Sufficiency of Evidence in a Failure to Thrive Case

 In re Barion S., 2012 IL App (1^st) 113026

A petition of wardship was filed based on a one-year old minor’s failure to thrive. 

Testimony presented at the adjudication hearing established that the case was first an intact case from Arpil through June 2010.  During that time a DCFS worker visited the home 7-10 times.  The home was neat.  The mother acted appropriately in trying to feed the minor, which took up to 45 minutes.  In March, 2010 the minor was hospitalized for malnutrition and fever at Stroger’s.  He was again hospitalized in April and then 3 additional times for nonorganic failure to thrive.  Stroger medical records showed tha the minor ate 80-100% of his meals and tolerated food well.  A June 2010 report by Dr. Michelle Lorand stated that the mother did not have insight or parenting capacity to provide the child with adequate calories.  Moreover, the mother appeared developmentally impaired with possible psychiatric illness.  The child gained weight at the hospital but not at home. A July 2010 report by Dr. Lorand stated that the minor was gaining 3-4 times the normal amount for his age. 

The DCP investigator testified that temporary custody was taken of the minor while he was at Stroger’s Hospital because the minor was losing weight while in the mother’s care with no medical reason.  The minor was diagnosed as having nonorganic failure to thrive.  The treating physician was Dr. Risotto. 

The mother testified that she first had concerns over her child’s weight when the child was 9 months old.  At that time, she spoke to her pediatrician about this problem.  The mother then brought the child to St. Bernard Hospital 3 – 4 times, but the child’s eating problem was not resolved.  Thereafter the mother took the child to U. of Chicago’s Comer Hospital three times, again without any diagnosis.  Finally she took the child to Stroger’s.  The mother testified that she was concerned that her child was not getting diagnosed and was getting increasingly sick. 

The mother’s attorney entered the medical records into evidence.  These records showed that at different times both a medical resident and Dr. Lorand noted that gastroesophageal reflux disease (GERD) could be a contributing cause to the minor’s medical problems. 

In May 2011 the circuit court found the minor to have been neglected.  The court noted that when the minor was in the hospital the minor’s weight would increase overall, though not day by day.  In September 2011 a disposition hearing the case worker testified that the child was receiving weekly developmental therapy and attended the failure to thrive clinic at La Rabida for the past 9 months.  The minor was no within the 85 percentile for weight.  Additionally, the worker testified that the minor was receiving medication for GERD and a Pediasure supplement.  The worker testified that the mother’s visits were going well and she was consistent with attending individual therapy.  Mother was diagnosed with adjustment disorder with anxiety and depressed mood.  At that time, mother had two young children who lived with her.  The circuit court adjudged the minor ward of the court, noting that the mother needed additional time to complete services. 

The first issue addressed by the appellate court was the minor’s argument that mother’s appeal was untimely under Supreme Court Rule 662.  Rule 662 governs appeals from adjudication of wardship orders when the disposition order has not been entered within 90 days of adjudication.  The appellate court found that Rule 662 no longer applies because it does not correspond to proceedings under the Juvenile Court Act.  Under the Act, adjudication of wardship occurs at the disposition hearing.  705 ILCS 405/2-20(1).  Rule 662(e) has never been amended to reflect the current procedures under the Act.

The appellate court found the mother timely filed her appeal under Rule 660(b) which provides for appeals of final judgments under the Juvenile Court Act.  A disposition order, not an adjudication order, is a final appealable order.

The appellate court then discussed the meaning of neglect under the Act.  The definition of neglect is amorphous but generally a breach of a parent’s duty to provide a safe and nurturing environment for children.  The court also defined neglect as “the failure to exercise the care that the circumstances justly demand” and “willful as well as unintentional disregard of one’s parental duties.” Citing Arthur H., 212 Ill.2d 441, 443.

The appellate court next turned to the facts in this case and the burden of proof involved.  Proof of a minor having a medical diagnosis of failure to thrive syndrome is a prima facie evidence of neglect which carries with it a rebuttable presumption. 705 ILCS 405/2-18(2).  In this case, the mother was proactive in seeking out medical attention for her child’s eating problem.  Additionally, evidence showed that the home was neat and appropriate, sufficient food was available, and the mother took up to 45 minutes to feed the minor. 

The court noted that the medical records presented a conflicting basis for the minor’s health issues.  The minor’s weight fluctuated in the hospital but he lost weight at home.  However, because the minor was prescribed medicine for GERD, the minor’s problem was possibly organic failure to thrive.  The medical records did not establish that the minor’s eating habits were consistently better in the hospital than at home.  This discrepancy was not clarified by a medical professional, nor was there any testimony by such a professional as to the minor’s diagnosis and treatment. 

The appellate court opined that the evidence presented rebutted the presumption of neglect based on a diagnosis of failure to thrive.  Adjudication and disposition orders were reversed and the cause was remanded to the circuit court for entry of an order dismissing the petition and discharging the minor from custody.

Failure of Ward of Court to Engage in Services Not Basis to Close Guardianship Case

In re Aaron L. 2013 IL APP (1^st) 122808

In 1994, one-year old minor was adjudged a ward of the court.  He was placed in several foster homes.  During that time the circuit court made several findings the DCFS failed to make reasonable efforts to achieve permanency. 

            In 1999 the court appointed a relative as guardian.  However, this guardianship was vacated in 2006.  (No basis given in opinion.)  Thereafter the minor lived in several foster homes.  In February 2007, a psychological evaluation stated that minor had limited cognitive abilities and had significant difficulties with emotional and social functioning.  Around this time he was also found guilty of aggravated battery.  Minor was placed in a therapeutic group home in Kankaee.  In July 2010 (minor now 17 years old) he was moved to a group home in Lisle.  Three months later he was placed in a TLP in Wheaton. 

            In February, 2012, soon before minor’s 19^th birthday, the GAL filed a motion to extend wardship and guardianship.  At the hearing the TLP supervisor recommended extending wardship.  The supervisor testified theat minor was attending classes at the College of DuPage, though not consistently, and looking for a job.  The circuit court granted the GAL’s motion to extend guardianship for 6 months, noting that the minor needed services to help him gain independence. 

            At the August 2012 permanency hearing the minor’s case manager testified that the minor had violated the TLP’s rules, lost his job, used drugs, and violated probation.  Moreover, he owed school loans and a collection agency was pursuing payment on his Sprint phone bill.  The case manager testified that the minor had not made progress, however he could not live independently without aid from DCFS and ChildServ and would benefit from additional services.  The circuit court ordered the case to be closed because the minor did not seem to care to engage in services.  However, the court stayed the matter for 45 days to determine if the minor’s behavior would change.  The court’s order stated that the minor was unable to live independently and was not cooperating with services.  The court checked the box on the order form that good cause was shown to support extension of wardship which was in the best interest of the minor and the public.

            During the September 2012 status hearing the case manager testified that the minor was in desperate need of the following services:  education, vocational training, life skills, therapy and substance abuse treatments.  The minor’s engagement in services were non-existent.  The circuit court closed the case because there was “very little legal basis” to keep the case open.  The court wrote on the order form that it was in the minor’s best interest to close the case. 

            The appellate court first noted the circuit court’s failure to follow the provisions of the Juvenile Court Act, 705 ILCS 405/2-2-31(1) & (2) which requires a court to make written factual findings in support of closing a case.  The appellate court also noted that the provisions of the Act state that a case cannot be closed based on the failure of the minor to engage in services. 

In this case, the appellate court found that the circuit court erred when failing to make any written factual findings regarding the health and safety of the minor and the public.  Moreover, the minor had testified that he wanted the case to remain open.  The manifest weight of the evidence did not support the court’s ruling.  The minor needed employment, drug abuse treatment, and had unresolved delinquency matters.  There was no evidence that the minor could live independently at that time.  The circuit court failed to consider the minor’s need for services to be made available to him.  The minor’s lack of cooperation and engagement in services was not a basis for termination of guardianship.  The circuit court’s order was reversed and remanded.

Sufficiency of Evidence for Unfitness Under Grounds (m)(iii) and (p)

In re S.L., 2012 IL App (5^th) 120271

            State filed a petition for termination of parental rights of both parents of minor.  The father did not partake in trial proceedings or appeal. 

[This summary does not include testimony of issues not addressed in the appellate court’s ruling.]  The State filed a petition for termination of parental rights alleging unfitness against mother for the following grounds:  1) failure to make reasonable efforts to correct conditions that were the basis of the child’s removal, 705 ILCS 50/1D(m)(i); 2) failure to make reasonable progress towards return home of the child within 9 months after adjudication,  705 ILCS 50/1D(m)(ii); 3) failure to make reasonable progress for any 9 month period following adjudication, 705 ILCS 50/1D(m)(iii); and 4) inability to discharge parental responsibilities based on mental impairment that will extend beyond reasonable time period, 705 ILCS 50/1D(p). 

At the hearing on State’s termination of parental rights, a clinical psychologist testified to mother’s own past history of abuse and that she had another child that was in her custody at time of termination hearing.  The psychologist diagnosed her with PTSD, borderline intellectual functioning and a personality disorder not otherwise specified.  He testified that mother was not able to discharge her parental responsibilities at the time her interviewed her and that mother should get long-term intensive therapy before being reunited with her child.  The psychologist estimated that mother would need 6 months to one year of maintaining a stable life; i.e., stable housing, no arrest,  not domestic violence, no drug use, before being able to regain custody of her son. 

The appellate court first looked at the9-month pleading requirement under , 705 ILCS 50/1D(m)(iii). The State conceded that it failed to file the notice specifying the 9-month period as required by statute.  A plain reading of the statute mandates the State to give notice of the specific 9-month period(s) at issue no later than 3 weeks before close of discovery, “the petitioner shall file with the court and serve on the parties a pleading that specifies the 9-month period or periods relied on.  Additionally, “the allegations in the pleading shall be treated as incorporated into the petition or motion…”  .”  705 ILCS 50/1D(m)(iii). 

In underscoring the significance of notice the court stated, “The portion of the statute requiring this notice pleading is as much a part of the allegation of unfitness as the basic provision that the parent has failed to make reasonable progress toward the return of her child.”  at ¶39.  Failure to identify the 9-month period impairs the parent’s ability to defend her/himself.  This is all the more important given the fundamental constitutional right to parent.  Moreover, the State’s duty to give notice cannot be waived by the parent’s failure to object.  Because the allegation was not in conformity with the statute, the circuit court erred in finding unfitness under ground (m). 

The State may not terminate on grounds not alleged in the petition.  Because the 9-month periods were not alleged in the petition via being incorporated by the pleading requirement, the circuit court could not find mother unfit under ground (m)(iii).  Finally, the appellate court noted that the State’s evidence did not clarify which 9-month period was at issue and the circuit court failed to identify any such period when finding mother unfit under ground (m)(iii). 

Note:  The allegation of unfitness based on reasonable progress within 9 months after adjudication was not sufficient notice under this court’s interpretation of the statute. 

As to the finding of unfitness based on mental impairment, ground (p), the appellate court also found that the State failed to meet its burden of proof.  Ground (p) has two components which the State must prove:  1) parent suffers from a mental impairment rendering him/her unfit to parent, and 2) this impairment will extend beyond a reasonable time.  As to the first component, the psychologist’s testimony established only that mother was not capable of discharging her parental responsibilities based on past history, but not on her current mental impairment, which is required by statute.  The appellate court also found noteworthy that mother was successfully parenting another child during the time of the termination hearing and that DCFS had not found it necessary to remove that child from mother’s care.  The court found it “illogical” that mother had such severe mental impairment that rendered her unfit to parent one child but not another. 

As to the second element of ground (p), that the impairment will extend beyond a reasonable time, the appellate court again found the State failed to meet its burden of proof.  The psychologist testified that mother needed up to one year of stability before being reunited with her child, the caseworker testified that mother had stable housing for the past 9 months, had utilities, not arrest, no domestic violence and no substance abuse.  Additionally, the caseworker testified that mother cooperated with the services requested of her.  The only problem was her lacking the appropriate level interaction with her child.  The appellate court held that mother had shown at the hearing that she had met all the requirements identified by the psychologist for logistical stability to allow her to be reunited with her child. 

The mater was reversed and remanded for further proceedings consistent with opinion.

Parent’s Failure to Appear at Termination Proceeding Does Not Warrant Default Judgment

In re C.J., C.B., & C.J., 2013 IL App (5^th) 120474

In March 2008, the State filed Petitions for Adjudication of Wardship for the 3 minors alleging they were neglected by their mother. The mother stipulated to the allegations of neglect and the children were adjudged wards of the court at a dispositional hearing.  No allegations of neglect were made against the father at adjudication but the court did not grant father custody because 1) he had not provided financial support to the children, and 2) father had no permanent residence. 

The State later filed petitions to terminate parental rights against both mother and father.  In November 2010, father appeared in court and was appointed counsel.  He appeared again at a pretrial hearing in February 2011.  He failed to appear at a

June 2011 hearing.  The court found him in default and set the case for disposition in July 2011.  Later in June the court granted father’s motion to set aside the default order.  The case was continued to October 2011, at which date the father appeared. The matter was again continued until February 2012.  Father’s attorney appeared at the February 2012 hearing but not the father.  The court again found father in default.  The State recited the allegations of unfitness but presented no evidence.  Thereafter the court found father unfit and that it was in the best interest that his rights be terminated. In February 2012, the father filed a motion to vacate the default based on medical reasons.  The court denied his motion to set aside the default. 

The father filed a notice of appeal.  The State filed a motion requesting that the court’s order terminating father’s parental rights be vacated and remanded for an evidentiary hearing because of the lack of evidence presented in support of that finding. 

The appellate court granted the State’s motion to reverse and remand.  The appellate court held that a default judgment may be granted only when the defaulted party fails to file an answer or appearance.  Failure to appear at trial generally does not justify a default judgment.  If the respondent is present to try the case, the petitioner must provide allegations within petition.  In this case, the State’s failure to introduce any evidence of unfitness in light of father’s filing his appearance and contesting allegations in the petition for termination did not allow the circuit court to enter a default judgment against the father. 

Note:  The opinion does not indicate that the father filed an answer to the petition to terminate parental rights.  Thus, his appearance contesting the petition was as sufficient as answering the petition.

Finding of Parent Unfit at Disposition Upheld Where Parent Noncustodia

In re A.P., 2013 IL App (3rd)  120672

In March 2012 the State filed a petition for adjudication due to the mother being involved in a violent domestic relationship with her paramour and mental illness.  The father was not named in the petition because his identity was not yet known. 

Approximately 1 month after the adjudicatory hearing the respondent was identified as the father.  He filed an answer to the petition stipulating to the allegations but denying he contributed to the abuse or neglect. 

At a subsequent court hearing the State presented the court with a memo outlining the father’s criminal history and that he was criminally charged with kidnapping the children during a visit. 

In August 2012, and adjudication and disposition hearing was held for the father.  The circuit court took judicial notice of the proffer made at the mother’s adjudication and again found the minor to be abused. 

At the father’s disposition hearing, father asked the court to reserve the disposition finding pending the outcome of the criminal case regarding the kidnapping.  The father had not cooperated with DCFS to complete a social history and integrative assessment on the advice of his criminal attorney.  The circuit court found the father to be unfit based on his refusal to cooperate with DCFS, his past criminal convictions (including violent crimes) and the pending kidnapping case.

The appellate court held that a parent can be found unfit at a disposition hearing even when there are no allegations contained in the juvenile court petition against that parent.  The Petition puts both parents on notice that fitness will be an issue at the disposition hearing.  Here the evidence of father’s failure to cooperate and criminal history supported a finding that the father was dispositionally unfit.