In re N.S. , 2024 IL App (4th) 230783-U ( 2024 )

NOTICE 2024 IL App (4th) 230783-UThis Order was filed under FILED
Supreme Court Rule 23 and is NOS. 4-23-0783, 4-23-0784 cons. February 15, 2024
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. 4-23-0783) )
Mercedez S., )
Respondent-Appellant). )
---------------------------------------------------------------------- )
In re A.S., a Minor ) No. 23JA6
)
(The People of the State of Illinois, )
Petitioner-Appellee, ) Honorable
v. (No. 4-23-0784) ) Derek G. Asbury and
Mercedez 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 mother, Mercedez S., appeals from the trial court’s orders adjudicating
her 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 Tyler S. are the minors’ parents. Tyler 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 Tyler 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) Tyler S., 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) respondent visited N.S., who had been hospitalized
since December 15, once or twice since December 25 and left town with a boyfriend; (3) Tyler S.
had not visited N.S. since a few days after December 25; (4) respondent 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) respondent 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,
-2-
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) Tyler 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 Tyler S. were married but noted she did not
have a copy of the marriage certificate. The GAL asked for Tyler S. to be found to be the putative
father. On inquiry of the court, Tyler S. indicated he and respondent were married after A.S.’s birth
but before N.S.’s birth. The court found Tyler S. to be the putative father of the minors.
¶ 11 The trial court then informed respondent and Tyler S. of the allegations in the
petitions, their rights, and the progression of the proceedings. In relevant part, the court informed
respondent and Tyler 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].”
¶ 12 The trial court inquired if Tyler S. had any objection to the minors being placed in
-3-
the temporary custody of DCFS. Tyler S. requested further explanation, as he did not understand
the issue, which the court then provided. Eventually, Tyler S. indicated he had no objection. The
court inquired if respondent had any objection to temporary custody. Respondent 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 Tyler S. presented no
history to explain said injuries. In the weeks following N.S.’s hospitalization, respondent and Tyler
S. visited N.S. less than six times. On January 9, 2023, respondent 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. Respondent 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 Tyler 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 Tyler S. The court then set the matter for
answers to the petitions.
¶ 16 C. Answers and Continuances
¶ 17 In February 2023, respondent and Tyler S., through their respective counsel, filed
-4-
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 Tyler S. to be the legal
father of N.S. Ultimately, Tyler S. stipulated to the allegations in the petitions, with the caveat he
maintained he did not abuse N.S. Respondent, 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 respondent and with no objection
by Tyler S. On April 25, the court again, due to further clarification of respondent’s answer and
upon finding it was in the minors’ best interests, continued the adjudicatory hearing to June 6 over
the objection of respondent.
¶ 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, Tyler S. 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. Respondent 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
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,”
-5-
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 Respondent 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. Respondent explained
N.S., “[f]rom a very early age[,] *** was either sick or [had] diaper rash we could not get rid of.”
¶ 22 Respondent indicated her mother, her brother, and her brother’s girlfriend
occasionally cared for N.S. while she and Tyler S. were at work. Respondent 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 respondent, 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 Tyler S., and A.S. was in the care of respondent’s brother and his girlfriend.
Respondent’s brother lived with respondent, Tyler S., and the minors. On the morning of
December 15, 2022, respondent left N.S. in the care of Tyler S. when she went to work. She later
left work and met N.S. at the hospital.
¶ 24 Respondent 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
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
-6-
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, respondent 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 Respondent 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 respondent.
¶ 29 In relevant part, the evidence showed respondent had been using marijuana while
pregnant and had a history of drug use. The caseworker testified, in 2017, respondent, who at the
time was a minor, was indicated by DCFS for sexual abuse against a sibling. Respondent testified
she had not, in fact, been indicated for sexual abuse. She asserted she made a false allegation that
she had sexually abused a sibling to avoid being returned home because she was “still processing
childhood trauma,” which included “human trafficking.” She spent several years at a residential
-7-
facility, “Indian Oaks.” Respondent, at the time of the hearing, was in a relationship with a man
who was a registered sex offender. Respondent completed a psychological assessment. That
assessment recommended she follow up with psychiatric care. It was also recommended
respondent complete a mental health evaluation, which she had not done. Respondent obtained
housing outside of Peoria County. Respondent testified she left Peoria County to be closer to her
support system and to have quicker access to housing. She was seeking assistance with securing a
vehicle. Respondent’s mother was being investigated by law enforcement for performing a sex act
in a public place and in the presence of a minor.
¶ 30 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. As to the basis for placing the minors outside the
care of respondent, respondent’s counsel argued respondent should be found unable as opposed to
unfit. Respondent’s counsel suggested respondent’s mother should be considered as a possible
guardian of the minors. Respondent’s counsel argued respondent should not be ordered to
complete drug drops or “sex[-]offender treatment or anything like that.”
¶ 31 The trial 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 and
complete a sex-offender assessment.
¶ 32 F. Notices of Appeal and Appointment of Appellate Counsel
¶ 33 Also in August 2023, respondent filed pro se notices of appeal. Thereafter, the trial
court appointed appellate counsel to represent respondent in the appeals. The appeals were then
-8-
consolidated by this court on the motion of appellate counsel.
¶ 34 G. Motion to Withdraw as Appellate Counsel
¶ 35 In October 2023, appellate counsel filed a motion to withdraw on the ground no
issue of arguable merit could be raised. Counsel’s motion was accompanied by a brief. The brief
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.
¶ 36 H. Denial of the Motion to Withdraw Without Prejudice
¶ 37 In December 2023, this court issued a summary order denying appellate counsel’s
motion to withdraw without prejudice. In re N.S, No. 4-23-0783 (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.
¶ 38 I. Motion to Withdraw as Appellate Counsel
¶ 39 In January 2024, respondent’s appellate counsel filed another motion to withdraw
on the 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.
¶ 40 II. ANALYSIS
¶ 41 Appellate counsel claims no issue of arguable merit can be raised on appeal. For
-9-
the reasons that follow, we agree.
¶ 42 A. Timeliness of This Disposition
¶ 43 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.
¶ 44 B. Timeliness of the Adjudicatory and Dispositional Hearings
¶ 45 Appellate counsel considered objecting to the timeliness of the adjudicatory and
dispositional hearings but concluded her argument in support thereof would be frivolous.
¶ 46 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
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.”).
¶ 47 In this case, the record shows respondent largely invited or did not object to the
- 10 -
delay in the proceedings. To the extent she did object, the delay was found to be in the minors’
best interests and necessary due to the clarification of respondent’s answer. Moreover, the record
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.
¶ 48 C. Adjudicatory Findings
¶ 49 Appellate counsel considered objecting to the adjudicatory findings but concluded
her argument in support thereof would be frivolous.
¶ 50 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.”
¶ 51 In this case, the record shows Tyler S. stipulated to the allegations in the 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.
¶ 52 D. Dispositional Findings
- 11 -
¶ 53 Appellate counsel considered objecting to the dispositional findings but concluded
her argument in support thereof would be frivolous.
¶ 54 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 or unable to care for the minor.
¶ 55 In this case, the record shows the only dispositional matters in dispute by
respondent concerned whether she should be found unfit and ordered to complete drug drops and
a sex-offender assessment, and whether respondent’s mother should be appointed guardian of the
minors. The evidence before the trial court showed (1) respondent had serious mental health issues
for which she had not sought recommended services, (2) respondent had a history of drug use and
had previously been indicated for sexual abuse, and (3) respondent’s mother was being
investigated for performing a sex act in a public place and in the presence of a minor. On this
record, we agree any argument in support of an objection to the dispositional findings would be
frivolous.
¶ 56 E. Counsel at the Shelter Care Hearing
¶ 57 Appellate counsel considered objecting to the absence of counsel at the shelter care
hearing but concluded her argument in support thereof would be frivolous.
- 12 -
¶ 58 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).
¶ 59 In this case, the record shows respondent was not prejudiced by the absence of
counsel at the shelter care hearing: 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 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 her or Tyler 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.
¶ 60 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). We, once again,
“emphatically remind 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 Rule
23(b) may be cited for persuasive purposes). We further remind the State, “[i]f a trial court, for
whatever reason, fails to provide a statutorily required right to a respondent, it is the State’s duty
- 13 -
to so inform the court and request that the error be corrected.” K.G., 2021 IL App (4th) 210405-U,
¶ 75.
¶ 61 III. CONCLUSION
¶ 62 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.
¶ 63 Affirmed.
- 14 -