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