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In re F.-M.

Court of Appeals of Illinois, First District, Fifth Division

May 8, 2015

In re MARIANNA F.-M., a Minor, Respondent-Appellant, (The People of the State of Illinois, Petitioner-Appellee,
Oscar F., Respondent-Appellee)

Appeal from the Circuit Court of Cook County, No. 14 JA 551. Honorable Andrea M. Buford, Judge Presiding.

For Respondent-Appellant: Robert F. Harris, Kass A. Plain, Office of the Cook County Public Guardian.

For Petitioner-Appellee: Anita Alvarez, Cook County State's Attorney, Chicago, IL. (Alan Spellberg, Mary Needham, Nancy Kisicki, Assistant State's Attorney, of Counsel).

For Respondent-Appellee: Stephen Jaffe.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.



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[¶1] Respondent Oscar F. is the natural father of the minor Marianna F.-M. In May 2014, Marianna was placed in the custody of the Illinois Department of Children

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and Family Services (DCFS). After a September 2014 adjudicatory hearing, the circuit court found that Marianna was abused and neglected and that Oscar was the perpetrator of the abuse and neglect. The court held a dispositional hearing the same day. At the conclusion of the hearing, the court found Oscar fit, willing, and able to parent Marianna and returned Marianna home to Oscar under an order of protective supervision. The Cook County public guardian, Marianna's court-appointed attorney and guardian ad litem, filed a timely notice of appeal from the court's dispositional orders. For the following reasons, we reverse the court's order returning Marianna home, vacate the order of protection, and remand for further proceedings.

[¶2] On May 23, 2014, the State filed a petition for adjudication of wardship and a motion for temporary custody on behalf of Marianna, born June 5, 2008, to Oscar F. and Natalie M.[1] The petition alleged that Marianna was abused in that her parent or a person who is in the same household as Marianna created a substantial risk of physical injury to her and inflicted excessive corporal punishment, and she was neglected because she was living in an environment injurious to her welfare. As a result, Marianna was taken into custody on May 21, 2014, at 12:30 p.m. The petition further alleged that Marianna had been abused and neglected specifically because:

" On or about April 28, 2014 this minor was observed to have several bruises on her arms and shoulders. Putative father had several different explanations as to how this minor was injured. Per medical personnel the history provided by the family is not consistent with the bruising observed. Medical personnel state that this minor had symmetrical bruising to her shoulders and forearms. Medical personnel state that this minor's bruising was due to non-accidental trauma. This minor reports putative father had previously grabbed her by the arms and 'squished' her."

The petition further noted that Natalie M. had not been involved in Marianna's life since June 2013 and the DCFS had been unable to contact Natalie M. Attached in support of the petition was an affidavit from Aracely Madrigal, the investigator, who stated that the family denied knowing how Marianna was injured and denied causing the injuries, but also failed to " provide a plausible explanation" to how Marianna received the injuries.

[¶3] On May 23, 2014, the court appointed the Cook County public guardian as the attorney of record and guardian ad litem (GAL) for Marianna. The court also found that immediate and urgent necessity existed to remove Marianna from her home based on a stipulation to the facts in the petition. Marianna was placed in the custody of the DCFS guardianship administrator and Oscar F. was granted limited supervised visitation.

[¶4] On June 12, 2014, the court entered a finding that Oscar was the father of the minor based on his Oscar's own admission.

[¶5] On September 16, 2014, at the adjudicatory hearing, the parties entered into a written stipulation of facts. The parties stipulated that, if called, Aracely Madrigal, a DCFS child protection investigator, would testify that on April 28, 2014, she was assigned to investigate an allegation of risk of harm involving Marianna. On or about that date, Madrigal had an in-person conversation with Marianna at Marianna's

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home, during which Madrigal observed and took pictures of the bruising on Marianna's arms and shoulders. At the time, Marianna was living with Oscar, Ernestina P., the woman Oscar resided with, and Ernestina's daughter. Marianna said that when she misbehaves at home, her father spanks her " hard, all over her body" and that she is " hit with an open hand on the back." Marianna also said that her " mother" hits her with a belt, that the babysitter does not hit her, and that she did not know how she received the marks on her arms. According to the stipulation, Madrigal " tried to engage [Marianna] several times about how she obtained the marks on her [arms], but [Marianna] would not disclose any information." After observing the bruising on Marianna's arms, Madrigal told Oscar to take Marianna to the hospital. Marianna was admitted to Advocate Illinois Masonic Medical Center (Advocate) on April 28, 2014, and discharged the following day.

[¶6] Madrigal also had an in-person conversation with Oscar on April 28, 2014, during which he said that Marianna had been living in his care since June 2013 when her biological mother was arrested. Oscar said that Marianna's mother had visited once since June 2013, but she was not in contact with Marianna and he has no way to contact Marianna's mother because " she is homeless and uses illegal drugs." Oscar admitted to hitting Marianna with an open hand but did not know what happened to her arms. He said the injuries could have been caused by the babysitter or by Ernestina's daughter, " who is aggressive." He also said that Ernestina cares for Marianna and can be " a bit aggressive" with Marianna, though not abusive. Madrigal had another in-person interview with Oscar on May 21, 2014, during which she told Oscar that Marianna was being taken into protective custody. Madrigal also told Oscar that she was concerned because Marianna's caretakers, Oscar and Ernestina, " did not know what happened" to Marianna and because when they were made aware of Marianna's bruises, they did not seek medical treatment. At the close of the investigation, Madrigal indicated[2] Oscar for cuts, bruises, welts, abrasions, and oral injuries.

[¶7] The parties further stipulated that, if called, Dr. Adia George, a physician employed by Advocate, would testify that she was involved in caring for Marianna when Marianna was admitted to the hospital in April 2014. Marianna was admitted for an evaluation of arm bruising and on or about April 29, 2014, George had an in-person conversation with Marianna and the hospital social worker through interactive play at Advocate. Oscar and Ernestina's explanation for Marianna's bruises changed once Marianna was admitted to the hospital; they said that Marianna's injuries were the result of being restrained on a papoose used at a recent visit to the dentist. When George spoke to Marianna, at first she said her injuries were due to a fall. Eventually Marianna said that the bruises were a result of her father " squishing" her. When asked what she meant by " squishing," Marianna demonstrated on a toy teddy bear by squeezing the bear's arms. In George's medical opinion, Marianna's bruising injuries were the result of nonaccidental trauma because: the bruising was " in symmetric distribution over both arms" ; it was in different stages of healing and different colors; it was in nonprominent areas of the arm, such as over the shoulder and extending under the

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armpit; Marianna's injuries were inconsistent with the explanation of the cause (a papoose at the dentist's office) provided by Oscar and Ernestina; and the explanation for Marianna's injuries from Oscar and Ernestina changed while Marianna was at the hospital.

[¶8] The parties also stipulated that two exhibits would be admissible at an adjudication hearing, including Marianna's medical records from Advocate and photos taken of Marianna on April 28, 2014, by the DCFS investigator.

[¶9] The same day, the court entered an order of adjudication finding that Marianna was abused or neglected as defined in section 2-3 of the Juvenile Court Act (Act) (705 ILCS 405/2-3 (West 2012)). Specifically, the court found that Marianna was subject to a lack of care, substantial risk or physical injury, and excessive corporal punishment because she " had several bruises on her arms and shoulders" as the result of abuse or neglect inflicted by her father. The court also ordered that the disposition hearing would be held instanter.

[¶10] At the disposition hearing, the State entered three exhibits into evidence: an integrated assessment (IA) report, a service plan, and Juvenile Court Assessment Program ...

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