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In re J'America B.

March 18, 2004


Appeal from the Circuit Court of Winnebago County. No. 98--JA--251 Honorable Patrick L. Heaslip, Judge, Presiding.

The opinion of the court was delivered by: Justice Gilleran Johnson


The respondent, Elunder D., appeals from the July 23, 2003, order of the circuit court of Winnebago County terminating her parental rights to her minor child, J'America B. On appeal, the respondent contends that the trial court erred in: (1) denying her motion to strike the part of the State's petition to terminate her parental rights that referred to the death of her seven-month-old cousin; (2) finding that she is depraved; and (3) failing to admonish her properly. We affirm.

On February 7, 1995, the respondent, who was 10 years old at the time, was adjudicated delinquent (705 ILCS 405/5--3(1) (West 1994)) for having committed the offenses of aggravated battery (720 ILCS 5/12--4(a) (West 1994)), aggravated criminal sexual assault (720 ILCS 5/12-- 14(b)(2)(i) (West 1994)), and involuntary manslaughter (720 ILCS 5/9-- 3(a) (West 1994)), against her seven-month-old cousin. The offenses of aggravated battery and aggravated criminal sexual assault were based on the respondent's conduct in inserting a popsicle stick into the anus of her seven-month-old cousin. The offense of involuntary manslaughter was based on the respondent's conduct in smothering her cousin, causing his death. On September 1, 1998, the State filed a neglect petition alleging that the respondent's daughter, J'America B., who had been born four days earlier to the 13-year-old respondent, was in an environment that was injurious to her welfare. The trial court granted the State's petition and entered a temporary custody order transferring guardianship and custody of J'America to the Department of Children and Family Services (DCFS).

On April 14, 1999, J'America was declared a ward of the court and placed in the legal custody and guardianship of DCFS. On the same date, the State filed a petition to terminate the respondent's parental rights. The petition alleged two counts: (1) depravity in that the respondent had been convicted of the offense of aggravated criminal sexual assault of her seven-month-old cousin (750 ILCS 50/1(D)(i)(5) (West 1998)); and (2) depravity in that the respondent had placed a popsicle stick in the anus of a seven-month-old child.

A fitness hearing was held on September 7, 2000. After taking judicial notice of the respondent's delinquency adjudications, the trial court held that the conduct involving the popsicle stick created a presumption of unfitness under the Adoption Act (750 ILCS 50/1(D)(i)(5) (West 2000)). This presumption shifted to the respondent the burden of proof and the burden of going forward with the evidence on the issue of fitness with respect to count I. At the conclusion of the fitness hearing, the trial court found that the respondent had not overcome the presumption of unfitness with respect to count I. However, with respect to count II, the trial court found that the State had not "adequately proven that a 10-year-old under the [respondent's] circumstances would have the necessary state of mind or the ability to form the requisite intent to establish depravity." Accordingly, the trial court dismissed count II. Following a best interests hearing, the trial court terminated the respondent's parental rights.

On direct appeal, this court vacated the trial court's judgment that the respondent was unfit. See In re J'America B., No. 2--01--0586 (2001) (unpublished order under Supreme Court Rule 23). This court explained that the trial court erred when it found that, under the Adoption Act, a presumption of unfitness arose from the respondent's adjudication of delinquency for aggravated criminal sexual assault of a child. This court explained that the statutory presumption of unfitness applies only to a criminal conviction, not an adjudication of delinquency. As such, this court reversed the order terminating the respondent's parental rights and remanded the cause for further proceedings. Following remand, the State filed a series of amended petitions to terminate the respondent's parental rights. The fourth amended petition contained four counts on which the State alleged that the respondent was unfit to be a parent. Count IV of the fourth amended petition, the only count on which the respondent was found unfit, alleged that the respondent was depraved due to her (1) continuing propensity to steal; (2) disregard for human life, which in one case resulted in the death of a child and in another resulted in the delay of needed medical care; and (3) repeated violations of her probation terms. The State indicated that it would present evidence that the respondent was responsible for the suffocation and death of her seven-month-old cousin. The respondent's counsel moved to strike the portion of the State's petition that referred to the death of the respondent's seven-month-old cousin, on the grounds of collateral estoppel and res judicata. The respondent's counsel argued that the State should not be allowed to present evidence that could have been the basis for the respondent's alleged depravity at the first fitness hearing. The trial court denied the respondent's motion to strike.

Between April 4 and May 29, 2004, the trial court conducted a fitness hearing on the State's fourth amended petition to terminate the respondent's parental rights. At the hearing, Bobby Smith testified that he is a loss prevention associate at a Kohl's department store in Rockford, Illinois. On February 2, 2003, he caught the respondent shoplifting from the store and he notified the police. Richard Cunningham, a Rockford police officer, testified that he was called to the Kohl's department store on February 2, 2003, due to a shoplifting complaint. He arrested the respondent for felony retail theft.

Retired Rockford police officer Dennis Woody testified that on August 3, 1994, he took a statement from the respondent concerning the death of her seven-month-old cousin. In this statement, which was admitted into evidence, the respondent indicated that she was caring for her young cousin. She fed him some cereal and gave him a bath. Thereafter, she gave the baby a bottle and put him on her bed. She decided to eat a grape popsicle and brought the popsicle stick back to her bedroom. She discovered that the baby had "pooped" and some of it was on her bed. She cleaned up the mess. She said she became angry thinking about how she had been abused by her uncle and so she took the popsicle stick and put it in her cousin's anus. She said the baby whined a little but then went back to sleep. She said she tried to get the popsicle stick back out, but it was too far in.

Officer Woody further testified that the autopsy report indicated that the insertion of the popsicle stick was not the cause of the baby's death. Rather, the report indicated that the baby's death was due to asphyxiation from suffocation by smothering. He further testified that he had asked the respondent about this, but she denied smothering the baby.

The respondent's probation officer, Brenda Johnson of the Winnebago County Juvenile Probation Department, testified that the respondent was put on probation in February 1995 and was discharged from probation in January 2002. Johnson testified that the respondent received sex-abuse victim and sex offender services through Family Advocate and residential services through The Mill and Indian Oaks Academy. Johnson testified that she did not believe that the respondent was progressing with the counseling treatment at The Mill, so the respondent was transferred to Indian Oaks for a higher level of sex offender treatment. Johnson further testified that during counseling, the respondent took responsibility for the death of her baby cousin. However, the respondent did not provide details surrounding her responsibility. The respondent violated her probation in 1996 when she was charged with felony retail theft. She spent 3 days in detention and was given 20 hours of public service work. In January 1998, a rule to show cause was filed. The respondent was placed in detention based on reports from The Mill and Family Advocate of curfew violations, truancy, stealing her mother's car, and unsupervised contact with her brother. Finally, Johnson testified that although the respondent was guilty of serious probation violations, her behavior was generally good while she was in residential care. As such, Johnson had recommended successful discharge. However, the trial court did not terminate the respondent's probation successfully because the respondent, while still a minor, became pregnant twice while on probation.

The respondent testified as an adverse witness. Despite the adjudication of delinquency, the evidence of the admissions she had made in sex offender therapy, and the circumstantial evidence of her guilt, the respondent denied that she had smothered her baby cousin to death. She admitted violating her probation by stealing her mother's car, staying out all night, and not going to school. However, she refused to answer questions about the felony charges of retail theft. She testified that she did not know whether she intended to maintain her relationship with her husband. Her husband was in prison for causing multiple injuries to a three-month-old baby who was living with the respondent and her husband. The respondent was not sure if her husband had hurt the baby. Her husband told her that the baby was injured as a result of falling off the bed. Finally, she testified that she did what she could for the baby; she looked for the mother to get medical help for the baby. When she found the baby's mother, the mother did not want to take the baby to the hospital. Consequently, the respondent did not take the baby to the hospital until the next day.

Deborah McKinney, a DCFS investigator, testified that she had investigated the injuries to the three-month-old baby who was in the care of the respondent and her husband. McKinney received a call concerning the baby on September 17, 2002. After an investigation of the baby's injuries, her report indicated that the respondent's husband was responsible for several fractures to the baby, including a head fracture and a significant femur fracture. Her report was unfounded as to the respondent. Originally, McKinney had initiated a safety plan that barred the respondent from contact with her second child. McKinney testified that the respondent's second child, a boy, was under the guardianship of his paternal grandparents. However, the grandparents regularly allowed the respondent and her husband to provide care for their son. McKinney testified that the respondent complied with the safety plan and that contact between the respondent and her son was reestablished once the investigation was completed.

Paul White, a private clinical social worker on contract with DCFS who provided services to the respondent from September 1998 to October 2002, testified that the respondent successfully completed the residential treatment program at The Mill. Thereafter, the respondent was sent to Indian Oaks for further residential treatment. We note that this testimony contradicted the testimony of the respondent's probation officer, Brenda Johnson, who testified that the respondent was transferred to Indian Oaks because she was not progressing with the treatment at The Mill. Indian Oaks specializes in treating juvenile sex offenders and victims of sexual abuse. White further testified that his counseling with the respondent pertained to her visits with J'America and the stress associated with the petition to terminate her parental rights. His assessment of the respondent's maturity and parenting skills was positive. He believed that the respondent had sufficient counseling to prepare her to be a fit mother. Furthermore, based upon his extensive hours of counseling the respondent and seeing her interaction with J'America, White did not believe that the respondent posed a risk to children. On cross-examination, White acknowledged that the best indicator of the respondent's productivity as an adult was not what she had told her counselors but, rather, how she was actually living her life.

The respondent's grandmother testified that the night that the respondent's seven-month-old cousin had died, the respondent had carried him to her. At first he looked alright, but then she noticed that he was not breathing properly. The child had a history of breathing problems, so she called the paramedics. The grandmother testified that she was aware that the respondent had been a victim of sex abuse. The respondent started receiving counseling services two years before her cousin's death. Finally, she testified that she was not aware of any other incidents that would cause her to fear that the respondent would harm other children.

The respondent testified on her own behalf. She testified that she was the mother of J'America. She also testified that she had been sexually abused by a relative. The abuse started when she was six or seven years old and it occurred possibly more than 20 times. Following the death of her seven-month-old cousin, she lived in different placements, including detention, foster care, relative placement, home, and residential schooling. She was on probation until she was 18 years old. She believed that she had made a lot of progress since the death of her cousin, and she believed that she had provided the best for the three-month-old who was in her care. She testified that she had a support system in place and could thus provide proper care for her children. Finally, in ...

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