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In re S.S.

May 01, 2000

IN RE S.S., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. R.S. AND K.T., RESPONDENTS- APPELLANTS).



Appeal from the Circuit Court of Kane County. No. 97--JA--113 Honorable R. Peter Grometer, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Respondents, R.S. and K.T., appeal separately from the trial court's order finding their son, S.S., a neglected minor and making him a ward of the court. Because the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1--1 et seq. (West 1998)) seems to treat both parents as a unit (see In re M.K., 271 Ill. App. 3d 820, 829 (1995)), we have consolidated respondents' appeals.

The record reveals the following facts relevant to our disposition. R.S. and K.T. have never been married to each other, and they are the parents of two children. Their daughter, A.T., was born November 27, 1995, and died January 6, 1996. Their son, S.S., was born November 7, 1997.

On December 22, 1995, A.T. was taken to the hospital by K.T. and K.T.'s mother. According to K.T., A.T. had rolled off the bed. A.T. was examined and discharged to the custody of her parents. Following A.T.'s injury, R.S. told a Department of Children and Family Services (DCFS) worker that K.T. took care of A.T. during the day while R.S. was at work but that K.T. often slept during the day because he worked nights. The DCFS worker testified that she suggested R.S. make alternate daycare plans for A.T. The DCFS worker admitted she never told R.S. that she could retain custody of A.T. only if she did not use K.T. as a babysitter, and there was never a court order directing R.S. not to leave A.T. in K.T.'s care. The DCFS worker also never told R.S. that K.T. was a threat to A.T's safety.

According to K.T., on January 4, 1996, he was baby-sitting A.T. He had fed her and laid her down in her crib. When he checked on her about 10 or 15 minutes later, he discovered that she was not breathing. He shook her foot in an attempt to elicit a response. When she did not respond, he rocked her in his lap and bounced her on his knee, but she remained unresponsive. K.T. stated that, at this point, he shook A.T., thinking this would resuscitate her. K.T. then called 911 and continued resuscitative efforts at the direction of the 911 operator. A.T. died at Rockford Memorial Hospital on January 6, 1996. The doctors diagnosed A.T. as having suffered from shaken impact/shaken baby syndrome. An autopsy confirmed that the cause of A.T.'s death was shaken baby syndrome. Following a jury trial, K.T. was acquitted of both first- degree murder and involuntary manslaughter with respect to A.T.'s death.

Almost two years after A.T.'s death, but prior to K.T.'s criminal trial, S.S. was born. S.S. was taken from R.S.'s custody at birth and placed by DCFS with R.S.'s sister. R.S. has visited S.S. daily and played with, fed, bathed, changed, and provided other care-taking duties for him.

K.T. has had weekly supervised visits with S.S. since S.S. was about four months old. K.T. has never missed a visit with S.S. According to a Catholic Charities caseworker, during the visits K.T. showed concern for S.S. and cared for him properly. K.T. was always eager to see S.S., and S.S. seemed attached to K.T. Based on the caseworker's observations, she believed K.T. was a good parent.

The record further indicates that both R.S. and K.T. have successfully completed parenting classes. R.S. apparently went to a social service agency requesting information about parenting classes even before DCFS referred her to the agency. According to the social service agency, K.T. seemed very comfortable with S.S. and was very gentle and patient with S.S., while R.S. was a very loving mother to S.S. and was very enthusiastic and concerned about S.S.

Evidence was presented concerning domestic violence between K.T. and R.S. Specifically, testimony was heard concerning an incident that occurred approximately eight months after S.S.'s birth. Apparently K.T. and R.S. were arguing over the possession of an automobile when K.T. pulled R.S. out of the car. R.S. reported the incident to the police. Additionally, R.S. told a social worker that K.T. had hit her in the past. The social worker had no specific knowledge of when or how R.S. was hit by K.T. or whether she was injured. K.T. and R.S. attended couples' counseling at the direction of DCFS.

The record further indicates that K.T. and R.S. do not currently reside together. At the time of the adjudicatory hearing, both reported that they were no longer dating and that R.S. was dating another man.

Following the adjudicatory hearing, the trial court entered an order finding that the State proved neglect of S.S. by a preponderance of the evidence by showing (1) that S.S.'s older sibling, A.T., died as a result of shaken impact/shaken baby syndrome; (2) that R.S. created a risk of harm to S.S. because she disregarded a DCFS protection plan by allowing S.S.'s older sibling, A.T., to be unsupervised in the presence of K.T.; and (3) that there is a history of domestic violence between R.S. and K.T., creating a risk of harm to S.S. The trial court further made a special finding that the State had shown by a preponderance of the evidence that K.T. caused the death of A.T.

A dispositional hearing was held on January 13, 1999. The trial court made S.S. a ward of the court and awarded guardianship to DCFS. Respondents timely filed separate appeals.

I. STANDARD AND SCOPE OF REVIEW

"Cases involving an adjudication of neglect and wardship are sui generis, and each case must ultimately be decided on the basis of its own particular facts." In re Edricka C., 276 Ill. App. 3d 18, 25 (1995). The Act provides that a neglected child is a minor "who is not receiving the proper or necessary support, education as required by law, or medical or other remedial care recognized under State law as necessary for a minor's well-being" (705 ILCS 405/2--3(1)(a) (West 1998)) or a minor "whose environment is injurious to his or her welfare" (705 ILCS 405/2--3(1)(b) (West 1998)). An abused child includes any minor whose parent "creates a substantial risk of physical injury to such minor by other than accidental means." 705 ILCS 405/2--3(2)(ii) (West 1998). Under the Act, "proof of the abuse, neglect or dependency of one minor shall be admissible evidence on the issue of the abuse, neglect or dependency of any other minor for whom the respondent is responsible." (Emphasis added.) 705 ILCS 405/2--18(3) (West 1998).

Generally, "neglect" is considered to be the failure by a responsible adult to exercise the care that circumstances demand and encompasses both willful and unintentional disregard of parental duty. In re Ashley F., 265 Ill. App. 3d 419, 424 (1994). "Injurious environment" is an amorphous concept that cannot be defined with particularity, and each case therefore should be reviewed considering the specific circumstances of that case. M.K., 271 Ill. App. 3d at 826.

Proceedings for adjudication of wardship should not be undertaken lightly. See In re Harpman, 134 Ill. App. 3d 393, 396-97 (1985). The best interest of the child is the paramount consideration whenever a petition for adjudication of wardship is brought under the Act. In re K.G., 288 Ill. App. 3d 728, 734-35 (1997). At an adjudicatory hearing, the State must prove its allegations of neglect or abuse by a preponderance of the evidence. See In re M.Z., 294 Ill. App. 3d 581, 592 (1998). "Preponderance of the evidence is that amount of evidence that leads a trier of fact to find that the fact at issue is more probable than not." K.G., 288 Ill. App. 3d at 735. We will not disturb the trial court's determination of neglect unless its findings of fact are contrary to the manifest weight of the evidence. See M.Z., 294 Ill. App. 3d at 592. "A trial court's finding is against the manifest weight of the evidence if a review of the record clearly demonstrates that the opposite result would be the proper one." K.G., 288 Ill. App. 3d at 735. This is so because the trial court is in a much better position than the reviewing court to observe the witnesses, assess their credibility, and weigh the evidence. K.G., 288 Ill. App. 3d at 735.

Although the Act seems to treat both parents as a unit, it does not address the situation where only one separated parent has abused or neglected the child. M.K., 271 Ill. App. 3d at 829. However, the implication of section 2--27 of the Act (705 ILCS 405/2--27 (West 1998)), which deals with placement, legal custody and guardianship, is that both parents must be adjudged unfit or unable to care for the child before placement with DCFS is authorized. ...


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