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In Re Devine

OPINION FILED MARCH 3, 1980.

IN RE JEFFREY DEVINE ET AL., MINORS. — (THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PETITIONER-APPELLEE,

v.

CHARLES DEVINE ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Effingham County; the Hon. E. HAROLD WINELAND, Judge, presiding.

MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Charles and Kathleen Devine were found unfit and their parental rights were ordered terminated. Their two minor children, Jeffrey and Stephanie, were made wards of the court and adjudged dependent and neglected. From that order the parents appeal contending: (1) because the parents were mentally retarded and therefore not responsible for their inability to learn, they cannot be found unfit where the grounds of unfitness "arise out of the mental retardation," and (2) because the newborn child, Stephanie, was never in the care of either parent and was therefore never actually neglected by either parent, parental rights as to that child were improperly terminated.

Jeffrey Devine was born April 16, 1975. On June 17, 1977, a petition for adjudication of wardship was filed by the Department of Children and Family Services of the State of Illinois (hereinafter Department) alleging that the child was "neglected or dependent." On June 22, 1977, Jeffrey was placed in the temporary custody of the Department. The next day a detention hearing was held and temporary custody of the Department was continued.

On July 30, 1977, Stephanie Devine was born. Three days later on August 2, 1977, a petition for adjudication of wardship was filed alleging that she too was "neglected or dependent." That same day a hearing was held and Stephanie was placed in the temporary custody of the Department. The baby was taken from the hospital by a Department representative and not by either of its parents.

The cases of both children were consolidated on August 12, 1977. On September 13, 1977, a supplemental petition was filed in which the minors were alleged to be dependent because they were without proper care as a result of the mental disability of their parents. In the supplemental petition their mother's IQ was alleged to be 55, with 90 to 100 specified as normal. On March 31, 1978, an amendment to the supplemental petition was filed in which the minors again were alleged to be dependent because of the mental disability of their parents. In the amendment their father's IQ was alleged to have been estimated to be below 60, and he was alleged to have been diagnosed as mentally retarded. On April 13, 1978, an adjudicatory hearing was held. The parents were represented by appointed counsel throughout the proceedings. At the adjudicatory hearing the following evidence was adduced.

A few days after the birth of Jeffrey in April 1975, a registered nurse from the county health department visited the Devines. The visit was part of a program whereby the homes of first-born children were observed to determine whether the parents were in need of guidance in the care of the baby. She found the Devines greatly in need of such assistance. They were having difficulty reading the numbers on the bottles and therefore found it difficult to prepare the formula. They did not know how to change the baby's diapers. The baby suffered from diaper rash. Despite the nurse's efforts during frequent regular visits over the next 14 months, the Devines failed to follow her instructions. At length the Devines learned to make the baby's formula but after a few months they stopped making it and gave him soda pop and chocolate milk instead. Although the nurse showed them numerous times how to wash the baby's bottles they did not do so. Baby food in jars in the refrigerator was moldy. The home was extremely dirty. In June of 1976 she notified the Department, principally because the mother was not cooking and feeding the family. During the entire time the nurse worked with the Devines she observed no progress made by them.

The Department sent a homemaker to teach the mother the skills necessary for caring for the baby, herself and the home. The homemaker arrived to find the apartment filthy with "dirty diapers and dirty sanitary napkins all over." Dirty clothes were mixed with clean ones in piles scattered throughout the apartment. The dishes were dirty and the refrigerator was filled with spoiled food. There were roaches on the food. The baby was dirty and wearing diapers soiled with urine and feces. Because the apartment was a particularly shabby one, another apartment, clean and comfortable, was made available to them in February 1977 in Federal housing.

At that time the Devines were referred to the Huddleston program, an intensive eight-week family living demonstration program for teaching basic homemaking and childrearing skills. Both parents participated in the program with no success. During the first four weeks of the program the Huddleston homemaker transported the Devines to a training center three days a week. During the four-week follow-up period the Huddleston homemaker spent all day with the Devines three days a week and half the day with them two days a week. The homemaker found the mother unable to remember from one visit to the next how to add water to prepare food from a mix. The homemaker found food left out in the kitchen and rotten food, including meat, in the refrigerator. During this intensive effort to teach the Devines the homemaker found that they gave the baby cookies for breakfast. The floors were usually dirty. The baby licked them. The baby would put rocks, screws and rubber bands in his mouth. If the homemaker pointed out to the baby's mother that he had something dangerous in his mouth, his mother would remove it. She would not do so unless the danger were called to her attention by the homemaker. The playpen was so full of trash and dirty clothing that there was no room for the baby. The homemaker attempted to teach the Devines to bathe the baby but they were unable to remember what they had been taught at the time of the next visit. Although the mother sometimes deliberately refused to do certain tasks, such as washing dishes and cooking meals, in general the Devines were very cooperative but simply unable to remember what they were taught or unable to perform what they had been taught without supervision. During the time the Huddleston homemaker worked with the Devines she noticed no improvement in the home. She testified that the mother "would have to have someone with her all the time to care for the children."

In April, at the end of the two-month Huddleston program, the homemaker who earlier had worked with the Devines returned to continue her work with them. She found that the new apartment looked the way the former one had. She returned to find roaches on the baby, on his clothing and on the food he ate. The roaches bit him during the night. This homemaker attempted to teach the Devines basic skills twice a week from June 1976 to June 1977 with no discernible success. The child remained dirty, his diapers soiled and his hair matted. There still were boxes of sour chocolate milk in the refrigerator. The Devines seemed to think that they had to spend their food stamps when they received them. Large amounts of food continued to spoil in the refrigerator and was regularly discarded by the homemaker. Dishes continued to be thick with grease after they had been washed by the mother. Once when the child was two years old he was found to have a one-inch burn which began on his forehead and nearly encircled his head. Neither parent knew how the boy had been burned. At the time it occurred the child was in the care of his father. His mother was out dancing.

A social worker visited the home from time to time. She found roaches and filth. She too found the playpen filled with trash and the baby in extremely soiled diapers. He picked up food from the floor as well as a baby bottle from which he tried to drink containing milk so clabbered it was almost solid.

With the passage of time the child was observed to be developmentally delayed in language. As a result he was referred to and attended the Nanon Wood Achievement School from March until August of 1977, when he was removed and apparently placed in foster care. The director of the program felt that a more stimulating environment than that provided at home would aid the child's development. At the hearing held on June 23, 1977, when the child was over two years old, the director testified that the boy still did not talk though he had improved while in the program. Of his physical appearance she said that initially he arrived at the school in a filthy condition with his diaper extremely soiled. She had noticed improvement since the returning Department homemaker had been in the home. The boy appears to have entered the school during the follow-up period of the Huddleston program.

On July 30, 1977, Kathleen Devine gave birth to Stephanie, whose father was not Charles Devine but a man who had had three children taken from him because of his abuse of them, according to the testimony of a Department representative at the hearing held on August 2, 1977. She had been seeing him regularly for some time and often spent the night at his house. When she had become pregnant Charles Devine threatened to kill the child because it was not his. Charles Devine admitted to having extramarital affairs. Before the birth of Stephanie the Devines had been made aware that the children might be taken from them. The mother responded to the social worker, "He's better off dead than to go with you." The director of the school the child attended testified that the mother stated to her that "they are digging my grave if they take the child away from me. If they take him away, I'm digging his grave." There was concern that she might harm both herself and the child, Jeffrey. According to the social worker, the mother expressed the wish that she be allowed to keep Jeffrey until the birth of the other child. The mother wanted to be allowed to keep one of the children, though she did not care which one, to keep her company. Her husband indicated that they needed Jeffrey for financial purposes in order to receive aid.

After Stephanie was born the Devines visited the children in foster care three times during the 8 months before the adjudicatory hearing. The mother would not change Stephanie's soiled diapers. The first child had been toilet trained within 2 weeks of being placed in foster care, according to the testimony of a Department representative at the August 2, 1977, hearing. Once during a visit the parents placed the baby, Stephanie, in an infant seat upside down. The baby had to be righted by the social worker.

On the court's motion a psychiatrist had examined both parents. He testified that in an intelligence test in which a score of 90 to 100 indicates average intelligence, the mother had earned a full scale IQ of 55, which gave her a mental age of between 8 and 9. The father had earned an IQ of 63, which gave him a mental age of between 9 and 10. Both parents were diagnosed with mental retardation of mild severity. The psychiatrist indicated that, given the nature of mental retardation, the parents were likely to improve their skills only slightly at best. He said that persons in the IQ range of the Devines are sometimes able to perform simple manual tasks, such as cooking a meal, under close supervision. He expressed the opinion that the Devines could not do a good job of raising children, that they could not provide a child with the love, discipline, education and instruction afforded by normal parents. It ...


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