People v. Hernandez

691 N.E.2d 35, 294 Ill. App. 3d 581, 229 Ill. Dec. 99, 1998 Ill. App. LEXIS 27
CourtAppellate Court of Illinois
DecidedJanuary 21, 1998
DocketNo. 1—96—2040
StatusPublished
Cited by1 cases

This text of 691 N.E.2d 35 (People v. Hernandez) 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
People v. Hernandez, 691 N.E.2d 35, 294 Ill. App. 3d 581, 229 Ill. Dec. 99, 1998 Ill. App. LEXIS 27 (Ill. Ct. App. 1998).

Opinion

JUSTICE BURKE

delivered the opinion of the court:

Respondent Esther Hernandez appeals from two orders of the circuit court finding that respondent’s son, M.Z., was “abused or neglected,” as defined in section 2 — 3 of the Juvenile Court Act of 1987 (705 ILCS 405/2 — 3 (West 1996)), based on lack of care and injurious environment (705 ILCS 405/2 — 3(l)(a), (l)(b)), and adjudging M.Z. a ward of the court and awarding custody of M.Z. to the Department of Children and Family Services (DCFS) based on the court’s determination that respondent was unable to care for M.Z. On appeal, respondent argues that: (1) the trial court’s finding that M.Z. was abused or neglected was against the manifest weight of the evidence because respondent did not know and could not have reasonably known that her sister, M.Z.’s baby-sitter, would leave the child unattended; and (2) the court’s finding that respondent was unable to care for her son based on her inability to make informed decisions about what was in the best interests of her son was against the manifest weight of the evidence because the trial court improperly relied on her “borderline” IQ score; the trial court improperly connected her association with M.Z.’s father, Marcos Sr., and his previous drug dealing with her abilities as a parent; the fact that her sister left M.Z. unattended was not a sufficient basis for a finding that she was unable to care for M.Z.; and the requirements of additional drug testing and parenting classes were not relevant to her ability to currently make informed decisions about M.Z. For the reasons set forth below, we remand the cause, with directions.

On October 5, 1995, Bonnie Miller (a/k/a Bonnie Herron), a DCFS employee who had been assigned to monitor M.Z. and respondent, discovered five-year-old M.Z. at his home alone and unattended. Miller called the police, who later arrived at the home and removed the child. The State subsequently filed a petition for adjudication of wardship of M.Z. which alleged that respondent neglected M.Z. by leaving him alone in a “situation that required judgment or actions that were beyond the child’s level of maturity, physical condition and/or mental abilities,” and that respondent left M.Z. “home alone without a proper care plan.”

On October 10, 1995, a temporary custody hearing was held. At the hearing, the trial court questioned respondent regarding her employment. She stated that she worked for a company that made uniforms and earned $220 per week. The trial court then appointed the public defender to represent her. Thereafter, the State informed the court that it had filed a motion to amend its petition to include three counts of abuse: (1) physical abuse; (2) substantial risk of physical injury; and (3) excessive corporal punishment. The State further stated that it had learned that respondent threw a knife at M.Z., and a probation officer found cigarette burns on his arm, as well as indications of a beating with a belt. The trial court allowed the State to amend its petition to include the charges of abuse.

The State then called its first witness, Bonnie Miller. She testified that she was a follow-up worker for DCFS; she was assigned to respondent’s case on August 7, 1995, and at that time M.Z. was living with his paternal grandmother, Frances Martinez; she went to Martinez’ home to look for M.Z. but discovered that he was not there; Martinez told Miller that M.Z. was with his mother; and Miller then “called [respondent’s] house” and “a female” answered the phone. Thereafter, Miller went to respondent’s house and, when she arrived 10 minutes later, no one was at home. Miller then went back to Martinez’ home, where Martinez told her that M.Z. once told her that respondent threw a knife at him.

The following day, Miller, accompanied by the police, went to respondent’s home to speak with her and M.Z. When she arrived, Miller spoke with respondent’s sister, who was outside with her children and M.Z. M.Z., who appeared very shy, would not give her any direct answers. Miller noticed “little marks” on M.Z’s cheek and asked him what had happened. M.Z. responded that he had been bitten by a mosquito. Respondent then arrived home, and she and Miller talked. Respondent agreed to participate in any services that DCFS would recommend.

Miller further testified that on October 5, she arrived at respondent’s home at approximately 8:35 a.m. and found no one at home. Miller went back to her office and called respondent’s home. M.Z. answered the phone and was crying. Miller asked M.Z. to look around for an adult in the home, and when M.Z. returned to the phone, he said that no one was there. Miller stated that she then went to respondent’s house and called the police. When the police arrived, Miller made a report, took protective custody of M.Z. and escorted M.Z. to the police station.

Miller also testified that Jinny Caufield, a probation officer assigned to Frances Martinez’ nephew’s case, had seen M.Z. on various occasions. According to Miller, Caufield told her that she noticed “little whips on [M.Z.’s] feet from a belt buckle,” she had seen respondent “force [M.Z.] into the car” and she had seen cigarette burn marks on M.Z. Miller further stated that Martinez thought that respondent had been abusing drugs. Martinez told Miller on one occasion that respondent had “come after” M.Z., Martinez thought respondent was “on something” and asked respondent to leave M.Z. with her, and respondent “refused and took the baby, ran in the alley with the baby and left ***[her] car in the middle of the street.” On cross-examination, Miller stated that when she questioned M.Z. about whether respondent had thrown a knife at him, he did not respond.

On redirect examination, Miller recommended that M.Z. be placed with his paternal grandmother, Martinez. On re-cross-examination, Miller stated that when she began her testimony that day, she was going to recommend that M.Z. return home under an order of protection. In response to a question by the trial court, Miller stated that the date was October 5, 1995, when she found M.Z. home alone at approximately 9:44 a.m., and the police arrived at approximately 10:20 a.m.

Fiorina Guerrero, respondent’s sister, testified that she lived in the basement of the same building where respondent and M.Z. lived. On the morning of October 5, respondent came downstairs and asked her to take care of M.Z. Guerrero went back to her apartment, got her children and returned upstairs to be with M.Z. She later left M.Z. alone at approximately 9:30 a.m., returned at approximately 10:05 a.m., found M.Z. gone and the two doors to the apartment open. After she noticed M.Z. was missing, she looked around for him, and the woman who lived on the first floor told her that “they took [M.Z.].” Guerrero stated that she did not see the police come to the house. Guerrero also stated that she usually baby-sat for her sister and that M.Z. was not going to school that day because he had a stomachache and had had diarrhea the day before. On cross-examination, Guerrero stated that respondent would go to work at approximately 6 a.m. and return home at 3 p.m., and would always leave M.Z. in her care. Guerrero further stated that she never left M.Z. alone, and this incident was the first time she had done so.

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Related

In Interest of MZ
691 N.E.2d 35 (Appellate Court of Illinois, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
691 N.E.2d 35, 294 Ill. App. 3d 581, 229 Ill. Dec. 99, 1998 Ill. App. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hernandez-illappct-1998.