Bad Decision Insufficient to Support Indicated Finding for Substantial Risk of Physical Harm (Allegation 10)

Oglesby v. IL DCFS, 2014 IL App (4th) 130722

   The appellate court reiterated the requirement that for a person to be indicated by DCFS of physical harm, also referred to as Allegation 10, the harm must be of the severity identified in the Abused and Neglected Child Reporting Act (ANCRA), 325 ILCS 5/3(b).
   In Oglesby, a police officer was called to an elementary school because of an out-of-control child.  While there the police officer intervened to stop tantrum by another behaviorally-disturbed child.  This child had been restrained by the school's resource officer prior to the police officer becoming involved.  Witnesses testified to the police officer picking up the child by either his neck or clothes and telling the child to "shut up".  The police officer was subsequently indicated for substantial risk of physical injury.  His request to have this finding expunged was denied by the Department.
   This matter made its way up to the appellate court, which reversed the ALJ's decision and ordered the finding expunged.  The appellate court identified 3 factors relevant to a finding of physical harm under ANCRA:  1) Each case must be determined on its own facts, 2) a bad decision does not amount to abuse, and 3) the Department must prove the type of harm identified in ANCRA.  ANCRA defines abuse under Section 5/3(b) as having created a "real and significant danger of physical injury" to the child that would likely cause injuries including "disfigurement, death, or impairment of physical health."  In this case, the evidence did not establish that the child was physically injured.  The appellate court concluded that the ALJ relied too heavily on the police officer's poor decisions made in handling an emotionally-disturbed child.

Child Can be Placed Outside Parent's Custody Even When Parent is Found Fit at Dispositional Hearing

   In re A.S., 2014 IL App (3d) 130163

     In August 2012 the State filed a Petition for Adjudication of Wardship alleging 4-year-old A.S. was neglected due to an injurious environment while in his mother's care. In December 2012, the court adjudged A.S. to be neglected.  On January 24, 2014, a dispositional hearing was held.  The family caseworker, Ms. Novak, testified that the father and his wife had cooperated with the agency's requests and would ensure the safety of A.S. if the minor was in their care.  The court adjudged A.S. a ward of the court, found mother to be unfit and father to be fit.  Father was named A.S.'s guardian and the minor was placed in his care.
   Sometime after the dispositional hearing, a former DCFS intact worker for the family contacted Ms. Novak and informed her that when the father and his wife were receiving intact services, they were uncooperative with the DCFS worker.  Additionally, the DCFS worker reported that the father and his wife had unresolved substance abuse issues.  The intact case closed when the family moved to Iowa.
     On January 29, 2014, Ms. Novak had a telephone conversation with father's wife, who complained about the way the family had been treated by DCFS.  The wife appeared to be unwilling to allow Ms. Novak to conduct unannounced home visits.
     On January 31, 2014, Ms. Novak made a home visit.  A.S. was clean, showed no signs of abuse, and his bedroom was clean and appropriate.  However, Ms. Novak noted that father appeared to be under the influence of drugs or alcohol, the father and his wife were unwilling to sign consents to talk about the case in front of each other, and the worker described the mood as hostile and unwelcoming.   The wife's father was also in the home during the visit.  He questioned the worker's capabilities and contended that constitutional rights were being violated.  Following this home visit the wife contacted the agency many times complaining of the worker.
     On February 7, 2013, the State filed a Motion to Reopen Dispositional Hearing and/or Motion to Modify Guardianship.  On February 21, 2013, Ms. Novak filed a "status alert" documenting her concerns about the new information she obtained from the previous caseworker.  On that same day a hearing took place on the State's motion.  Following the hearing in which Ms. Novak testified and her status alert was introduced into evidence, the trial court found it was not in A.S.'s best interest to remain his father's care.  The court appointed DCFS to serve as A.S.'s guardian.  Father appealed this order.
    The appellate court began its analysis by identifying the standard of review for a dispositional finding as whether the finding was against the manifest weight of the evidence or whether the court abused its discretion when selecting its dispositional order.  Under the Juvenile Court Act, the court must first find that it is in the child's best interest to be made a ward of the court.  Only after that finding can the court then determine what type of dispositional order to enter.  The court relied on Austin W., 214 Ill.2d 31 which ruled that it is not necessary that a parent be found unfit before a court can place the minor outside the parent's custody.  Moreover, even though a dispositional order is final for appeal purposes, the order can be modified at any time if it is in the child's best interest.  In this case, given the prior intact history of the father and his wife, the unresolved substance abuse issues, and the wife's uncontrolled behavior the trial court's finding to terminate placement of A.S. with his father was not against the manifest weight of the evidence.

Improper Search and Seizure of Respondent-Minor following Terry Stop

                                   In re Rafeale E., 2014 IL App (1st) 133027

     Respondent-Minor appealed an adjudication of delinquency for possession of controlled substances.  Specifically, Respondent appealed the trial court's denial of Respondent's Motion to Quash Arrest and Suppress Evidence.  The appellate court found the trial court erred in denying Respondent's motion.

    The State filed a petition for adjudication of wardship for possession of a controlled substance.  At the hearing for Respondent's motion to quash arrest and suppress evidence, the police officer testified that he observed the Respondent with 4 - 6 other individuals at the mouth of an alley at 10:00 a.m.  in a "high narcotics location."  The officer saw the Respondent walk briskly away from the group and towards the open sidewalk.  The officer pulled the squad car over to the Respondent, got out, and ordered the Respondent to stop, which the Respondent did.  The officer then ordered the Respondent to take his hands out of his pockets.  The Respondent raised his hands, causing his shirt to rise above his waistband.  The officer observed a plastic bag taped to Respondent's waistband.  The officer then searched the Respondent and found bags containing what appeared to be controlled substances.  The trial court denied the Respondent's motion to quash arrest and suppress evidence.  

     The Appellate Court applied a de novo standard of review because at issue was the trial court's legal conclusions only.  The appellate court began its analysis by referencing the IV Amendment of the U.S. Constitution and the Illinois Constitution, Article 1, Sec. 6, which protects individuals from unreasonable searches and seizures.  The court then referenced "3 tiers of police-citizen encounters" identified by the U.S. Supreme Court:  1.  arrests based on probable cause; 2. brief stops, or Terry stops, based on an officer's reasonable, articulable suspicion of criminal activity; and 3.  consensual encounters.  In this case the appellate court found that the encounter between the officer and the Respondent was a Terry stop.   

     The appellate court then referred to U.S. v. Mendenhall, 446 U.S. 544 (1980) which identified 4 circumstances in which a non-consensual stop can occur:  1.  the threatening presence of police officers; 2.  the officer's weapon in plain sight; 3. the officer touching the person, or 4. the officer's tone indicating the person must follow the officer's orders.  These 4 factors are determined by an objective standard; that is, whether a reasonable innocent person believed he was not free to decline the officer's request.  

     In this case, the appellate court found the evidence in support of a Terry stop was 1. the squad car pulling alongside the Respondent; 2. the officer immediately getting out of the car and focusing on the Respondent; and 3.  the officer giving the Respondent the two orders.   

    The appellate court next looked at whether the officer had a "reasonable articulable suspicion that Respondent was involved in criminal activity or was armed and dangerous" to justify a Terry stop.  (Para. 25)  The appellate court distinguished this case from Illinois v. Wardlow, 528 U.S. 719 (2000), which justified a Terry stop when the defendant ran away from police and into an alley.  In this case, the appellate court found that the evidence established the Respondent was walking, not running, away from the group of individuals, not from the police.  The Respondent, who was standing at the mouth of the alley, walked away from the alley towards the open sidewalk.  The appellate court found that the evidence established that the Respondent was not attempting to evade the police.  Moreover, the officer testified that he did not observe the Respondent engaging in any criminal activity prior to stopping the minor.  Thus, the appellate court held that the trial court erred when denying the Respondent's motion to quash arrest and suppress evidence.  The appellate court reversed the finding of delinquency.

Proposed Legislation Re; Expungement of Juvenile Records

On March 27, 2014, Representative Arthur Turner proposed an amendment to House Bill 4084, which amends Section 405/5-915 of the IL Juvenile Court Act, 705 ILCS 405/5-915.  

    It appears that the State Police must expunge certain juvenile records without the individual filing a petition to expunge.  Under the bill's amendment, automatic expungement by the State Police applies to the following conditions:

   (1) the minor had been arrested but no delinquency petition was filed; (2) the minor is 18 years old; and (3) 6 or more months have passed from the minor's most recent arrest.  

   The State Police is responsible for automatically expunging these records on an annual basis.  
     In other circumstances, the individual must file a petition to expunge, though this amendment allows a petition to include multiple offenses.  

This amendment applies to records of minors arrested or taken into custody on or after January 1, 2014.

Mandatory Life Sentence Per Statute Violates Juvenile's 8th Amendment

     In People v. Davis, 2014 IL 15595, a 14 year old was sentenced to mandatory life in prison following his conviction on two counts of first degree murder in April 1993.  Illinois statute, 730 ILCS 5/5-8-1(a)(1)(c), states that if a defendant is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment.

     This case came before the Illinois Supreme Court by way of a post-conviction petition.  (The issues raised in this appeal as to whether the petitions were timely or exceeded the amount allowed will not be addressed in this summary.)  In 2012, the United States Supreme Court ruled in Miller v. Alabama, 132 S.Ct. 2455 (2012), that a mandatory life sentence for those under 18 years of age was cruel and unusual punishment and thus in violation of the 8th Amendment.  

     In Miller, the Supreme Court noted that the immaturity of juveniles, both cognitively and socially, rendered a juvenile's crime not as "morally reprehensible" than if committed by an adult.  Moreover, mandatory sentencing laws preclude a trial court from looking at mitigating factors in a juvenile's circumstances.

     The Illinois Supreme Court held that  Miller should be applied retroactively because it was a substantive, not procedural rule, citing Schirro v. Summerlin, 542 U.S. 348 (2004).  The Miller ruling narrows the scope of the Illinois sentencing statute by placing juveniles outside the State's ability to punish as prescribed under the statute.  The Illinois Supreme Court in Davis found that defendant's life sentence was invalid and therefore should be vacated.

     The court in Davis noted that a trial court could still sentence a defendant under the age of 18 years to a life sentence as long as the sentence was based on the trial court's discretion.  Mitigating factors to be considered when formulating a sentence include the juvenile's age and characteristics, the juvenile's family and home environment, circumstances surrounding the offense, the juvenile's ability to interact with police and to help prepare for his/her trial, and the possibility of being rehabilitated.

Trial Court Not Authorized under the Juvenile Court Act to Sentence Minor to County Jail

In re B.P.D., 2014 IL APP(3d) 120781

     In 2007 the minor was found by a trial court to be delinquent; that is, in violation of a criminal law.  The trial court sentenced the 15 year-old minor to 5 years' probation. In 2012 the State filed a petition alleging that minor had violated the terms of his probation.  (Minor is now 20 years old.)  The trial court revoked minor's probation and sentenced him to 5 days in the county jail.
     The appellate court found that the Juvenile Court Act, specifically 705 ILCS 405/5-710, allows a trial court to sentence a minor to juvenile detention not to exceed 30 days.  Further, when a minor's probation is revoked, he or she can only be sentenced to terms available to the court at the original sentencing.  Therefore, the appellate court held that the trial court did not have authority to sentence the minor to county jail.  The sentence was vacated.

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.