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In Re Barion S., A Minor. (The People of the State of Illinois v. Sabrina L

December 21, 2012


Appeal from the Circuit Court of Cook County 10 JA 00579 Honorable Nicholas Geanopoulos,. Judge Presiding.

The opinion of the court was delivered by: Presiding Justice McBRIDE

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Howse and Taylor concurred in the judgment and opinion.


¶ 1 This case comes to us upon respondent's petition for rehearing. In the prior Rule 23 order, we dismissed the appeal for lack of jurisdiction based on the minor's argument that Supreme Court Rule 662 (Ill. S. Ct. R. 662(a) (eff. Oct. 1, 1975)) rendered respondent's appeal untimely. We have withdrawn our prior decision and issue this new opinion on rehearing.

¶ 2 Respondent Sabrina L. is the natural mother of minor Barion S., born April 16, 2009. On May 12, 2011, the trial court adjudicated Barion S. neglected due to a lack of care and an injurious environment. On September 22, 2011, the court found it was in the minor's best interest to be adjudged a ward of the court and that the mother was unable, for some reason other than financial circumstances alone, to care for, protect, train, and discipline the minor. Respondent appeals, arguing that the trial court's finding of neglect at the adjudicatory hearing was against the manifest weight of the evidence.

¶ 3 On July 2, 2010, the State filed a petition for adjudication of wardship, stating that Barion was a neglected minor whose environment was injurious to his welfare. 705 ILCS 405/2-3(1)(b) (West 2010). The petition alleged the following supporting facts.

"Mother has one prior indicated report for failure to thrive. Mother has one other minor that is not in her care and/or custody. Minor is diagnosed with failure to thrive. This minor has a history of hospitalizations for his failure to thrive. On or about June 24, 2010, this minor was admitted to the hospital due to his failure to thrive. Minor gained weight on a regular diet during his hospitalization. Medical personnel opine that minor is at risk for long term developmental and medical consequences if his nutritional needs are not met."

¶ 4 On July 2, 2010, the trial court entered a temporary custody order, finding probable cause existed that the minor was neglected, as alleged in the petition. Temporary custody was granted to the guardianship administrator with the Department of Children and Family Services (DCFS).

¶ 5 The adjudicatory hearing began on April 26, 2011. Karen Austin-Antoine testified that she was an investigator with the division of child protection for DCFS. She was assigned to Barion's case in June 2010 to investigate the allegation of a failure to thrive.

¶ 6 Austin-Antoine visited Barion at Stroger Hospital on June 8, 2010, and met with his treating physician, Dr. Risotto. Austin-Antoine spoke with respondent over the telephone on June 9, 2010. She spoke with respondent about the pending allegations. Respondent told Austin-Antoine that Barion had a feeding schedule. Respondent gave Barion breakfast at 8 a.m. and lunch at noon. Respondent described Barion as a "picky eater" and that "he would throw his food on the floor." Austin-Antoine stated that respondent gave examples of Barion's food, including oatmeal and applesauce.

¶ 7 Austin-Antoine also met with respondent at her home to do a home assessment. Austin-Antoine toured the entire apartment, which she observed was clean. In the kitchen, Austin-Antoine observed "an extreme amount of food." Austin-Antoine testified that respondent had "a lot of food in the refrigerator and freezer, but there was limited food for a toddler, specifically for a toddler." Austin-Antoine stated that she was looking for "cans of toddler food, Gerber food, graduate food, more foods that he could eat with hands that didn't have to be cooked, those type of foods, snacks for a minor -- for a toddler." Austin-Antoine noted that she did see two cans of graduate food and there were some boxes of graduate food in the cabinet, "maybe two boxes of that." Austin-Antoine did not see any milk, formula or Pediasure. However, Austin-Antoine stated that Barion was on "table food" and that he "didn't have a specific diet. There was [sic] no limitations *** to his eating." Barion was not limited to graduate food.

¶ 8 Austin-Antoine testified that protective custody of Barion was taken on July 1, 2010, while he was in Stroger Hospital. DCFS received medical information that "the minor was losing weight while in the care of the mother, but there was no medical reason or diagnosis for the minor to lose weight." Barion's diagnosis was nonorganic failure to thrive. Austin-Antoine's assignment ended when protective custody was taken.

¶ 9 The State also sought to admit Barion's medical records from St. Bernard Hospital, the University of Chicago Comer Children's Hospital and Stroger Hospital, which the trial court allowed. The State published portions of these medical records for the record.

¶ 10 In March 2010, Barion was hospitalized at St. Bernard Hospital for malnutrition and fever. Barion was examined and later diagnosed with failure to thrive. The records from Stroger Hospital showed a hospitalization in April 2010 as well as three previous admissions for nonorganic failure to thrive. The records indicated that Barion's weight had fallen from between the 10th and 25th percentile at birth to the 3rd percentile at 11 months. Respondent was instructed not to give Barion juice, give him only 12 ounces of milk per day, and to feed him solid foods. The records from Stroger Hospital also stated that Barion ate 80% to 100% of his meals and tolerated food well.

¶ 11 A report, dated July 2, 2010, by treating physician Dr. Michelle Lorand at Stroger Hospital stated that Barion "continued to gain well at 30 to 40 grams per day average, which is over three to four times normal for age and evidence of good catch up growth with appropriate oral intake." Another report, date June 25, 2010, by Dr. Lorand stated, "Patient's mother does not appear to have the insight or parenting capacity to provide the child with adequate calories to maintain growth. This has nothing to do with viral illness in May or with led [sic.] poisoning which he does not have. But mother is fixated on both of these things as a reason for his lack of weight gain with her." The report continued, "persistent non-organic FTT [failure to thrive], eats well, gains weight in the hospital but not with mother. *** [C]hild at risk for long-term developmental and medical consequences if his nutritional needs are not met. Developmentally impaired mother with possible psychiatric illness who appears to have poor insight and parenting capacity."

¶ 12 Sheila Lacy testified on respondent's behalf that she was the assigned intact case manager on Barion's case. She was assigned to the case from April 19, 2010, to July 5, 2010. Lacy stated that she was involved in the case because the DCFS hotline was called on March 13, 2010, from St. Bernard Hospital when respondent had taken Barion to the hospital for a fever and it was determined that Barion had lost weight. Medical neglect was reported for nonorganic failure to thrive. Lacy went to the minor's home for weekly visits to ensure that the minor was safe and the mother was complying with services. Lacy said she visited respondent's home between 7 and 10 times.

¶ 13 During the visits, Lacy went through each room to make sure there were no hazards. She also checked that there was food in the refrigerator, freezer and cabinets. Lacy made sure that respondent had updated WIC coupons and kept all her WIC, public aid and medical appointments.

¶ 14 Lacy also had the opportunity to supervise feedings. Lacy observed feedings on different dates at different times of the day. Lacy testified that she "felt that mom was feeding him properly. She had him in the high chair each time he needed to be fed as well as she assisted him if he tried to take the food out of his mouth." Lacy stated that respondent fed Barion in a quiet place and was focused on feeding him. Lacy would not have had respondent make any changes in the way Barion was fed. In May 2010, Lacy observed two instances involving Barion and food. Once, she saw Barion take the food out of his mouth as his mother was feeding him. The second time, Barion had vomited after respondent had fed him. Lacy stated that Barion ate slowly and respondent stayed focused on trying to feed him.

ΒΆ 15 During her visits, Lacy observed that Barion did not have any marks on him outside of normal playing. She also stated that ...

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