In re Jerome F.

Case Date: 09/10/2001
Court: 1st District Appellate
Docket No: 1-99-2106 Rel



1-99-2106 First Division

September 10, 2001


In re JEROME, DANITA and PRENTISS)Appeal from the
F. and GENESIS N.,Minors,)Circuit Court of
)Cook County,
Minors-Respondents-Appellees)Child Protection Division
)
(The People of the State of)
Illinois,)No. 98 JA 04092
)No. 98 JA 04093
Petitioner-Appellee,)No. 98 JA 04094
)No. 98 JA 04095
v.                                                                                                                  )
                   )
)
Cynthia N.,)The Honorable
)Eddie Stephens,
Respondent-Appellant).)Judge Presiding.

MODIFIED UPON DENIAL OF REHEARING

JUSTICE COHEN delivered the opinion of the court:

The State filed a petition for adjudication of wardship of the respondent mother's fourchildren. The petition alleged that the respondent had abused the children by creating asubstantial risk of physical injury to them through other than accidental means and that therespondent had neglected them, primarily due to her use of cocaine. One child allegedly wasborn with cocaine in his system.

An adjudicatory hearing was held at which the respondent was not present. At the closeof the hearing, the juvenile court found the allegations of abuse and neglect proven. Adispositional hearing followed immediately. The court adjudged the children wards of the court,finding the respondent unable, unwilling and unfit to care for her children at that time.

The respondent argues that these determinations must be reversed and new hearings heldbecause she did not receive proper notice. The respondent also argues that the finding of neglectshould be reversed because the evidence indicated that it was a child other than the one alleged inthe petition who may have been born with cocaine in his system. She further argues that thecourt's finding that she abused her children was manifestly erroneous, because the finding wasbased on an incident that all the evidence indicated was an accident. We affirm.

1. Background

The respondent is the mother or four children: Genesis, Jerome, Prentiss and Danita. Therespondent's family came to the attention of the Illinois Department of Children and FamilyServices (DCFS) by way of a hotline call after Genesis was taken to Mercy Hospital with a burnon her face. At the time, Genesis was 7, Jerome was 5, Prentiss was 3 and Danita was 10 monthsold. On December 2, 1998, Kimberly Davis, a DCFS worker, went to talk with the respondentand check on the children. Davis saw a burn mark on Genesis' cheek and one on Jerome's chest. Davis asked the respondent about the burns. She told Davis that Jerome had been playing withthe iron and that Genesis went over to take the iron away from him and put it away; however,Genesis dropped the iron causing burns to herself and Jerome.

Davis asked Genesis how the burn occurred, and Genesis gave the same account -- "thather little brother was ironing. She took the iron away from him. She wrapped the cord aroundthe iron and the iron fell and hit against her face." Davis then spoke with Jerome, who also saidthat the burns occurred when Genesis accidentally dropped the iron. The children said that theirmother was there when the accident happened. Davis did not see other signs of abuse or neglecton the children, although there had once been an allegation that the respondent had hit one of thechildren with a hangar.

Davis testified that the children seemed "very bonded" with the respondent, and that sheseemed to care about the children. However, Davis related, when the respondent learned thatDCFS was taking temporary custody, the respondent said "she was kind of glad that they weretaking custody because she need[ed] to get herself together."

Angela Holman, a worker at Chicago Commons, had referred the respondent to drugtreatment programs on multiple occasions. The respondent had completed only one of thereferrals. On December 4, 1998, Holman spoke with the respondent about the respondent's drugproblem. The respondent admitted that she was still using cocaine, explaining that it was hard tokick the habit. Holman knew that Prentiss had been born with cocaine in his system. Holmaninformed the respondent that she had failed drug tests in her treatment program. The Stateintroduced records from the respondent's treatment program at the adjudicatory hearing.

Holman said that when she went to the respondent's house it was usually filthy. Thecouch was infested with bugs and sometimes had food on it. The floors were sticky. The disheswere piled up. Sometimes one of the children would drop food on the dirty floor then pick it upand eat it. The respondent said that she had trouble doing housework because of a foot problem. Despite the deficiencies in the children's environment, Holman never made a call to the childabuse hotline because the respondent had a brother named Larry who would come over from timeto time and assist with the housework and care of the children. The children seemed to have agood relationship with the mother.

Tamika Nash was a worker from Chicago Commons who took over the case from Ms.Holman in February 1999. She gave the respondent another referral for a drug treatmentprogram, but the respondent did not show up. The respondent said that she had forgotten, butNash told the court that she wrote the date down for the respondent and later sent her a reminderletter. The respondent was supposed to come in to Chicago Commons for another referral, butnever did. Once again, the respondent said that she forgot. Nash had also recommended that therespondent take a parenting class. The respondent did not do so.

Nash talked with the children's father, who at the time was incarcerated. He said that hewould see if there were any parenting classes offered in prison. At the hearing, the fathertestified that he had enrolled in a drug treatment program in prison and was signed up to take aparenting class soon.

The State introduced records from Michael Reese Hospital relating to the birth ofPrentiss. According to the records, there was cocaine from the mother affecting the newborn. The records indicated that a call had been made to DCFS because the baby was positive forcocaine.

DCFS informed the respondent that it was initiating proceedings to take custody of herchildren. The adjudicatory and dispositional hearings were scheduled for January 27, 1999, andservice on the respondent was ordered. On January 27, the juvenile court judge appointed apublic defender to represent the respondent and continued the hearings until April 16, 1999. Therespondent was present on April 16, but the hearings were continued again until June 3, 1999. Service on the respondent was ordered, but she claims that she never received service.

The hearings went forward on June 3, 1999, despite the fact that the respondent was notpresent. At the close of the adjudicatory hearing, the public defender admitted that therespondent had a drug problem that might justify a finding of neglect, but he asked that there beno finding of abuse. The judge nevertheless found the children abused because of "substantialrisk of physical injury." After the dispositional hearing, the judge found that the mother wasunable, unwilling and unfit to care for her children at that time. The children were placed underthe guardianship of DCFS.

The respondent now appeals. She contends that new hearings must be ordered becauseshe did not receive the notice required by Illinois law and/or the United States Constitution (U.S.Const. amend. XIV). She also argues that, on the merits, the trial court erred in ruling as it did. The respondent points out that, in the petition for wardship, Jerome rather than Prentiss wasalleged to be the child born with cocaine in his system. She also argues that the abuse findingwas erroneous because accidental injuries are not considered abuse.

2. Analysis

I. Notice

A

The Juvenile Court Act of 1987 (the Act) requires notice to all parties-respondent beforea dispositional hearing may proceed. 705 ILCS 405/2-22(2) (West 1998). The Act, as amendedin 1998, states that notice shall be in accord with Supreme Court Rule 11 (145 Ill. 2d R. 11). 705ILCS 405/2-22(2) (West 1998). Rule 11 allows for service on a party's attorney. 145 Ill. 2d R.11. Here, the respondent has not claimed that her attorney did not receive notice of theproceedings. The respondent's attorney was present on the date of the hearings. "The mother hada duty to follow the progress of her case and to learn from her attorney the date of the nexthearing." In re C.L.T., 302 Ill. App. 3d 770, 778, 706 N.E.2d 123, 129 (1999).

Furthermore, even though the respondent may not have received personal service, we findthat the respondent had actual notice of the proceedings. She was present on April 16, 1999,when the court set the date for the hearings.

"THE COURT: All right. We'll make this a date that's convenient for allthe parties. Let's see. How about the third of June?

June third at nine o'clock. That will be for trial and dispositional hearing. Anything further?

* * *

Then I'll see the parties here at nine o'clock on June third for trial anddispositional hearing."

Because the respondent was present when the hearing date was scheduled, we cannot say that shelacked notice of the hearings. In re D.R., 307 Ill. App. 3d 478, 482, 718 N.E.2d 664, 666 (1999).

B

The respondent next claims that the 1998 amendment to the Act allowing service on herattorney under Rule 11 is unconstitutional. 705 ILCS 405/2-22(2) (West 1998). She argues thatin order for notice to be adequate under the United States and Illinois Constitutions, it must beserved on her personally. U.S. Const. Amend. XIV; Ill. Const. 1970, art. I,