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05/22/97 K.G. v. KIMBERLY M. AND DARIEN G.

May 22, 1997



Released for Publication June 25, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Burke, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

The decision of the trial judge in this case is one of the most arduous and troubling decisions any judge can reach.

The State's Attorney filed a petition alleging two children had been neglected and abused by their mother. The petition asked the judge in the Child Protection Division of the Cook County circuit court to declare the children wards of the court. After hearing evidence and arguments, the trial court dismissed the petition, finding no evidence the children were neglected or abused. The Cook County Public Guardian and the State's Attorney appeal the trial court's decision.

The only issue on appeal is whether the trial court's decision is against the manifest weight of the evidence. We conclude it is not.


Sometime before 1994, the Department of Children and Family Services (DCFS) had its first contact with Kimberly M. DCFS received a report that Kimberly was not providing adequate supervision for her children, Darion G. (D.G.)(born April 6, 1984) and Kaniesha G. (K.G.) (born August 3, 1988). Though this report was founded, there apparently was no further intervention until Kimberly's third child, Christine M., was born on June 28, 1994. At that time DCFS received a report that the newborn Christine M. had tested positive for exposure to cocaine.

Though Christine was born a drug-exposed infant, DCFS did not file petitions for the adjudication of wardship in the interest of Christine or her brother (D.G.) and sister (K.G.) alleging that they were abused or neglected as a result of Kimberly's use of drugs. However, Tarsha McCormick, a social worker with a private agency, Chicago Commons, became involved with Kimberly and her children.

McCormick received the referral to work with Kimberly in October 1994. Her first visit with Kimberly was on October 31, 1994, at Kimberly's home. Kimberly and her three children lived with Kimberly's mother, uncle, sister, and her sister's three children. When taking a social history from Kimberly, McCormick learned that Kimberly was using cocaine 2-3 times per week. Kimberly said she took drugs when she was alone and when she was with others. Her drug usage, she said, was in response to depression and stress.

The service plan that McCormick developed for Kimberly was based on her admitted drug usage. It required (1) bi-monthly urine drops, (2) inpatient drug treatment if her urine tested positive for cocaine, and (3) regular medical check-ups for Christine.

McCormick was aware that Kimberly had no crib for Christine. Kimberly was sleeping with Christine on a couch. McCormick requested monetary assistance from her agency to assist Kimberly in the purchase of a crib for Christine. A grant of $60 was approved. McCormick took Kimberly to obtain the check and to shop for a crib. None was purchased at that time, however, because they could not find a crib for $60.

Although the service plan was drawn up in December 1994, the first urine drop was not obtained until March 1995. McCormick apparently attempted one home visit in January, but no one was home. This first urine drop tested positive for cocaine. For this reason, the new (April) service plan set a goal of having Kimberly enroll in a drug treatment program. Referrals were made, but Kimberly did not enroll because the program was not covered by her insurance.

At the April home visit, when the new service plan was developed with Kimberly, McCormick asked Kimberly if she was pregnant. Kimberly said "she hoped she wasn't." McCormick made no other home visits between April and July because she was receiving training during this period. Other workers handled her cases. Someone apparently saw Kimberly in May because a urine drop was obtained on May 15, 1995. This urine drop was negative.

Kimberly gave birth to another cocaine-exposed infant, Derrick G., on July 12, 1995. DCFS received a report and was aware that this was Kimberly's second incident of a drug-exposed birth. Still, no efforts were made to remove the children and no petitions for adjudication of wardship were filed. The DCFS investigator assigned to the case recommended that Kimberly receive in-patient drug treatment.

Kimberly refused to attend an in-patient program because she was unable to find someone to care for her children while she was away. Instead, she enrolled in an intensive 28-day, out-patient program, "BRASS," in August 1995. She completed this program satisfactorily, and the next two urine drops, taken on October 5, 1995, and January 1, 1996, were negative.

McCormick found that the children were generally neat, clean, and appropriately dressed. In fact, McCormick said that in November 1995 Chicago Commons was considering closing Kimberly's case.

On December 26, 1995, however, a tragedy occurred. Five-month-old Derrick G. died of asphyxiation. In the investigation following Derrick's death, Kimberly explained that on December 25, 1995, she went to sleep on the couch with Derrick lying on her chest and Christine at the foot of the couch. Kimberly admitted that she drank two "shots" of eggnog with brandy in it sometime during the evening of December 25, 1995. The next morning, when Kimberly woke up, she realized that Derrick was not breathing. His body had slipped down between her and the couch, underneath her arm.

Kimberly ran to her uncle's room for help. Her uncle called 911 for an ambulance, while her mother tried to perform CPR on Derrick. When the ambulance arrived, Derrick was taken to Wyler ...

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