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10/27/95 EDRICKA C. v. ZINA C.

October 27, 1995



Released for Publication November 28, 1995. Petition for Leave to Appeal Denied January 31, 1996.

Presiding Justice McNAMARA delivered the opinion of the court: Egan and Rakowski, JJ., concur.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

Following an adjudicatory hearing, the circuit court of Cook County entered an order finding that respondent, Zina C., had neglected her minor children, Edricka C. and Zemaj C., by exposing them to an injurious environment and substantial risk of physical injury. The trial court based its findings on a theory of anticipatory neglect. There was no direct evidence that respondent had abused or neglected Edricka and Zemaj. Based on previous findings, however, that respondent had beaten an older child in 1987, and left her other children unsupervised in 1989, the trial court held that Zemaj, born in 1991, and Edricka, born in 1992, lacked proper care. The issue on review is whether the trial court properly found that Edricka and Zemaj are neglected based on prior neglect findings concerning the older siblings. We reverse.

The record reveals the following facts. On December 2, 1992, the Department of Children and Family Services (DCFS) filed two petitions for adjudication of wardship. One petition alleged that Edricka C., born on June 13, 1992, "is neglected in that the minor's parent *** does not provide the proper or necessary *** medical or other remedial care recognized under the state law." The second petition alleged that Zemaj C., born on May 27, 1991, "is abused in that the minor's parent *** creates a substantial risk of physical injury to such minor." These petitions were based on a report that respondent had failed to bring her daughter Edricka for treatment for a blood disorder called galactosemia. As a result, DCFS considered Edricka medically neglected and Zemaj at substantial risk of physical injury.

On February 20, 1993, the juvenile court ordered respondent to have Edricka tested for galactosemia. Respondent took Edricka to her pediatrician, Doctor Francois Conte, who then arranged for the test to be performed at South Shore Hospital. On February 23, 1993, Doctor Conte received the lab results, which showed that Edricka tested negative for the blood disorder.

On August 27, 1993, the State moved to amend the petition regarding Edricka to add an allegation of "abuse/substantial risk of physical injury." The record reveals, however, that the case proceeded to trial without a ruling on this motion.

The trial took place on three dates: October 26, 1993, November 2, 1993, and February 17, 1994. Throughout the trial, the positions of the State and the public guardian were identical. The State's first witness was Elvie Cotton, a DCFS child welfare specialist. Cotton testified that she worked with respondent's family from the fall of 1990 until the summer of 1993. Cotton explained that respondent has six other children, all older than Edricka and Zemaj. Although she was not the family's caseworker at the time, Cotton stated that DCFS came in contact with the family when the oldest child was severely beaten by her parents in 1987. Cotton also described a second incident in 1989 when a fire broke out in the apartment building where respondent's other five children had been left unsupervised. Cotton was assigned to the case in 1990, and she first met respondent in January 1991.

Cotton testified that from January 1991 until late 1992, she offered respondent marital and parenting counseling, but respondent refused these services. Respondent also failed to follow through on Cotton's recommendations for in-home counseling and psychological evaluations.

On cross-examination, Cotton acknowledged that Edricka had lived with her mother without incident from her birth in June 1992 until the petitions were filed on December 2, 1992. Zemaj, born in May 1991, was also brought into court for the first time in December 1992. Cotton further testified that respondent had completed certain services while living in Minnesota from 1989 to 1990. Cotton stated that the DCFS file contained a certificate of completion from Minnesota verifying that respondent and her husband had attended six counseling sessions concerning domestic violence. Cotton also knew that respondent and her husband had undergone evaluations for chemical abuse in Minnesota, and that the assessments indicated that neither parent had a drug or alcohol problem. Cotton then stated that she did not think that Edricka and Zemaj were at any kind of risk of harm from the time of their births until they were first brought into court. She realized that the case concerning Edricka and Zemaj arose from allegations that respondent allegedly did not seek proper medical treatment for Edricka. Finally, Cotton explained that respondent had supervised visits with her oldest daughter and unsupervised visits with her other five children.

When questioned by the guardian, Cotton again testified that she did not bring Edricka and Zemaj into court because she did not think that they were at risk. Cotton also stated that when respondent was pregnant with Edricka, Cotton watched as respondent signed a statement that her husband was not living in her home.

The State next introduced into evidence a certified copy of a battery conviction against respondent and a certified copy of an aggravated battery conviction against respondent's husband. Both convictions arose from the 1987 beating of their oldest child. Over respondent's objections, the court held that the convictions were "admissible on anticipatory neglect theory." The court also admitted into evidence the medical records from the 1987 incident. The State and the guardian then rested.

Respondent presented her case on the third day of trial, February 17, 1994. She first attempted to offer Doctor Conte's testimony by stipulation. The proposed stipulation contained five paragraphs, with each paragraph describing an occasion when respondent took Edricka to Doctor Conte for treatment. These five visits took place between August 1992 and February 1993. The State and the guardian objected to the last four paragraphs, which concerned visits that took place after December 2, 1992, when the petitions were filed. The State said that it would stipulate to the first paragraph regarding an August 1992 visit if the court found it relevant. The court excluded all five paragraphs.

Later in the trial, respondent's attorney made an offer of proof regarding the proposed stipulated testimony of Doctor Conte. Doctor Conte would have testified that in the five times he saw Edricka over a six-month period, the minor "appeared normal with no signs of abuse or neglect." *fn1

Respondent next called Aida Bravo as a witness. Bravo testified that she worked at McKinley Family Services for 15 years. As of the date of trial, Bravo worked as a case aide and as a leader of a parent education group. Bravo stated that respondent came into the agency to request parenting classes around February 1993. Respondent started attending parenting classes at McKinley in March 1993. The State then objected, arguing that the testimony was irrelevant because it dealt with "information after the petitions in this case were filed." The court sustained the objection, and Bravo did not testify to anything further.

Respondent was the next witness to testify. She stated that as she understood the charges against her, the State was accusing her of medically neglecting Edricka. She next discussed the services she sought in Minnesota in 1989. Respondent stated that she received two certificates of completion from the Institute of Black Chemical Abuse (IBCA) in Minnesota for completing domestic violence and chemical dependency counseling sessions.

Respondent then acknowledged the beating of her daughter in 1987. Respondent stated that she "disciplined" her daughter when she was eight or nine because her five-year-old son stated that his sister was sexually fondling him. After the incident, the oldest girl lived ...

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