Mustafaa v. Department of Healthcare & Family Services

2021 IL App (1st) 190744-U

THIRD DIVISION March 31, 2021 1-19-0744

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

IBRAHIM MUSTAFAA, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 18 L 050040 ) ILLINOIS DEPARTMENT OF HEALTHCARE AND ) Honorable FAMILY SERVICES, and FELICIA F. NORWOOD, ) Franklin U. Valderrama, in her official capacity as Director of the Illinois ) Judge Presiding. Department of Healthcare and Family Services, ) ) Defendants-Appellees. )

PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.

ORDER

¶1 Held: We affirm the judgment of the circuit court of Cook County, which affirmed the Department’s decision to deny plaintiff’s petition to vacate a 30-year-old administrative support order. Plaintiff failed to timely challenge the administrative support order within the time permitted by law and showed no due diligence in filing his petition to vacate more than 30 years after he knew of the order. ¶2 Plaintiff Ibrahim Mustafaa filed a pro se complaint seeking administrative review of a

decision by the Illinois Department of Healthcare and Family Services, denying his 2017 petition

to vacate a default administrative support order (ASO) issued in 1986. The ASO directed him to

reimburse the Department for public aid provided to his minor children. Plaintiff did not

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challenge the 1986 default ASO until the Department placed a lien on his bank account in 2016.

The Department found plaintiff did not timely contest the ASO and denied relief. The circuit

court affirmed the Department’s decision and denied plaintiff’s motion to reconsider. Plaintiff

filed a pro se notice of appeal. ¶3 BACKGROUND ¶4 The pertinent findings of fact in the administrative decision on appeal show that plaintiff

married in 1976 and five children were born to the marriage. From January 1984 to September

1986, the children had received “assistance grant payments.” On October 9, 1986, the

Department, through the Division of Child Support Services, issued a default ASO directing

plaintiff to pay $50 per month towards reimbursement of $14,592.00 in assistance grant

payments “to the dependent(s) from January 1984 to September 19, 1986.” ¶5 In a letter dated June 10, 1987, DCSS advised plaintiff of the default ASO and that he

owed “$50.00 per month towards a retroactive judgment of $14,592.00.” In August 1989, DCSS

issued a “Notice of Support Obligation” to plaintiff informing him an interview had been

scheduled “to obtain relevant facts.” Plaintiff appeared at the interview the following September. ¶6 In April 1992, the plaintiff’s marriage ended when the circuit court of Cook County

entered a judgment of dissolution of marriage. The judgment ordered plaintiff to pay child

support. ¶7 In July 2016, DCSS issued plaintiff and his bank a Notice of Lien stating he owed

$31,174.52 in unpaid child support, possibly including interest. Plaintiff appealed to the

Department and a hearing was commenced in January 2017. ¶8 The administrative law judge summarized plaintiff’s testimony at the hearing: In 1986,

plaintiff lived with and supported his family. The family applied for assistance, but plaintiff was

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never informed that he would have to pay it back. Rather, plaintiff believed the assistance to be a

grant that did not have to be repaid. ¶9 A child support specialist testified for the Department that the “$14,592.00 retroactive

judgment in the Default ASO is due because the children received public aid during a time

period before the Default ASO was issued.” According to the child support specialist, the

children’s mother had assigned her right to child support to the Department and the amount at

issue represents public aid received from January 1984 to September 1986. The fact the parents

lived together during that period did not excuse plaintiff’s obligation to reimburse the

Department. Plaintiff also missed the time limit to appeal the retroactive judgment. ¶ 10 ANALYSIS ¶ 11 The Department contends the administrative judgment should be affirmed because

plaintiff failed to timely challenge the ASO or to demonstrate he was entitled to file a late

challenge to the ASO. The Department maintains that pursuant to section 104.101 of Title 89 of

the Illinois Administrative Code, plaintiff had 30 days from the date the order was mailed to file

a petition for release from or modification to the ASO. As stated above, plaintiff was sent a letter

dated June 10, 1987, informing him of the ASO. ¶ 12 Section 104.101 reads, in pertinent part, as follows:

“a) Any client or responsible relative aggrieved by an administrative

support order entered, or any responsible relative aggrieved by a determination or

redetermination of past-due support, or any responsible relative or joint holder

aggrieved by a determination of the share of jointly-owned funds made by the

Department may petition for a hearing for release from or modification of the

order or to contest the determination or redetermination.

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b) A petition for release from or modification of an administrative support

order under subsection (a) of this Section shall be filed within 30 days after the

date of mailing of the order. The day immediately subsequent to the mailing of

the order shall be considered as the first day, and the day the petition is received

by the Department shall be considered as the last day in computing the 30 day

appeal period.” 89 Ill. Adm. Code 104.101. ¶ 13 The Department argues that plaintiff lost his chance to petition for release from or

modification of the ASO when he failed to file that petition within 30 days after mailing of the

order. Yet the Department also acknowledges that pursuant to section 160.60 of the

Administrative Code, a petition may be filed more than 30 days after it was mailed if certain

conditions are met. Section 160.60 states, in pertinent part, as follows:

“g) Petitions for Release from Administrative Support Orders --

Extraordinary Remedies

1) Notwithstanding the statements required by subsections

(d)(2)(G) and (d)(2)(H), more than 30 days after the entry of an

administrative support order under subsection (e), a party aggrieved by

entry of an administrative support order may petition the Department for

release from the order on the same grounds as are provided for relief from

judgments under Section 2-1401 of the Code of Civil Procedure.

2) Petitions must:

A) cite a meritorious defense to entry of the order;

B) cite the exercise of due diligence in presenting that defense to

the Department;

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C) be filed no later than two years following the entry of the

administrative support order, except that the following times shall be

excluded when computing the two years:

i) time during which the person seeking relief is under legal

disability;

ii) time during which the person seeking relief is under

duress;

iii) time during which the ground for relief is concealed

from the person seeking relief;

D) be supported by affidavit or other appropriate evidence as to

matters not supported by the record.” 89 Ill. Adm. Code 160.60. ¶ 14 The Department argues plaintiff failed to satisfy any of the grounds for relief under

section 160.60(g) because:

(A) he failed to establish a meritorious defense;

(B) plaintiff did not exercise diligence in presenting his defense;

(C) he did not provide evidence to establish, or even allege, that he was under a legal

disability, duress, or that his grounds for relief were concealed from him; and

(D) plaintiff “presented no affidavit or other evidence to support his contentions.” ¶ 15 When this court reviews a final decision by an administrative agency (Doe Three v.

Department of Public Health, 2017 IL App (1st) 162548, ¶ 25), the applicable standard of review

is determined by the questions raised on appeal (Hanks v. Illinois Department of Healthcare and

Family Services, 2015 IL App (1st) 132847, ¶ 19). When the decision involves a mixed question

of law and fact, we use the “clearly erroneous” standard of review. Id. A decision involving a

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mixed question of law and fact is one that results from “the examination of the legal effect of a

given set of facts.” Id. (citing City of Belvidere, 181 Ill. 2d at 205). Under the clearly erroneous

standard, we will reverse an agency’s decision only if, after reviewing the record, we are “left

with the definite and firm conviction that a mistake has been committed.” (Internal quotation

marks and citations omitted.) Id. We do not find this to be the case after reviewing the record. ¶ 16 The Department issued the default ASO on October 9, 1986 and mailed a notice dated

June 10, 1987, but plaintiff did not challenge the order until 30 years later when DCSS placed a

lien on his bank account. Section 160.60(g) of the Administrative Code allows an obligor to file

a petition for release or modification more than 30 days, but no later than 2 years after entry. 89

Ill. Adm. Code 160.60(g). In 1989, plaintiff went to the offices of the Department to discuss the

default ASO. However, plaintiff showed no due diligence because he did not file his petition to

vacate until 30 years after entry of the order and he made no allegations of legal disability,

duress, or that grounds for relief were concealed from him. See 89 Ill. Adm. Code 160.60(g). He

also failed to cite a meritorious defense to the entry of the default ASO. See id. Under these

circumstances, we are not left with a firm conviction that a mistake has been committed and

affirm the Department’s decision. ¶ 17 CONCLUSION ¶ 18 For the reasons stated, we affirm the judgment of the circuit court of Cook County

affirming the Department’s decision. ¶ 19 Affirmed.