, or any loss of bodily function.  His

actions did not constitute excessive corporal punishment. 

Plaintiff's actions do not amount to "abuse" under the statute.  

III. CONCLUSION

		Accordingly, we affirm the judgment of the circuit court.

		Affirmed.

		STEIGMANN, P.J., and MYERSC OUGOUGH, J., concur.

State of Illinois

APPELLATE COURT

Fourth District

INTER-OFFICE MEMORANDUM

To:  Judge Steigmann 		Date: June __, 2001

	Judge Myerscough

					    	From: Judge COOK

					  Subject: Briggs v. State,

							 No. 4-00-0641/May 17 Oral

							 COOK, Steigmann, Myerscough

	Enclosed is a revised proposed Rule 23 order prepared by Matthew Cate

for your consideration.  

Enc.

cc:  Judge McCullough

	Judge Knecht

	Judge Turrner

	Clerk

State of Illinois

						APPELLATE COURT

						Fourth District

						INTER-OFFICE MEMORANDUM

To:  Judge COOK			Date: June 154__, 2001

     	(author only)

					    	From: Matthew Cate

					  Subject: Briggs v. State,

							 No. 4-00-0641/May 17 Oral

							 COOK, Steigmann, Myerscough

	Enclosed is a revised proposed Rule 23 order prepared by Matthew Cate for your consideration.  

Enc.

cc:  Clerk