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.