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05/27/97 R.M. v. TARA SMITH

May 27, 1997


Appeal from the Circuit Court of Cook County. Honorable Sebastian Patti, Judge Presiding.

Released for Publication July 21, 1997.

The Honorable Justice McNULTY delivered the opinion of the court. Rakowski and Tully, JJ., concur.

The opinion of the court was delivered by: Mcnulty

The Honorable Justice McNULTY delivered the opinion of the court:

Intervenor Tara Smith and the Illinois Department of Children and Family Services (DCFS) appeal from a juvenile court order granting the guardian ad litem's (GAL's) motion that the minor child, R.M., be removed from Smith's foster care and placed with foster parents Kent and Pamela Lawton. Both Smith and DCFS claim on appeal that the juvenile court acted outside its statutory authority when it entered an order removing R.M. from Smith's home and requiring that R.M. be placed with a specific foster parent. Smith and DCFS also claim that the court's decision was in error since the GAL failed to exhaust the administrative remedies on behalf of R.M. prior to seeking judicial review of the foster care placement decision that had been made by DCFS. In addition, Smith asserts that she was deprived of her right to notice and an opportunity to be heard when the juvenile court ruled on the GAL'S motion to remove R.M. from her home. We vacate the trial court order removing R.M. from Smith's home and placing her in the care of the Lawtons.

On August 25, 1993, the State's Attorney filed a petition for adjudication of wardship in the juvenile court on behalf on R.M., alleging that, due to her parent's neglect, R.M. suffered from nonorganic failure to thrive. R.M. was born on September 28, 1990, and she has received regular treatment since infancy for nonorganic failure to thrive, which is malnutrition caused by multisystematic problems, including the child's environment and family interactions.

The juvenile court appointed the guardian administrator for DCFS as temporary guardian and custodian of R.M. and Patrick Murphy, the Cook County public guardian, as guardian ad litem. DCFS placed R.M. with her maternal grandmother. On November 15, 1993, the juvenile court entered an adjudication order finding R.M abused and neglected. DCFS removed R.M. from her grandmother's home in November 1993 and, in December 1993, placed her in the home of Tara Smith. On February 7, 1994, the juvenile court entered an order adjudicating R.M. to be a ward of the court and awarding the guardian administrator for DCFS the right to place the child. R.M. remained in Smith's custody.

In February 1995, R.M. was hospitalized for nonorganic failure to thrive. She had been hospitalized once before, while living with her parents, for nonorganic failure to thrive, and she gained weight while hospitalized. When R.M. was hospitalized the second time for two weeks, she gained six ounces. In the four months prior to her hospitalization, while in Smith's care, R.M gained three ounces. When R.M. was released from the hospital she returned to Smith's care.

LaRabida Hospital has of policy of reporting to DCFS cases where a child gains weight in the hospital, since this is evidence of nonorganic failure to thrive. Therefore, someone on the hospital staff called in a report to the DCFS hotline regarding R.M. The DCFS Division of Child Protection (DCP) investigated the hotline report and in early April 1995, R.M. was removed from Smith's care by the Lutheran Social Services of Illinois (LSSI), the private agency handling R.M.'s case, and placed her in the home of Pamela and Kent Lawton.

On April 6, 1995, Smith filed a service appeal challenging R.M.'s removal from her home and seeking an emergency review of the basis for the removal. On May 22, 1995, an independent hearing officer from DCFS conducted an emergency review to consider Smith's request for the immediate return of R.M. As a result of this hearing, the DCFS hearing officer issued an interim decision on June 1, 1995, finding that there was no risk of imminent harm to R.M. if she were to return to Smith's home. On June 12, 1995, DCFS returned R.M. to Smith's home. DCFS conducted an optional mediation as part of the service appeal process on June 15, 1995. The placement issue was not resolved in this mediation session.

On June 19, 1995, R.M.'s court-appointed GAL filed with the court an "Emergency Motion to Change Placement," claiming that it was not in R.M.'s best interest to be placed in Smith's home. No party at the hearing on this motion apprised the juvenile court of Smith's pending service appeal. Three witnesses testified at the hearing, Madeline Shalowitz, Ida Mabry, and Ezillia Bell. Madeline Shalowitz, who is in charge of the Failure to Thrive Clinic at LaRabida Hospital, testified that she has been responsible for R.M.'s pediatric care for over two years. Dr. Shalowitz testified that the clinic required Smith to bring R.M. to the hospital at least once a month. However, Smith failed to bring R.M. to the hospital for four months and R.M. gained little weight during that time. Dr. Shalowitz testified that R.M. gained weight when she was hospitalized and was returned to Smith's home under a 60-day contract, which described specifically what R.M. should eat and how much weight she was expected to gain. Dr. Shalowitz testified that within two weeks after being discharged from the hospital, R.M. lost the weight she had gained while in the hospital. During the two months R.M. was in the Lawtons' home, however, she gained weight and looked healthier. Dr. Shalowitz recommended that R.M. stay with the Lawtons. According to Dr. Shalowitz, Smith's home is not appropriate for R.M. since Smith failed to follow the clinic's instructions for caring for R.M. Dr. Shalowitz testified that keeping R.M. out of Smith's home is an emergency matter.

Ida Mabry, a nurse at LaRabida Hospital, testified that she conducted a home visit to Smith's home in March 1995, to see R.M. and deliver the 60-day contract to Smith. At 3:30 or 4 p.m., R.M. was eating hot dogs and potato chips, but Smith was not at the table with R.M., as the clinic had recommended. Smith told Mabry that she leaves Pediasure, an enriched caloric drink recommended by the hospital, out so that R.M. can get it whenever she wants. Mabry testified that she explained to Smith that in order to get R.M. to drink Pediasure, Smith must sit down with R.M. and encourage her to do so. Mabry gave Smith and the Lawtons' the same instructions on feeding techniques that should be used to encourage R.M. to eat. Mabry visited the Lawtons and was pleased to see that R.M. looked healthy and had put on weight. Mabry found Smith's home to be an inappropriate placement for R.M. and recommended that she stay with the Lawtons rather than Smith.

Ezillia Bell, the program director at LSSI, testified that she believed that R.M. should remain with Smith because R.M. has been well cared for while in Smith's home. Bell testified that R.M. did not gain weight while at Smith's home because Smith was not given adequate instructions on how to care for R.M.

At the conclusion of the hearing, the trial court found that it was not in R.M.'s best interest to remain in Smith's home. The court's decision was based on the fact that R.M. failed to thrive in Smith's home, but did gain weight while in the hospital and while in the Lawtons' home. The court ...

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