OPG Appellate Developments
Illinois Appellate and Supreme Court Decisions
The following are summaries of recent child welfare and disabled adult case law from the Illinois Supreme Court and the First District Appellate Court in cases where the Public Guardian represented the child(ren) or ward in the trial court and on appeal, or where the Public Guardian filed a friend of the court brief. At any given time, the Public Guardian has multiple appeals pending from all three divisions.
In re S.D., 2009 Ill. App. LEXIS 943 (1st Dist. Sept. 30, 2009):, is a case of first impression, addressing the independent basis provision of 705 ILCS 405/2-27(1)(d), as amended effective June 1, 2008. Under Section 2-27(1)(d), a court may commit a child adjudicated delinquent or charged with a crime to DCFS custody if an independent basis of abuse, neglect or dependency exists. An independent basis exists when the allegations or adjudication of abuse, neglect, or dependency do not arise from the same facts, incident, or circumstances which gave rise to a charge or adjudication of delinquency. Here, in 1993, the trial court found two-year-old Sam abused and neglected due to the physical abuse of the mother's paramour. In March 2000, the trial court placed Sam in subsidized guardianship with his non-relative foster mother. In 2007, Sam's mother filed a motion to vacate the private guardianship. In January 2008, with the agreement of the State and GAL, the court returned Sam home to his mother under an order of protection. However, in May 2008, a report indicated that Sam had been charged with aggravated robbery for allegedly stealing an iPod on a bus. The report also indicated that Sam had been previously psychiatrically hospitalized and was currently at a psychiatric hospital. Several status hearings were held where the judge heard that Sam's mother could not meet his needs. Sam eventually pled guilty to aggravated robbery, and was sentenced to mental health probation. The trial court found that an independent basis of neglect existed under amended section 2-27(1)(d) of the JCA to place 17-year-old Sam in DCFS guardianship. DCFS appealed. The 1st District found that an independent basis of neglect existed that did not arise "from the same facts and circumstances which gave rise to the criminal charge." Id.at *16. The Court rejected DCFS' argument that the 2008 modified dispositional order that returned Sam to his mother rendered the 1993 adjudication moot. The Court concluded that based on the 1993 adjudication of abuse and neglect, Sam "had an independent basis and therefore fit into the exception by which a minor charged with a crime could still be placed in DCFS' guardianship." Id.at *18. This case allows teens like Sam to get the help and services they need.
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In re B.H., 2009 Ill. App. LEXIS 152 (1st Dist. Mar. 2009): The mother instructed 15-year-old Brandy to clean the house. But, she did not. As punishment, the mother told Brandy that she could not participate in a family gathering. The mother then told all the children to help bring in groceries from the car. Brandy refused. Instead, she went to her bedroom, gathered a pre-packed bag, and announced that she was leaving. The mother followed Brandy to her bedroom where a physical fight ensued. During the fight, the mother bit Brandy on the chest and scratched her face. Brandy left and went to the emergency room to receive treatment for her injuries. The mother was charged with, and pled guilty to domestic battery. The State alleged that Brandy was neglected and abused. At adjudication, the mother claimed that Brandy attacked her. The juvenile court found that Brandy was abused due to excessive corporal punishment. Following the dispositional hearing, the court made Brandy a ward of the court and ordered mediation between Brandy and her mother. On appeal, the appellate court found that the altercation between Brandy and the mother was one continuous punishment, beginning when the mother told Brandy that she could not attend the family dinner and ending with the mother biting and scratching Brandy. The appellate court found that the biting and scratching was disciplinary in nature. In other words, the biting and scratching was punishment. The appellate court next considered whether the punishment was excessive. It noted that excessive corporal punishment is not defined in the Juvenile Court Act but found excessive corporal punishment involved disciplinary acts that left children with injuries. Here, the appellate court held that the mother's biting and scratching exceeded the bounds of reasonableness. The abuse finding was affirmed.
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In re K.H., 387 Ill. App. 3d 192 (1st Dist. Dec. 2008): The trial court found the mother unfit because she failed to maintain a reasonable degree of interest, concern or responsibility for the child. The mother's parental rights were terminated and she appealed. The appellate court affirmed the trial court's finding that the mother was unfit. The appellate court acknowledged that the caseworkers could have been more effective but ultimately, it is the parent's responsibility to maintain a reasonable degree of interest, concern or responsibility. In addition, the mother knew that she was required to submit random drops, attend NA/AA meetings, have a psychological evaluation, attend parenting classes and visit consistently with Konstantinos. The mother failed to successfully complete any of the requisite tasks. In its findings, the appellate court particularly stressed the mother's failure to visit with or even contact her child even when she was not in jail. Konstantinos has been placed with his aunt for over three years, and she wishes to adopt him.
For full text of opinion click here
In re D.W., V.R., and N.B., Jr., 386 Ill. App. 3d 124 (1st Dist. Oct. 2008): In this child sex abuse case, 11-year-old V.R. graphically testified about the sexual abuse her stepfather repeatedly inflicted on her for three years. V.R. testified that she twice told her mother of her abuse, but her mother did not believe her. And, when DCFS investigators came to the home, the mother told V.R. to lie about her abuse. The mother and stepfather testified that V.R. was able to vividly describe sexual acts because she discovered pornographic video movies in their bedroom. They claimed that V.R. lied about the sexual abuse to avoid punishment for stolen money. The juvenile court found that V.R. was credible. And, it found that V.R. and her siblings were abused and neglected. Following a dispositional hearing, the court found that the mother and the children's biological fathers were unable to care for them. In affirming the findings of abuse and neglect, the appellate court found that V.R. was credible. It stated that even if some of V.R.'s details varied, she consistently described sex abuse. In rejecting the parents' claim that V.R. learned about sex acts from watching adult pornographic movies, the appellate court stated that V.R. so graphically described some sex acts that she could not know about them unless she actually experienced them. In affirming the dispositional findings, the appellate court noted that the mother still denied that V.R. was sexually abused by the stepfather. Regarding the stepfather, who was the biological father of one of the children, the appellate court found that he had not completed a sexual perpetrator assessment, nor had he attended individual therapy. Finally, the Court rejected the mother's and stepfather's argument that the juvenile court displayed personal bias, by referring to V.R. as "honey" and "sweetheart" during her testimony. The appellate court held that the judge treated an 11-year-old child as such a child should be treated by the court.
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In re L.H., 384 Ill. App. 3d 836 (1st Dist. Aug. 2008): LaChristal H. was adopted at age nine. By age fifteen, she was psychiatrically hospitalized and diagnosed with bipolar disorder. When LaChristal's adopted mother refused to pick her up from the hospital, or to cooperate with post-adoptive services, the State filed a petition for adjudication of wardship. The State alleged that LaChristal was neglected due to lack of necessary care. At the temporary custody hearing, the juvenile court granted temporary custody of LaChristal to DCFS. At that hearing the mother told the court that she did not wish to visit LaChristal and she submitted a consent form to surrender her parental rights. The court, however, refused to accept the surrender, finding that it was not in LaChristal's best interests to do so. The mother later filed a supplemental petition for adjudication of wardship, alleging that LaChristal was dependent through no fault of her parent, and that LaChristal was a child requiring authoritative intervention. Following an adjudicatory hearing, the juvenile court found that LaChristal was neglected due to lack of care. The court found that the evidence did not support the mother's allegation of dependency. In affirming the juvenile court's adjudicatory order, the appellate court found that the evidence did not support the mother's assertion that LaChristal was a dependent child. Instead, it found that the mother did not want LaChristal in her home; that the mother acted affirmatively to keep LaChristal out of her home; and that LaChristal was in the State's care because the mother found her to be an embarrassment and desired to be rid of her.
For full text of opinion click here
In re Mark W., 2008 Ill. App. LEXIS 303 (Apr. 3, 2008): In this case, the mother was mentally delayed. The probate court found that the mother was a disabled person and appointed the maternal grandmother as the plenary guardian of the mother's person. The mother later gave birth to Mark. DCFS removed Mark from the mother because she shoved a toy into Mark's mouth, while also hitting him on the head with a television remote control. Mark was placed in the maternal grandmother's care, but was later removed because he had burns on his body that the grandmother could not explain. The State alleged that Mark was an abused and neglected child. The maternal grandmother, as plenary guardian for the mother, retained counsel and participated as a party in the proceedings. The court appointed separate counsel for the disabled mother. The juvenile court also appointed a guardian ad litem (GAL) for the disabled mother. The court appointed the Public Guardian as attorney/GAL for Mark. The State later filed a petition to terminate the mother's parental rights. The juvenile court found that the mother was unfit to parent Mark and that it was in Mark's best interests that the mother's parental rights be terminated because Mark had been in a foster care for many years and his foster parent wanted to adopt him. The maternal grandmother appealed the termination order. The appellate court's two principal holdings were that neither the Juvenile Court Act, nor the Probate Act, permits the juvenile court to appoint a GAL for a mentally disabled parent when the parent already has a plenary guardian of the person. Additionally, the appellate court held that the termination hearing was "fundamentally flawed" because during his initial conversation with the mother and the maternal grandmother, the GAL for the mother obtained confidential information that created a conflict for the GAL. The appellate court also found that the GAL revealed that confidential information during the termination of parental rights proceeding. The State petitioned for leave to appeal, and the Illinois Supreme Court granted the petition. The Supreme Court reversed the appellate court, holding that though a disabled adult may have a plenary guardian, the trial court may appoint a GAL to make a recommendation to the court as to what is in the best interests of the disabled adult. The Supreme Court also held that the trial court need not discharge a plenary guardian prior to the appointment of a GAL for a disabled person. Also, the Supreme Court declined to hold that the GAL for the disabled mother violated any attorney-client privilege or the rules of professional conduct. The Supreme Court also found that the GAL was not operating under a conflict of interest. Lastly, recognizing the time-sensitive nature of juvenile court proceedings, the Supreme Court directed the appellate court to file a new decision within 60 days.
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In re Leona W., 2008 Ill. LEXIS 304 (Apr. 3, 2008): Leona was born drug exposed, and after holding an adjudicatory hearing in 1997, the juvenile court found that she was an abused child. The court later found that Leona's mother and the father, Oscar H., were unable to care for her. Several years later, the State filed a petition for the termination of the parents' parental rights. The State alleged that he had not made substantial progress toward Leona's return home, and he was not addressing Leona's special needs. Oscar H. had custody of several of Leona's siblings, but the Public Guardian filed a motion to exclude evidence concerning Oscar's other children who were living at home with him. The Public Guardian argued that evidence of Oscar's ability to care for the other children, who did not have the same special needs as Leona, was not relevant to Oscar's ability to care for Leona. The juvenile court granted the motion to exclude evidence concerning Oscar's other children. The juvenile court found that Oscar H. was unfit to care for Leona and that it was in Leona's best interests to terminate Oscar's parental rights. Oscar appealed, arguing that the motion to exclude evidence was improperly granted and that he was not unfit because he could parent Leona's siblings. The appellate court reversed the termination order, finding that no evidence was presented that Oscar was at fault or responsible for the original 1997 adjudication finding that Leona was a neglected child. The State filed a petition for leave to appeal (PLA) in the Supreme Court, arguing that the decision contradicted a prior ruling of the Supreme Court. The Public Guardian also filed a PLA. The Supreme Court denied both PLA's, but issued an order directing the appellate court to follow its decision in In re Arthur H. However, the appellate court issued the same decision and reversed the termination order. The State and Public Guardian filed a second PLA in the Supreme Court. These PLA's were granted and the Supreme Court found that the appellate court lacked jurisdiction to address the adjudicatory order entered six years before the termination. The Supreme Court also found that the adjudicatory order entered in 1997 was proper. Finally, the Supreme Court found that the trial court did not abuse its discretion when it granted the Public Guardian's motion to exclude evidence.
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In re Desiree O., 2008 Ill. App. LEXIS 215 (1st Dist. March 21, 2008): When she was an infant, Desiree was shaken and injured by her father, and he was sent to jail. The trial court found that Desiree's mother was found to be unable to care for her. Desiree was put in foster care with her maternal grandmother. Over the next few years the mother graduated high school and obtained a driver's license, a job, and her own apartment. Later, the mother was allowed overnight visits with Desiree, as often as six times a week. The mother took care of all of Desiree's medical and therapy needs. In short, the mother was completely devoted to Desiree, and took good care of Desiree during visits. About three years after Desiree was injured, the mother asked the court to return Desiree to her care. But the foster parent, Desiree's grandmother, opposed her daughter's request. The grandmother wanted to keep Desiree in her own home. The State, the Public Guardian, and DCFS agreed that Desiree should return home to her mother. The trial court found that the mother was fit, willing, and able to care for Desiree, and that it was in Desiree's best interest to be returned to her mother. The grandmother appealed. The appellate court rejected the grandmother's claim that because she was able to take care of Desiree better than her daughter, that meant that it was in Desiree's best interest to stay with her. The appellate court noted that the mother had shown she could take care of all of Desiree's needs, and that the grandmother was the only one who testified that a return home to her mother was not in Desiree's best interests. The appellate court affirmed the juvenile court's order returning Desiree home to her mother.
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In re K.J. and S.J., 2008 Ill. App. LEXIS 211 (1st Dist. Mar. 19, 2008): K.J. and S.J. came into the juvenile court system after testing positive at birth for cocaine and marijuana. The juvenile court found that both children were neglected and made them wards of the court. After the mother repeatedly relapsed in her drug treatment, the State filed petitions to terminate her parental rights. Though the First District Appellate Court had previously held that there is no due process right to a jury trial in termination of parental rights proceedings (In re Weinstein, 68 Ill. App. 3d 883 (1st Dist. 1979)), the mother filed a jury demand. The juvenile court denied the jury demand. The court later found that the mother was unfit to parent the children. On appeal, the mother's only claim was that the United States and Illinois Constitutions provide her with a due process right to a jury trial on the issue of the termination of her parental rights. However, the First District Appellate Court reiterated that the U.S. and Illinois Constitutions do not provide the right to a jury trial in juvenile proceedings. The Court also stated that the Juvenile Court Act does not provide the right to a jury trial in juvenile proceedings, noting that in 2003, the Illinois House of Representatives rejected a proposed amendment to the Act to grant parents the right to a jury trial in abuse, neglect, and termination of parental rights proceedings.
For full text of opinion click here
Illinois Dept. of Healthcare and Family Services v. Warner, 227 Ill. 2d 223 (Jan 2008): The trial court ordered the father to pay child support for his two children. Later, the father's and mother's parental rights were terminated. The father filed a petition to vacate the child support order because his parental rights had been terminated and the children were available for adoption. However, the State argued that though the children were free for adoption they had not yet been adopted, so the father still had an obligation to pay child support. The trial court held that the father still had to pay child support. The father appealed and the Third District Appellate Court agreed with the father, and reversed the trial court. The State then appealed to the Illinois Supreme Court. The Office of the Public Guardian was allowed to file a brief as a friend of the court in the case. The Public Guardian's brief supported the Attorney General's argument that the children's father was still required to pay child support even after his parental rights were terminated. The Supreme Court held that since no one was trying to adopt the children, the natural father still had to pay child support.
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Litigation Unit
The Litigation Unit brings damages, declaratory and injunctive actions in state and federal court on behalf of the Public Guardian's clients. The following are summaries of some of the Litigation Unit's cases.
Sharonda B., et al. v. Herrick
A DCFS caseworker placed four children with an unlicensed, non-relative foster parent without getting the required background checks. The foster parent and her adult sons had criminal records including convictions for weapons and drugs. Although the caseworker was required to visit the children monthly to ensure their safety, he never visited the home while the children lived there. One night, the foster parent came home from a drug binge and murdered the youngest child, Coreese. The autopsy revealed that Coreese's body was covered with old and new marks, scars and bruises, including a gaping gash in the center of his forehead, burns to his ears, chipped teeth and missing fingernails and toenails. The medical examiner counted nearly 400 injuries to Coreese. The Public Guardian secured a seven-figure settlement on behalf of Coreese's three siblings.
Old Orchard
The Public Guardian negotiated a settlement on behalf of a group of young men who were residents of a mental health facility. Staff members at the facility failed to supervise the boys. As a result, several of the boys were sexually assaulted. The Public Guardian settled the matter for $1.5 million, including funds deposited in an educational trust that several of the young men have used for college.
Mable A., et al. v. Woodard
Three young children were placed with a relative and her boyfriend, a convicted felon. The DCFS caseworker claimed that he visited the children monthly, but the evidence showed that he visited no more than once or twice in the year that the children lived there. The foster parents repeatedly tortured and starved the children. Two-year-old Carolyn had deep injuries to her feet as the result of repeated beatings with a hairbrush. She was unable to walk and required skin graft surgery to the bottoms of her feet. After a trial in federal court, a jury awarded the children $3.3 million in damages against the DCFS caseworker. The parties later settled the matter.
Apostol, et al. v. Aunt Martha's
The Public Guardian filed a lawsuit against a social-service agency that placed two children in the foster home of a convicted drug dealer and then failed to visit the boys on a regular basis. One child, William, lived in the home only five weeks before he burned to death in a bathtub full of scalding water. Develle, age one, was found to have extensive open wounds to his back, feet and chin, and bald patches on his head. Both boys were severely malnourished. In September 2003, the Public Guardian secured a high six-figure settlement for William's estate and Develle.
Jesus M
In March 2005, the Public Guardian settled a case against a social-service agency whose foster parents were caught on a neighbor's "nanny cam" abusing Jesus. The tape also revealed that the agency's transportation aide was in the home during one of the beatings. The Public Guardian secured a six-figure settlement for Jesus.
Aisha W., et al. v. Aunt Martha's, et al.
Three-year-old Aisha and her six-year-old brother Xavier were placed in a non-relative foster home. The Public Guardian alleged that during that time, the worker failed to visit the children on a monthly basis, failed to speak to the children outside the presence of their foster parents and failed to provide the children with social services. As a result of these failures, the agency and caseworker never discovered that Aisha and Xavier were being horribly abused, neglected, starved and, in the case of Aisha, sexually assaulted, by their foster parents. The foster parents pled guilty to aggravated battery to a child and served time in prison. At the civil trial, the jury returned a verdict for the defendants. The Public Guardian won a reversal of the jury's verdict in the appellate court. The parties later reached a six-figure settlement.
Jennifer Y. v. Velazquez, et al.
The Public Guardian sued two DCFS licensing workers, alleging that they allowed Jennifer to be placed with an abusive foster parent. Less than six weeks after placement, Jennifer was rushed to the hospital. She was non-responsive and actively seizing, with bruises on her face and head. Doctors concluded that Jennifer's injuries were the result of deliberate and violent shaking. As a result of the abuse, Jennifer now has permanent mental retardation and is partially paralyzed. While her cognitive damage is permanent, it is as yet unclear to what extent, if any, she will regain the use of her left side. Jennifer now suffers from a seizure disorder that is a direct consequence of the abuse. The parties settled the case in June 2008 in the six-figure range.
Harris v. Reed, et al.
The Public Guardian filed suit in federal court against a DCFS caseworker and a private social-service agency on behalf of Charlie C., a disabled twenty-year-old young man with the cognitive abilities of a two-year-old child. DCFS placed Charlie in a group home. While residing at the group home, Charlie was severely burned over almost half his body after staff members left him unsupervised in a bathtub full of hot water. The Public Guardian settled the case in the high-six figure range in 2006.
James B., et al. v. Youth Empire Service, et al.
In January 2003, officers from the Chicago Police Department's gang unit raided the foster home of James B. and Katelin D. Not only did officers find the expected stash of guns and drugs, they found something that they did not expect: three-year-old James chained by his neck to a bed with a sheet over him. The Public Guardian subsequently learned that the children were abused, neglected and starved in the foster home. The foster parents' son, who was the target of the raid, had a criminal history that should have prevented foster home licensure. The foster mother was convicted of two counts of unlawful restraint. The Public Guardian sued the two agencies responsible for licensing and monitoring the children in the home and the foster parents. The parties settled the case in the high six-figure range in mid-2007.
Louis B.
A private social-service agency ignored several red flags that would have prevented a foster home from being licensed. The agency licensed the home anyway and placed Louis there. While in the home, the foster mother held Louis' hands under scalding water because he had been "bad." Louis suffered second- and third-degree burns to his hands. He has lifelong scarring and discoloration on each arm between his wrist and elbow and emotional trauma due to the abuse. The foster mother was convicted of aggravated battery and was sentenced to five years in prison. In September 2008, the parties reached a mid six-figure settlement.
Harris v. A.
Lawrence A. brutally murdered his wife. The Public Guardian filed a wrongful death and survival action against Mr. A. on behalf of the couple's two young daughters, now wards of the juvenile court. In July 2009, the Public Guardian secured a $2,000,000 judgment against Mr. A.
Aristotle P., et al. v. McEwen
The Public Guardian acts as class counsel on a consent decree it reached in a federal lawsuit against DCFS on behalf of DCFS wards. The purpose of the lawsuit was to ensure that when sibling groups enter the child-welfare system, they are placed together and, if that is not possible, that they receive at least two, two-hour sibling visits per month. The parties developed several policies to promote joint sibling placement and sibling visitation, including:
- DCFS created a case assignment protocol that increased the placement of new sibling groups together from 25-30% to the current level of nearly 100%.
- DCFS instituted financial sanctions against private agencies that fall below a certain level of compliance with the sibling visitation. So far, DCFS has sanctioned more than $100,000 against private agencies. The number of children visiting their siblings regularly has doubled since the sanctions began.
- DCFS agreed to pay transportation subsidies to foster parents. Now a foster parent can receive up to $150 per month to transport children and supervise sibling visitation and an additional $100 to host an overnight visitation.
The Honorable Charles R. Norgle, Sr. monitors the decree in federal court.
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