In re N.S. , 2024 IL App (4th) 230781-U ( 2024 )

NOTICE 2024 IL App (4th) 230781-UThis Order was filed under
FILED
Supreme Court Rule 23 and is February 15, 2024
NOS. 4-23-0781, 4-23-0782 cons.
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
In re N.S., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Peoria County
Petitioner-Appellee, ) No. 23JA5
v. (No. 4-23-0781) )
Tyler S., )
Respondent-Appellant). )
---------------------------------------------------------------------- )
In re A.S., a Minor ) No. 23JA6
)
(The People of the State of Illinois, )
Petitioner-Appellee, ) Honorable
v. (No. 4-23-0782) ) Derek G. Asbury and
Tyler S., ) Mark E. Gilles,
Respondent-Appellant). ) Judges Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Justices Steigmann and DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court granted the motion to withdraw as appellate counsel and
affirmed the trial court’s orders, concluding no issue of arguable merit could be
raised on appeal.
¶2 Respondent father, Tyler S., appeals from the trial court’s orders adjudicating his
daughters, N.S. (born September 28, 2022) and A.S. (born September 29, 2021), neglected and/or
abused, making them wards of the court, and placing guardianship and custody with the Illinois
Department of Children and Family Services (DCFS). On appeal, respondent’s appellate counsel
moves to withdraw on the ground no issue of arguable merit can be raised. For the reasons that
follow, we grant appellate counsel’s motion and affirm the trial court’s orders.
¶3 I. BACKGROUND
¶4 Respondent and Mercedez S. are the minors’ parents. Mercedez S. is not, however,
a party to this appeal.
¶5 A. Petitions for Adjudication of Wardship
¶6 On January 12, 2023, the State filed petitions for adjudication of wardship, alleging
(1) N.S. and A.S. were neglected minors in that they were subject to an environment injurious to
their welfare while living with their parents, respondent and Mercedez S., and (2) N.S. was an
abused minor in that physical injury was inflicted upon her by one of her parents. In support of
these allegations, the State alleged, on December 15, 2022, N.S., having been in the care of her
parents along with A.S., was found to have current and past brain hemorrhaging for which her
parents presented no history to explain said injuries. The State further alleged (1) respondent, who
was with N.S. when she became unresponsive, told police more than eight different explanations
for her injuries, all of which he later retracted; (2) Mercedez S. visited N.S., who had been
hospitalized since December 15, once or twice since December 25 and left town with a boyfriend;
(3) respondent had not visited N.S. since a few days after December 25; (4) Mercedez S. demanded
the maternal grandmother be banned from the hospital on January 9, 2023, despite the grandmother
having visited N.S. daily; (5) both parents had a history of mental health issues; and (6) Mercedez
S. was indicated by DCFS on June 17, 2020, for “substantial risk of physical injury/environment
injurious to health and welfare.”
¶7 B. First Appearances and the Shelter Care Hearing
¶8 Also on January 12, 2023, the trial court, the Honorable Mark E. Gilles presiding,
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conducted a first appearance and shelter care hearing. All later proceedings were presided over by
the Honorable Derek A. Asbury.
¶9 At the initial hearing, the following were present: (1) respondent, (2) Mercedez S.,
(3) an attorney for the State, (4) an attorney serving as the guardian ad litem (GAL), and (5) a child
protection specialist with DCFS. At the time of the hearing, A.S. was in the care of a close family
friend, and N.S. remained hospitalized.
¶ 10 The trial court commenced the proceeding by inquiring about legal paternity. The
GAL informed the court she believed respondent and Mercedez S. were married but noted she did
not have a copy of the marriage certificate. The GAL asked for respondent to be found to be the
putative father. On inquiry of the court, respondent indicated he and Mercedez S. were married
after A.S.’s birth but before N.S.’s birth. The court found respondent to be the putative father of
the minors.
¶ 11 The trial court then informed respondent and Mercedez S. of the allegations in the
petitions, their rights, and the progression of the proceedings. In relevant part, the court informed
respondent and Mercedez S. of the following: “Respondents in cases like this *** have the right
to be represented by counsel. If the respondents, you parents, are financially unable to hire an
attorney, one would be appointed at no cost.” The court concluded with the following:
“I’ll get back to the right to counsel for future court
appearances. Today, I need to make decisions. Before you’ll have
any opportunity to have court appointed counsel, I would need to
decide whether or not their children should be placed in the
temporary custody of [DCFS].”
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¶ 12 The trial court inquired if respondent had any objection to the minors being placed
in the temporary custody of DCFS. Respondent requested further explanation, as he did not
understand the issue, which the court then provided. Eventually, respondent indicated he had no
objection. The court inquired if Mercedez S. had any objection to temporary custody. Mercedez
S. objected.
¶ 13 The State presented testimony from the child protection specialist who was present
at the hearing. According to the DCFS worker, N.S. had been hospitalized since December 15,
2022, with current and past brain hemorrhaging for which respondent and Mercedez S. presented
no history to explain said injuries. In the weeks following N.S.’s hospitalization, respondent and
Mercedez S. visited N.S. less than six times. On January 9, 2023, Mercedez S. requested to have
the maternal grandmother, who had been visiting N.S. daily, removed from the safety plan because
she had prevented her from holding N.S. Mercedez S. also reported on that date that she had been
struggling with her mental health “due to the stress and trauma of [N.S.] being injured” and had
travelled to St. Louis with her paramour to have “a break from the situation.”
¶ 14 The GAL opined temporary custody was appropriate in light of the contents of the
petition and the testimony from the child protection specialist.
¶ 15 Based upon the testimony presented and the GAL’s recommendation, the trial court
found the minors should be placed in the temporary custody of DCFS. The court then returned to
the issue of counsel. Upon learning both respondent and Mercedez S. desired the appointment of
counsel, the court inquired into their financial circumstances. Based upon that inquiry, the court
appointed separate counsel to represent respondent and Mercedez S. The court then set the matter
for answers to the petitions.
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¶ 16 C. Answers and Continuances
¶ 17 In February 2023, respondent and Mercedez S., through their respective counsel,
filed answers to the State’s petitions for adjudication of wardship, which were then subject to
clarification at multiple hearings. At the initial hearing, the trial court found respondent to be the
legal father of N.S. Ultimately, respondent stipulated to the allegations in the petitions, with the
caveat he maintained he did not abuse N.S. Mercedez S., in turn, stipulated to only certain
allegations in the petitions, which came with several caveats. As a result of the answers, the court
set the matter for a contested adjudicatory hearing. While the court initially scheduled the
adjudicatory hearing for April 11, 2023, it was later continued to April 25 on the motion of
Mercedez S. and with no objection by respondent. On April 25, the court again, due to further
clarification of Mercedez S.’s answer and upon finding it was in the minors’ best interests,
continued the adjudicatory hearing to June 6 over the objection of Mercedez S.
¶ 18 D. Adjudicatory Hearing
¶ 19 On June 6, 2023, the trial court commenced a two-day adjudicatory hearing, which
concluded on July 19, 2023. At the commencement of the hearing, respondent was found to be the
legal father of A.S. The State presented the stipulations of the parties, medical records of N.S., and
testimony of Dr. Channing Petrak, a qualified expert in abuse pediatrics. Mercedez S. testified on
her own behalf.
¶ 20 Dr. Petrak testified she evaluated N.S and reviewed N.S.’s medical records. N.S.
had “sustained head injury including subdural hematoma, subarachnoids, brain tissue injuries,
[and] some parenchymal injuries.” Dr. Petrak observed N.S. to have “alternating lethargy and
irritability, which is often a sign of neurological injury, as well as a bulging fontanel, *** which
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is an indicator of increased intercranial pressure.” Dr. Petrak did not observe any bruising or
externals signs of trauma on N.S. Dr. Petrak testified “there was no report that [N.S.] was rolling,”
and mobility for a child of N.S.’s age typically involved lifting the head and possibly “push[ing]
up on their arms a little bit.” Dr. Petrak opined, based upon her evaluation of N.S. and review of
N.S.’s medical records, N.S.’s injuries “were highly suspicious for abuse.”
¶ 21 Mercedez S. testified N.S. was generally a “calm” baby and “the only time she
would get difficult is when she was hungry and would cry a lot more.” N.S. was previously
hospitalized with “Covid, rhino, a diaper rash, and a yeast infection.” After her discharge, she was
then readmitted upon discovering she was allergic to a diaper rash cream. Mercedez S. explained
N.S., “[f]rom a very early age[,] *** was either sick or [had] diaper rash we could not get rid of.”
¶ 22 Mercedez S. indicated her mother, her brother, and her brother’s girlfriend
occasionally cared for N.S. while she and respondent were at work. Mercedez S. testified, in late
November or early December 2022, they “had started introducing tummy time as well as playing
on mats and stuff to get [N.S.] to learn to roll over and to be more interactive at a young age.”
¶ 23 According to Mercedez S., on December 14, 2022, she worked from 9 a.m. to 3:30
p.m. at her first job and then 4:30 p.m. to 9 p.m. at her second job. During that time, N.S. was in
the care of respondent, and A.S. was in the care of Mercedez S.’s brother and his girlfriend.
Mercedez S.’s brother lived with respondent, Mercedez S., and the minors. On the morning of
December 15, 2022, Mercedez S. left N.S. in the care of respondent when she went to work. She
later left work and met N.S. at the hospital.
¶ 24 Mercedez S. testified she was at the hospital daily upon N.S.’s admission but then,
around December 25, was told by DCFS she could “no longer be in the hospital full time.” She
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then went to St. Louis “with a friend” for a few days because she was under “a lot of stress and
depression.” She explained she was stressed from “not having my kids in the home,” “finding out
I was pregnant at the same timeframe,” and “[t]he runaround with the doctors.” She acknowledged
having been diagnosed with “bipolar one rapid cycling,” borderline personality disorder, and
posttraumatic stress disorder, conditions she asserted she was maintaining in December 2022
without medications. On January 9, 2023, Mercedez S. requested DCFS ban her mother from
visiting N.S. because she was “angry” that her mother told her she was not allowed to hold N.S.
¶ 25 Mercedez S. explained she was no longer employed because her employers were
unable to accommodate her being at the hospital with N.S. She asserted the minors were her “safe
spot,” and she had never physically abused or shaken N.S.
¶ 26 The trial court found the allegations of the petitions had been proven but declined
to make a finding concerning who specifically inflicted the abuse upon N.S. The court found N.S.
to be both neglected and abused and A.S. to be neglected.
¶ 27 E. Dispositional Hearing
¶ 28 Immediately following the conclusion of the adjudicatory hearing, the trial court
commenced a two-day dispositional hearing, which concluded on August 2, 2023. The court
received a dispositional report with several addendums. The court also heard from a DCFS
caseworker who had been assigned to the minors’ cases, as well as Mercedez S. In relevant part,
the evidence showed respondent had told the minors’ caseworker that he had tried “ ‘every
substance besides heroin.’ ” With respect to recommendations, it was undisputed the minors
should be made wards of the court, guardianship and custody should not be placed with the parents,
and the parents should be ordered to complete certain services. The only issue in dispute related to
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respondent concerned whether he should be ordered to complete drug drops. The court, after
considering the evidence and recommendations, made the minors wards of the court, placed
guardianship and custody with DCFS based upon the unfitness of the parents, and ordered
respondent to, amongst other things, submit to random drug drops.
¶ 29 F. Notices of Appeal and Appointment of Appellate Counsel
¶ 30 Also in August 2023, respondent filed pro se notices of appeal. Thereafter, the trial
court appointed appellate counsel to represent respondent in the appeals.
¶ 31 G. Motions to Withdraw as Appellate Counsel
¶ 32 In October 2023, appellate counsel filed motions to withdraw on the ground no
issue of arguable merit could be raised. Counsel’s motions were accompanied by briefs. The briefs
summarized the proceedings in the trial court, identified potential issues for review, sketched
arguments in support of the identified issues, and explained why counsel believed the arguments
were frivolous.
¶ 33 H. Denial of the Motions to Withdraw Without Prejudice
¶ 34 In December 2023, this court, following the consolidation of respondent’s appeals,
issued a summary order denying appellate counsel’s motions to withdraw without prejudice. In re
N.S, No. 4-23-0781 (2023) (unpublished summary order under Illinois Supreme Court Rule
23(c)(2)). The denial was based upon appellate counsel’s failure to identify a potential issue related
to the trial court’s refusal to entertain the appointment of counsel for respondent at the shelter care
hearing.
¶ 35 I. Motion to Withdraw as Appellate Counsel
¶ 36 In January 2024, respondent’s appellate counsel filed a motion to withdraw on the
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ground no issue of arguable merit could be raised. Counsel’s motion, which is the subject of this
appeal, is accompanied by a supplemental brief addressing the potential issue previously identified
by this court. Specifically, counsel summarizes the proceedings in the trial court relevant to the
issue, sketches an argument in support of the issue, and explains why counsel believes the
argument is frivolous.
¶ 37 II. ANALYSIS
¶ 38 Appellate counsel claims no issue of arguable merit can be raised on appeal. For
the reasons that follow, we agree.
¶ 39 A. Timeliness of This Disposition
¶ 40 As an initial matter, we must address the timeliness of this disposition. This case
has been designated as accelerated pursuant to Illinois Supreme Court Rule 311 (eff. July 1, 2018).
Rule 311(a)(5) states, in relevant part, “[e]xcept for good cause shown, the appellate court shall
issue its decision within 150 days after the filing of the notice of appeal.” Ill. S. Ct. R. 311(a)(5)
(eff. July 1, 2018). In this case, the motion practice on appeal resulted in the matter not being
submitted for disposition until after the 150-day deadline had passed. Under these circumstances,
we find the existence of good cause for the late disposition.
¶ 41 B. Timeliness of the Adjudicatory and Dispositional Hearings
¶ 42 Appellate counsel considered objecting to the timeliness of the adjudicatory and
dispositional hearings but concluded his argument in support thereof would be frivolous.
¶ 43 Section 2-14 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-14 (West
2022)) provides an adjudicatory hearing generally must be commenced within 90 days of the date
of service upon the minor, parents, guardian, or legal custodian and, once commenced, any
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subsequent delay may be allowed only when necessary to ensure a fair hearing. Section 2-22(4) of
the Act (id. § 2-22(4)), in turn, provides a dispositional hearing generally must occur within six
months of a minor’s removal from the minor’s home. Objections to the timeliness of the
adjudicatory and dispositional hearing must be raised in the trial court. See In re S.W., 342 Ill.
App. 3d 445, 452-53, 794 N.E.2d 1037, 1043 (2003); see also In re B.S., 2022 IL App (2d) 220271,
¶ 36, 213 N.E.3d 1007 (“Forfeiture principles apply to proceedings under the Act.”).
¶ 44 In this case, the record shows respondent did not object to any delay in the
proceedings. Moreover, it does not show any prejudice resulting from the delay. On this record,
we agree any argument in support of an objection to the timeliness of the adjudicatory and
dispositional hearings would be frivolous.
¶ 45 C. Adjudicatory Findings
¶ 46 Appellate counsel considered objecting to the adjudicatory findings but concluded
his argument in support thereof would be frivolous.
¶ 47 Before a minor may be made a ward of the court, the minor must be found to be
abused, neglected, or dependent. In re A.P., 2012 IL 113875, ¶ 19, 981 N.E.2d 336. Relevant here,
section 2-3(1)(b) of the Act (705 ILCS 405/2-3(1)(b) (West 2022)) defines a neglected minor as
any minor “whose environment is injurious to the minor’s welfare.” Section 2-3(2)(i) of the Act
(id. § 2-3(2)(i)), in turn, defines an abused minor as a minor whose parent “inflicts, causes to be
inflicted, or allows to be inflicted upon such minor physical injury, by other than accidental means,
which causes death, disfigurement, impairment of physical or emotional health, or loss or
impairment of any bodily function.”
¶ 48 In this case, the record shows respondent stipulated to the allegations in the
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petitions, with the caveat that he did not physically abuse N.S. The trial court also received
evidence indicating N.S. was found to have injuries which were “highly suspicious for abuse.” On
this record, we agree any argument in support of an objection to the adjudicatory findings would
be frivolous.
¶ 49 D. Dispositional Findings
¶ 50 Appellate counsel considered objecting to the dispositional findings but concluded
his argument in support thereof would be frivolous.
¶ 51 After a minor has been found to be abused, neglected, or dependent, a trial court
must conduct a dispositional hearing. A.P., 2012 IL 113875, ¶ 21. “At the dispositional hearing,
the court shall determine whether it is in the best interests of the minor and the public that the
minor be made a ward of the court, and, if the minor is to be made a ward of the court, the court
shall determine the proper disposition best serving the health, safety[,] and interests of the minor
and the public.” 705 ILCS 405/2-22(1) (West 2022). Under section 2-27(1)(d) of the Act (id. § 2-
27(1)(d)), a proper disposition includes placing guardianship and custody with DCFS if the
minor’s parents are found to be unfit to care for the minor.
¶ 52 In this case, the record shows the only dispositional matter in dispute by respondent
concerned whether he should be ordered to provide mandatory drug drops. The evidence before
the trial court showed respondent had previously told the minors’ caseworker he had tried “ ‘every
substance besides heroin.’ ” On this record, we agree any argument in support of an objection to
the dispositional findings would be frivolous.
¶ 53 E. Counsel at the Shelter Care Hearing
¶ 54 Appellate counsel considered objecting to the absence of counsel at the shelter care
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hearing but concluded his argument in support thereof would be frivolous.
¶ 55 Section 1-5(1) of the Act (id. § 1-5(1)) provides that “the minor’s parents, guardian,
legal custodian or responsible relative who are parties respondent” have, amongst other rights, the
right to be represented by counsel “at all stages of the trial court proceeding[s].” This statutory
right to counsel “attaches when the State files an action under the [Act].” In re Adoption of K.L.P.,
198 Ill. 2d 448, 467, 763 N.E.2d 741, 752 (2002).
¶ 56 In this case, the record shows respondent was not prejudiced by the absence of
counsel at the shelter care hearing: respondent did not object to the minors being placed in the
temporary care of DCFS, the evidence presented at the shelter care hearing supported the minors’
temporary placement, respondent was appointed counsel immediately after the shelter care
hearing, respondent’s appointed counsel did not raise any objection related to the shelter care
hearing, respondent stipulated to the allegations of neglect and abuse, the evidence presented at
the adjudicatory hearing supported the findings of neglect and abuse, and respondent did not
dispute the minors should be made wards of the court and guardianship and custody should not be
placed with him or Mercedez S. On this record, we agree any argument in support of an objection
to the absence of counsel at the shelter care hearing would be frivolous.
¶ 57 While respondent cannot establish prejudice under the circumstances presented, we
find the manner in which the trial court conducted the shelter care hearing troubling. See In re
Austin D., 358 Ill. App. 3d 277, 285, 831 N.E.2d 1215, 1220-21 (2005). This court has
“emphatically remind[ed] trial courts that they should always inform parents at shelter care
hearings of the right to counsel and appoint counsel if requested.” In re K.G., 2021 IL App (4th)
210405-U, ¶ 74; see Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023) (stating nonprecedential orders under
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Rule 23(b) may be cited for persuasive purposes). While there may be some question as to whether
respondent was entitled to counsel at the shelter care hearing due to his then status as a putative
father who was a party respondent, the undisputed best practice would be to appoint counsel under
these circumstances.
¶ 58 III. CONCLUSION
¶ 59 Because the record reveals no issue of arguable merit can be raised on appeal, we
grant appellate counsel’s motion to withdraw and affirm the trial court’s orders.
¶ 60 Affirmed.
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