People v. Jesus A.-V. (In re Daniel G.)

2021 IL App (1st) 210640

193 N.E.3d 283

456 Ill.Dec. 315

IN RE DANIEL G., Minor-Appellee,

(The People of the State of Illinois, Petitioner-Appellee,

v.Jesus A.-V., Respondent-Appellant).

No. 1-21-0640

Appellate Court of Illinois, First District, Fourth Division.

Opinion filed November 12, 2021

Marvin Raidbard, of Skokie, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham and Gina DiVito, Assistant State's Attorneys, of counsel), for the People.

Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain and Jean M. Agathen, of counsel), for appellee.

JUSTICE LAMPKIN delivered the judgment of the court with opinion.

¶ 1 Daniel G. was placed in the temporary custody of the Illinois Department of Children and Family Services (DCFS) when he was three weeks old based on allegations that he was a neglected minor. The allegations stemmed from actions or omissions by Daniel's mother, Ms. G.¹ Based on stipulated testimony, Daniel was subsequently adjudged a neglected minor. Respondent Jesus A.-V. sought custody of Daniel after learning that he was Daniel's father. After a two-part dispositional hearing, the court made Daniel a ward of the court and found that both Ms. G. and respondent were unable to care for Daniel. DCFS was awarded custody and guardianship of Daniel.

¶ 2 Respondent does not contest the trial court's orders adjudging Daniel a neglected minor and making him a ward of the court. Respondent appeals from the trial court's finding that he was unable to care for Daniel and subsequent grant of custody and guardianship to DCFS. The State and Daniel's public guardian have filed appellees’ briefs. We have jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017), governing appeals from final judgments entered below.

¶ 3 For the following reasons, we reverse the trial court's order and remand this matter for further proceedings consistent with our ruling.

¶ 4 I. BACKGROUND

¶ 5 On January 7, 2021, Daniel was born to Ms. G. Respondent is Daniel's father. Ms. G. has two other children: J.G., who was born October 12, 2015, and M.G., who was born August 21, 2018. Both J.G. and M.G. were adjudged wards of the court and placed with DCFS before Daniel's birth. Respondent is not the father of J.G. or M.G.

¶ 6 On January 21, 2021, the State filed a petition for adjudication of wardship, alleging that Daniel was a neglected minor whose environment was injurious to his welfare. The petition contained the following supporting facts:

"Mother has four prior indicated reports for inadequate supervision, substance misuse, and substantial risk of physical injury/environment injurious to health and welfare by neglect. Mother has two other minors who are in DCFS custody with findings having been entered. Offered and recommended reunification services are outstanding. Mother tested positive for illegal substances in October of 2020 while pregnant with this minor. Mother has previously been diagnosed with depression and anxiety disorder. Mother states that there are two possible putative fathers for this minor. Paternity has not been established."

¶ 7 The petition for adjudication of wardship named two possible fathers: respondent, whose full name and address were provided, and "Antoine," whose last name and address was "unknown."

¶ 8 On January 21, 2021, the State also filed a motion for temporary custody and an affidavit documenting DCFS's efforts to date. Kevestiana Martin, the Division of Child Protection (DCP) worker, averred:

"This case was brought to DCFS[’s] attention after [Ms. G.] gave birth to her child Daniel for allegation 60: Substantial Risk of Physical Injury/Environment Injurious to Health and Welfare by Neglect. Daniel tested positive for marijuana. [Ms. G.] admitted to using marijuana daily while pregnant. [Ms. G.] also admitted to suffering from Anxiety and Depression. [Ms. G.] has two children in care.

[Ms. G.] has a history of cocaine and marijuana use. It has been reported [Ms. G.] is non-compliant with services such as random drops, parenting classes, substance abuse classes, and on-going recovery treatment. Caseworker, Gerrie Avant expressed she doesn't think [Ms. G.] can parent Daniel. Investigator has been provided with documentation from Haymarket for substance abuse and parenting. [Ms. G.] has expressed she's willing to return to treatment with Daniel."

¶ 9 On January 26, 2021, the trial court held a temporary custody hearing. The parties stipulated to the facts alleged in the petition, and the trial court made a finding of probable cause and urgent and immediate necessity. The trial court further found that reasonable efforts could not prevent or eliminate the need to remove the minor from his home and awarded temporary custody to DCFS. The trial court entered an order for the release of Ms. G.’s medical records.

¶ 10 On February 9, 2021, the trial court entered an order for parentage testing for respondent and Daniel. The trial court also ordered publication for putative father "Antoine."

¶ 11 On March 16, 2021, the matter appeared in court for status. The court entered an order that stated "the adjudication and possible disposition and permanency hearings for this matter are set for April 14, 2021, at 1:00 p.m."

¶ 12 On April 6, 2021, a case management conference was held. DCFS caseworker Gerrie Avant, DCP worker Kevestiana Martin, and Ms. G. attended the conference. The trial court continued the case to April 14, 2021.

¶ 13 On April 14, 2021, based on the results of the DNA testing of respondent and Daniel, the court entered a finding of paternity. The petition for adjudication of wardship was amended to name respondent a party to the action and remove "Antoine" as a putative father.

¶ 14 The trial court then commenced an adjudicatory hearing. The court began by addressing respondent. The ensuing conversation established that respondent (1) was a lift maintenance technician who installed automotive lifts but was on unemployment for a little over a year due to the COVID-19 pandemic, (2) was 63 years old and a life-long Chicagoan, and (3) served in the military for six years. The trial court remarked that respondent "look[s] a lot younger than 63" and "look[s] like you're going to live forever."

¶ 15 The court also addressed Ms. G., who informed the court that (1) under the safety plan, Daniel was living with Ms. G.’s sister; (2) Ms. G. visited with Daniel regularly; (3) Ms. G. finished parenting classes and was awaiting the start of therapy; and (4) Ms. G. was currently employed at Taco Bell.

¶ 16 The parties then stipulated to the following facts:

"1. [Daniel] is a male minor born on January 7, 2021.

2. On January 21, 2021, when Daniel's Petition for adjudication of Wardship (‘Petition’) was filed, Daniel could have been found *** in Chicago, Illinois.

3. [Ms. G.] is Daniel's mother. At all times relevant to the Petition, [Ms. G.] had legal care and custody of Daniel and resided *** in Chicago, Illinois.

4. [Respondent], Antoine Last Name Unknown and All Whom It May Concern are Daniel's putative fathers. People's Exhibit A, which is admissible into evidence, is a true copy of notarized paternity results for respondent and Daniel dated April 12, 2021. At all times relevant to the Petition, all of Daniel's putative fathers are non-custodial.

5. [Ms. G.] has four prior indicated reports: a) SCR 2271939A, Report Date November 2, 2016, Finding Date January 27, 2017, allegation 74 inadequate supervision as to [J.G.] date of birth October 12, 2015; b) SCR 2271939B, Report Date August 22, 2018, Finding Date December 18, 2018, allegation 65 substance misuse by neglect as to [M.G.] date of birth August 21, 2018 and; c) SCR 2271939C, Report Date May 29, 2019, Finding Date July 27, 2019, allegation 60 substantial risk of physical injury/environmental injurious to health and welfare by neglect as to [M.G.] and [J.G.]; and d) SCR 2271939D, Report Date August 28, 2019, Finding Date October 9, 2019 allegation substantial risk of physical injury/environment injurious to health and welfare by neglect as to [M.G.] and [J.G.].

6. [Ms. G.] has two other minors who are in DCFS custody with findings having been entered: a) [J.G.], 19 JA 720, adjudication order January 6, 2020, finding of neglect injurious environment, disposition order September 11, 2020, findings of wardship and guardianship to DCFS; and b) [M.G.], 19 JA 721 adjudication order January 6, 2020, finding of neglect injurious environment and neglect controlled substance, disposition order September 11, 2020, findings of wardship and guardianship to DCFS.

7. If called to testify, Kevestiana M. Martin would state that she is a DCP investigator employed by DCFS and in that capacity in January 2021 she received investigatory duties for Daniel and [Ms. G.], and that a) on January 8, 2021 at 1:52 p.m., at Comer Children's Hospital, [Ms. G.] said she takes Mirtazapine 15 mg and smokes marijuana twice daily, and that she used cocaine while pregnant with [M.G.], she went to Haymarket to complete services, got involved in DCFS intact family services but that she slipped up and started using drugs again, that she used marijuana daily while pregnant with Daniel but no other drugs; b) on January 21, 2021 at 11:44 a.m., over the telephone, [Ms. G.] said she relapsed with cocaine in April 2020, but has only used marijuana since, and that she buys her marijuana from dealers off the street and isn't sure if it was laced.

8. If called to testify, Gerrie Avant would state that she is a caseworker employed by DCFS, and in that capacity in May 2020 she became [Ms. G.’s] case manager for reunification with [M.G.] and [J.G.], but that she did not meet [Ms. G.] until October 2020, and that, prior to January 21, 2021, [Ms. G.] had not completed her reunification services, [Ms. G.] had never completed random drops, [Ms. G.] had not been able to control [M.G.] and [J.G.] during visits, [Ms. G.] had refused to return to Haymarket for

...