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06/26/97 J.W. v. APRIL W.

June 26, 1997


Appeal from the Circuit Court of Cook County. No. 95 JA 02947. Honorable Timothy J. Szwed, Judge Presiding.

Released for Publication August 5, 1997.

The Honorable Justice Cerda delivered the opinion of the court. Wolfson, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

We are asked to decide whether evidence of prenatal alcohol abuse, other than that resulting in fetal alcohol syndrome (see 705 ILCS 405/2-18(2)(c) (West 1994)), can properly be considered in determining whether a minor's environment after birth is injurious to his welfare.

Following an adjudicatory hearing, the trial court found that the minor, J.W., was neglected. At a dispositional hearing, the court adjudicated J.W. a ward of the court, finding that J.W.'s mother, respondent April W., was unable and unwilling to care for J.W. The trial court also found that it was in J.W.'s best interests to be placed in guardianship. On appeal, respondent argues that the neglect finding must be reversed because the evidence of respondent's alcohol use did not prove that J.W.'s environment was injurious. Respondent also contends that because the Department of Children and Family Services (DCFS) failed to make reasonable efforts to help her find housing, her lack of permanent housing cannot serve as a basis for a finding of neglect by reason of an injurious environment.

J.W. was born on March 5, 1995. On April 24, 1995, the State filed a petition for adjudication of wardship, alleging that J.W. was neglected pursuant to section 2-3(1)(b) of the uvenile Court Act (405 ILCS 405/2-3(1)(b) (West Supp. 1995)) because he was a minor whose environment was injurious to his welfare. The petition also alleged that J.W. was abused pursuant to section 2-3(2)(ii) of the Juvenile Court Act (405 ILCS 5/2-3 (2)(ii) (West Supp. 1995)) because he was at substantial risk of physical injury as a result of respondent's actions. On the same day, a temporary custody hearing was held where the Public Guardian was appointed to represent J.W. The trial court found that there was probable cause to believe that J.W. was an abused, neglected or dependent minor and that there was an urgent and immediate necessity to remove him from respondent and place him in the temporary custody of DCFS. The trial court also made an oral finding that reasonable efforts could not have prevented the need to remove J.W. from respondent.

At an adjudicatory hearing held on September 18, 1995, the parties proceeded by way of stipulation. It was stipulated that, if called, Dr. Ann Warren, J.W.'s delivering doctor, would testify that at the time of J.W.'s birth, respondent, who appeared to be intoxicated, stated she had been drinking and had become intoxicated every two weeks during her pregnancy. The State then requested that J.W.'s medical records be admitted as evidence. Each of the parties published portions of those records.

The relevant portions of J.W.'s medical records, both published and unpublished, are as follows. The hospital discharge summary indicated that J.W. was born with apnea of prematurity, or breathing difficulties, for which he required monitoring. This report also indicated that J.W. had a heart murmur. The summary further provided that J.W. would need extensive medical monitoring including examination by a private pediatrician one week after discharge, a hearing screening performed in one to two months, and blood tests in two weeks. J.W. also required an eye examination for retinopathy of prematurity two to three weeks after his discharge. Retinopathy of prematurity, also known as retrolental fibroplasia, is "abnormal replacement of the sensory retina by fibrous tissue and blood vessels, occurring mainly in premature infants having a birth weight of less than 1500 [grams] who are placed in a high oxygen environment." Illustrated Stedman's Medical Dictionary 529 (24th ed. 1982). Additionally, J.W. needed a repeat pneumogram, or breathing test, performed in two to three months time. The report indicated that further management of J.W.'s apnea would be based on the results of the pneumogram.

A social service report dated March 6, 1995, indicated that J.W. was referred to social services because he was born prematurely with a low birth weight of two pounds and fifteen ounces due to probable alcoholism and smoking by respondent during her pregnancy. At that time, respondent stated that she was living with J.W.'s father in Barrington, Illinois. An entry dated March 24, 1995, indicated that respondent said she was living with her grandfather's son in Northfield. However, she had given hospital personnel the telephone numbers of her former husband and a friend as a means of contacting her. Respondent stated that she intended to get an apartment in Wauconda or Barrington. She also intended to get a job, possibly in a currency exchange owned by some friends. The entry noted that respondent often spoke of her devotion to J.W. and his importance to her. This was confirmed by nurses who observed her visits with J.W. Respondent appeared to be happy and to have bonded with J.W. She had no objections to a public health nurse making home visits when J.W. was released from the hospital. Respondent also indicated that she intended to complete a program to get back her driver's license, which she had lost due to driving under the influence.

An April 7 entry indicated that respondent still did not have a stable address and that the social services worker suspected that respondent was living with her former husband. Respondent stated that she was trying to get an apartment nearby and that she would be working at a beauty shop in Fox Lake, where she would bring J.W. during the day. An entry dated April 14 stated that when respondent called the hospital on April 13, she sounded intoxicated. On April 17, respondent called the hospital and said she would be going to North Dakota to visit her father, who was reportedly ill. However, during an April 18 visit, respondent refused to leave her parent's telephone number, stating "I'm not going to give a number now, I'm in a hurry. That day respondent stated she would be going to a condominium in Winnetka or Northfield. She later stated that the condominium had no telephone. An April 21 entry indicated that social services had attempted to get telephone service reconnected in the Northfield condominium and learned that it might be possible to get restricted telephone service.

At the conclusion of the adjudicatory hearing, the trial court found that J.W. was a neglected minor because his environment was injurious. The case proceeded to a dispositional hearing, where a Catholic Charities worker, Susan Davis, testified that she was assigned to J.W.'s case. A service plan had been developed for respondent, but she had not yet cooperated. Respondent was scheduled to begin alcohol abuse treatment the day after the dispositional hearing. She had been referred for such treatment four or five times previously but had failed to follow through on those referrals. Respondent had completed a two day detoxification program to which she was referred after smelling of alcohol during a home visit. Respondent had competed a psychological examination the week before the hearing, but a written report was not yet available. She had missed her first three appointments for the psychological examination. Respondent informed Davis that she had rented a room in a house the week prior to the dispositional hearing, but Davis had not yet been able to confirm this. Respondent had been referred to the Lake County Housing Authority for housing assistance. At the time of the dispositional hearing, J.W. was no longer in need of an apnea monitor, and respondent was visiting him weekly.

The trial court found that respondent was unable and unwilling to care for J.W. It also found that reasonable efforts had been made and that appropriate services aimed at family reunification had so far failed. J.W. was placed under the guardianship of DCFS.

Respondent first argues that evidence of her alcohol use did not prove that J.W.'s environment was injurious. She contends that it was improper for the trial court to consider evidence that she drank during her pregnancy because the Juvenile Court Act does not apply to fetuses. Respondent also contends that no causal relationship was established between her drinking and J.W.'s medical condition. Finally, respondent ...

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