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In Re Gates

OPINION FILED FEBRUARY 10, 1978.

IN RE ELECE GATES, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

SUSIE GATES, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of St. Clair County; the Hon. THOMAS O'DONNELL, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court of St. Clair County finding Elece Gates to be a neglected child, terminating the parental rights of Elece's natural mother, Susie Gates, and appointing Richard S. Layman as the child's guardian, with the power to consent to adoption.

Appellant, Susie Gates, contends that the trial court erred in admitting certain evidence designed to establish that Elece was a neglected child, and further contends that the evidence was insufficient to establish neglect. Additionally, the appellant urges that the portion of the order terminating her parental rights and giving the appointed guardian the power to consent to adoption must be reversed because the issue of unfitness was prematurely considered at the adjudicatory stage of the proceeding and because the evidence was insufficient to establish unfitness.

Elece Gates was born in Centreville Township Hospital, St. Clair County, Illinois, on August 4, 1975, with only one lung and an incomplete esophagus. The following day she was transferred to Cardinal Glennon Hospital in St. Louis, Missouri, in order to undergo an operation in which an opening was created in her neck and in the proximal pouch of her esophagus. This procedure made it possible to drain saliva which would otherwise have filled the child's lung. In addition, Elece can now be fed through a tube which must be inserted through the opening in her neck and placed in her stomach. The tube must be carefully placed to avoid aspiration and must be frequently cleansed to avoid infection. Elece was released from Cardinal Glennon on October 2, 1975, but continues to require almost constant care to enable her to survive. Although the record is somewhat unclear on this point, it appears that prior to Elece's release, the appellant signed a consent form authorizing the Department of Children and Family Services to place the child in a foster home. Pursuant to this authorization, Elece was taken from the hospital to the home of Duane and Rita Maxwell, located on Scott Air Force Base. Mr. and Mrs. Maxwell are surgical technicians and were trained to care for Elece before she was released into their custody.

On October 6, 1975, a petition was filed alleging that Elece Gates was a neglected child in that the appellant had failed to cooperate with the hospital staff in its attempts to train her to care for the child's special needs. *fn1 By agreement of the parties, the petition was amended to allege that Elece was a minor in need of supervision. *fn2 Pursuant to this agreement, the court entered an order on October 28, 1975, finding Elece to be a minor in need of supervision on the grounds that the appellant could not properly care for her. The order also adjudged Elece to be a ward of the court, appointed Richard S. Layman, in his capacity as guardianship administrator for the Department of Children and Family Services, as the child's guardian without the power to consent to her adoption, and set the case for further review on April 27, 1976.

A hearing was apparently conducted on April 27, 1976, at which time the appellant was given visitation rights of some kind. However, a petition was subsequently filed on July 26, 1976, seeking a declaration that Elece Gates was a neglected child on the grounds that the appellant had failed to express proper interest in her, and had not only failed to obtain the training necessary for Elece's survival, but had also refused such training when it was offered to her. The petition further requested that Elece be adjudged a ward of the court, that the appellant be declared an unfit parent for failure to make reasonable efforts to correct the conditions which had been the bases for the order of October 28, 1975, and that Richard S. Layman be appointed guardian with the power to consent to adoption. The relevant evidence adduced at the hearing conducted on September 17, 1976, is briefly summarized below.

The appellant is the mother of nine children, six of whom live with her at her home where they are supported by public aid. The appellant testified that she visited Elece in the hospital four or five times between August 12, 1975, and October 2, 1975, explaining that the responsibility of caring for six children at home and the lack of transportation to the hospital prevented her from visiting Elece more frequently. Although members of the hospital staff offered to teach the appellant the techniques necessary to feed and otherwise care for her child, the appellant made no attempt to learn them.

Carlos Redd, a social worker employed by the Department of Children and Family Services, testified that the appellant was generally unable and unwilling to receive the training necessary to care for her child. He stated that on two occasions in September 1975 he had explained to the appellant that it was essential that she cooperate with the hospital staff in its efforts to train her to care for her child. Redd testified that after the child was placed with the Maxwells he often encouraged the appellant to visit Elece and that he had told her he would attempt to provide transportation whenever necessary. He stated that he had initially suggested to the appellant that she visit Elece twice a month at the Maxwells' home, but that she had told him baby-sitting problems with her other children would prevent so frequent a visitation schedule. Redd testified that of the 11 visits he scheduled between October 1975 and April 1976, the appellant had cancelled six, and that he had personally transported the appellant on the five occasions during this period she visited Elece. On two of the five visits which the appellant made during this period she attempted to feed Elece through the tube in her neck. Both of these attempts were unsuccessful, however, because the appellant could not properly position the tube without causing the child to begin coughing and choking.

Father George Shoup, a doctor who specializes in surgery, testified at the hearing that Elece's condition could eventually be corrected to some degree through a surgical procedure in which a portion of her colon would be removed and used to complete her esophagus, thereby completing the connection between her mouth and stomach. If the surgery were successful, it would enable Elece to feed herself in a normal manner. The surgery described above is usually performed upon children between the ages of 18 months and two years. Father Shoup further stated that even after a successful operation of this kind the child would require special care, although his only specific example of such care was that the child would have to be X-rayed once a year.

On September 24, 1976, the trial court entered the order which is the subject of this appeal.

• 1 In the instant case, the order filed on October 28, 1975, finding that Elece Gates was a minor in need of supervision was based solely upon the appellant's failure to learn the skills necessary to insure her daughter's survival. We initially question the propriety of the finding that Elece was a minor in need of supervision within the meaning of section 2-3 of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-3). That section speaks of minors who are addicts, truants, or otherwise beyond the control of their parents or guardian; it would not seem to us to be generally applicable to a three-month-old child with critical medical needs. Although there is nothing in the record indicating the reasons for the parties' agreement to amend the State's petition, the resolution we necessarily reach on the question of whether Elece Gates is a neglected child may shed some light on the parties' decision.

The appellant initially contends that the trial court erred in its adjudication that Elece was a neglected child, and further contends that the lower court's admission of evidence of neglect prior to October 28, 1975, was improper.

The appellant advances the rather novel argument that given the definition of neglect in the Juvenile Court Act, and the context in which it is judicially applied, it was error for the trial court to have found that Elece Gates was neglected after October 28, 1975. According to section 2-4 of the Juvenile Court Act, the term "neglected minor" includes, inter alia, minors who are neglected as to medical or other necessary care, minors who have been abandoned, and minors who are living in environments injurious to their welfare (Ill. Rev. Stat. 1975, ch. 37, par. 702-4). In this case, the appellant realized that she was unable personally to care for her child and, thus, relinquished custody. Such conduct may be indicative of proper concern for the welfare of the child rather than neglect. The appellant points out that Elece was placed in a good foster home after October 28, 1975, where she always received excellent care in every respect. The appellant urges that it is incongruous that Elece be found to be a neglected child during a period of time when an agency of the State had been given responsibility for her care and custody, when she was a ward of the court, and when she had not lacked proper or necessary support or medical care.

The State contends that if the actual condition of the child is the only factor to be considered in determining neglect, it then becomes virtually impossible to prove that a parent has neglected his or her child when the child, in fact, is living in a good foster home. The State urges us to reject such a restrictive reading of section 2-4 and to hold that in ...


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