In Re Ivan H.

890 N.E.2d 604
CourtAppellate Court of Illinois
DecidedJune 4, 2008
Docket2-08-0065
StatusPublished
Cited by2 cases

This text of 890 N.E.2d 604 (In Re Ivan H.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Ivan H., 890 N.E.2d 604 (Ill. Ct. App. 2008).

Opinion

890 N.E.2d 604 (2008)

In re IVAN H. and Marifer H., Minors (The People of the State of Illinois, Petitioner-Appellee,
v.
Jaqueline M., Respondent-Appellant).

No. 2-08-0065.

Appellate Court of Illinois, Second District.

June 4, 2008.
Rehearing Denied July 2, 2008.

*606 Laura D. Horner (Court-appointed), Noonan, Perillo & Polenzani, Ltd., Waukegan, for Jaqueline H.

Michael J. Waller, Lake County State's Attorney, Waukegan, Lawrence M. Bauer, Deputy Director, Edward R. Psenicka, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Presiding Justice BYRNE delivered the opinion of the court:

The grandmother of the minors, Ivan H. and Marifer H. (a/k/a Maria), reported that Maria had been sexually abused by Jorge G., the live-in paramour of the mother, respondent, Jaqueline M. The trial court ultimately adjudicated the minors neglected based on a finding that respondent had not tried to prevent contact between the minors and Jorge, as directed by the Department of Children and Family Services (DCFS). However, the court also found that the State failed to prove the underlying sexual abuse allegations.

Respondent appeals the adjudication of neglect, arguing in various ways that the order must be reversed because the sexual abuse allegations were based entirely on Maria's out-of-court statements, which were neither corroborated nor subjected to cross-examination as required by section 2-18(4)(c) of the Juvenile Court Act of 1987(Act) (705 ILCS 405/2-18(4)(c) (West 2006)). Respondent alternatively argues that the State failed to prove that DCFS established a safety plan, that respondent understood it, or that she violated it.

The State does not dispute that it did not introduce evidence to corroborate Maria's alleged outcry. Instead, the State resorts to procedural arguments. According to the State, the issue of the hearsay's admissibility is moot because the trial *607 court credited evidence that respondent failed to adhere to DCFS's directive to prevent contact between Jorge and the minors. We disagree. The State failed to show probable cause that Maria had been sexually abused, and therefore the minors were adjudicated neglected based only on a finding that respondent did not follow a safety plan that never should have been implemented. We reverse the order adjudicating the minors neglected.

FACTS

DCFS took the minors into temporary custody on September 12, 2006, after the Mundelein police department submitted a hotline report that Maria had been sexually abused by Jorge, who was living with the family. At the time of the report, Ivan was six and Maria was four.

On September 14, 2006, the State filed two petitions for adjudication of wardship based on allegations that Jorge touched or placed his finger in Maria's vagina. The petitions alleged that Ivan and Maria were neglected in that they had been exposed to an injurious environment (705 ILCS 405/2-3(1)(b) (West 2006)). The petitions also alleged that the minors were abused in that they faced a substantial risk of physical injury (705 ILCS 405/2-3(2)(ii) (West 2006)). The petition directed toward Maria additionally alleged that she was an abused minor because she had already suffered physical injury (705 ILCS 405/2-3(2)(i) (West 2006)) and because respondent had allowed a sex crime to be committed against Maria (705 ILCS 405/2-3(2)(iii) (West 2006)).

At the shelter-care hearing, Robert Musial, the DCFS caseworker assigned to the family, testified that on September 9, 2006, the Mundelein police department reported that it suspected that Maria had been sexually abused by Jorge. According to Musial, the minors' grandmother brought Maria to the police station that day and Detective Katie Smith interviewed Maria. Referring to a police report, Musial testified that Maria told Detective Smith that Jorge had "touched her private parts with his hand, and inserted his fingers into her" four times. Maria called her vaginal area "pochita" and identified the area on a body chart. Maria specified that one instance of abuse occurred in a bedroom while Jorge was living with the family. Maria reported that she saw something red in her underwear one time after she had been touched or penetrated.

Musial further testified that Robert Schnabel, a child protective investigator who was on call at the time of the report, went to the grandmother's home the next day, on September 10, 2006. Maria was not there, so Schnabel went to Condell Hospital, where Ivan was being treated for an infection in a broken arm. Ivan's injury was unrelated to the neglect or abuse allegations. Musial testified that Schnabel's notes indicate that he spoke with respondent at the hospital and "told her that [DCFS] did not want the children to have contact with Jorge during the pending report [police investigation]." Respondent was told of the allegations, and she agreed to keep the children away from Jorge while the allegations were investigated. The notes indicated that Schnabel communicated with respondent via the hospital's "interpreter line," which operates as a conference call. Respondent and Schnabel each spoke into a telephone handset and a third party in another location translated English to Spanish over the phone.

After Musial was assigned the case, Detective Smith told him that she had informed respondent that the minors were not to have any contact with Jorge, and respondent had agreed to the directive. *608 Musial testified that, on September 11, 2006, he was alerted to call Condell Hospital. Musial spoke with a nurse who said that Maria, Jorge, and respondent were all at the hospital visiting Ivan. Over respondent's objection, Musial testified that the nurse said that Jorge "told them not to tell anybody he was there because he was in trouble with the police." The nurse reported that Ivan was too sick to be released that evening, so respondent, Jorge, and Maria left.

The next day, on September 12, 2006, Musial went to Ivan's hospital room, where he encountered respondent and Maria. When Musial learned that Jorge was on another floor, he told respondent that "we needed to make a plan" because the minors were not to have contact with Jorge. Musial used the interpreter line to communicate with respondent, but respondent acted as though she was unaware of the allegations. When Musial pressed the issue, respondent handed him her attorney's business card and declined to speak until counsel was present. Musial contacted respondent's attorney and informed him of DCFS's position that Jorge should not be around the minors.

Respondent left and spoke with Jorge for about 20 minutes, returned to Ivan's room, and agreed to resume the conversation about the safety plan. Respondent explained that she and the minors were moving out of the grandmother's home and into an apartment that Jorge was renting for them. Musial said the arrangement was unacceptable, and respondent replied, "do what you are going to do." Musial asked respondent to identify a family member with whom the minors could be placed, but respondent refused.

On cross-examination, Musial admitted that respondent believed that the grandmother had fabricated the allegations.

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Bluebook (online)
890 N.E.2d 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ivan-h-illappct-2008.