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Asia Slater v. the Department of Children and Family Services and Erwin Mcewen

June 17, 2011

ASIA SLATER, PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND ERWIN MCEWEN, AS DIRECTOR OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 09 CH 29198 Honorable Martin S. Agran, Judge Presiding.

The opinion of the court was delivered by: Justice Robert E. Gordon

FIRST DISTRICT

JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Presiding Justice Garcia and Justice McBride concurred in the judgment and opinion.

OPINION

Defendant, the Illinois Department of Children and Family Services (DCFS), entered an indicated finding of neglect against 17-year-old plaintiff Asia Slater in the State Central Register, based on an incident in which Asia's 7-month-old daughter fell on a colored pencil that Asia was using for a school art project, piercing her neck and puncturing her lung. Asia contested the indicated finding of neglect, seeking to have the finding expunged. After a hearing before an administrative law judge (ALJ), the ALJ determined that the preponderance of the evidence supported a finding of neglect. The ALJ recommended denial of Asia's expungement request. Defendant Erwin McEwen, Director of DCFS (Director), adopted the ALJ's recommendations and entered a final administrative decision denying Asia's request for expungement and ordering the indicated finding of neglect to remain in the State Central Register for five years. Asia sought administrative review in the circuit court, and the circuit court confirmed the Director's decision. Asia appeals, arguing: (1) the ALJ erred both in its factual findings and its decision that Asia was neglectful and (2) DCFS failed to sufficiently preserve the record of the administrative proceeding. We reverse.

BACKGROUND

The underlying facts in this case are not in dispute. On November 30, 2008, Asia was a 17-year-old high school student. She was the mother of a seven-month-old girl, N.S., and was N.S.'s primary caregiver. The two lived with Asia's mother, Lisa Slater. Asia was at her home working on an art project for school, which included the use of colored pencils. While Asia was working on her project, N.S. was in the same room, several feet away. At some point, N.S. took one of Asia's colored pencils from the coffee table where Asia was working. N.S. fell and the colored pencil pierced her neck. Asia took N.S. to the emergency room, where doctors discovered that the pencil had penetrated approximately three inches and had punctured the lining of N.S.'s lung.

After an investigation, DCFS notified Asia on or about February 20, 2009, that it was indicating a report of "Wounds by Neglect" against her. Before the pencil incident, there had been no prior indicated reports in the Child Abuse and Neglect Tracking System and there were no convictions in the Law Enforcement Agency Data System against Asia. On April 7, 2009, Asia filed an appeal of the indicated finding. On June 8, 2009, DCFS's administrative hearing unit conducted a hearing on Asia's appeal.

At the hearing, Asia testified that she was born on July 18, 1991, and that she gave birth to N.S. when she was 16 years old. On November 30, 2008, Asia was 17 and N.S. was 7 months old. Asia lived with her mother, Lisa, and attended high school. Asia was N.S.'s primary caregiver, but Lisa assisted in N.S.'s care. Asia attended parenting classes daily, including some on Saturdays, and had been doing so prior to N.S.'s birth. In her classes, she learned about how children develop and, in preparation for N.S.'s birth, Asia placed items "high" so that they would be inaccessible to a child.

As of November 30, 2008, N.S. was able to crawl and "cruise." Asia described cruising as learning to walk by standing and pulling herself along furniture, such as a coffee table. N.S. had been cruising for "a little while" but was unable to walk without supporting herself. N.S. was also able to pick up objects, such as toys, but was unable to feed herself. N.S. was verbal, saying words such as "ma-ma" but mostly "babbling." N.S. was unable to call for help in an emergency.

On November 30, 2008, Asia was working on an art project for school on the coffee table in her living room, sitting on the floor; she "had colored pencils out, [and] coloring books." Asia kept the colored pencils on the floor or on the table near her. N.S. was sitting at the opposite end of the table on the floor. N.S. was always in Asia's sight, no more than a few feet away. While Asia was working on her homework, N.S. was pulling herself up on the table "a lot."

N.S. obtained one of Asia's colored pencils. When asked how N.S. obtained the pencil, Asia testified, "Well, I didn't know that. I was cleaning up, so I don't know exactly what happened." Asia testified that "I was putting -- and I looked over and I noticed that [N.S.] had done that, and I went over to her." N.S. was "[n]ot too far" from Asia and wanted to come to Asia. N.S. fell and coughed, but did not cry. When Asia picked N.S. up, she noticed a colored pencil sticking out of N.S.'s neck; the flat end was sticking out, and the pointed end was inside N.S.'s neck. The pencil was a "regular" baby blue lead pencil, approximately the length of a pen. Asia had used the pencil earlier during her project and the tip of the pencil was "dull." N.S. was not having trouble breathing, but was coughing, and the wound was not bleeding. Asia "called out" to Lisa, who was in the bedroom taking a nap. Asia testified that after N.S. was hurt, "I didn't realize that that had happened. So I called 911, but I was pretty upset." The 911 operator was unable to understand her, so Asia had Lisa complete the phone call. N.S. was taken to Stroger Hospital with the pencil still in her neck. The pencil was removed, but N.S. required hospitalization for five days. N.S. had a punctured lung and a permanent scar from the wound.

When asked why she left pencils out with N.S. present, Asia testified that she was keeping the pencils close, working on her project. She took precautions of having N.S. at the opposite end of the room and kept N.S. in her sight; Asia acknowledged that she did not actually observe N.S. taking the pencil and admitted that she should have known better than to have the pencils out where N.S. would have access to them.

Dennis Bishop, a child protection investigator with DCFS, also testified on behalf of DCFS. He investigated the incident along with Josey Faulkner, another child protection investigator. Bishop observed N.S. on February 16, 2009, approximately six weeks after the incident, at Asia's home. Bishop testified that N.S. had a small mark from the pencil and appeared to be appropriately dressed and smiling. Bishop testified that he spoke to Asia on that occasion. She told him that on the day of the incident, she was sitting in the living room doing schoolwork. N.S. was cruising on the table, fell to the floor, and leaned to the side, at which point the pencil lodged in her neck. Asia told Bishop that the pencil was on top of the coffee table and that N.S. "somehow grabbed it."

Bishop also testified that after the investigation, a report was issued containing an indicated finding for "Allegation No. 57," which was an indication for neglect. Bishop testified that in order to indicate someone for neglect, it needed to be shown that the minor's injuries were a direct result of the perpetrator's neglectful acts. In Asia's case, Bishop testified that "we felt that they failed to protect the minor by failing to insure that there [were] [no] object[s] that the minor could grasp. And so she was indicated. Had the mother prevented that, then the minor would not have had that accident." Bishop opined that Asia was blatantly disregarding her parental responsibilities because she was aware that N.S. was physically able to cruise and it was not the first time that N.S. had cruised; he opined that "[n]atural mother should have been able to make sure that there were no objects where the minor could harm herself" and that the situation was inevitable.

Lisa, Asia's mother, testified on Asia's behalf. Lisa testified that Asia was a "great mom" and educated herself about being a parent. Lisa testified that Asia kept sharp objects and small objects away from N.S. and locked away cleaning fluid and other items in a cabinet. Lisa testified that on the day of the incident, she was in bed, sick with the flu. She heard a noise and asked if everything was all right. When she received no response, she left her bed and observed Asia holding N.S. and saying that everything was fine. Lisa went back to bed but after a few seconds, Asia told Lisa that " '[s]omething's wrong with the baby.' " Asia ran toward Lisa, saying that N.S. was unable to breathe, and gave N.S. to Lisa. Lisa assumed that N.S. had something in her throat and attempted the Heimlich maneuver, which was unsuccessful. Asia told Lisa that N.S. had something in her neck; when Lisa turned N.S., she observed a pencil embedded in her neck. N.S. was breathing, not crying, but appeared "very grayish-pale." N.S. never lost consciousness, but appeared to be "getting a little bit ...


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