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In re Fatima A.

Court of Appeals of Illinois, First District, First Division

February 2, 2015

In re FATIMA A., a Minor (Robert F. Harris, Cook County Public Guardian, Plaintiff-Appellant,
v.
The Department of Children and Family Services, an Administrative Agency in the State of Illinois; Bobbie Gregg, Acting Director of Children and Family Services; and Arthur Sutton, Administrative Law Judge in the Administrative Hearings Unit of the Department of Children and Family Services, Defendants-Appellees).

Held [*]

The trial court’s order affirming the decision of the Director of the Department of Children and Family Services upholding the denial of specialized foster care services for a minor was affirmed, notwithstanding the public guardian’s contentions, inter alia, that the decision was legally erroneous in concluding that the minor was not eligible for specialized care because her needs were being met and that DCFS had met its burden of showing that the denial of specialized care was consistent with the minor’s well-being, and that the decision was a denial of due process and arbitrary and capricious, since all of the relevant factors were considered and the decision to deny specialization was not clearly erroneous.

Appeal from the Circuit Court of Cook County, No. 11-CH-31027; the Hon. Franklin Valderrama, Judge, presiding.

Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and Jean M. Agathen, of counsel), for appellant.

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, Solicitor General, and Ann C. Maskaleris, Assistant Attorney General, of counsel), for appellees.

JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Harris concurred in the judgment and opinion.

OPINION

CONNORS JUSTICE

¶ 1 The plaintiff, Cook County public guardian, appeals on behalf of the minor, Fatima A. (Fatima), from the circuit court's order affirming a decision of defendant Erwin McEwen (Director), [1] the Director of defendant Department of Children and Family Services (DCFS) upholding the denial of specialized foster care services for the minor. Plaintiff alleges that: (1) the final administrative decision was against the manifest weight of the evidence because the decision found that all of the minor's needs were being met despite the fact that Fatima had severe eczema and had not yet seen a dermatologist; (2) the final administrative decision was legally erroneous where it concluded that the minor was not eligible for specialized care because her needs were being met; (3) the final administrative decision was clearly erroneous where it concluded that DCFS had met its burden of showing that the decision to deny specialized care was consistent with her well-being despite Fatima's severe medical and behavioral problems; and (4) the final administrative decision constituted a denial of due process and a violation of the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2012)), where it was arbitrary and capricious. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 On October 18, 2010, DCFS's Child and Youth Investment Team (CAYIT) denied the request of Melanie B., Fatima's guardian, for specialized foster care services for the minor. Melanie B. appealed that finding.

¶ 4 On May 20, 2011, a hearing was held before an administrative law judge (ALJ) at the DCFS Administrative Hearings Unit. The ALJ first noted that Melanie B., as Fatima's guardian, had the burden of proof in this case, not DCFS. Melanie B.'s counsel preserved for appeal the issue of burden of proof, stating that it was counsel's belief that DCFS had the burden of proof by a preponderance of the evidence to show that the action it took was in the best interest of the child.

¶ 5 Melanie B. testified first, stating that Fatima was placed in her home when she was 11 days old and was now 3 years old. When she was first placed in the home, Fatima had severe acid reflux and muscle rigidity on one side of her body due to drug exposure in utero. Fatima began physical therapy in May 2008 and was discharged a little over a year later. It was recommended that she continue exercises like swimming, which the minor could not do due to tubes in her ears. Melanie B. testified that Fatima was in gym classes and ballet classes at the time of the hearing. The gym classes were at a private facility because the facility disinfected the room before and after classes, whereas the park district facilities did not. Due to Fatima's allergies, this was necessary. Melanie B. testified that Fatima had both food and other allergies. Her food allergies were dairy (especially milk), soy, citrus, and eggs. The dairy allergy was both by ingestion and by touch. If Fatima touched milk, she "immediately welt[ed] up, start[ed] itching" and her eczema flared up. Ingesting it "close[d] her throat" and made her vomit. Soy caused upset stomachs, and citrus caused open sores in her mouth. Eggs caused Fatima's eczema to flare up.

¶ 6 Melanie B. testified that Fatima also had asthma and eczema. Her skin got very dry and scaly from her neck down. She had a prescription cream that Melanie B. put on her every night. She also had two topical creams. She kept a prescription medication for eczema at Fatima's school as well.

¶ 7 Melanie B. testified that Fatima's other allergies included dog dander, bug spray, and wool. Fatima's skin raised up wherever her eczema was when she touched dog dander, which would cause her to scratch the skin and bleed. Bug spray caused welts and throat closing. Wool caused "contact dermatitis."

¶ 8 Melanie B. further testified that Fatima was on prescription medicine for each different allergy. Melanie B. stated that she has hypoallergenic air purifiers in every room and a hypoallergenic vacuum at home. She also has special sheets, bedding, pillowcases, detergents, soaps, lotions, and wipes for Fatima. Melanie B. testified that she also has medication for her food allergies, besides an epinephrine pen (epi pen). Fatima is also on prescription eye drops for eye infections.

¶ 9 Melanie B. further testified that Fatima was in behavioral therapy at Illinois Masonic with Jennifer Bailey, which started January 5, 2011. Fatima was also in art therapy at school, which was recommended by her social worker at school after she refused to answer test questions during routine testing. At the time of the hearing, she did art therapy once a week. Melanie B. testified that Fatima's school social worker also recommended individual therapy and gave her a phone number at Illinois Masonic. Melanie B. testified that Fatima's pediatrician also agreed that therapy would benefit Fatima because her "tantruming" was becoming out of control. Melanie B. initiated the therapy because Fatima's home behavior was becoming erratic. She was "tantruming, " crying for long hours at a time, shutting down in social situations, and becoming paranoid in public settings.

¶ 10 Melanie B. testified that Fatima was also becoming abusive toward her and her biological daughter. She testified that Fatima would "hit us, pinch, bite, kick." Melanie B. testified that Fatima saw Bailey at Illinois Masonic once a week. Bailey also did family therapy with Melanie B. and occasionally with her biological daughter. Melanie B. testified that she went to an eight-week-long parenting class for children with disruptive behaviors and talked to Bailey about what she learned.

¶ 11 On cross-examination, Melanie B. testified that Fatima generally did not have acid reflux anymore and that the physical therapy for Fatima's muscle rigidity was terminated because it was successful. She testified that Fatima had never been to an allergist but that her doctor was going to refer her to one.

¶ 12 Melanie B. further testified on cross-examination that Fatima no longer has ear infections and that she passed her hearing tests after the tubes were put in her ears. Fatima is also no longer in need of a speech therapist. Melanie B. testified that the "tantruming" did not happen as often at school as it did at home.

¶ 13 Melanie B. further testified that Fatima's mother's rights were terminated in January 2011, and the goal was now adoption, regardless of whether Fatima was considered specialized or not. She testified that all the services she had described, including therapy, were covered by "the medical card, " which Melanie B. did not have to pay for. She testified that the prescriptions were also paid for by the medical card. Melanie B. testified that Fatima's gym classes were covered by DCFS's monthly board check. She received $392 or $397 monthly for Fatima, plus $100 every month for gym classes.

¶ 14 Melanie B. testified that if Fatima was considered specialized and she received extra money, she would use the money for other classes and equipment she needs in the house that is not covered by the medical card. She also has to purchase bedding every three months for Fatima, as DCFS purchased the original bedding, but not the replacement bedding. DCFS also purchased the original air purifiers, but Melanie B. testified it would not purchase the replacements. Melanie B. also testified that she wanted a respite worker from DCFS because she could not leave Fatima with "just anyone."

¶ 15 Finally, Melanie B. testified that it was her belief that, after adoption, Fatima's behavioral therapy would be covered through the medical card.

¶ 16 It was then stipulated that if called to testify Jennifer Bailey would state that she is a behavioral clinician at Illinois Masonic. In her initial assessment of Fatima, she determined that Fatima needed weekly individual therapy as well as family therapy with Melanie B. She recommended that Melanie B. engage in a parenting group for parents of children with disruptive behavioral problems. Bailey would state that she is addressing issues with Fatima that include "violence towards others, tantruming, shutting down in social situations, suspicious or paranoid behavior such as thinking that everyone is watching or laughing at the minor, and obsessive compulsive disorder behaviors." Bailey would further testify that Fatima "is making very little progress in identifying triggering behaviors."

¶ 17 DCFS then put on its case, calling Dr. Lia Knox, a CAYIT reviewer, as its first witness. Dr. Knox testified that she had a Ph.D. in psychology. She was present at the CAYIT staffing that occurred on October 18, 2010, in regard to Fatima. The purpose of the CAYIT was to talk about placement and specialized care for Fatima. Dr. Knox testified that in order to receive specialized care, a minor has to have certain medical issues, psychological issues, or behavioral issues that warrant more services from DCFS.

¶ 18 Dr. Knox further testified that whether a minor should receive specialized care is covered by section 301.90(b) of Title 89 of the Illinois Administrative Code (Code) (89 Ill. Adm. Code 301.90(b) (2010)), which states that the first thing that would need to occur would be a CAYIT staffing, which did occur in this case. Dr. Knox testified that examples of minors that require specialized care included minors with an IQ of 70 or below, "which is in the mental retardation realm, " minors with certain medical issues that require more hospitalization or more medical care, autistic children who tend to have moderate behavioral, perception, and sensory issues, children in need of behavioral care or who have highly sexualized behavior and cannot be around other children, and adolescents whose behavior has caused them to be placed in several different homes.

¶ 19 Dr. Knox acknowledged that the portion of the rule at issue here was whether Fatima had a medical or physical condition or impairment that required an extraordinary level of daily supervision or assistance. Dr. Knox testified that an example of a minor that would fall under this category would be one who had breathing tubes or walking instruments to aid in walking, or a child who had a brain injury that caused seizures. She further testified that children with Down's syndrome or paralysis or neurological problems would fall into this category.

¶ 20 Dr. Knox further testified that from what she remembered, Fatima was very active at home, was playful, "a joy to be with, " inquisitive, and curious. Dr. Knox testified that Fatima did well in school and was a leader. She was able to get along with other kids "very well."

ΒΆ 21 She further testified that Fatima would not qualify for specialized foster care when looking at the four factors listed in the Code: (1) the child's individual function in the home, school, and community; (2) the child's current or recommended involvement in identified services; (3) the child's degree of need; and (4) the caregiver's required level of participation in activities and/or services needed to meet the child's treatment and educational needs. Dr. Knox testified that Fatima would not qualify under the first provision because she was doing well and her medical needs were being taken care of. She had special lotion for her skin and had the appropriate medical checks on time. Dr. Knox testified that Fatima would not meet the second factor either because she was functioning well both at school and at home. In regard to the third factor, Dr. Knox testified that Fatima ...


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