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In re Faith S.

Court of Appeals of Illinois, First District, Fourth Division

June 27, 2019

In re FAITH S., FREDERICK S. JR., and KELIS S., Minors
v.
Allinia B. and Kewon S., Respondents-Appellants. The People of the State of Illinois, Petitioner-Appellee,

          Appeal from the Circuit Court of Cook County. Nos. 16 JA 857 16 JA 858 16 JA 859 Honorable Bernard Sarley, Judge Presiding.

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

          OPINION

          McBRIDE PRESIDING JUSTICE

         ¶ 1 Respondent Allinia B. appeals the trial court's order to terminate her parental rights to the minors, Faith S., Frederick S. Jr. (Frederick Jr.), and Kelis S., finding her unfit for failure to protect the children and based on her depravity. Allinia argues that (1) the trial court's decision was error and a violation of her due process rights, (2) the trial court's finding of unfitness is against the manifest weight of the evidence, and (3) the trial court's determination that it was in the best interest of the minors to terminate their mother's parental rights was against the manifest weight of the evidence.

         ¶ 2 Respondent Kewon S. appeals the termination of his parental rights as to Kelis based on an order finding him to be depraved. He argues that (1) the State did not prove he was depraved by clear and convincing evidence; (2) his due process rights were violated because he was found to be depraved based on his actions against Frederick Jr., where Kewon was not a party to that case or the named perpetrator; and (3) the finding of depravity did not meet the statutory requirements under section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2016)).

         ¶ 3 Faith and Frederick Jr. are fraternal twins born August 10, 2010, to Allinia and Frederick S. Sr.[1] (Frederick Sr.). Kelis was born September 2, 2016, to Allinia and Kewon. Two additional maternal siblings, Miley P. and Melvin P. Jr., were part of the proceedings in the juvenile court but are not a part of the appeal and will be discussed as necessary to the background in this case.

         ¶ 4 On October 5, 2016, the State filed petitions for adjudication of wardship for each of the minors.

         ¶ 5 The petition for Frederick Jr. alleged that he was neglected under the Juvenile Court Act of 1987 (Juvenile Court Act) due to an injurious environment (705 ILCS 405/1-1 et seq. (West 2016)) and abused under the act because a person in the household inflicted physical injury upon him (id. § 2-3(2)(i)). The supporting facts for both allegations stated:

"Mother has two prior indicated reports for inadequate supervision, cuts, bruises, welts, abrasions, oral injuries by abuse and substantial risk of physical injury/environment injurious to health/welfare by neglect. Father has one prior indicated report for inadequate supervision. On September 28, 2016 this minor presented at the hospital with abdominal pain. This minor was diagnosed with internal trauma and a fractured hip. This minor was observed to have several injuries including a black eye. Minor states that his sibling's putative father caused the injuries and that mother was present when it happened. Medical personnel state that this minor was the victim of child abuse. Mother states that this minor was injured while in father's care. Parents state there is an issue of domestic violence between them. Parents are married."

         ¶ 6 The petition for Faith alleged that she was neglected under the Juvenile Court Act because her environment was injurious to her welfare under section 2-3(1)(b) of the Juvenile Court Act (id. § 2-3(1)(b)) and that she was abused based on a substantial risk of physical injury by other than accidental means under section 2-3(2)(ii) of the Juvenile Court Act (id. § 2-3(2)(ii)). The supporting facts for both allegations stated:

"Mother has two prior indicated reports for inadequate supervision, cuts, bruises, welts, abrasions, oral injuries by abuse and substantial risk of physical injury/environment injurious to health/welfare by neglect. Father has one prior indicated report for inadequate supervision. On September 28, 2016 this minor's sibling presented at the hospital with abdominal pain. This minor's sibling was diagnosed with internal trauma and a fractured hip. This minor's sibling was observed to have several injuries including a black eye. Minor's sibling states that his sibling's putative father caused the injuries and that mother was present when it happened. Medical personnel state that this minor's sibling was the victim of child abuse. Mother states that this minor's sibling was injured while in father's care. Parents state there is an issue of domestic violence between them. Parents are married."

         ¶ 7 A petition for adjudication of wardship for Kelis was also filed and alleged the same basis for neglect and abuse as in Faith's petition, neglect due to an injurious environment and abuse based on a substantial risk of physical injury. The supporting facts in her petition stated:

"Mother has two prior indicated reports for inadequate supervision, cuts, bruises, welts, abrasions, oral injuries by abuse and substantial risk of physical injury/environment injurious to health/welfare by neglect. Presumed father has one prior indicated report for inadequate supervision. On September 28, 2016 this minor's sibling presented at the hospital with abdominal pain. This minor's sibling was diagnosed with internal trauma and a fractured hip. This minor's sibling was observed to have several injuries including a black eye. Minor's sibling states that this minor's putative father caused the injuries and that mother was present when it happened. Medical personnel state that this minor's sibling was the victim of child abuse. Mother states that this minor's sibling was injured while in presumed father's care. There is an issue of domestic violence between mother and presumed father. There is a presumed and putative father for this minor."

         ¶ 8 A temporary custody hearing was conducted on October 5, 2016, with all parents present. The parties stipulated to the facts alleged in the petitions, without prejudice, and the trial court made a finding of probable cause that the children were abused and neglected. The court found immediate and urgent necessity existed to support removal of the minors from the home. A temporary guardian was appointed for the minors.

         ¶ 9 On November 3, 2016, the State filed motions for all the minors to amend the adjudication petitions for the permanent termination of parental rights at the disposition hearing and for the appointment of a guardian with the right to consent to adoption. In the motion for Faith and Frederick Jr., the State alleged that the parents were unfit because they acted in "[e]xtreme or repeated cruelty" toward the children in violation of section 1(D)(e) of the Adoption Act (750 ILCS 50/1(D)(e) (West 2016)), failed to protect the children from conditions in the children's environment injurious to their welfare in violation of section 1(D)(g) of the Adoption Act (id. § 1(D)(g)), and behaved in a depraved manner in violation of section 1(D)(i) of the Adoption Act (id. § 1(D)(i)). In Kelis's motion, the State alleged that the parents were unfit because they have failed to protect the children from conditions in the children's environment injurious to their welfare in violation of section 1(D)(g) of the Adoption Act (id. § 1(D)(g)) and behaved in a depraved manner in violation of section 1(D)(i) of the Adoption Act (id. § 1(D)(i)). The motions asserted that it would be in the minors' best interest to have a guardian appointed with the right to consent to adoption. The trial court granted the motions to amend the petitions for adjudication of wardship on December 20, 2016.

         ¶ 10 The adjudication and unfitness hearing was conducted over five dates between May and July 2018. The following evidence was presented at the hearing.

         ¶ 11 Wanda Gunn testified that she was employed as a child protection specialist with the Department of Children and Family Services (DCFS). She was assigned to investigate the case involving Faith and Frederick Jr. in September 2016. She initially met with the children in the emergency room at Stroger Hospital on September 28, 2016. She first spoke with Frederick Jr. She observed that he had a brace that covered his neck up to his nose and a brace on his right arm from shoulder to hand. She also observed a sore over one eyebrow and a lump on his head. Gunn further observed old marks on his legs; she described the marks as "like scars."

         ¶ 12 Gunn was able to speak with him a little bit because he was sleepy from medication. Frederick Jr. told her "that boy hit me." When Gunn asked the name of the boy, Frederick said "Kewon." Frederick Jr. told her his stomach hurt and that Kewon had twisted his arm.

         ¶ 13 Gunn then spoke with Faith. Faith told her that she was in the car with her mother and brother. Faith said her brother was choked by her "daddy." When Gunn asked Faith for her daddy's name, Faith responded "Kewon" and said she has two daddies.

         ¶ 14 Gunn also spoke with Frederick Sr. at the hospital. Frederick Sr. told her he did not know anything about Frederick Jr.'s injuries. Before that weekend, he had not seen his children in two years. He wondered why the mother dropped the children off on a weekday because they had school the next day. Allinia "abruptly" dropped the children off and then Frederick Sr. observed the marks on Frederick Jr. Frederick Jr. told his father that "Kewon" had hit him. Photographs of Frederick Jr.'s injuries were admitted into evidence.

         ¶ 15 Priscilla Cash testified that she was employed as a "DCP" investigator for DCFS and was assigned to investigate the case involving Faith and Frederick Jr. in September 2016. She saw the children at Stroger Hospital on September 30, 2016. She spoke with both children in the room. She observed that Frederick Jr. had bruises and knots on his face as well as a healing scab on his face. When she visited, Frederick Jr. did not have a neck brace.

         ¶ 16 Frederick Jr. told her he lived with his mother and his father Kewon. He was afraid of Kewon because when he got in trouble his mother would tell Kewon and then Kewon would "slap him, punch him, kick him." He told her that his mother and Kewon dropped him off at his father's house in the dark and left them. Frederick Jr. said he had been getting in trouble at school. During the car ride, his mother was driving and Kewon was punching him in the face with his fists and "slapping him." Frederick Jr. said Kewon threw him into the car seat. Frederick Jr. told her that Kewon punished him by kicking, slapping, and punching him. Frederick Jr. demonstrated how he was injured during the car ride by pulling his wrist and leg back. Frederick Jr. told her that Kewon punched him in the stomach with a closed fist. He said his mother is present when Kewon hits him.

         ¶ 17 Cash also spoke with Faith at the hospital. Faith talked about how they were dropped off at their father's house and how her brother was "beat up in the car." Cash noted that Faith did not talk about herself, she talked about her brother. Faith told Cash that her father Kewon hurt her brother. Cash observed lots of scratches and bruises on Faith, especially on her face. Faith also said that her mother was present when Kewon struck Frederick Jr. and did nothing.

         ¶ 18 While at the hospital, Cash spoke with the twins' father Frederick Sr. in private. Frederick Sr. indicated that he had not seen the children in two years because of domestic violence issues between him and their mother. He said the children were dropped off in the hallway of his building in the dark and he heard the children "screaming and hollering." He went down to get them. When he saw the children, he observed the bruises and called the Chicago Police Department.

         ¶ 19 Cash later had a conversation with Allinia on October 3, 2016. Cash called Allinia because she needed more information for a safety plan for the children. Allinia told Cash that her other children were covered, but as far as the twins, their father's family could figure it out. Allinia stated that the children had no contact with their father for over 2½ years because of domestic violence. Allinia admitted that she and Kewon dropped the children off downstairs in a dark hallway of Frederick Sr.'s building. Allinia told Cash that when she dropped off the children, Frederick Jr. did not have any injuries. Allinia said that Frederick Jr. was "a thief, a liar, he's manipulative, he turns over furniture at the school." Allinia described Frederick Jr. as "out of control."

         ¶ 20 Jennifer Contreras testified that she is employed by the National Youth Advocate Program and has been the caseworker for Faith and Frederick Jr. since November 2016. According to Contreras, the twins' father, Frederick Sr., has not sought any visits with the children or any services to help with reunification. She located him when he was incarcerated and tried to reach out with the facilitator at the jail.

         ¶ 21 According to Contreras, Allinia has not had any visits with Faith and Frederick Jr. Contreras staffs this case with the twins' therapist and/or her supervisor every other month. Since November 2016, Contreras has not been able to recommend supervised visits with the twins. She admitted that Allinia has requested visits with Faith and Frederick Jr.

         ¶ 22 Dr. Trenton Hubbard testified that he was employed at Stroger Hospital and was a third year child abuse fellow. He is licensed to practice medicine in Illinois. For his fellowship, he sees children to evaluate them for suspected physical or sexual abuse. Dr. Hubbard was qualified as an expert in pediatrics and child abuse pediatrics.

         ¶ 23 Dr. Hubbard treated Faith and Frederick Jr. in September 2016. He spoke with them in the same room in the inpatient pediatric unit on September 29, 2016. He observed swelling and redness around Frederick Jr.'s left eye. Frederick Jr. told him that Kewon had hit him. During their conversation, Faith did not offer any answers. Dr. Hubbard asked Frederick Jr. what Kewon had done, and Frederick Jr. responded that Kewon "punched him in the stomach and kicked him in the leg" as well as "hit his head against the back of a car seat." When Dr. Hubbard asked why Kewon did this, Frederick Jr. answered it was because he was sleeping. Frederick Jr. told the doctor that Kewon had struck him before. Frederick Jr. also told Dr. Hubbard that his mother would hit him with a belt.

         ¶ 24 Dr. Hubbard performed a physical examination of Frederick Jr. In addition to the swelling around his left eye, the doctor observed a bruise. Frederick Jr. also had "some distention of his abdomen or protrusion of his abdomen." Frederick Jr. also had a skin rash on his chest. Both a CT scan and X-ray were done for Frederick Jr. The CT scan of his abdomen and pelvis disclosed a fracture of the right pubic ramus, which is in the pelvic girdle. Lab work was also done, including blood work, liver function tests, and a urinalysis. The results of the liver function test showed elevated markers, which were a sign of an internal organ injury. Additionally, his cardiac enzymes were almost five times higher than what would be expected, which is indicative of blunt trauma. The urinalysis revealed blood present in the urine. Dr. Hubbard testified that the results of the lab work supported the diagnosis of child physical abuse. In his expert opinion, Frederick Jr.'s pelvis injury was caused by an external force.

         ¶ 25 Dr. Hubbard also talked with Faith. He asked her why she was in the hospital, and she said because her mother dropped her and her brother off at her father's house. When asked what happened to Frederick Jr., Faith responded that Kewon "balled his fists and choked him and punched him." Dr. Hubbard asked Faith why Kewon did that, and she said it was because Frederick Jr. told Frederick Sr. where their school was. Faith told the doctor that she had been hit by Kewon and her mother. Both would hit her with a belt. Dr. Hubbard examined Faith's body and observed some hyperpigmented scars on her neck as well as an abrasion on her left ear. He asked her about the marks on her body, and Faith said her mother grabbed her and the abrasion on her was inflicted by Kewon. Faith had a loop mark on her chest that the doctor found indicative of child physical abuse. The loop marks are the result of being struck with an implement, such as a cord or a belt.

         ¶ 26 Dr. Hubbard spoke with Frederick Sr. prior to meeting with the children. He asked Frederick Sr. about the events leading to Frederick Jr.'s admission to the hospital. Frederick Sr. told the physician that a female cousin dropped Frederick Jr. off at his house on September 22, 2016. He took care of the child for a few days and tried to contact the cousin to return the child, but was unsuccessful. Frederick Jr. remained at his house. On Wednesday, September 28, 2016, Frederick Jr. told his father where he attends school, so Frederick Sr. dropped Frederick Jr. off at school in the morning. When Frederick Sr. dropped Frederick Jr. off at school, he did not observe any visible bruises or marks on the child. Later that evening, he heard a knock on the door and found Frederick Jr. and Faith in the hallway. He looked out the window and saw Allinia and Kewon leaving. Allinia told him that the twins were now his responsibility. Frederick Sr. brought both children inside and then noticed the swelling on Frederick Jr.'s face.

         ¶ 27 Renee Heard testified that she was the DCFS case worker for Melvin Jr. and Miley since October 2016. She first spoke with the children on October 19, 2016. During that conversation, both children informed her that they were living with their mother, Allinia, instead of where they were supposed to be living with Latoya Powe. Melvin Jr. and Miley were removed from Powe and placed with their paternal grandmother and later returned to their father, Melvin Sr. Kelis, who had also been placed with Powe, was placed in a nonrelative foster home.

         ¶ 28 Heard also testified that she spoke with Allinia in September 2017 and asked her if she was pregnant. Allinia responded that she was not. Heard spoke with Allinia in May 8, 2018, outside the courtroom and asked Allinia if she had recently had a baby. Allinia told Heard that Allinia's niece had used her medical card and had a baby. Heard testified that as the caseworker, it was her job to ensure any other children were safe.

         ¶ 29 Following Heard's testimony, the public guardian presented an exhibit of a birth certificate for a child born March 13, 2018, listing Allinia as the mother and the baby with the same last name as Kewon. The trial court admitted the exhibit over Allinia's objection.

         ¶ 30 Germelina Rambo-Harris testified that she was employed by DCFS as a child welfare specialist but previously was a child protection investigator from 2014 to 2016. In March 2014, Rambo-Harris was assigned to investigate a case involving Faith and Frederick Jr. During her investigation on March 10, 2014, she spoke with both children at school while in a private conference room. Frederick Jr. lifted his shirt and showed Rambo-Harris marks on his back. He did not say anything about the marks. Faith lifted her shirt, and Rambo-Harris observed marks on her stomach and back. Faith told Rambo-Harris that she had been "whooped" by her mother. Rambo-Harris also observed scratches on Faith's legs.

         ¶ 31 Also on March 10, 2014, Rambo-Harris spoke with Allinia over the telephone and later met with her in person. At the time, Allinia was living with Frederick Sr., twins Frederick Jr. and Faith, and her older children Melvin Jr. and Miley. When asked about Faith's marks, Allinia told her that Faith was hurt while the children were playing. Rambo-Harris informed Allinia that a doctor indicated that the marks appeared to be caused either a belt or an extension cord. Allinia responded that she did not hit Faith. Rambo-Harris testified that the four children were not living with Allinia on that date and had been placed with other relatives as part of a safety plan. The report was indicated for risk of harm and cuts, welts, and bruises. Intact services were put in place for the family. Rambo-Harris did not have any further involvement with the family.

         ¶ 32 The following witnesses testified on behalf of Allinia and Kewon. Powe testified that she was Allinia's cousin. She saw Frederick Jr. on September 22 and 28, 2016, at Allinia's house. Powe was helping after Allinia had just given birth to Kelis. On September 22, 2016, she took Frederick Jr. to his father Frederick Sr.'s house in her vehicle. On September 28, 2016, she took Frederick Jr. and Faith in her vehicle with Allinia to their father's house. At that time, Powe did not observe any marks on Frederick Jr. and he was not crying when he exited the vehicle. When she dropped Frederick Jr. off on September 22, 2016, he had a skin rash but had been given medication after a trip to the hospital. According to Powe, Kewon was not at Allinia's residence on September 28, 2016.

         ¶ 33 Powe had been the foster parent for Melvin, Miley, and Kelis, but she returned the children to live with Allinia. Melvin and Miley were subsequently placed with their father. A child protection warrant was issued for Kelis while she was supposed to be living with Powe.

         ¶ 34 Diana P. testified that she is the grandmother of Melvin Jr. and Miley. She has known Allinia for 14 to 15 years through Diana's son, Melvin Sr. At the date of the hearing, Melvin Jr. was 14 years old and Miley was 9 years old. Diana has observed Allinia parent the children. According to Diana, Allinia loves her kids. She dresses them nice and feeds them. She has never seen Allinia physically discipline or act cruelly toward Melvin Jr. or Miley. She has never been concerned for their well-being while in Allinia's care. She believed that Allinia kept her children safe. She also has never seen Allinia discipline Faith and Frederick Jr. or act cruelly toward them. Diana was aware that Frederick Jr. was admitted to Stroger Hospital on September 28, 2016, but was unaware that he had a fractured pelvis and bruises all over his face. She was also not aware that Faith stated her mother caused those injuries with a belt. Diana further did not know that Allinia was indicated for cuts, welts, and bruises to Faith in April 2014 and that Allinia was found guilty of endangering the life of a child in September 2014 based on what happened to Faith.

         ¶ 35 Allinia also offered a stipulation that if called to testify Melvin Sr., father of Melvin Jr. and Miley, would state that he had supervised visits between Allinia and the children from December 2017 to May 2018 ...


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