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In re J.B.

Court of Appeals of Illinois, First District, Fifth Division

October 10, 2014

In re J.B. AND J.H., Minors, (The People of the State of Illinois, Petitioner-Appellee,
v.
Natasha B., Respondent-Appellant)

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Cook County. Nos. 12 JA 1059, 12 JA 1060 . The Honorable Bernard J. Sarley, Judge, presiding.

SYLLABUS

The trial court's rulings that respondent's minor children were neglected and abused, that she was unfit and that it was in the children's best interests to terminate her parental rights were upheld on appeal over her contentions that the finding of unfitness was against the manifest weight of the evidence and that her due process rights were violated when the facts that she was incarcerated, was refused any services, and was denied visitation with her children were used to establish her unfitness, since respondent waived her constitutional challenge by raising it for the first time on appeal, and even if the claim had been considered, it would have been rejected on the ground that the finding of unfitness was not based on the time period when respondent was incarcerated and the orders prohibiting her from having contact with the children were in effect; furthermore, the finding of unfitness was not against the manifest weight of the evidence in view of the severe physical beating she administered to one of the children and the evidence of prior abuse, extreme and repeated cruelty, and the failure to protect the children from conditions in their environment that were injurious to their welfare, especially when only one basis for a finding of unfitness is all that is necessary.

Abishi C. Cunningham, Jr., Public Defender, Chicago (Shevon Fullman, Assistant Public Defender, of counsel), for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Mary Needham, and Nancy Kisicki, Assistant State's Attorneys, of counsel), for the People.

Robert F. Harris, Public Guardian, Chicago (Kass A. Plain and Christopher Williams, of counsel), guardian ad litem.

PRESIDING JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Gordon concurred in the judgment and opinion.

OPINION

PALMER, PRESIDING JUSTICE.

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[¶1] Respondent, Natasha B., is the biological mother of minors, J.H., born on November 20, 2003, and J.B., born on November 4, 2009. Respondent appeals the trial court's November 14, 2013, ruling finding the two minors neglected and abused and adjudicating respondent unfit, and the trial court's March 17, 2014, order finding that it was in the best interests of the minors to terminate respondent's parental rights. On appeal, respondent asserts that her due process rights were violated because she was incarcerated, she was refused any services, and she was denied visitation with her children, and these facts were used as evidence to establish unfitness. She also contends that the trial court's findings of unfitness were against the manifest weight of the evidence.[1] For the following reasons, we affirm.

[¶2] I. BACKGROUND

[¶3] On October 18, 2012, the State filed a petition for adjudication of wardship for the minors and a petition for temporary custody, alleging that they were abused and neglected. In J.H.'s petition, the State alleged that, pursuant to the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2012)), J.H. was (1) neglected based on an environment injurious to his welfare, (2) abused based on a substantial risk of physical injury, (3) neglected as to necessary care, and (4) physically abused. 705 ILCS 405/2-3(1)(a), (1)(b), (2)(i), (2)(ii) (West 2012). With respect to J.B., the petition alleged that he was neglected based on an environment injurious to his welfare and abused based on a substantial risk of physical injury. 705 ILCS 405/2-3(1)(b), (2)(ii) (West 2012). The petitions alleged that on approximately October 13, 2012, J.H. " presented to Ingalls Memorial Hospital with leg pain and swelling as well as facial contusions" and he was diagnosed with an " oblique femur fracture and fracture to his right hip," injuries which medical personnel indicated were " inflicted trauma and non-accidental." The petitions alleged that respondent admitted to causing J.H.'s injuries.

[¶4] The trial court placed both minors under the temporary custody of the Department of Children and Family Services (DCFS). The trial court also entered a no-contact order against respondent and an order denying visits between respondent and the minors. The record reflects that, as a result of the incident giving rise to DCFS intervention, respondent was incarcerated in the Cook County jail and criminal charges were filed against her.

[¶5] The State later moved to amend the petition to seek permanent termination of parental rights at disposition and appointment of a guardian with the right to consent to adoption. The State also moved to add the grounds of torture to J.H.'s petition based on the allegation that respondent forced J.H. to do leg squats as a form of punishment, punched him and threw him to the floor when he could not do any more, stood on his leg and choked him until he almost lost consciousness, and then left him " immobile on the bathroom floor while she went to bed." The trial court granted both motions.

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[¶6] The State also submitted a request for admissions of fact pursuant to Illinois Supreme Court Rule 216 (eff. Jan. 1, 2011) regarding a written statement that respondent gave to an Assistant State's Attorney (ASA) while she was at Riverdale police department on October 14, 2012, which concerned the battery of J.H. The requests for admissions were as follows: (1) respondent was present at the Riverdale police department on October 14, 2012; (2) she gave an oral statement regarding the battery of J.H. to an ASA and a detective; (3) she was " duly" advised of her Miranda rights before giving the statement; (4) she stated that she understood the Miranda warnings and wanted to give a statement; (5) the statement she gave was memorialized in writing by the ASA; (6) respondent was given the opportunity to review the written statement and make changes and did so; (7) she reviewed and signed each page of the statement indicating that the statement was true and accurate; (8) respondent's signature was on each page of the statement and her initials are next to any changes; and (9) the attached statement/exhibit accurately reflected the statement she gave. Respondent objected based on relevance, and the State then moved for the facts to be deemed admitted. The trial court held that the admissions were deemed admitted, but it struck the word " duly" from the third admission.

[¶7] Respondent's written statement was attached to the State's request for admissions of fact. According to the statement, respondent indicated that she was living with the two minors and Sandra H., Thornton H., and Sheena H. Respondent indicated that J.B. came to her and told her that J.H. almost pulled down the television on him. However, J.H. denied this when she asked him about it. When he continued to deny it, respondent instructed him to do squats as a form of punishment in the hallway. Respondent indicated that J.H. complained that his legs hurt, but respondent informed him that they were " supposed to hurt." Respondent stated that she got up from her chair and instructed him to stop complaining and do the squats correctly, but he continued complaining. Respondent explained that she then grabbed J.H. by his shirt, brought him to the bathroom, and told him she was going to " whoop" him. She left and told J.B. to give her his belt; J.B. refused to do so, at first. Respondent then returned to the bathroom with the belt and started struggling with J.H. Respondent indicated that J.H. asked if his " God-Granny" could " whoop" him instead, but respondent refused. Respondent indicated that she attempted to take off J.H.'s shorts and underpants, but he continued struggling. She held onto his shirt and was finally able to remove his clothing, and then " hit him once on his behind with the belt." Respondent related that J.H. then " slumped down" like " dead weight," and she tried to pull him up by his shirt. She became more frustrated and angry, so she pulled his " whole body up by his shirt with both of her hands and threw him to the floor of the bathroom," where he hit his head on a ledge near the bathtub. Respondent stated that she then " squatted over [J.H.] and she punched about his body many times." She did not remember if she choked him, but she did punch him on the leg and " sat on his leg." Respondent indicated that Sheena H. intervened at that point and stopped her. Respondent stated that her vision was blurred, her head hurt, and she was shaking, so she went to her room and lay down. She called to J.H. and told him to get up, but he yelled that he could not. She asked Sheena H. to help, but J.H. continued to cry and yell. Respondent indicated that she returned to the bathroom and saw him curled on the floor without his pants, and his right leg was

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swollen and " shifted a little bit." Respondent called 911. Respondent got clean pants and underpants for J.H., but she could not help dress him " because she felt so bad about whet she had done to him," so she asked Sheena H. to dress him. She indicated that J.H. cried in pain while being dressed. When the paramedics and police arrived, respondent told police that J.H. hurt his leg while doing squats. However, respondent admitted to the ASA that this was not true, and she said it " because she didn't want to face the fact that she was the one who hurt him."

[¶8] A. Adjudication and Unfitness Hearing

[¶9] The adjudication and unfitness hearing occurred simultaneously over three days. The State admitted into evidence its request for admissions and the attached exhibit containing respondent's October 14, 2012, statement, along with J.H.'s medical records from the hospital.

[¶10] Margo Cralle, an investigator for DCFS, was initially assigned to investigate the case and she spoke with J.B. on October 16, 2012. J.B. told her that he was two years old and his brother J.H. was in the hospital. J.B. " blurted out" that J.H. " gets whooped. She whoops him in the hallway." Cralle indicated that no marks or bruises were found on J.B.'s body. When she asked whether his mother " whips him," J.B. responded that he " doesn't get in trouble."

[¶11] Harriett Holmes took over as the primary DCFS investigator. Holmes interviewed J.H. at the Advocate Children's Hospital in Oak Lawn, Illinois, on October 16, 2012. She observed that his left or right leg was bandaged and elevated in the air, he had a large bump on his forehead, a blackened left eye, a swollen right cheek, and scratches, bruises and contusions " all over his face." J.H. was " [v]ery, very sad" during the interview and spoke in a monotone voice. He appeared depressed and did not talk much except to answer her questions. His voice became more agitated when she asked about respondent.

[¶12] Holmes testified that J.H. explained to her that he and J.B. were playing, and J.B. climbed up a bookshelf with a television on it and the television almost fell. J.B. left to tell respondent that J.H. almost knocked the television on him, and respondent came into the room and asked J.H. if this was true. J.H. denied it, and respondent stated that she did not believe him and that he " was going to have to do squats as a form of punishment." J.H. described to Holmes how he did the squats with his arms held out. Holmes testified that J.H. told respondent that it hurt to do squats and he stopped doing them, but respondent " would punch him in the leg and make him continue," and she " said it's supposed to hurt, it's a punishment." Eventually, J.H. stopped doing the squats and respondent told him that he if did not continue, " he was going to get a whooping." Respondent told J.H. to go get a belt, and when he returned with one, she took him into the bathroom. Holmes testified that J.H. told her that respondent directed him to take off his pants, and then respondent " proceeded to whoop him, but he kept grabbing the belt." When he grabbed the belt, respondent punched or hit him with a closed fist on his face, arms, and chest. J.H. told Holmes that, at some point, respondent " picked him up by his collar and threw him down to the ground." J.H. indicated that respondent grabbed him by his shirt collar and her hands were around his throat, choking him. Further, when he landed on the ground, the side of his face hit the bathtub. Respondent continued to hit and punch him. J.H. told Holmes that he then " begged his mom to let God granny, who was the other person who lived in the home[,] whoop him." Respondent

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refused and continued to whip him, while J.H. continued to grab the belt. J.H. informed Holmes that " at that point mom grabbed--started punching him in the arm and the face, just all over, and was standing on top of his leg." She continued punching him all over with her fist while J.H. tried to get away, but " the more he squirmed, the more she hit him." J.H. told Holmes that at some point, the daughter of the godmother, " TT," came into the bathroom and " dragged" respondent off of him. Respondent told J.H. to get up and get dressed, but J.H. could not get up because his leg hurt badly. At that point, 911 was called and the paramedics arrived.

[¶13] Holmes testified that she asked J.H. whether respondent had ever hit him before, and he responded that she " hits him a lot, all the time. But it had never been like what it was this time." J.H. also stated that " he hated his mother and that she didn't care about him." J.H. then pulled the covers over his head and refused to talk further with Holmes.

[¶14] Holmes also interviewed respondent on October 16, 2012, at the Riverdale police station jail. Holmes testified that respondent admitted she " had a history of anger management issues and specifically with [J.H.]" She admitted hitting him, " but never anything like what" transpired in the current case. She admitted that the domestic violence had been going on for " years." Respondent explained to Holmes that when J.H. would anger her, " she would hit him with her fist in the chest or the arms" and tell him " to get away from her" because she " just didn't want to be bothered with him." Holmes testified that respondent was " [m]atter of fact" about this.

[¶15] When Holmes asked respondent specifically about the incident at issue, respondent explained that she and the minors were living in the home of a friend of the family, which included the " God granny," and " Sandra," who was also called " TT." Respondent indicated that she was in different room watching television, when J.B. entered and told her that a television had almost fallen on him because J.H. " made him climb up on the bookcase." Respondent went into the other room and asked J.H. if this was true, but he denied it. Respondent did not believe J.H. and " she was going to make him do squats as a form of punishment." Holmes testified that respondent related that J.H. would do some squats, but then stop, and every time he stopped, she punched him on his leg with her fist to make him continue. Respondent stated that when J.H. told her that " it really hurts," she responded that " it's a form of punishment, it's supposed to hurt." Eventually, when J.H. completely stopped doing squats, she threatened to " get a belt and ...


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