Rosie Patterson v. State of Illinois

OPINION

MCGLYNN, J.

This case involves a petition by Claimant for $24,967.84 in attorney’s fees and costs pursuant to the Illinois Administrative Procedure Act, 5 ILCS 100/10-55(a) and (b) and the Court of Claims Act 705 ILCS 505/8(i). Claimant had an indicated finding issued against her by the Illinois Department of Children and Family Services (DCFS) on May 1, 2015 for an alleged incident that occurred in the kindergarten classroom at the Barbour Language Academy in Rockford, Illinois involving a 5-year-old student (AA) in the bathroom on December 5, 2014.

The procedural and factual history and allegations regarding DCFS’ investigation are set forth in detail in the summary judgment briefs for the parties. The parties have agreed to proceed and waive hearing and have this Court issue a decision on just the briefs.

Essentially, the incident involved Claimant being alone with the student in an unlocked bathroom after the student, who had a history of behavioral disruption such as throwing chairs and various objects at other students and stomping and pushing people, started grabbing scissors and throwing other objects at students in the classroom. The Claimant and a classroom aide attempted to defuse the student by redirecting him, but the student ran into the bathroom. Claimant kept the student in the bathroom to keep the children in the classroom safe. It was feared that AA would start running around the classroom and start throwing things such as pencils and scissors. The classroom aide testified that the student was out of control to the point that the aide had to stand in the path of the student in order to try and protect the other students. This student had previously hit a school worker who had been in the classroom in the stomach.

Claimant has a Master’s Degree in education from Rockford College and a Bachelor of Music and Piano Pedagogy and has never been indicated before. Following DCFS’ investigation, it was concluded that the bathroom did not pose a danger to the student. The student, while in the bathroom and being prevented from going back out into the classroom by the Claimant, was heard to be crying and pounding on the door and his fingers were observed in the door, though they were not smashed in the incident. Claimant received a verbal reprimand from the principal for locking a child in the bathroom. Claimant was alleged to have grabbed the student by the arms.

Claimant was indicated for allegation “60-substantial risk of injury/environment injurious to health and welfare” for the following: credible evidence exists to support an indicated finding [*188] of substantial risk of harm to five-year-old by (Rosie) based on reports (she) physically grabbed child, squeezed him and held him confined in the bathroom at school. The child was trying to get out and was heard kicking and screaming by other staff and (Rosie) held door with (her) feet and even elicited other staff to partake in the child being restricted to the bathroom. Record at 139.

Claimant appealed DCFS’ indicated finding, and on September 17, 2015, an administrative appeal hearing was conducted. On October 15, 2015, the Director of DCFS adopted the recommendation of the Administrative Law Judge (ALJ) that the indicated finding for allegation 60 should be expunged. The ALJ found that the student threw a violent fit that threatened the safety of other students. Claimant and the aide kept the student in the bathroom for 2 to 4 minutes while awaiting the arrival of school administrators, the student was not injured during the incident, and the bathroom was clean and free of hazards. Record at 102. The ALJ gave “minimal credence” to the student’s statement because the student was not interviewed until almost eight weeks after the incident, and the student’s statement did not match the Claimant’s or the aide’s testimony. Record at 102, 103. Claimant testified that she was afraid the student would cause harm. The ALJ determined that Claimant “acted in the interest of protecting other children in the classroom from being injured,” and that her “action was based on exigent circumstances, involved a very brief period of time in anticipation of administrative staff arriving, and was not inconsistent with her responsibility to protect the student’s safety.” Record at 103. The ALJ further concluded that AA “needed to be stopped before he hurt someone and/or cost further, more serious damage,” and that Claimant “had to react to a rapidly unfolding, dangerous scene that must have seemed surreal at the time.” Therefore, the ALJ held the Department failed to prove a factual basis for allegation 60, namely that Claimant created a likelihood of harm to AA or acted with blatant disregard for AA’s safety. Id.

The allegation at issue was not brought before or appealed to a circuit court for judicial review, and the parties have not entered into a settlement agreement regarding the claim, nor has the Department awarded the Claimant any litigation expenses or attorney’s fees in this matter. A demand was made by Claimant for attorney’s fees to DCFS on December 16, 2015 and denied on December 24, 2015.

ANALYSIS

Under the Abused and Neglected Child Reporting Act (ANCRA), DCFS is charged with protecting “the health, safety and best interest of [a] child in all situations in which the child is vulnerable to child abuse or neglect.” 325 ILCS 5/2(a). Upon receiving a good faith report of alleged child abuse or neglect, DCFS is required to conduct a formal investigation into the allegations (325 ILCS 5/7.4), and all reports are classified as indicated, unfounded or undetermined. 325 ILCS 5/7.12. If credible evidence of the alleged abuse or neglect exists, the report is “indicated.” 325 ILCS 5/3.

An indicated finding for allegation of harm number 60 is appropriate when “the child’s environment may likely cause harm to the child’s health, physical well-being or welfare due to the parent or caretaker’s blatant disregard of her responsibilities.” 325 ILCS 5/3, 89 Ill. Admin. Code § 300 App. B. [*189]

“Blatant disregard” means an incident where the real, significant, and imminent risk of

harm would be so obvious to a reasonable parent or caretaker that it is unlikely that a

reasonable parent or caretaker would have exposed the child to the danger without

exercising precautionary measures to protect the child from harm. With respect to a

person working at an agency in his or her professional capacity with a child or adult

resident, “blatant disregard” includes a failure by the person to perform job

responsibilities intended to protect the child’s or adult resident’s health, physical well

being, or welfare, and, when viewed in light of the surrounding circumstances, evidence

exists that would cause a reasonable person to believe that the child was neglected. 325

ILCS 5/3.

ILLINOIS ADMINISTRATIVE PROCEDURE ACT AND ATTORNEY’S FEES AND

EXPENSES

The Act provides as follows:

§ 10-55. Expenses and Attorney’s Fees.

(a) In any contested case initiated by an agency that does not proceed to court for judicial

review and on any issue where a court does not have jurisdiction to make an award of

litigation expenses under Section 2-611 of the Civil Practice Law, any allegation

made by the agency without reasonable cause and found to be untrue shall subject the

agency making the allegation to the payment of the reasonable expenses, including

reasonable attorney’s fees, actually incurred in defending against that allegation by

the party against whom the case was initiated. A claimant may not recover litigation

expenses when the parties have executed a settlement agreement that, while not

stipulating liability or violation, requires the claimant to take correction action or pay

a monetary sum. 5 ILCS 100/10-55 (a).

The parties are correct that the APA requires two things to be proven: 1) the agency acted without “reasonable cause,” and 2) the allegations must be “found to be untrue.” Id. The Court is cognizant that a claimant is not entitled to recover litigation expenses simply for prevailing at the administrative level.

Here, the clear import of the ALJ’s findings was that the allegations were untrue. No such specific finding, as suggested by the Respondent, is required. For the Respondent to suggest that DCFS merely had to prove an “injurious environment” is an oversimplification. As Claimant correctly points out, under Section 3 of the ANCRA, DCFS has to show that the Claimant manifested a “blatant disregard” for AA’s safety and it must also satisfy the requirements of Section 10-60 of the Administrative Code, which also references the term blatant disregard. Blatant disregard is defined as “an incident where the real, significant and imminent risk of harm would be so obvious to a reasonable person or caretaker that it is unlikely that a reasonable parent or caretaker would have exposed the child to the danger without taking precautionary measures to protect the child from harm.” Id. All of the evidence and findings by the ALJ support the conclusion that what Claimant did was necessary to protect the other children; that AA was not harmed; that the bathroom was not dangerous; that this was a decision that needed to [*190] be made quickly; and that it was effective in protecting the other children. Naturally, a 5-year-old child is going to be crying and trying to get out of the bathroom, and there is always the possibility that the child could have been harmed. But, DCFS was required to have reasonable cause to believe, prior to indicating Claimant, that the environment (i.e., placing and restraining the child in the bathroom) created a likelihood of harm to AA. There is no evidence in the record which reasonably supports the conclusion that AA was likely to be harmed and, in fact, AA was not harmed. More importantly, DCFS also was required to establish causation before indicating Claimant, i.e., the likely harm to AA was the result of a blatant disregard of Claimant’s caretaker responsibilities. Id. The evidence viewed in its totality simply does not support the notion that it would have been so obvious to a reasonable caretaker that AA was being subjected to a real, significant and imminent risk of harm by placing AA in the bathroom. Section 10-60 also references precautionary measures. There is no evidence from DCFS as to what those should have been to redirect the child from this volatile situation. Therefore, the allegations of abuse and neglect simply were untrue.

The ultimate issue, however, is whether the agency, at the time it made its indicated finding, made the allegation against Claimant without “reasonable cause.” The Abused and Neglected Child Reporting Act, § 3 makes it clear that the blatant disregard must be viewed from the perspective of a reasonable caretaker, such as Claimant. Reasonable cause must be viewed at the time the charges were issued and not retrospectively with the advantage of hindsight. Lake Environmental, Inc. v. State, 54 Ill. Ct. Cl. 408, 414 (2001). Nonetheless, reasonable cause is not defined.

It seems clear, however, that the reasonable cause determination must be viewed from the perspective of a reasonable DCFS investigator. This is consistent with the notion of reasonable suspicion in the criminal law (contrasted with probable cause) wherein a police officer must have reasonable, articulable suspicion to justify a stop of a suspect. An individual has a right to avoid an encounter with the police in the absence of reasonable suspicion. People v. Timmsen, 2016 IL 118181, ¶ 10, 50 N.E.3d 1092, 1096. Reasonable suspicion determinations must be made on common sense judgments and inferences about human behavior. Id. 2006 IL 118181, ¶ 14, 50 N.E.3d at 1098. For reasonable suspicion, the officer’s suspicion, “must amount to more than an ‘inchoate and unparticularized suspicion or hunch.’” Id. 2006 IL 118181, ¶ 9, 50 N.E.3d at 1096 quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868 (1968).

Thus, the DCFS investigators needed to have a reasonable articulable suspicion, based upon what a reasonable DCFS investigator would have done, that Claimant engaged in conduct that would justify issuing indicated finding number 60, wherein Claimant acted in blatant disregard of the child’s safety.

To recover, Claimant must prove that the indicated finding was made without reasonable cause. McHugh v. State, 45 Ill. Ct. Cl. 235, 241 (1992). The Court agrees that based upon DCFS’ several months long investigation, it knew Claimant’s actions to prevent injury were not unreasonable and did not create a real and significant danger of physical injury. It appears undisputed in the record that the child had previous incidents of violence and that the child needed to be secured in the bathroom to protect the other children, and the child was not harmed as a result of Claimant’s action. The ALJ observed any ordinary, reasonable investigator would [*191] know that an out of control student, throwing various items at other students and reaching for scissors is a student that needed to be stopped before he hurt someone or caused further, more serious damage. Record at 103.

Given this and the Court’s analysis above relating to the lack of the establishment of an injurious environment, no reasonable investigator in the position of DCFS would have indicated Claimant on this charge.

Thus, the Court concludes that the Department acted without reasonable cause in filing an indicated finding against Claimant and that the charges were untrue. The Court wishes to reiterate that its holding is limited to the facts of this particular case and that this award is not being made simply because Claimant prevailed at the administrative hearing. Rather, the statutory prerequisites have been met by a preponderance of the evidence. As the Claimant has met her burden, the Court does not consider the Claimant’s alternative argument that Respondent did not comply with its rules.

ATTORNEY’S FEES AND EXPENSES

The Court will now address the amount of Claimant’s fees. The Respondent claims that Claimant is not entitled to costs for the instant proceeding citing Lucien v. State, 47 Ill. Ct. Cl. 221, 225-226 (1994). However, the APA, which has no reported Illinois cases interpreting it, plainly allows for expenses and attorney’s fees. Respondent has not challenged the amount of the fees or the amount of expenses, and the Court finds them to be reasonable. However, certain deductions must be made.

Claimant seeks a total of $24,967.84 in fees and costs. This is supported by the attorney time sheets in Exhibit B to the Complaint and a spread sheet regarding same in Exhibit D to the Complaint. The time charges are broken down as follows: $12,451.20 for Associate General Counsel Ronald G. Stradt for an attorney rate of $158.03 per hour for the time period 9-1-14 to 8-31-15, and a rate of $161.19 per hour for the time period of 9-1-15 to the filing of the Complaint; $9,894.34 for Associate General Counsel Robert P. Lyons with the same rates as above; and $2,245.80 for paralegal Stephanie Winston. Of the $24,967.84 total, $376.50 is allotted for hard costs as detailed in Exhibit D, page four. In Claimant’s supplemental petition for fees, filed on October 21, 2016, seeking fees and costs for prosecuting this action, Attorney Lyons incurred an additional 1.25 hours ($201.49), Attorney Stradt an additional 23.1 hours ($3,725.27), and paralegal Winston an additional 2.5 hours ($159.10).

First, the Court finds that the rates for the attorney’s fees and paralegal, which are not challenged by the Respondent, are reasonable. Second, the Court finds that the hard costs identified are reasonable and necessarily incurred in conjunction with defending the claim. Third, the Court finds that some, but not all of the paralegal fees are recoverable.

Father & Sons Home Improvement II, Inc. v. Stewart, 2016 IL App (1st) 143666, 52 N.E.3d 581, interpreting Supreme Court Rule 137, held that paralegal fees are recoverable when the paralegal performs specific legal tasks which would otherwise have to be performed by an attorney and in that situation, cannot be regarded as overhead office expenses that are already [*192] included in the attorney’s hourly rate such as telephone charges, in-house delivery charges, inhouse photocopying, check processing, newspaper subscription and in-house paralegal and secretarial assistance. Id. 2016 IL App (1st) 143666, ¶ 69, 52 N.E.3d at 601 - 602.

Claimant submitted various time entries for paralegal time for the time period 6-29-15 to 10-19-15 and the supplemental filing covers 2-29-16 to 3-1-16. The Court finds that the tasks listed from 6-29-15 to and including 7-14-15 and 1.25 hours of the 2-29-16 and 3-1-16 entries are properly recoverable paralegal fees as those services would have had to be performed by an attorney. The Court further finds that Attorneys Lyons and Stradt’s supplemental time entries for 2-29-16 to 3-11-16 and 12-14-15 to 10-20-16 ($3,725.27), respectively, for prosecution of this action are appropriate. Therefore, the total attorney’s fees for Attorney Lyons are $10,095.83 ($9,894.34 + $201.49); total fees for Attorney Stradt are $16,176.47 ($12,451.20 + $3,785.27); total fees for paralegal Winston are $1,170.87 ($1,091.32 + $79.55); and the hard costs are $376.50. The remainder of the paralegal fees is denied.

In summary, Claimant is awarded $27,819.67 as provided by 5 ILCS 100/10-55(a) and (b) for reasonable attorney’s fees and expenses incurred in both prosecuting the administrative action and making a claim in the Court of Claims for the expenses incurred in the administrative action.