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In Re C.E. and R.E., Minors v. Charity E

December 3, 2010

IN RE C.E. AND R.E., MINORS
THE PEOPLE OF THE STATE OF ILLINOIS,
PETITIONER-APPELLEE,
v.
CHARITY E.,
RESPONDENT-APPELLANT.



APPEAL from the Lower Court and Trial Judge(s) in form indicated in margin: Circuit Court of Cook County; the Appeal from the Circuit Court of Cook County. Hon.___________, Judge Presiding. The Hon. Robert Balanoff, Judge Presiding.

The opinion of the court was delivered by: Justice Howse

FIFTH DIVISION

Appeal from the Circuit Court of Cook County. Honorable Robert Balanoff, Judge Presiding.

JUSTICE HOWSE delivered the opinion of the court: Respondent Charity E. appeals from an order of the circuit court finding her unfit as a parent as defined in sections 1(D)(b), (D)(g) and (D)(m) of the Adoption Act (750 ILCS 50/1(D)(b), (D)(g), (D)(m) (West 2008)), and pursuant to section 2-29 of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-29 (West 2008)), and terminating her parental rights to her minor children C.E. and R.E. Respondent contends the evidence failed to establish she was unfit and that section 1(D)(g) is unconstitutional as it violates her right to equal protection. For the reasons set forth below, we affirm.

BACKGROUND

Respondent is the biological mother of C.E., born on March 20, 2004, and R.E., born on June 28, 2006. Jasper J. is the father of C.E. and Keith B. is the father of R.E., neither is a party to this appeal.

Background of the Case for C.E.

On November 18, 2005, then 20-month-old C.E. was taken to Children's Memorial Hospital, where she was diagnosed with fractures of her right femur, left humerus, right radius, right middle finger, right ring finger and left radius. C.E. also had increased liver enzymes and her injuries were in various stages of healing. Medical testimony indicated that C.E.'s injuries were consistent with child abuse.

The trial court granted protective custody of C.E. to the Department of Children and Family Services (DCFS) on November 22, 2005.

On November 23, 2005, the State filed a petition for adjudication of wardship of C.E., alleging she was physically abused, at risk for substantial physical injury and neglected because she was in an injurious environment.

Respondent appeared in court and an assistant public defender was appointed to represent her. Jasper J., the putative father for C.E., was not notified and did not appear in court on that date. On March 9, 2006, the trial court found that Jasper J. was C.E.'s father.

On January 25, 2006, the State amended its petition for adjudication of wardship alleging that C.E. suffered multiple rib fractures, lower vertebrae fractures, and a spinal cord contusion and that respondent failed to seek medical treatment for the injuries.

On June 14, 2006, the State amended the petition alleging torture, based on the number and specifity of C.E.'s injuries, and that she was severely underweight.

On August 28, 2006, the trial court found that C.E. was physically abused, tortured, at substantial risk of physical injury and was in an injurious environment. The trial court also found that a parent inflicted the abuse and that it would be in C.E.'s best interest to be adjudicated a ward of the court.

The trial court conducted permanency planning hearings for C.E. on August 28, 2006; February 9, 2007; August 15, 2007; and May 15, 2008. At each hearing the trial court entered a goal for return home in 12 months and noted that respondent made some progress but there was a need for continued services.

Background of R.E.

On July 5, 2006, just a few days after her birth, R.E., was taken into temporary protective custody, after the State filed a petition for adjudication of wardship alleging that R.E. was at substantial risk of physical injury and was in an injurious environment. The public guardian was appointed as attorney and a guardian ad litem for R.E.

The trial court conducted an adjudicatory hearing for R.E. on June 1, 2007, and found R.E. was at substantial risk of physical injury because of the prior findings for her sister C.E. and that R.E.'s parents need to complete certain service requirements.

On May 15, 2008, the trial court conducted a dispositional hearing in R.E.'s case and found that based on the evidence presented, it was in her best interest to adjudicate her a ward of the court.

Permanency planning hearings were conducted on May 1, 2007, and on May 15, 2008. The trial court found that respondent was engaged in services and had made some progress.

On December 11, 2008, the trial court consolidated the children's cases for a permanency hearing and entered the goal of substitute care pending a court determination on the issue of termination of parental rights. The trial court found that respondent participated in some of the services but could not parent either child because both children had special needs.

Termination Hearing

On May 28, 2009, the State filed a termination motion for R.E. On June 23, 2009, the State filed a supplemental petition for appointment of a guardian with the right to consent to adoption for C.E. Each of the documents alleged that respondent failed to maintain a reasonable degree of interest, concern or responsibility for the children's welfare, failed to protect the girls, failed to make reasonable efforts to correct the conditions that were the basis for the children's removal from her care, and failed to make reasonable progress toward the return home of the children.

On February 2, 2010, a hearing on the termination of parental rights was held. The parties stipulated to respondent's July 13, 2006, conviction for endangering C.E.'s life and noted respondent's sentence of 18 months probation. C.E.'s medical records from St. Bernard Hospital and Children's Memorial Hospital were admitted into evidence over respondent's objection.

State's witness Dr. Emalee Flaherty, medical director of the protective service team at Children's Memorial Hospital, was certified as an expert in the fields of pediatrics and child abuse over respondent's objection. Dr. Flaherty testified that C.E. was evaluated by the protective service team in November of 2005. Dr. Flaherty testified that in the course of the evaluation, her team talked to treating physicians, interviewed family members, reviewed laboratory studies and viewed imaging studies and issued a written report.

Dr. Flaherty testified that C.E.'s fractured femur was very unusual and was of the type they typically observe in children with severe bone disease. Dr. Flaherty testified that respondent provided a history that the injury was the result of C.E. falling off an air mattress. Dr. Flaherty testified that respondent also provided in her history that C.E. had fallen off her bicycle three or four days before her visit to the hospital but continued to run and play.

Dr. Flaherty opined that a fall off an air mattress could not generate sufficient force to cause the fracture that C.E. suffered. Dr. Flaherty opined that C.E.'s femur was broken "straight across the bone, and that takes some kind of three-point bending mechanism," which she described as the same as putting a stick across your knee and breaking it. Dr. Flaherty opined that C.E. would feel extreme pain from the injury, particularly when her diaper was changed. She opined that the area would be tender and swollen and C.E. would not have been able to walk or crawl.

Dr. Flaherty testified that imaging testing revealed C.E. had a fractured left humerus, a large bone in the arm next to the shoulder, that was likely an old fracture. C.E. had a fractured right distal radius in the right forearm close to the wrist that was also described as an old fracture. Dr. Flaherty testified that C.E. had suspicious fractures in her middle and ring fingers. Dr. Flaherty opined that these type of fractures "are so unusual, and they're usually caused by child abuse at this age."

Dr. Flaherty testified that C.E. had five fractured ribs that were "old healing fractures" and "have high specificity for child abuse." Dr. Flaherty opined the most common mechanisms for this injury is for a child to be held and squeezed around the chest cage or from a direct blow. Dr. Flaherty testified that an MRI revealed that C.E. had spinal cord injuries as well.

Dr. Flaherty testified C.E. was extremely small for her age and ranked less than the fifth percentile in her weight category. She was actually more like an 11-month-old baby despite the fact she was 20 months old. Dr. Flaherty testified there was a concern C.E. was not being properly fed. C.E. also had a bruise on her left forehead and on her left cheek. C.E. had elevated liver enzymes that raises suspicions about internal injuries but none were detected.

Dr. Flaherty testified respondent offered an explanation for C.E. fractured right radius, stating that her boyfriend was locked in the closet with C.E., who was screaming. When C.E. came out of the closet she was holding her arm and respondent noticed a knot on the arm and put an Ace bandage on it. Dr. Flaherty testified respondent also stated that C.E. went for a ride in a limousine with her boyfriend one day and returned with swollen hands.

Dr. Flaherty testified that there is a bright area on C.E.'s distal tibia visible in a bone scan that is very suspicious. Dr. Flaherty testified that respondent stated that C.E. came home limping after she had gone out with her boyfriend in the late summer. Dr. Flaherty testified that respondent did not take C.E. to obtain medical attention for any of her injuries and did not have any explanation for C.E.'s rib fractures or spinal cord injury.

Dr. Flaherty opined to a reasonable degree of medical certainty that all of C.E.'s injuries were caused by "child physical abuse." Dr. Flaherty opined that respondent's failure to seek medical care for C.E. was medical neglect.

State's witness Jacqueline Moore, the Children's Home and Aid caseworker for C.E. and R.E. since April, 2008, testified that C.E. is now five years old and participates in speech therapy, occupational therapy and social work services.

Moore testified that R.E. participates in speech therapy, physical therapy and social work services at school. R.E. wears braces on her feet every other week and continues to need physical therapy to work on her walking issues.

Moore testified that respondent has never attended any of the girls' medical, dental, vision or hearing appointments.

Moore testified that respondent has never gone to any school meetings or appointments for either child. Moore testified that respondent has bus passes that permit her to attend these appointments without charge.

Next, Abbie Kelley, a psychotherapist and parent coach with Mary & Tom Leo and Associates, testified that she helps respondent to learn effective parenting skills to maximize her strengths. Kelley testified that she conducted four sessions with respondent and her daughters beginning in December 2008.

Kelley testified that respondent's ability to connect with her daughters and parent them decreased with time. Kelley testified that respondent was not particularly affectionate with the girls when she praised them. C.E. demanded more of respondent's attention while R.E. was more reserved and did not receive as much attention from respondent.

Kelley testified that at first respondent demonstrated some improvement but her own needs interfered and she could not sustain any gains. Kelley opined that respondent cognitively grasped her suggestions but "there was sometimes a disconnect between the application of the skills."

Kelley opined that respondent's largest inadequacy was the state of her own mental health and her inability to be truly emotionally present with her daughters. Kelley testified that respondent did not have a lot of energy and, in order to cope, became very focused on a task. Kelley testified that respondent could not simultaneously respond to the girls' emotional needs.

Kelley opined that respondent displayed evidence of underlying depression that interfered with her ability to connect emotionally and interpret her daughters' cues. Kelley opined that respondent needed to focus on her own issues in individual therapy in order to reach the point where she could be sufficiently emotionally available to benefit from parenting coaching.

On cross-examination, Kelley opined that respondent's reactive attachment disorder interfered with her ability to emotionally connect with the girls. Kelley opined that respondent was reacting to her children rather than being proactive with them and had trouble anticipating their needs. Kelley testified that she was concerned that respondent was easily overwhelmed when she had more than one child to parent at a time. Kelley opined that respondent could not successfully multitask by supervising one child and responding to the needs of another child. Kelley opined that respondent's coping and parenting skills did not improve. Kelley testified that her services ended in February 2009 without being completed.

On the second day of the termination hearing, the State's expert witness in clinical psychology, Dr. Neha Patel, associate coordinator of the Cook South Parenting Assessment Team from the Community Mental Health Council, testified that the caseworker referred her to the instant matter for an assessment in 2007.

Dr. Patel testified that respondent was diagnosed with reactive attachment disorder, inhibited avoidant type, with depressed features and is generally the result of suffering "gross neglect" as a child. Dr. Patel testified that it is a long-term diagnosis that results in a characterological way of relating to people. Dr. Patel opined that respondent fit into the category of "disengaged type two, based on her descriptions of her children as individuals." Dr. Patel opined that respondent could ...


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