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01/21/98 M.Z. v. ESTHER HERNANDEZ

January 21, 1998

IN THE INTEREST OF M.Z., A MINOR. (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
ESTHER HERNANDEZ, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County. Honorable John Sorrentino, Judge Presiding.

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

The opinion of the court was delivered by: Burke

The Honorable Justice BURKE delivered the opinion of the court:

Respondent Esther Hernandez appeals from two orders of the circuit court finding that respondent's son, M.Z., was "abused or neglected," as defined in section 2--3 of the Juvenile Court Act (705 ILCS 405/2--3 (West 1996)), based on lack of care and injurious environment (705 ILCS 405/2--3(1)(a), (b)), and adjudging M.Z. a ward of the court and awarding custody of M.Z. to the Department of Children and Family Services (DCFS) based on the court's determination that respondent was unable to care for M.Z. On appeal, respondent argues that: (1) the trial court's finding that M.Z. was abused or neglected was against the manifest weight of the evidence because respondent did not know and could not have reasonably known that her sister, M.Z.'s babysitter, would leave the child unattended; and (2) the court's finding that respondent was unable to care for her son based on her inability to make informed decisions about what was in the best interests of her son was against the manifest weight of the evidence because the trial court improperly relied on her "borderline" I.Q. score; the trial court improperly connected her association with M.Z.'s father, Marcos Sr., and his previous drug dealing with her abilities as a parent; the fact that her sister left M.Z. unattended was not a sufficient basis for a finding that she was unable to care for M.Z.; and the requirements of additional drug testing and parenting classes, were not relevant to her ability to currently make informed decisions about M.Z. For the reasons set forth below, we remand the cause, with directions.

On October 5, 1995, Bonnie Miller (a/k/a Bonnie Herron), a DCFS employee who had been assigned to monitor M.Z. and respondent, discovered five-year-old M.Z. at his home alone and unattended. Miller called the police, who later arrived at the home and removed the child. The State subsequently filed a petition for adjudication of wardship of M.Z. which alleged that respondent neglected M.Z. by leaving him alone in a "situation that required judgment or actions that were beyond the child's level of maturity, physical condition and/or mental abilities," and that respondent left M.Z. "home alone without a proper care plan."

On October 10, 1995, a temporary custody hearing was held. At the hearing, the trial court questioned respondent regarding her employment. She stated that she worked for a company that made uniforms, and earned $220 per week. The trial court then appointed the public defender to represent her. Thereafter, the State informed the court that it had filed a motion to amend its petition to include three counts of abuse: (1) physical abuse; (2) substantial risk of physical injury; and (3) excessive corporal punishment. The State further stated that it had learned that respondent threw a knife at M.Z., and a probation officer found cigarette burns on his arm, as well as indications of a beating with a belt. The trial court allowed the State to amend its petition to include the charges of abuse.

The State then called its first witness, Bonnie Miller. She testified that she was a follow-up worker for DCFS; she was assigned to respondent's case on August 7, 1995, and at that time, M.Z. was living with his paternal grandmother, Frances Martinez; she went to Martinez' home to look for M.Z., but discovered that he was not there; Martinez told Miller that M.Z. was with his mother; and Miller then "called [respondent's] house" and "a female" answered the phone. Thereafter, Miller went to respondent's house and, when she arrived 10 minutes later, no one was at home. Miller then went back to Martinez' home, where Martinez told her that M.Z. once told her that respondent threw a knife at him.

The following day, Miller, accompanied by the police, went to respondent's home to speak with her and M.Z. When she arrived, Miller spoke with respondent's sister, who was outside with her children and M.Z. M.Z., who appeared very shy, would not give her any direct answers. Miller noticed "little marks" on M.Z's cheek and asked him what had happened. M.Z. responded that he had been bitten by a mosquito. Respondent then arrived home, and she and Miller talked. Respondent agreed to participate in any services that DCFS would recommend.

Miller further testified that on October 5, she arrived at respondent's home at approximately 8:35 a.m. and found no one at home. Miller went back to her office and called respondent's home. M.Z. answered the phone, and was crying. Miller asked M.Z. to look around for an adult in the home, and when M.Z. returned to the phone, he said that no one was there. Miller stated that she then went to respondent's house and called the police. When the police arrived, Miller made a report, took protective custody of M.Z. and escorted M.Z. to the police station.

Miller also testified that Jinny Caufield, a probation officer assigned to Frances Martinez' nephew's case, had seen M.Z. on various occasions. According to Miller, Caufield told her that she noticed "little whips on [M.Z.'s] feet from a belt buckle," she had seen respondent "force [M.Z.] into the car" and she had seen cigarette burn marks on M.Z. Miller further stated that Martinez thought that respondent had been abusing drugs. Martinez told Miller on one occasion that respondent had "come after" M.Z., Martinez thought respondent was "on something" and asked respondent to leave M.Z. with her, and respondent "refused and took the baby, ran in the alley with the baby and left *** [her] car in the middle of the street." On cross-examination, Miller stated that when she questioned M.Z. about whether respondent had thrown a knife at him, he did not respond.

On redirect examination, Miller recommended that M.Z. be placed with his paternal grandmother, Martinez. On recross-examination, Miller stated that when she began her testimony that day, she was going to recommend that M.Z. return home under an order of protection. In response to a question by the trial court, Miller stated that the date was October 5, 1995, when she found M.Z. home alone at approximately 9:44 a.m., and the police arrived at approximately 10:20 a.m.

Florina Guerrero, respondent's sister, testified that she lived in the basement of the same building where respondent and M.Z. lived. On the morning of October 5, respondent came downstairs and asked her to take care of M.Z. Guerrero went back to her apartment, got her children and returned upstairs to be with M.Z. She later left M.Z. alone at approximately 9:30 a.m., returned at approximately 10:05 a.m., found M.Z. gone and the two doors to the apartment open. After she noticed M.Z. was missing, she looked around for him, and the woman who lived on the first floor told her that "they took [M.Z.]." Guerrero stated that she did not see the police come to the house. Guerrero also stated that she usually baby sat for her sister, and that M.Z. was not going to school that day because he had a stomach ache and had diarrhea the day before. On cross-examination, Guerrero stated that respondent would go to work at approximately 6 a.m. and return home at 3 p.m., and would always leave M.Z. in her care. Guerrero further stated that she never left M.Z. alone, and this incident was the first time she had done so.

In response to questions by the public guardian, Guerrero testified that she received a phone call from respondent the morning of October 5, at approximately 6 to 7:30 a.m., asking her to care for M.Z. that day. She did not know where respondent was calling from, but respondent stated she was in a car when she was calling. The guardian then asked Guerrero if M.Z. was alone at that time, and Guerrero responded that he was not alone because he was sleeping and her nine-year-old daughter was with him.

The trial court found that probable cause existed that M.Z. was "abused or neglected" based upon the fact that respondent left M.Z. alone "without an appropriate care plan." The trial court ordered that M.Z. be removed from the home and placed in the temporary custody of the DCFS guardianship administrator. The trial court also directed DCFS to prepare and file a case plan within 45 days, and set the matter for an adjudicatory hearing.

At the adjudicatory hearing on April 16, 1996, Frances Martinez, M.Z.'s paternal grandmother, testified that M.Z. was born on June 15 or 16, 1990, and at the time of his birth, M.Z., respondent, and M.Z.'s father, Marcos Sr., were all living with Martinez in her home. Martinez recalled that in July 1994, she saw respondent strike M.Z. with a belt. Martinez also testified about an event in April 1994, on respondent's birthday, when she walked into respondent's bedroom and she saw respondent getting high while M.Z. was in the room; respondent was smoking a cigarette which smelled like "PCP." When asked how she knew what PCP smelled like, Martinez stated that it smelled like "wart medicine." Martinez further testified that in November 1994, her son, Marcos, Sr., respondent, and M.Z. were living with her at the time, the police arrived at her home and told her respondent and Marcos Sr. had been arrested for possession of PCP, Marcos Sr. was outside in a police squad car, the police showed Martinez a bottle of liquid which she smelled, and she said that the liquid smelled like blister medicine. Martinez further testified that she had seen a bottle similar to the one the police showed her in respondent and Marcos Sr.'s bedroom. Martinez also stated that she questioned respondent about the substance that same day, and respondent responded that she had some "rollings and foil paper [which respondent said] were dip squares." Martinez described the items as "wet cigarettes wrapped up in foil," and stated that the wrapped cigarettes smelled like PCP.

Martinez further stated that her son had been in a gang called the Insane Disciples, and that he had been shot and killed due to his gang involvement. Martinez also stated that respondent had been in a gang called Ambrose, and that in February 1995 respondent told her that she was in a gang called the Queen Disciples. Martinez further stated that M.Z. was currently living with her and that respondent never gave her any money to care for M.Z. while he was living with her.

In response to questions by the public guardian, Martinez stated that she had seen respondent hit M.Z. "a couple of times"; in 1993, around respondent's birthday, she saw respondent slap M.Z.; and after respondent would discipline M.Z., she would see marks left on M.Z.'s body. On cross-examination, Martinez stated that from December 1994 until approximately June 1995, M.Z. lived with her, and respondent was not at her house very often. After June 1995, respondent moved out of Martinez' home and removed M.Z. with the assistance of police officers. Since M.Z.'s removal from her home in June 1995, Martinez had no contact with M.Z. Martinez also stated that Marcos Sr. had used PCP and had been arrested for PCP possession; after August 1995, M.Z. would sometimes stay with her in her home; and sometime in September 1995, she received a call from the Social Security Administration (SSA), and the SSA asked her if M.Z. was living with her and she said he was.

The State then called Bonnie Herron (a/k/a Bonnie Miller) as a witness. She testified that she was employed as a DCFS worker assigned to M.Z.'s case in July 1995. When she was first assigned to his case, respondent had been brought in under charges of risk of harm and inadequate supervision of M.Z. Herron stated that she met with respondent in August 1995, and told her that she would be visiting every month; she next visited respondent in September 1995, but no one was home at that time; and on October 3, 1995, respondent called Herron at her office to say that she and M.Z. had moved in with her mother on the second floor of a three-flat building.

Herron's testimony regarding the events on October 5 was similar to her testimony given at the prior temporary custody hearing: she went to visit respondent on October 5; when she arrived at respondent's home at 8:35 a.m., no one answered the door; she rang the bell at the first floor apartment but again no one answered; she returned to her office and called respondent at her home at approximately 9 a.m., M.Z. answered the telephone, and he was crying hysterically; M.Z. said that his mother was at work and he was alone in the house; she asked him to make sure no one was there and, after M.Z. looked through the house, he stated that he was alone; she then left her office to return to respondent's house; she arrived at approximately 9:44 a.m. and she saw M.Z. in the window crying; she asked M.Z. to open the door for her, and she went into the home with M.Z.; and she checked the apartment and discovered that no one was in the house with M.Z. Herron further stated that she then called the police and the "hot line"; at approximately 10:25 a.m., the police arrived; she and a ...


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