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In Re J.Y v. Ashlee S

November 30, 2011


Appeal from the Circuit Court a Minor of the 10th Judicial Circuit, Peoria County, Illinois Circuit No. 10-JA-170 Honorable Richard D. McCoy, Judge, Presiding.

The opinion of the court was delivered by: Justice O'brien

JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

Justice McDade concurred in the judgment and opinion.

Justice Holdridge specially concurred, with opinion.


¶ 1 The State filed a juvenile neglect petition against respondent Ashlee S. concerning her son, J.Y. A neglect finding was entered, and the trial court found Ashlee unfit and appointed the Department of Children and Family Services (DCFS) guardian of J.Y. Ashlee appealed. We affirm.


¶ 3 The State filed a petition alleging neglect of J.Y., a minor. The petition stated that J.Y.'s environment was injurious to his welfare because: (1) between May 31, 2010, and June 2, 2010, the minor's leg was fractured and the injury could not have occurred absent abuse and/or neglect by respondent Ashlee S., the minor's mother, and/or the father; (2) the minor's father was previously found unfit in two separate cases in another county without a subsequent finding of fitness; (3) the minor's father had a criminal history; (4) the minor's father has a substance abuse problem; and (5) Ashlee and the minor's father were previously indicated for risk of harm by DCFS on two separate occasions. Ashlee and the minor's father stipulated to evidence supporting allegations (2), (3), and (5). A shelter care hearing took place and the trial court entered an order placing the minor in temporary custody of DCFS.

¶ 4 DCFS consented to a examination of the minor and authorizing the Pediatric Resource Center (PRC) to evaluate the minor for child abuse or neglect. DCFS provided its investigative reports and the minor's medical records to PRC. The information was then forwarded to Channing Petrak, a doctor on staff at PRC. The information disclosed that on June 1, 2010, the minor was taken to the hospital, where he was diagnosed with a fracture of the right tibia. The information also disclosed that Ashlee had stated that J.Y. was injured on May 31, 2010, when the family dog jumped on him. Petrak's notes reflect that on June 1, 2010, she examined J.Y. personally and reviewed his vital signs, lab results, and radiology report. After reviewing her own notes and the information provided by DCFS, Petrak drafted a letter dated July 14, 2010, that set forth her impressions on J.Y.'s injury. She opined that it "is not plausible that [the minor's] leg was fractured early on May 31, 2010, yet [the minor] showed no signs of pain until the night of May 31, 2010 or morning of June 1, 2010." Petrak stated that the minor's injury as a fracture is not typically seen with accidental injury but is associated with "non-accidental trauma" and is "highly suspicious for abuse." The letter explains that the shearing force associated with similar fractures can occur due to holding and shaking an infant by the chest with the limbs whiplashing back and forth. Petrak acknowledged that J.Y.'s CT head scan and MRI were normal. The letter further provides that the history Ashlee gave was not consistent with the minor's injury. In Petrak's opinion, J.Y.'s fracture is "most consistent with inflicted trauma."

¶ 5 At an adjudicatory hearing on August 9, 2010, Peoria detective Marilyn Robinson testified that on June 2, 2010, she was called to St. Francis Hospital (OSF), where she spoke with DCFS representatives. She observed J.Y. and did not see any bruising or swelling on his leg. She interviewed J.Y.'s parents. The father told Robinson that on the afternoon of May 31, 2010, he and Ashlee were taking J.Y to his grandmother's house. Ashlee was in the front passenger seat of the father's truck and J.Y.'s father put him in the backseat. He heard J.Y. crying and noticed that the dog had jumped into the car and on J.Y. Ashlee told Robinson that J.Y. cried a little but she did not see any marks or blood on him. After returning from the grandmother's house around 9 p.m., J.Y. was fussy. Because he was pulling his legs up to his stomach, Ashlee thought J.Y. had a stomach ache. She gave him peppermint water and he slept through the night. When he woke up, J.Y. again began pulling his legs up to this stomach. He started crying when his father touched his leg so they took J.Y. to the hospital. Robinson went to J.Y.'s house and observed a large dog, weighing between 100 to 115 pounds.

¶ 6 The State moved for the admission into evidence of the certified records of OSF and the PRC. Ashlee objected to the admission of the PRC records, particularly the July 14, 2010, letter from Petrak, which she argued was a document prepared in anticipation of litigation. The trial court sustained Ashlee's objection to the July 14 letter. The trial court thereafter entered an order vacating its original ruling on the letter and admitted it into evidence. The trial court stated:

"It has *** come to the court's attention that Peoria County JA court stare decisis exists allowing the admission of the subject PRC's writing, for it has been an established practice in this court (at least for the immediately preceding three judges presiding in the JA court) that PRC written reports are admissible under section 2-18. The rationale is that the report is made shortly after the occurrence in the ordinary course of the PRC's business of providing diagnosis, as contemplated by section 2-18. Somewhat superfluously, it is believed that one or more unpublished, Rule 23 Third District rulings support that established practice, but none has actually been produced to date.

The evidentiary ruling is accordingly vacated, and conversely, the writing is admitted into evidence. There is no need for the prosecution to produce the author or establish additional foundation."

ΒΆ 7 The adjudicatory hearing resumed and Ashlee testified. She stated that she saw her 100-pound dog run from the front of the house and jump in the open door of the truck and onto J.Y.'s car seat. Ashlee believed that the dog thought it was going for a car ride, which it had done before. Both of the dog's front paws landed on J.Y.'s right leg. She took him out of his car seat, looked him over and did not see any marks or bruises. Ashlee "shushed" the minor until he calmed down about five minutes after the incident. She checked J.Y. throughout the day but never saw any bruising. After they returned home, J.Y. slept for 10 hours but woke up screaming. She ...

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