Find Legal Information

In re N., No. 2-98-1430

2nd District, 10 December 1999

JUSTICE GALASSO delivered the opinion of the court:

Respondents, M.N. and F.N. (hereinafter M.N. and F.N.), appeal from the order of the circuit court of Kane County finding their eight children to be neglected and making their youngest child, I., a ward of the court. On appeal respondents raise three issues, namely, (1) whether the trial court's finding that I. was a neglected minor was against the manifest weight of the evidence and whether its order adjudicating him neglected and making him a ward of the court must be reversed; (2) whether the trial court erred in finding that respondents' seven other children were neglected; and (3) whether the trial court improperly considered a fitness evaluation of M.N. in an unrelated case, where there was no showing that M.N. ever gave his informed written consent to the release of the evaluation.

On April 21, l998, the State filed a three-count petition for adjudication (petition) against respondents, alleging their eight children were neglected minors. The children's names and birth months are as follows: M., Jr., May of l982; J., July of l983; N., February of l985; C., July of l988; Jo., October of l989; M., August of l991; T., October of l993; and I., January of 1998.

The petition alleged in pertinent part:

"3. The minors are neglected minors by reason of the following:

1. That said minors *** are neglected minors under 18 years of age and their parents, who are responsible for their welfare, do not provide the proper or necessary support, education as required by law, or medical or other remedial care recognized under the State law as necessary for the minor's [sic] well-being *** to wit: I. N. was born premature, after suffering inter cranial [sic] bleeding and also [has] an inguinal hernia, and the parents are refusing to follow up with the recommended treatment plan; thereby placing the minor at risk.

***

3. That [the minor children's] *** environment is injurious to their welfare; to wit: the parents do not provide adequate housing for the minors in that they reside in *** one room [in a motel], which places the minors at risk of harm."

At the end of the Shelter Care hearing held on April 21, l998, the trial court found probable cause to believe that the minors were neglected as alleged in paragraph 3.1 of the petition. However, the trial court found that an immediate and urgent necessity did not exist to remove the minors from their home. Further, the trial court directed that I., who had been taken into protective custody prior to April 21, be returned to respondents. The trial court entered an order of protection regarding all minors, which required respondents, among other things, to follow the medical discharge recommendations for I. and to take I. to all recommended follow-up examinations.

An adjudicatory hearing began on August 24, l998, with respondents appearing pro se. Dr. Diane Nielsen, a pediatrician, testified first for the State. She stated that other physicians in her practice group had treated the N. children and that she had personally treated two of them, I. and M. Sometime in February, 1998, Dr. Kopparthi, a neonatalist who had attended I.'s birth and had treated him in the following weeks at Copley Hospital, asked Dr. Nielsen to see the infant a week after his discharge from the hospital.

Dr. Nielsen's review of I.'s hospital records indicated the following. I. was born prematurely on January 15, l998. A routine ultrasound procedure showed that I. had suffered an intercerebral hemorrhagic infarct, the equivalent of a stroke, prior to his birth. Because of I.'s prematurity, there was also a concern that he could have problems with his eyesight. Dr. Nielsen stated that an evaluation was necessary to determine if I.'s eyes were developing normally.

Dr. Nielsen testified that on February 25, l998, respondents brought I. to Dr. Nielsen's office, stating that their son was there to be circumcised. Dr. Nielsen testified that her examination of the infant revealed that he had the appearance of a normal newborn. His weight gain since discharge from the hospital was appropriate. Dr. Nielsen observed a hernia, which had not been noted before. Despite the hernia, I. appeared to be fine. At the conclusion of this examination, Dr. Nielsen gave respondents the following recommendations: (1) a follow-up eye examination to determine if I.'s eyes were developing properly; (2) a follow-up examination by a neurologist regarding any effects of the intercerebral bleeding; (3) an examination by a developmental pediatrician to determine if there were "early and subtle findings" that could be indicative of developmental delay; and (4) the appropriate vaccinations and physical therapy for I. Dr. Nielsen noted that, at the time of this examination, respondents had already missed an appointment with an opthalmologist, which had been recommended upon I.'s discharge from the hospital.

According to Dr. Nielsen, babies with a history of intercerebral bleeding are at "high risk for many neurological problems." The area of the brain in which the bleeding had occurred "would be susceptible to not developing correctly." Dr. Nielsen further stated:

"If you initiate therapy early, the brain is very what we call plastic. *** It has the ability to recover from previous injuries at a young age in that if you begin therapy [and] begin working on the developmental skills, motor skills, social skills, *** you can take advantage of an early brain that is going to have a chance to have better development."

Dr. Nielsen also told respondents that they would have to keep close track of I.'s hernia and that, if it became strangulated, i.e., if part of the intestine became stuck in the hernia, then the baby would need immediate treatment. Dr. Nielsen indicated that many hernias in newborns resolve themselves in four to six months.

Dr. Nielsen stated that the follow-up care for I. that she outlined for respondents was necessary for his well-being. However, these directions were met with "extreme resistance," and M.N. indicated to her that he had no desire to follow them.

Regarding the children's immunizations, Dr. Nielsen testified that the children had not received them "according to schedule." I. had been given a DPT, polio, and Hepatitis B vaccination but had not yet received a Hemophilus influenza type B (HIB) vaccination. Dr. Nielsen further stated that she examined another of respondent's children, M., who had come to her for a school physical. During that examination, Dr. Nielsen observed that M. had a "lazy eye." She told M.N. about the need for treatment of this condition. M.N. responded to her that "[h]e didn't believe in eye doctors and [he] could take care of this problem at home." She testified that if a "lazy eye" was not treated, poor vision in the affected eye was a probable result.

On cross-examination, Dr. Nielsen agreed that her concerns regarding I. were primarily based on his being born prematurely and having suffered intercerebral bleeding before his birth rather than on what she observed during the February 25, 1998, examination. She did not recall any religious issues being raised by respondents prior to or during that examination. Further, she stated that respondents did not bring I. to an examination that had been scheduled for April 22, l998. Dr. Nielsen stated that she was unaware that, prior to this second examination, respondents had decided that she was no longer the family's pediatrician. Dr. Nielsen agreed that she had told F.N. during a telephone conversation in the latter part of February l998 that, if respondents did not bring I. in for follow-up examinations, then she would contact the Department of Children and Family Services (DCFS).

The State's next witness, Jerry Waite, was a child protective investigator with DCFS. Waite testified that on February 15, l998, he received a hotline phone call regarding the medical neglect of respondents' children, specifically I. Waite talked on the telephone with M.N. on February 25, l998, to ascertain respondents' intentions regarding I.'s medical treatment. At that time, M.N. was uncertain whether they would continue taking I. to Dr. Nielsen. Waite stated that he told M.N. that it was necessary for respondents to follow Dr. Nielsen's treatment recommendations.

Waite further stated that he talked to M.N. in the middle of April l998. M.N. told him that he was not going to take I. for any type of treatment because I. was not "sick." M.N. further told Waite that I. would not be getting "any shots" until he was five years old. Waite also testified that, at one point in the DCFS investigation, F.N. was informed that she had to meet in person with certain DCFS staff persons but she failed to do so. Additionally, respondents did not provide Waite with their correct address or the names of the schools which their children attended. Eventually, Waite discovered that the family lived in the Hanson Motel in Aurora. Waite visited the motel and described the family's living arrangements in this way:

"It is a motor-inn I guess you'd call it. The door opens to the outside. [It's a] one room sleeping quarters with a small kitchen off to one side and a bathroom. *** The hotel room [sic] was equipped for what [it] would take for ten people to live in there. There were two full-sized beds, [another] bed and one mattress on the floor that I could see, and the rest of the various clothing and belongings and food and such *** pretty much filled the quarters, making it difficult to really walk through. It was mostly full of the family's supplies."

Waite stated that I. had been taken into protective custody on April 17, l998, and returned to respondents on April 21, l998.

On cross-examination, Waite testified that M.N. had explained to him "that [he] had been beaten by the Sheriff and dragged out of his [Batavia] home in the middle of winter and that somehow the government was keeping him from being in that home." Waite further stated that he went to the Batavia address he had been given by respondents and found that it corresponded to an apartment building. Tenants in that building told Waite that the family had been evicted for the nonpayment of rent. Waite acknowledged that respondents brought their children to the DCFS office when requested to do so. The children appeared to be clean, appropriately dressed, and properly developed for their ages. He did not observe any "outward medical problems" or signs of neglect.

In the respondents' case, M.N. stated that I. was born with no health problems and that he remained in the hospital for several weeks due to his premature birth. According to M.N., Dr. Kopparthi told respondents that "a little something showed up on the ultrasound" which "could be something [or] could be nothing." Dr. Kopparthi told respondents that he wanted to do some further tests regarding I., particularly a computed tomography (CT) scan. Respondents told Dr. Kopparthi that they were opposed to the CT scan and asked if there was another procedure that could be performed. They agreed to have I. undergo a magnetic resonance imaging (MRI) procedure.

M.N. further testified that after the MRI had been performed on I., Dr. Kopparthi and "another expert" concluded that the baby was "perfectly normal." Dr. Kopparthi stated to respondents they could schedule a follow-up appointment with a specialist several months later for "their peace of mind." According to M.N., Dr. Kopparthi reiterated that I. appeared to be in perfect health and that respondents could take him to follow-up appointments if they were concerned that he was not developing properly.

M.N. then explained that, due to respondents' religious beliefs, their children were not taken in for routine well-baby checkups. They believed that God would let them know if something was wrong with their children. In M.N.'s view, I. appeared to be doing well. The inguinal hernia emphasized by Dr. Nielsen had been examined by other physicians, who determined that the hernia had "gone away." He also stated that none of the physicians who saw I. after February 25, l998, observed that the baby had any trouble tracking with his eyes. M.N. conceded that I. was a "little bit cross-eyed." However, he stated that it was his understanding that it was normal for some babies to be cross-eyed until they became somewhat older.

M.N. further testified that respondents had taken some of their children to Dr. Hanson, a pediatrician, who was in the same practice group as Dr. Nielsen. Prior to I.'s birth, Dr. Hanson had substantially limited the number of patients he was seeing. Respondents then set up an appointment with Dr. Nielsen. After the February 25 examination by Dr. Nielsen, respondents concluded that they did not like her approach and decided to find a new pediatrician. M.N. testified that Dr. Nielsen wanted respondents to take I. to all follow-up examinations that she outlined. He stated that they thought I. was in good health and saw no reason to follow her recommendations. Further, he stated that Dr. Nielsen told them that she was not a specialist and was not qualified to make any judgments about I.'s need for follow-up care.

During cross-examination, M.N. stated that respondents had taken I. to a number of physicians following Dr. Nielsen's examination of him. He explained that I. had been examined by Dr. Bahtia, who concluded that there was nothing wrong with I.'s eyes. Additionally, M.N. testified that I. had been examined by Dr. Heideman, a neurologist, who performed a number of procedures on I., including an ultrasound, an MRI, and a CT scan. According to M.N., Dr. Heideman found nothing wrong with I. M.N. further explained that respondents had begun taking I. to Dr. Martz, a general practitioner, in late spring of 1998. Dr. Martz had examined I. several weeks before the subject hearing and had found no problems with I.'s eyes or general development. M.N. initially stated that he was not familiar with a Dr. Vasam but later conceded that respondents might have taken I. to be examined by Dr. Vasam on June 24, l998. He explained that he "just [did not] know the names of all the doctors." Additionally, M.N. testified that respondents obtained whatever immunizations were necessary for their children to enroll in school.

Regarding the family's living circumstances, M.N. testified that the family was living in the Hanson Motel in Aurora because 2