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In re Edward T.

September 15, 2003

IN RE EDWARD T. AND ARIEL T. MINORS-RESPONDENTS-APPELLEES,
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
EDWARD T., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County 01 JA 1654 01 JA 1655 The Honorable Sandra R. Otaka, Judge Presiding.

The opinion of the court was delivered by: Justice Gordon

UNPUBLISHED

Respondent, Edward T., appeals from the circuit court's orders finding his two children neglected due to an injurious environment and finding him unable, for some reason other than financial circumstances alone, to care for, protect, train, or discipline the children. Respondent contends that the trial court's finding of neglect was against the manifest weight of the evidence and that the court abused its discretion in not granting him custody of the minors. For the following reasons, we affirm.

BACKGROUND

Respondent is the biological father of the two children involved in this cause of action: Edward T. (hereinafter referred to as Eddie), born September 9, 1997, and Ariel T., born January 27, 2000. Latrena S., *fn1 the biological mother of the two children, gave birth to a third child, Cassio G. on October 18, 2000. Brian G. is the biological father of Cassio. Cassio was born eight weeks premature and was hospitalized until November 21, 2000.

On August 24, 2001, Latrena took all three children to Illinois Masonic Hospital for a doctor's appointment. Hospital records indicate that Ariel was 17 months old at the time and had not received all of her recommended immunizations. She was also diagnosed with a speech delay. Cassio, 10 months, had not received the three sets of immunizations he should have received by six months of age and was diagnosed with a failure to thrive due to his below normal weight of 6,340 grams (in his brief, respondent converts this weight to 13.9 pounds). The records also revealed that Cassio had a "severe" developmental delay as he had not yet begun to sit up or crawl. Cassio was admitted to the hospital for treatment and Eddie and Ariel were taken into the custody of the Department of Children and Family Services (DCFS) on August 30, 2001. On September 4, 2001, the State filed a petition for adjudication of wardship. On the same day, temporary custody orders were entered for Eddie and Ariel, which stated that "probable cause does exist the minor is abused/neglected/dependant," and found their removal from their home was an immediate necessity. The orders were entered with prejudice as to respondent, a non-custodial parent, based on his stipulation to the facts alleged in the State's petition. The petition stated that Ariel's and Cassio's immunizations were not current, Ariel was developmentally delayed, Cassio was diagnosed with nonorganic failure to thrive and Latrena was not addressing Ariel's and Cassio's medical needs.

An adjudication hearing was commenced on February 26, 2002, and continued to April 18, 2002, and May 17, 2002. At the hearing, Dr. Silviano Gomez testified that he received his medical degree from the University of Salamanca in Spain in 1967. He subsequently completed an internship at Illinois Masonic Medical Center, a residency in pediatrics and a fellowship in ambulatory pediatrics. He served as a staff physician in pediatric and ambulatory care at Illinois Masonic and as an assistant professor in pediatric medicine at the University of Illinois. The court qualified Dr. Gomez as an expert in pediatric medicine.

Dr. Gomez testified that he treated Cassio in the hospital from August 24 to September 14, 2001. When Cassio arrived at the hospital, he weighed between 13 and 14 pounds, which was below the fifth percentile for a 10-month-old child. In addition, he had not received any immunizations and could not sit up, a six-month milestone, or crawl, a nine-month milestone. Dr. Gomez and Cassio's nurse practitioner, Catherine Tomaka, agreed that Cassio needed to be admitted to the hospital for treatment of his failure to thrive.

Dr. Gomez testified that a failure to thrive is diagnosed by a child's weight. A failure to thrive is considered nonorganic, and generally the result of neglect, where the child gains around two ounces a day during hospitalization and his blood, lead, urine and neurological tests are normal. An organic failure to thrive on the other hand is the result of a disease such as anemia, tubular acidosis, lead poisoning or dehydration. Dr. Gomez stated that Cassio's tests were normal and, during his first week of hospitalization, he gained about one pound. As a result, Dr. Gomez diagnosed him with nonorganic failure to thrive due to inadequate nutrition. Although Cassio was premature, Dr. Gomez stated that a premature child will generally be within the normal weight limits by six months of age.

On cross-examination, Dr. Gomez agreed that the Nelson Textbook of Pediatrics is a reliable authority on pediatrics, and admitted it provided that a "corrected age" should be used when measuring the growth of a premature infant until he/she reaches the "corrected age" of one to two years. He further testified he could not state how many grams Cassio gained in the hospital because he could not convert pounds to grams in his head. Dr. Gomez was unable to testify as to Cassio's date of admission without referring to the hospital records and did not know Cassio's rate of weight gain prior to being admitted because he was not the child's primary physician. When diagnosing Cassio, Dr. Gomez did not take into account Cassio's cultural background or diet and did not conduct any endocrinology tests, which would show whether the failure to thrive was due to a gland problem. He believed, however, that Cassio's ability to gain weight on a proper diet ruled out such a problem.

John Gac testified that he is a child protection investigator with DCFS. Gac received Eddie's, Ariel's and Cassio's cases on August 28, 2001, one day after a report was made to DCFS for medical neglect and failure to thrive. Gac stated he spoke with Latrena at the hospital. She told him she did not believe there was anything wrong with Cassio and that he had, in fact, gained a significant amount of weight over the past two months. She further stated that she was a trained nurse's assistant and that her opinion regarding her son was just as valid as the doctor's. According to Gac, Latrena admitted that Ariel's immunizations were not current and that, like Cassio, Ariel had been unable to sit up at 10 months.

Latrena explained to Gac that she worked full-time. She awoke at 4:30 a.m. to give Cassio a bottle of milk. She also prepared cereal for her brother to give him later, as her brother cared for the children while she was at work. When Latrena returned from work, she would give Cassio another bottle and later feed him. Gac visited Latrena's apartment and met her brother. He did not see any baby food in the home and, when he asked where the baby food was kept, Latrena's brother was unable to find any. Gac saw the children during his visit to the apartment and he stated they "showed no emotion whatsoever." However, he did not see any signs of abuse or neglect.

Gac instructed Latrena to take Eddie and Ariel to the doctor to be evaluated. On August 29, 2001, Latrena called Gac to tell him she could not take the children to the doctor because she could not get an appointment until the following day. She also told Gac that she would no longer have her brother care for the children while she was at work. On August 30, 2001, Gac placed the children in protective custody due to Cassio's diagnosis of nonorganic failure to thrive and the risk of neglect to Eddie and Ariel due to their young age.

Marjorie Kaplan testified that she is a social worker at Illinois Masonic Hospital. She met with Latrena and Brian G. on August 27, 2001. Latrena told Kaplan that Cassio was fine and she did not understand why he could not return home. Latrena also stated that she had not taken Cassio for his immunizations because she did not have a medical card. Kaplan testified that Latrena said her medical card had expired and, because she refused to provide certain information, it was not renewed for six months. Kaplan explained to Latrena that the hospital would be reporting her case to DCFS because Cassio was below the normal weight and height for a child his age, he had not received his immunizations and he was developmentally delayed. Latrena stated she did not understand why the case was being reported and repeated that Cassio was fine. Because Kaplan was concerned Latrena might remove the child from the hospital, Cassio was moved to the pediatric specialty care unit where he could be more closely observed.

Dr. Leslie Zun testified on Latrena's behalf. He stated that he obtained his medical degree from Rush Medical College and completed a residency in emergency medicine at the University of Illinois. At the time of the hearing, Dr. Zun was chairman of the department of emergency medicine at Mount Sinai Hospital. During his residency he "rotate[d] on the inpatient unit" and "dealt with many pediatric patients" in other rotations. He testified that about 25% of his patients were children and that he had experience in making hot line calls to DCFS and in filling out DCFS paperwork. Dr. Zun stated he was involved in 10 to 12 failure-to-thrive cases per year. He lectured medical students, residents, physicians and occasionally public defenders and had been a professor of emergency medicine at Chicago Medical School. Finally, Dr. Zun stated that he served on a committee at the hospital reviewing abuse and neglect cases to determine whether appropriate action had been taken in each case. He concluded, however, that he was "not trained in pediatrics per se," as he did not complete a fellowship or residency in pediatrics, he was not board certified in pediatrics nor was he a member of the American Academy of Pediatrics. He also admitted that an official diagnosis of abuse or neglect could not be made by him, but must be made by a specialist. Nonetheless, the court qualified Dr. Zun as an expert in emergency medicine, abuse and neglect, and pediatrics.

Dr. Zun reviewed the medical records in the cases of Cassio, Ariel and Eddie, but stated that he had never examined the children themselves. He determined from the medical records that Cassio's and Ariel's immunizations were current, but stated on cross-examination that the medical records were inconsistent with regard to the children's immunizations. Dr. Zun concluded that Cassio's developmental delays were due to his failure to thrive. In turn, his failure to thrive was the result of a combination of conditions -- esophageal reflux, a neurological impairment which prevented him from sucking, swallowing and breathing simultaneously, his premature birth, and the fact that his parents were small people by nature. Dr. Zun concluded that Cassio was not abused or neglected and that, when charted, his growth remained consistent through his first year of life, whether during his hospitalization or at home.

Respondent and Latrena also produced medical records reflecting that Ariel had received immunizations on March 29, 2000, and August 24, 2001, and that Eddie also had difficulty gaining weight as an infant, but was subsequently evaluated as a healthy infant and toddler.

The trial court found that the State had proven Cassio neglected and/or abused by a preponderance of the evidence. It concluded that the medical records established that Cassio and Ariel were late in receiving their vaccinations and that Dr. Gomez' testimony was more credible than Dr. Zun's because he was Cassio's treating physician during his hospitalization. The court further found that the State had proven neglect due to an injurious environment in Ariel's and Eddie's cases, but it dismissed a count alleging lack of medical care as to Ariel.

The dispositional hearing for the children was subsequently commenced on May 20, 2000, and continued to June 4, June 25, June 28, July 23 and August 6, 2002. Sharon Moriarity, a child welfare specialist with DCFS and the caseworker for Ariel and Eddie, testified on three separate occasions during the hearing. At the opening of the dispositional hearing, Moriarity stated that Ariel and Eddie were both placed in a non-relative, DCFS licensed home. There had been no incidents to report from Moriarity's visit to the foster home and there were no signs of abuse or neglect. Ariel was assessed for services in September 2001 and began receiving speech and developmental therapy at that time. Upon her reassessment in March 2002, developmental therapy was discontinued. Eddie was also assessed for services and began play therapy with therapist Michelle Flaherty due to reported sadness and withdrawal. Upon making allegations to Flaherty that he was "whooped" by his parents, Eddie was referred to therapist Vernon Glass for a psychological evaluation. Glass reported to Moriarity in late April 2002, that Eddie said his parents "whooped" him with a belt and burned him with cigarettes. When Moriarity initially heard the allegations from Glass, she understood that only Latrena was inflicting the alleged abuse; however, Glass' report introduced at the hearing indicated the abuse was being perpetrated by both Latrena and respondent. Moriarity stated that the parents should have been told of the allegations by "the investigator," but the parents indicated to her that they were unaware of the allegations until the hearing.

Moriarity testified that respondent and Latrena were assessed for services in September 2001. At that time, they were referred to parenting classes and a parenting capacity assessment, which were both successfully completed. The parenting capacity report stated that "[u]nless there is convincing evidence to the contrary, it seems clear that the best interests of Eddie and Ariel would be served by returning them to the custody of the parents as soon as possible." Moriarity stated she did not agree with the recommendation of return home even before Eddie's recent allegations of physical abuse. Following the assessment, Latrena was referred to a therapist for individual therapy. Upon the establishment of a relationship with the therapist, both Latrena and respondent were to begin family coaching. Latrena, however, did not attend therapy sessions when she was initially referred in April. As a result, respondent was unable to begin family coaching and was referred for individual therapy sessions instead. Latrena subsequently began attending individual therapy in May 2002 and parent coaching sessions with the entire family began soon thereafter. After two or three sessions, the therapist reported to Moriarity that individual and group sessions were going well and both parents were very responsive.

Moriatiry reported that both parents had four-hour, weekly supervised visits with the children. Respondent and Latrena had each missed a couple of visits for reasons unknown to Moriatiry. She observed weekly visits between the children and parents from September to December 18, 2001. She had no concerns about any of the visits until receiving a report about a visit on May 25, 2002, following Eddie's allegations of abuse. Other than the report from the May 25 visit, Moriarity had received no reports of unusual incidents from the agency monitoring the visits. The parents acted ...


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