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In re Arthur H.

May 12, 2003

IN RE ARTHUR H., JR., A MINOR,
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
ARTHUR H., SR., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Winnebago County. No. 01--JA--67 Honorable Janet Clark Holmgren and Patrick L. Heaslip, Judges, Presiding.

The opinion of the court was delivered by: Justice Grometer

PUBLISHED

Respondent, Arthur H., Sr., appeals from the judgment of the circuit court of Winnebago County adjudicating his son, Arthur H., Jr., a neglected minor pursuant to sections 2--3(1)(b) and 2--3(1)(d) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2--3(1)(b), 2--3(1)(d) (West 2000)) and making the minor a ward of the court. We reverse and remand for further proceedings.

I. BACKGROUND

Lorraine H. (Lorraine) is the mother of five children, Niya N. (born July 18, 1994), Arthur H., Jr. (born November 30, 1996), Jaquane H. (born May 22, 1998), Lora H. (born July 20, 1999), and Earl H. (born May 21, 2000). Respondent, Arthur H., Sr., is the father of both Arthur H., Jr., and Jaquane H. The instant appeal involves only Arthur H., Jr.

This case commenced on March 23, 2001, when the State filed a petition alleging that Arthur H., Jr., was a neglected minor. A three-count amended petition was filed on January 30, 2002. Count I of the petition provided that Arthur H., Jr.'s environment was injurious to his welfare "in that the minor's sibling had a hernia approximately 2½ to 3 inches in diameter and the mother had previously failed to follow the doctor's treatment and administer medication." See 705 ILCS 405/2--3(1)(b) (West 2000). Count II alleged inadequate supervision "in that the minor's mother left the minor in the care of a 14 year old for an unreasonable amount of time and the minor's [sic] were dirty and wearing dirty clothing that smelled of urine, and the minor's sibling was allowed to drink from a dirty bottle [containing] curdled milk." See 705 ILCS 405/2--3(1)(d) (West 2000). Count III alleged that Arthur H., Jr.'s environment was injurious to his welfare "in that the minor's sibling displayed lethargy, an inability to move, imbalance, jittery eyes, and neck twitches and the mother failed to get proper medical attention." See 705 ILCS 405/2--3(1)(b) (West 2000). The petition also stated that it was in the best interest of Arthur H., Jr., and of the public that the minor be made a ward of the court.

On May 23, 2002, the trial court held an adjudicatory hearing at which the following evidence was adduced. On August 15, 2000, the Department of Children and Family Services (DCFS) received a hotline call regarding Earl H. The caller alleged that Lorraine had removed Earl H. from his apnea monitor without the authorization of a physician and that Lorraine had missed Earl H.'s apnea clinic appointments. Within 24 hours, Angela Harris, an investigator with DCFS, met with Lorraine at Lorraine's home. Lorraine was present with her five children. Earl H. was asleep in a baby swing but was not attached to his apnea monitor. The other children were watching television and playing. According to Harris, the children were dressed "fairly appropriate[ly]." Harris explained the importance of the apnea monitor, and Lorraine attached it to Earl H. Lorraine explained that she did not take Earl H. to the apnea clinic because she had no ride. The children were not removed from the home at that time.

Early in February 2001, DCFS received a report of medical neglect regarding Lorraine's children. On February 8, 2001, DCFS investigator Cristina Gloria visited Lorraine's home. During the visit, Gloria met with Lorraine. All of Lorraine's children were present except for Arthur H., Jr., who was with respondent in Milwaukee, Wisconsin. Gloria testified that the home's kitchen was clean but that there were dirty diapers and garbage on the floor elsewhere. In addition, there were mattresses on the floor and there were no cribs for the children. Gloria asked about Earl H.'s apnea monitor and whether Earl H.'s and Niya N.'s immunizations were current. Lorraine told Gloria that she decided to discontinue using the apnea monitor. She also stated that she was preparing to take the children for their shots and that she would clean the home.

Gloria next visited Lorraine's home on March 13, 2001, in response to information that Lorraine did not have the children immunized. Lorraine told Gloria that she did not have the children immunized because she did not have a ride to the doctor's office. During the visit, Gloria noted that the kitchen smelled of urine. In addition, Earl H. was wearing a dirty shirt and wheezing. According to Lorraine, the urine odor had been caused by some broken pipes, which were in the process of being repaired. Gloria told Lorraine that she would arrange transportation to take Earl H. to the doctor. Arthur H., Jr., was not present during the March 13, 2001, visit. On March 15, 2001, Gloria introduced Lorraine to the family educator who would take Lorraine and Earl H. to the doctor.

Gloria returned to Lorraine's home on March 21, 2001, because Lorraine failed to keep an appointment. When Gloria arrived, she found Niya N., Jaquane H., Lora H., and Earl H. in the care of a 14-year-old boy. Earl H. was dirty, wearing an unclean diaper, and drinking a bottle of curdled milk. Niya N. was wearing dirty clothes and smelled of urine. Jaquane H. and Lora H. were dressed appropriately and were not as dirty as the other two children. The 14-year-old boy told Gloria that Lorraine had left the home to purchase diapers. Gloria waited approximately 45 minutes, but Lorraine did not show up. Protective custody of the four children was taken at this time. During a medical examination of Earl H., Gloria observed a lemon-sized protrusion from the minor's navel.

At the conclusion of Gloria's testimony, Gloria stated that DCFS had difficulty in locating Arthur H., Jr. The following discussion then took place:

"Q. [Assistant State's Attorney Currie]: Okay. Can you please describe the difficulty that you had in locating Arthur, Jr.?

MR. RARIDON [Attorney for Respondent]: Well, judge, I would object at this point. There's been no testimony that he was present at any of these occurrences.

MS. HUGHES [Attorney for Lorraine]: Judge, it's also not relevant to this petition.

THE COURT: Counsel, why are you going into it?

MS. CURRIE: I just wanted to indicate he was a part of this family and that normally he was in mom's custody and care, but--I can--

THE COURT: Well, but you haven't established that, and asking this question doesn't establish that.

MS. CURRIE: Okay.

THE COURT: I'm going to sustain *** the objection."

The record reveals that Arthur H., Jr., was taken into custody by authorities in Milwaukee sometime in May or June 2001.

After the State rested, Lorraine moved for a directed finding as to counts I and III. The court took the motion under advisement. Respondent then moved for the dismissal of the petition directed at Arthur H., Jr. He argued that there was no evidence that Arthur H., Jr.'s environment was injurious to his welfare because there was no evidence that Arthur H., Jr., "was in the environment" during any of Gloria's visits to Lorraine's home. In addition, respondent asserted that the court lacked jurisdiction over Arthur H., Jr., because the State failed to prove that Arthur H., Jr., was a resident of Winnebago County, Illinois. The trial court denied respondent's motion.

Lorraine then testified on her own behalf. She claimed that she was the only person responsible for her five children. Lorraine then rested.

Respondent testified that he has resided in Milwaukee, Wisconsin, for 15 years and that Arthur H., Jr., has lived primarily with him for five years. Respondent explained that when Arthur H., Jr., was born, he asked Lorraine to let him have custody of the child because the child was respondent's only son. According to respondent, "every three months" Arthur H., Jr., would spend time with Lorraine, and then she would bring the child "right back." Respondent testified that in spring 2001, before Arthur H., Jr., was taken into custody, the child resided with him. Respondent also stated that he only recently learned that Jaquane H. was his son.

On cross-examination, respondent testified that Arthur H., Jr., began living with him when the child was about six months old. Respondent also stated that Arthur H., Jr., spent three months of the year with Lorraine. Respondent admitted that he has no documents awarding him guardianship or custody of Arthur H., Jr. According to respondent, the custody arrangement was "voluntary" and if Lorraine wanted to take Arthur H., Jr., she could. Respondent testified that in August 2000, Arthur H., Jr., was residing with him. Respondent stated that between July 23, 2000, and March 2001, Lorraine did not have any contact with Arthur H., Jr.

Upon questioning from the court, respondent testified that he signed an acknowledgment of parentage in Wisconsin. He also indicated that Lorraine instituted child-support proceedings against him in Wisconsin but that the suit was dismissed because respondent was "taking care" of Arthur H., Jr.

On its own motion, the court recalled Lorraine to the witness stand. Lorraine stated that Arthur H., Jr., began living with respondent when the child was eight months old. According to Lorraine, Arthur H., Jr., would spend several months with her and then several months with respondent. She claimed that Arthur H., Jr., was with her in August 2000. On cross-examination, Lorraine stated that Arthur H., Jr., "spent most of his time with his dad" ...


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