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In Re Juan M. and Kihara M., Minors v. Juan Carlos M

April 23, 2012

IN RE JUAN M. AND KIHARA M., MINORS
RESPONDENTS-APPELLEES
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
JUAN CARLOS M.,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County. Nos. 11 JA 183 11 JA 184 Honorable Griffin Maxwell, Jr. Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

Presiding Justice Hoffman and Justice Karnezis concurred in the judgment and opinion.

OPINION

¶ 1 On September 30, 2011, the trial court found nine-month old Juan M. to be: (1) physically abused; (2) abused due to a substantial risk of physical injury; and (3) neglected due to an injurious environment, pursuant to the Juvenile Court Act of 1987 (hereinafter, the Act) (705 ILCS 405/2-3(2)(i), (2)(ii), (1)(b) (West 2010)). The court also found Juan's older sister, 28-month-old Kihara M., to be neglected due to an injurious environment. After making these adjudicatory findings, the trial court held a dispositional hearing and found both parents (hereinafter, Mr. and Mrs. M.) unable to care for Juan and Kihara. Juan and Kihara were made wards of the court and placed under Illinois Department of Children and Family Services (hereinafter, DCFS) guardianship. Both parents timely appealed the trial court's adjudicatory and dispositional orders. This court consolidated both appeals on November 17, 2011 (No. 1-11-3096 (Mr. M.) and No. 1-11-3192 (Mrs. M.)). On December 29, Nos. 11-3096 & 11-3192 (consolidated) 2011, Mrs. M.'s attorney, the public defender of Cook County, filed a motion to withdraw as counsel on appeal pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). We took the Finley motion with the case. On Mr. M.'s appeal, we affirm the trial court's adjudicatory and dispositional orders on the basis that the trial court's findings were not against the manifest weight of the evidence. On Mrs. M.'s appeal, we grant the Finley motion and affirm on that basis.

¶ 2 Mr. and Mrs. M. are married and are the biological parents of Juan, born on December 13, 2010, and Kihara, born on May 11, 2009. Juan and Kihara came to the attention of DCFS on March 11, 2011, when Mr. and Mrs. M. took Juan to the emergency room at Westlake Community Hospital (hereinafter, Westlake) after Juan had trouble feeding and then became unresponsive. Upon transfer to Loyola University Medical Center (hereinafter, Loyola), he was diagnosed with two skull fractures and had bruising on his face. When Mr. and Mrs. M. could not explain his injuries, a hotline call was placed to DCFS, and a child-abuse and neglect investigation ensued.

¶ 3 On March 24, 2011, the State filed motions for temporary custody and petitions for adjudication of wardship for both Juan and Kihara. The State's adjudication petition alleged that on March 11, 2011, Juan was diagnosed with a skull fracture and had two bruises on his face. Mr. and Mrs. M. had no explanation for the injuries. Because of Juan's age and lack of mobility, and the seriousness of his injuries, medical personnel were concerned "that there is no explanation as to how he was injured." The adjudication petitions for both Juan and Kihara alleged abuse due to substantial risk of physical injury, and neglect due to an injurious environment. On March 24, 2011, the trial court placed both children in DCFS temporary custody.

¶ 4 On May 4, 2011, the State moved to amend the adjudication petitions and requested the Nos. 11-3096 & 11-3192 (consolidated) following sentence be added: "Medical personnel state that [Juan's] injuries are consistent with injuries suffered by non-accidental means." The State requested a count of physical abuse for Juan. The trial court allowed the amendment to the petitions.

¶ 5 Doctor Maria Conchita Tuason was called as a witness at the adjudicatory hearing. Doctor Tauson was the primary care physician for Juan from his birth to DCFS involvement. Juan was born premature at 35 weeks. At birth he weighed 5.6 pounds and suffered from respiratory distress and hyperbilirubinemia (jaundice), which resolved soon after his birth. He was released from the hospital on December 24, 2010. On December 28, 2010, Mrs. M. brought Juan to Doctor Tuason's office for a follow-up examination. Doctor Tuason noted Juan was doing well. On January 6, 2011, Mrs. M. again brought Juan to Doctor Tuason's office for a physical examination. Doctor Tuason had no concerns about Juan's well-being at that time.

¶ 6 On January 13, 2010, Mrs. M. brought Juan to Doctor Tuason because he had a cold. Doctor Tuason noted Juan had some nasal congestion with mucus, "but nothing more significant than that." Juan weighed 7 pounds, 10 ounces on that visit. On March 7, 2011, Mrs. M. brought Juan to Doctor Tuason for his scheduled vaccines. At that visit, Juan weighed 13 pounds. Doctor Tuason noted he had "some mark on the bitemporal area. It [was] blackish in color." Doctor Tuason also testified Juan had a bracelet on his arm and was concerned that it presented a choking hazard.

¶ 7 During all of Juan's visits with Doctor Tuason, Kihara was present. Doctor Tuason described Kihara as a "regular one-and-a-half-year-old child, very interested in a lot of things." Doctor Tuason told Mrs. M. to closely supervise Kihara when she was around Juan because Kihara was very active and "pulling a lot of things from anywhere." Doctor Tuason had no other concerns about Juan.

¶ 8 The assistant State's Attorney showed Doctor Tuason the bracelet that Juan wore, and Doctor Tuason agreed it was "roughly three to four inches in circumference with *** small beads around that circumference." There was another larger bead attached to the bracelet. On cross-examination by the assistant public guardian, Doctor Tuason testified she saw Juan, prior to his head injuries, on December 28, 2010, January 6 and 13, 2011, and March 7, 2011. Doctor Tuason never saw Juan's head injuries when he was at Loyola.

¶ 9 The trial court asked Doctor Tuason about her testimony that she noticed a black discoloration on Juan's temple on March 7, 2011. She assessed that mark and testified there was not any surrounding swelling, so she did not think the mark was due to trauma.

¶ 10 Moises Cruz, the DCFS worker who investigated the abuse allegations, testified his investigation began on March 11, 2011, when DCFS received a hotline report that Mr. and Mrs. M. had brought Juan to the hospital with a "bump on the head, old bruises on the left side of the face." Mr. Cruz went to Mr. and Mrs. M.'s home on March 11, 2011, and first spoke with Mr. M. alone. Mr. M. told Mr. Cruz that at about 12:30 a.m. on March 11, 2011, he lifted Juan from a swing-chair to give him some milk, and he noticed that milk was coming out of Juan's nose. Mr. M. passed Juan to the mother, and at that point Juan became unresponsive. They took him to the hospital.

¶ 11 Mr. Cruz also spoke alone with Mrs. M., who said she would never harm Juan and that she had no explanation for his injuries. Neither parent gave any explanation for Juan's injuries.

¶ 12 After Mr. Cruz spoke with the parents separately, he spoke with them together, along with the children's grandparents, who also lived in the home. Mr. Cruz explained the nature of Juan's injuries, the abuse allegations, and that Kihara would not be able to remain in the home. Kihara was placed in DCFS protective custody that day, and Juan was put in protective custody when he was released from the hospital, on March 22, 2011.

¶ 13 Doctor Mary Jones testified she is a general pediatrician and child-abuse specialist at Loyola and had worked there for the last seven months. The trial court admitted Doctor Jones's curriculum vitae. Doctor Jones graduated from the University of Illinois Medical School in 1997 and did her residency in general pediatrics at Advocate Christ Hospital from 1997 to 2000. She is licensed to practice medicine in Illinois and board certified in pediatrics. Doctor Jones is an assistant professor of pediatrics at Loyola and is the physician representative of the child advocacy team at Loyola, where she is responsible for all child-abuse and neglect consultations. She is a fellow at the American Academy of Pediatrics, and a member of the child-abuse and neglect section there. From October 2009 to February 2011, Doctor Jones worked for Aunt Martha's Youth Services and Healthcare, coordinating medical care for DCFS-involved children, and evaluating children for abuse and neglect. From 2007 to 2009, she worked as a pediatrician at Children's Hospital in Wisconsin. From 2004 to 2007, she worked for Advocate Christ Medical Center in Oak Lawn, supervising residents and coordinating care for medically complex children.

¶ 14 Doctor Jones testified that in her current position as a child-abuse specialist and co-director of the child advocacy team at Loyola, her job is to evaluate children who are suspected victims of abuse and neglect. Over the course of her career, she has consulted on thousands of pediatric cases and on over 100 cases involving suspected abuse or neglect. Doctor Jones has testified 5 to 10 times in court and previously has been qualified as an expert in pediatrics and child-abuse pediatrics.

¶ 15 On voir dire by Mr. M., Doctor Jones could not quantify the number of cases she had consulted on involving only neglect or involving skull fractures, but a month before, she consulted on a case involving a skull fracture and suspected child abuse. Doctor Jones did not know if she has ever been qualified as an expert on "child abuse pediatrics involving skull fractures." On inquiry from the court, she testified she would be eligible in 2013 to take the board exams for certification in the subspecialty of child-abuse pediatrics.

¶ 16 Over Mr. M.'s objection, the trial court admitted Doctor Jones as an expert in pediatrics and child-abuse pediatrics.

¶ 17 Doctor Jones testified that on March 11, 2011, she was called for a consult from the pediatrics team when Juan presented with injuries that were "concerning for non-accidental trauma." She examined three-month-old Juan and noted he had a swollen scalp on the left side and a two-centimeter bruise on his left cheek. The trial court admitted photographs of Juan's face, taken by Doctor Jones, when she examined him. Doctor Jones testified the photographs showed a bruise on Juan's cheek, underneath his left eye, but did not show the swelling on his scalp, due to his dark hair. Juan's soft-tissue swelling on his scalp was caused by trauma.

¶ 18 Doctor Jones reviewed Juan's CT scan from Westlake, taken before he was transferred to Loyola, which showed Juan had a left-parietal skull fracture and an occipital fracture with a small depression. The parietal bone covers the top and the upper half of the skull.

¶ 19 Doctor Jones testified that skull fractures are always caused by trauma, and two types of force can cause a fracture. One type is static force, which is compression that can happen over a period of time, such as when an infant's skull is compressed in the birth canal during birth. The second type of force is dynamic, where, typically, the head is stationary and something hits the head, or the head is moving and hits a stationary object. There was no way to tell whether Juan's skull fractures were caused by static or dynamic force.

¶ 20 Doctor Jones testified Juan's skull fractures would have required a considerable amount of force, because an infant's skull is thinner than an adult skull, and the bones are separated by sutures, which allow an infant's skull to grow. Skull fractures in adults require less force. A "significant amount of pressure" is required to fracture an infant's skull. Juan was not ambulatory at the time of his fractures and was not capable of inflicting the skull fractures on himself because he did not have the developmental capability.

¶ 21 Doctor Jones described the occipital fracture she found on Juan. The occipital bone is the bone in the back of the skull. Doctor Jones noted a slight depression in the fracture, which is usually caused by the skull being hit with "something that has a smaller surface area than something like a floor or a table. For example, it could be a corner of a table, could be a shoe, something with a smaller surface area." The occipital skull fracture would have been caused only by trauma, and the occipital bone had the same malleable characteristic as the parietal bone in terms of the significant force needed to cause the fracture. Doctor Jones was not able to date the fractures.

¶ 22 Doctor Jones spoke with Mr. M. on the phone on March 11, 2011, with the assistance of an interpreter. Mr. M. told Doctor Jones that around midnight on March 10, 2011, he noticed milk coming from Juan's nose and he seemed to be choking. Mr. M. turned Juan over on his stomach and patted his back. When he turned Juan back over, Mr. M. noticed he was listless and was not crying. Mr. and Mrs. M then took Juan to the emergency room.

ΒΆ 23 Doctor Jones asked Mr. M. about Juan's status earlier in the day, and he told her that around 3 p.m. or 4 p.m. that afternoon, Juan was not "acting like himself." Juan was crying and fussy, seemed to be in pain, and looked "blue and purple." Juan fell asleep in the afternoon, and Mr. M. did not seek medical attention for him at that time. Doctor Jones attempted to gather more history from Mr. M. ...


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