People v. Weaver ( 2008 )

JUSTICE TURNER,

dissenting:

I respectfully dissent from that portion of the majority opinion which affirms the trial court’s dispositional order finding Sarah unfit.

Without analysis, the majority adopts the trial court’s rationale for finding Sarah unfit. The majority quotes the trial court that “ ‘the unexplained injuries could not have occurred but for the abuse and neglect of the child.’ ” 386 Ill. App. 3d at 856, 898 N.E.2d at 811. Further, “ ‘[s]omeone in this world knows how those injuries got there, and there’s [szc] two people in this courtroom [who] are supposed to know.’ ” 386 Ill. App. 3d at 857, 898 N.E.2d at 811.

While the majority opinion appropriately demonstrates how and why the above rationale supports a finding of neglect (see 386 Ill. App. 3d at 856-57, 898 N.E.2d at 811), the majority errs by apparently relying on the trial court’s above quotes as a sufficient basis to find Sarah unfit. I believe a more in-depth analysis is required to determine whether the trial court’s unfitness finding as to Sarah was against the manifest weight of the evidence. For the reasons that follow, I would find that it was.

The majority notes that Dr. Nutekor “opined that J.W.’s injuries were (1) inflicted at the same time, (2) two or more days old based on the color of the bruises, and (3) not self-inflicted.” 386 Ill. App. 3d at 849, 898 N.E.2d at 805. However, this synopsis of Dr. Nutekor’s testimony fails to fully explain Dr. Nutekor’s opinion. The following is the doctor’s testimony on cross-examination.

“Q. [Attorney Jonathan Backman:] Now, I think you just indicated that[ ] — [ ]well, a few minutes ago that you thought the bruises were two or more days old. Just so I’m clear on that you subsequently said they weren’t fresh. They didn’t happen on Saturday the day you saw the baby, right?

A. [Dr. Nutekor:] That is my opinion.

Q. But they could have happened the prior day?

A. The prior day?

Q. Yes.

A. That is a possibility because when we say two days in the emergency room if somebody comes in and says how many days, two days would mean yesterday and today.”

In addition to the above, it was also established in cross-examination that (1) the doctor’s observations of the color of the bruises were different than that of the nurse and (2) the color of bruises can be deceptive.

The upshot of the doctor’s testimony clearly establishes J.W.’s injuries may have been inflicted on J.W. the day before the doctor’s examination. Thus, the injuries clearly may have been inflicted when J.W. was with David at his parents’ house. In that case, Sarah could neither have caused the bruises nor had the opportunity to observe the bruises until she saw J.W the following day. The record contains no other corroborating evidence that Sarah caused the bruises or knew of them until they were pointed out to her by McAdams. In my view, the doctor’s testimony does not prove, even by a preponderance of the evidence, Sarah caused or knew of the injuries.

Moreover, I question the majority’s reference to R.B.’s three hypothetical scenarios that this court posed in explaining the irrelevancy of determining causation at the adjudication stage. See 386 Ill. App. 3d at 853, 898 N.E.2d at 808-09. The hypothetical quoted by the majority posits the State filed and proved a petition on behalf of a l1/2-year-old child who suffered unexplained, “ ‘multiple and deep bruises, as well as welts, over several months, indicative of excessive corporal punishment.’ ” 386 Ill. App. 3d at 853, 898 N.E.2d at 809, quoting R.B., 336 Ill. App. 3d at 615, 784 N.E.2d at 407-08. The majority states the above hypothetical is “remarkably similar to the facts of this case.” 386 Ill. App. 3d at 853, 898 N.E.2d at 808.1 disagree.

Initially, I note “[cjases involving abuse, neglect[,j and wardship are sui generis; each case must be decided on its own distinct set of facts and circumstances.” In re M.W., 386 Ill. App. 3d 186, 197, 897 N.E.2d 409, 418 (2008). Further, this case is factually different from the hypothetical. Here, we have unexplained injuries that, according to the doctor, were all received at the same time. The bruises were neither severe enough to warrant treatment nor described as welts indicative of excessive corporal punishment. Most importantly, the bruises did not occur over several months, weeks, or even days. Obviously, the facts in the majority’s hypothetical would support a finding of neglect, and in my view, they would also be sufficient to support a specific finding of unfitness as to both parents at the dispositional stage. However, while the facts in this case do support a finding of neglect, they simply do not support a finding of Sarah’s unfitness. Unexplained, severe bruising over a several-month period is not comparable to the one-time bruises here.

Accordingly, I would find the trial court’s judgment Sarah was unfit to be against the manifest weight of the evidence. Therefore, I would reverse the dispositional order and remand for a new order.

Additionally, I find the dual representation of Sarah and David troubling. Section 1 — 5 of the Act (705 ILCS 405/1 — 5 (West 2006)) gives parents the right to be represented by counsel in a juvenile proceeding. “ ‘Implicit within the right to counsel is that such representation be effective.’ ” In re S.G., 347 Ill. App. 3d 476, 479, 807 N.E.2d 1246, 1248 (2004), quoting In re Johnson, 102 Ill. App. 3d 1005, 1011, 429 N.E.2d 1364, 1370 (1981). Thus, a parent is entitled “to the ‘undivided loyalty’ of her attorney,” and “counsel may not represent conflicting interests or undertake the discharge of inconsistent duties.” S.G., 347 Ill. App. 3d at 479, 807 N.E.2d at 1248, quoting In re Lackey, 71 Ill. App. 3d 705, 707, 390 N.E.2d 519, 521 (1979). Dual representation harbors a constant potential for conflict. People v. Sims, 322 Ill. App. 3d 397, 415, 750 N.E.2d 320, 335 (2001).

I note the trial court recognized the possibility of the conflict when, at the dispositional hearing, it sua sponte questioned David whether he might want independent counsel. When David indicated he was satisfied with sharing his attorney with Sarah, the court concluded the proceedings could go forward. However, the court’s questioning of David did nothing to protect Sarah. In my view, it is clear Sarah needed her own independent attorney whose undivided loyalty was to her and her alone. Her own independent attorney would likely have pursued David differently in questioning and certainly in argument would have attacked David’s credibility.