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In re Austin W.

January 21, 2005

IN RE AUSTIN W., A MINOR
(TIMOTHY D. BERKLEY, GUARDIAN AD LITEM, APPELLEE,
v.
THE ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLANT (ROSEMARY FONTAINE, APPELLANT)).



The opinion of the court was delivered by: Chief Justice McMORROW

PUBLISHED

Docket Nos. 97531, 97580 cons.-Agenda 29-September 2004.

Timothy D. Berkley, guardian ad litem (GAL) for Austin W., an abused minor, filed a motion in the juvenile division of the circuit court of Madison County to modify the dispositional order which placed Austin W. in the custody and guardianship of the Illinois Department of Children and Family Services (DCFS). DCFS and Rosemary Fontaine, Austin's foster mother, opposed the motion. After a hearing, the circuit court modified the dispositional order, removing DCFS as the custodian guardian and placing Austin in the custody and guardianship of his maternal grandfather and stepgrandmother, William and Wendy Ward (the Wards).

DCFS and Fontaine appealed the circuit court's decision. The appellate court affirmed the lower court's order. No. 5-02-0390 (unpublished order under Supreme Court Rule 23). We granted petitions brought by DCFS and Fontaine for leave to appeal to this court. 177 Ill. 2d R. 315. The appeals have been consolidated for our review.

BACKGROUND

Austin's mother, B.W., first came to the attention of DCFS in April of 1996, when Austin's siblings, Chelsea H. and Nicholas W., were taken into protective custody because Chelsea, who was then seven months old, had cuts, bruises, and welts. The children were adjudicated abused and placed in foster care. The children were returned to B.W. in September 1996, but came back into care in May 1997, when the children were again found to be abused and neglected by B.W. due to risk of harm, medical neglect and inadequate supervision.

B.W. gave birth to a second daughter, Casey W., on August 24, 1997, and she, too, was taken into custody by DCFS. The record shows that Casey and Chelsea were in several foster homes before they eventually were placed with the maternal grandfather and step-grandmother, William and Wendy Ward.*fn1 Nicholas remained in foster care until January 1998, when his biological father gained custody of him.

On May 27, 1999, B.W. surrendered her parental rights to all of her children. B.W. signed a "final and irrevocable surrender to an agency for purposes of adoption of a born child,"giving DCFS the power to consent to Chelsea's adoption. With regard to Casey, however, B.W. entered into a private guardianship agreement with her father and stepmother, William and Wendy. Nicholas remained with his biological father.

It is against this backdrop that Austin W. was born on June 25, 1999. Austin was taken into protective custody upon his release from the hospital due to "risk of harm." After a shelter care hearing, DCFS was awarded temporary custody of Austin. See 705 ILCS 405/2-10 (West 2000). DCFS then filed a petition alleging that Austin was an abused minor based on risk of physical harm due to the fact that B.W. had four prior indicated reports of abuse. It was also noted in the petition that B.W. had surrendered her parental rights to her other children after it was determined that she had failed to make reasonable progress and failed to correct the conditions that led to the children's removal. Although Austin was initially placed in a non-relative foster home, in August 1999, he was placed in foster care with the Wards, where his two sisters were living.

In October 1999, Central Baptist Family Services (Central Baptist), a private agency under contract with DCFS, became the service providers for Chelsea and Austin. Lisa Dulski, an employee of Central Baptist, was the caseworker whose job it was to monitor the foster care placement of Austin and Chelsea with the Wards.

An adjudicatory hearing (see 705 ILCS 405/ 2-14, 2-18, 2-21 (West 2000)) for Austin was held in November 1999, at which time B.W. stipulated to the allegations in the abuse petition. Accordingly, Austin was adjudged an abused minor. On January 12, 2000, a dispositional hearing was held. See 705 ILCS 405/2-22 (West 2000). At this hearing, it was determined that it was in Austin's best interests that he be made a ward of the court and placed in the custody and guardianship of DCFS. A permanency goal of "return home within one year" was set to give B.W. an opportunity to demonstrate her ability to adequately care for Austin.

A little over two months later, on March 28, 2000, William Ward took Austin to Provena St. Joseph's Hospital after the Wards noticed a "soft spot" on the side of nine-month-old Austin's head. At the hospital, Austin was first seen by his primary physician, Dr. Alcala, who ordered that Austin have a skull X ray. The hospital contacted Lisa Dulski to obtain consent for medical treatment. In this way, Lisa first became aware that Austin had been injured.

The skull X ray taken at St Joseph's Hospital was deemed "unremarkable." The Wards were told to treat the "soft spot" first with ice packs, then with heat, and to follow up with their physician in one week. At 8:30 that evening, Wendy spoke to Lisa Dulski. Although Wendy said that Austin was not fussy or crying, had no fever, and was not vomiting or showing signs of pain or discomfort, Wendy expressed concern because the spot appeared to be getting larger. Wendy told Lisa that the only time she could remember Austin hitting his head was the morning of the day before, when she was giving him his bath. Wendy said that, after wrapping Austin in a towel, she hit Austin's head on the corner of the vanity as she stood up. She noted, however, that the "soft spot" was not in the same location as where his head struck the vanity.

The next morning, on March 29, 2000, Wendy contacted Lisa and informed her that she had discovered a sore or blister in Austin's mouth. It was decided that Austin should be reevaluated. Because William was at work and Wendy was caring for Austin's siblings, Lisa agreed to transport Austin to Silver Cross Hospital for a second opinion.

At Silver Cross Hospital, Austin's outward appearance did not suggest that his injury was severe. Upon examination, however, it was determined that he had a fever of 101 degrees and a sore in the back of his throat. He was evaluated for bruises, though none were found. Austin's blood and urine were tested and he received a CAT scan. The CAT scan revealed a skull fracture toward the back left side of Austin's head. According to the physician, it was unlikely that the fracture could have resulted from striking the child's head on the vanity because there was no bruise and because a skull fracture would require a much greater impact. The physician at Silver Cross recommended that Austin be seen by a neurosurgeon at Children's Memorial Hospital in Chicago so that the fluid in the "soft spot" could be analyzed.

On the evening of March 29, 2000, the Wards took Austin to Children's Memorial, where a second CAT scan was performed. While at the hospital, the Wards met with the hospital's social worker, Sarah Mass. Wendy told Sarah that she and William had been the sole and exclusive care providers for Austin over the past several days and that she did not know how or when Austin was injured.

On March 30, Sarah Mass spoke with Lisa Dulski and informed her that the hospital wanted to conduct a bone scan on Austin to determine whether there were any additional fractures or signs of injury. An appointment was made for April 3, 2000. In addition, because of the unexplained nature of the skull fracture, Sarah felt that a safety plan should be implemented until Austin's next evaluation. If Austin was to remain with the Wards, the Wards should have another adult in the home with them at all times.

Lisa contacted the Wards and explained the situation. Initially, the Wards agreed to cooperate with the suggested safety plan. However, they later changed their minds. Unhappy with Children's Memorial and the implication that they had abused Austin, Wendy asked Lisa if they could take Austin to some other medical facility. Lisa, who apparently agreed that the safety plan suggested by Children's Memorial was unnecessary, contacted Healthworks (a health care management program for DCFS wards) on March 31, 2000, to obtain a recommendation for another physician. A Healthworks nurse, Jackie Bickle, spoke with Lisa about Austin's condition and provided her with some physicians' names. However, based on the injuries, the Healthworks nurse also insisted that Lisa call the hot line to make a report of "suspected abuse, unknown perpetrator." After checking with her supervisor, Lisa called the hot line and made the report. Children's Memorial also called the hot line after Sarah Mass learned that the Wards were refusing to comply with the safety plan and would not bring Austin in for further testing.

On the evening of March 31, 2000, in response to the hot line reports, DCFS removed Austin and his two sisters from the Wards' home. On April 4, 2000, a shelter care hearing was held. Austin's sisters were returned to William and Wendy on the condition that they agree to a safety plan which involved regular announced and unannounced visits to the home. Austin, however, was placed with a maternal aunt, Andrea, and the Wards were to have no contact with him.

On April 6, 2000, Austin was admitted to Children's Memorial for further testing and overnight observation. The bone scan revealed that Austin had a healing fracture in his right leg (tibia). The scan indicated that the fracture was between one and three months old. Dr. Flaherty examined Austin and discovered a linear bruise on his left leg that appeared to be about one week old.

Based on this additional information, Austin's sisters were, once again, removed from the Wards' home on April 12, 2000. Austin was removed from the aunt's home and placed in the foster home of Rosemary Fontaine. The girls were examined for bruises, though none were found. Chelsea reported, however, that Wendy used corporal punishment (spanking) on both her and Austin. Further, Chelsea said that when Wendy disciplined Austin, Wendy would take Austin into the bedroom and close the door. If Chelsea asked Wendy what she was doing, Chelsea was told to "mind her own business."

Chelsea and Casey remained in non-relative foster care until May 18, 2000, at which time they were returned to the Wards on the condition that the Wards comply with "rules of supervision" for one year, without an admission of abuse.

In July 2000, Austin's putative father filed a denial of paternity and a consent to Austin's adoption.

On September 29, 2000, DCFS completed its investigation with regard to the report of suspected child abuse of Austin by the Wards. DCFS "indicated" the report, meaning that DCFS found that there was "credible evidence" that the Wards had abused Austin. See 325 ILCS 5/3 (West 2000). Soon after, the Wards filed an administrative appeal. A hearing was held before an administrative law judge (ALJ) to determine whether the indicated finding should be expunged. See 325 ILCS 5/7.16 (West 2000). The administrative hearing took place on several dates throughout 2001-January 23, January 24, April 3, April 5, August 29, September 17, October 15, October 18, November 7, December 3 and December 17. Transcripts were received on January 4, 2002, and the record was closed on January 11, 2002, after the Wards elected not to file a surreply. It should be noted that, in her opinion, the ALJ explicitly held that the Wards' due process rights were not violated by the extended review process because: (1) the Wards' attorney failed to appear on the first scheduled hearing date, (2) the Wards' attorney requested and agreed to several continuances based on his own availability and the availability of his witnesses, and (3) in April 2001, when the hearing was nearly completed, the Wards dismissed their attorney and hired new counsel, who disclosed new witnesses and requested additional continuances to accommodate those witnesses' schedules.

While the administrative hearing progressed, DCFS continued to work with B.W., Austin's mother. B.W., however, stopped attending counseling and failed to contact the caseworker. She had no visitation with Austin for several months. Consequently, DCFS petitioned to terminate B.W.'s parental rights to Austin. A finding of unfitness was entered February 8, 2001. In light of that finding and the putative father's denial of paternity and consent to Austin's adoption, the court entered an order on May 18, 2001, holding that it was in Austin's best interests to terminate the parental rights of both the mother and putative father. The dispositional order was modified. Austin was to remain a ward of the court and DCFS was to remain the guardian; however, DCFS was now given the power to consent to Austin's adoption. A permanency hearing was held in June 2001, at which time the court approved the permanency goal set by DCFS of adoption by Austin's current foster mother, Fontaine. At a subsequent permanency hearing in December 2001, the same goal was approved by the court. Berkley was present at both of these hearings.

On January 25, 2002, the ALJ issued her written recommendation and opinion. The ALJ ruled that a preponderance of the evidence supported the indicated finding by DCFS as to allegation No. 2 (skull fracture), allegation No. 9 (bone fracture), and allegation No. 22 (substantial risk of physical injury). By letter dated April 4, 2002, the Director of DCFS notified all interested parties that the decision of the ALJ had been adopted as the final administrative decision of the Department. The Wards then sought judicial review under the Administrative Review Act, as provided by statute. 325 ILCS 5/7.16 (West 2000).

On March 6, 2002, after the ALJ issued her recommendation, but before the Director of DCFS adopted the recommendation as the final decision of the Department, Timothy Berkley, who had been Austin's guardian ad litem since at least November 1999, filed a petition in the circuit court of Madison County, seeking to modify the January 12, 2000, dispositional order which placed Austin in the custody and guardianship of DCFS. Berkley asked that custody and guardianship of Austin be awarded to Austin's grandfather and stepgrandmother, William and Wendy Ward, and that they be permitted to adopt Austin "without delay."

Hearing on Berkley's motion was taking place when the Director adopted the ALJ's recommendation. The circuit court of Madison County was made aware of DCFS's final determination on the abuse report. Nevertheless, on May 30, 2002, the court granted Berkley's motion, terminated DCFS's guardianship of Austin, and placed him in the custody and guardianship of William and Wendy Ward.

In its written ruling on the motion, the Madison County circuit court acknowledged the ALJ's decision, but held that it was not bound by it. Moreover, the court held that the ALJ's decision and the decision of the Director "are not considered substantive evidence." The Madison County circuit court heard no expert medical testimony and simply reviewed the medical testimony presented to the ALJ. Despite this fact, the circuit court reached conclusions opposite to those reached by the ALJ regarding the credibility of the expert medical witnesses and, contrary to the ALJ, concluded: "In ...


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