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In re F.S.

March 02, 2004

[5] IN THE INTEREST OF F.S., MINOR-RESPONDENT-APPELLEE
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
H.W., RESPONDENT-APPELLANT).



[6] Appeal from the Circuit Court of Cook County. Honorable Rita M. Novak, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Burke

[8]  Respondent H.W., the legal guardian of F.S., a minor, appeals from an adjudication order of the circuit court, finding F.S. to be physically abused, abused based on a substantial risk of injury, and neglected based on an injurious environment, as defined in sections 2-3(2)(i), 2-3(2)(ii), and 2-3(1)(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(2)(i), 2-3(2)(ii), 2-3(1)(b) (West 2002)).

[9]  Respondent also challenges the trial court's disposition order, finding respondent unable for some reason other than financial circumstances to care for, protect, train, or discipline F.S. because he had "returned to his mother." On appeal, respondent contends that the trial court's findings were against the manifest weight of the evidence. For the reasons set forth below, we affirm.

[10]   STATEMENT OF FACTS

[11]   Y.G. gave birth to F.S. on June 15, 1997. Y.G. received a job transfer that required her to move from Chicago to Florida, and subsequently sought a legal care plan for four-year-old F.S. in Chicago. Respondent, a friend whom Y.G. had known for approximately two and one-half years, was appointed the legal guardian of F.S. on October 31, 2001.

[12]   On December 21, the State filed a petition for adjudication of wardship with the trial court, alleging that respondent did not feed four-year-old F.S. and that respondent's son beat F.S. with an extension cord while respondent was present in the home. The State claimed that, based on these facts, F.S. was neglected and abused pursuant to section 2-3(1)(b) and section 2-3(2)(ii) of the Act. The State later amended the petition to include one count of physical abuse pursuant to section 2-3(2)(i) of the Act.

[13]   The State also filed a motion for temporary custody, arguing there was probable cause that F.S. was being neglected and abused, there was an immediate and urgent necessity to take F.S. into temporary custody, and reasonable efforts could not prevent or eliminate the necessity of removing F.S. from the home. After a temporary custody hearing on December 21, the trial court found that probable cause existed, and F.S. was placed in the temporary custody of the Department of Children and Family Services (DCFS). On December 28, a second temporary custody hearing was held. F.S.' natural mother returned to Chicago to take part in the proceedings and was given temporary custody of F.S. F.S. ultimately returned to Florida with his mother.

[14]   On, June 11, 2002, a trial was held on the State's petition for adjudication of wardship. The State called Linda Cook as its first witness. Cook testified that she was employed by DCFS and was assigned to F.S.' case as a child protection service worker. On December 19, 2001, she received a hot line call regarding concerns that F.S. was not being fed properly. She then went to respondent's home. When she met F.S., he had a white cream on his face and, after instructing him to wipe it off of his face, she noticed several marks and bruises on the side of his face. She also saw looped marks and bruises on F.S.' legs, buttocks, arms, and back.

[15]   Cook further testified that she took F.S. into protective custody. F.S. then told Cook that the marks and bruises were a result of being whipped by respondent's adopted son, who lived in the house with respondent and F.S. F.S. also told Cook that respondent had been in another room watching television while he was being whipped by respondent's son.

[16]   Cook also testified that respondent had stated that F.S. had been living in the household since August 2001. Respondent told Cook that she had become F.S.' legal guardian sometime in September of that year. Cook had questioned respondent about F.S.' eating habits at home. Respondent explained that F.S. never had dinner at home because, after F.S. returned from school and did his homework, he simply went to bed, and she could not wake him when he was asleep.

[17]   On cross-examination, Cook specified that she saw loop marks on F.S.' back and legs, three marks on his face, a dark bruise on his eye, and marks all over his back, legs, buttocks, and stomach. Cook described the three marks on F.S.' face as being three long marks that ran from his nose toward his ear. Cook also stated that, with respect to the bruises on F.S.' body, there were "old marks" and "fresh marks."

[18]   Cook further testified that she had a conversation with respondent on December 19, 2001, during which respondent had stated that she was unaware of how F.S. had received the marks on his body. Also, during a conversation with respondent in juvenile court on December 21, respondent stated that she had never seen the marks on F.S.' body because she never bathed him, never dressed him, and never saw him without his clothes on. Respondent had also told Cook that she did not take F.S. to the hospital because she had no money. Cook further stated that, during their conversation on December 21, respondent had also told Cook that she (respondent) was deaf. However, Cook testified that on December 19, respondent was responding to questions and apparently could hear from a distance of six or seven feet.

[19]   With respect to F.S.' eating habits, Cook stated that, when she spoke to F.S. on December 19 at approximately 4:15 p.m., F.S. told her that he had not eaten that day. Cook admitted that F.S. had not been to school that day. Cook further admitted that F.S. had never told her that respondent did not feed him.

[20]   Ioanna Vateva, M.D., was called by the public guardian, on behalf of F.S., as an expert witness in pediatrics and child abuse. Dr. Vateva testified that she examined F.S. on December 19. Vateva found loop marks on F.S.' face and back and found multiple bruises on F.S.' face, back, and thighs. Vateva stated that loop marks implied that something with two parallel surfaces, such as a belt or bar, had been used over the child's body with significant force. Vateva estimated that the bruises had been made on F.S. less than six weeks before the examination. Vateva's diagnosis was that F.S. had been physically abused. Vateva stated that when she asked F.S. how he received the marks on his body, he never gave her "any good response."

[21]   On cross-examination, Dr. Vateva testified that she did not believe that the bruises on F.S. could have been caused by F.S. playing with another child because the marks required "good pressure and good force." Vateva was asked, "Could a fourteen-year-old child who is playing with [a] four-year-old child, wrestling with him, hitting him with an extension cord, could he -- could those marks be from that type of play?" Vateva replied, "I guess it's possible." Vateva acknowledged that F.S. did not need to be admitted into a hospital for treatment of the marks.

[22]   On July 10, 2002, the trial court found no basis for the State's allegation that F.S. was not fed properly. However, the trial court made findings of physical abuse, abuse based on a substantial risk of injury, and neglect based on an injurious environment pursuant to section 2-3(2)(i), section 2-3(2)(ii), and section 2-3(1)(b) of the Act, respectively. Specifically, the trial court stated:

[23]   "First of all, with regard to these injuries, there is medical diagnosis that there was physical abuse.

[24]   ***

[25]   Some of the marks [F.S.' body] were described as loop marks that *** would be made obviously by a belt or extension cord with parallel lines. And that the medical testimony indicates that these injuries were the result of some force.

[26]   These injuries are in the medical diagnosis and also consistent with Ms. Cook, the DCP [sic] worker's, observations.

[27]   The doctor saw the child on December 19, 2001, and the injuries were less than six weeks old.

[28]   I think those injuries corroborate the minor's statement that [respondent's son] whipped him with an extension cord.

[29]   So I think the evidence is clear and unrebutted that the minor had nonaccidental injuries, and I think that the evidence is further unrebutted that [respondent's son], the fourteen-year-old son of the legal guardian, inflicted of [sic] the injuries.

[30]   And I would take issue with the statements that this was simply a fight between a four-year-old and a fourteen-year-old, and I would take some issue with the argument that it was an incident [sic].

[31]   Because *** the DCP [sic] worker saw old and new marks on this child's body. So I am not inclined to believe that it was *** a one-time battle.

[32]   *** [T]he question in my mind is whether or not the legal guardian was aware of [her son's] actions. ***.

[33]   And the reason that I conclude that it is more probable than not that the legal guardian knew are for the following reasons: First of all, as I have indicated, the DCP [sic] worker indicated that the marks were old and new. And I am relying on the DCP [sic] worker's *** experience ...


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