In re D.Q. ( 2017 )

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Appellate Court Date: 2017.01.06
12:14:50 -06'00'
In re D.Q., 2016 IL App (1st) 160680Appellate Court In re D.Q. and J.C., Minors (The People of the State of Illinois,
Caption Petitioner-Appellee, v. Sabrina V., Respondent-Appellant).
District & No. First District, Fifth Division
Docket No. 1-16-0680
Filed November 4, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 15-JA-599-600;
Review the Hon. Rena M. Van Tine, Judge, presiding.
Judgment Affirmed.
Counsel on Amy L. Campanelli, Public Defender, of Chicago (Trenis Jackson,
Appeal Assistant Public Defender, of counsel), for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Mary P. Needham, and Nancy Kisicki, Assistant State’s Attorneys, of
counsel), for the People.
Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and
Allison G. Castillo, of counsel), guardian ad litem.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the
court, with opinion.
Justices Lampkin and Reyes concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from the juvenile court’s entry of an adjudication order finding
three-year-old D.Q. and one-year-old J.C. abused and neglected due to (1) an injurious
environment and (2) substantial risk of physical injury, and making them wards of the court.
Respondent Sabrina V., the children’s mother, argues that the primary evidence against her
consisted of a video in which she is shown repeatedly striking D.Q. with a stick, which was
improperly admitted into evidence and, accordingly, there was no evidence to support the
juvenile court’s findings. For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 On June 15, 2015, the State filed two petitions for adjudication of wardship, requesting that
D.Q. and J.C. be adjudicated wards of the court; the State also filed motions for temporary
custody the same day. The adjudication petition relating to D.Q. claimed that D.Q. was a
female minor born on March 13, 2012, and was neglected under section 2-3(1)(b) of the
Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 2014)) in that
“she [was] a minor under 18 years of age whose environment [was] injurious to her welfare.”
The adjudication petition also claimed that D.Q. was abused under section 2-3(2)(i) of the
Juvenile Court Act (705 ILCS 405/2-3(2)(i) (West 2014)) in that her parent “[i]nflicts, caused
to be inflicted, or allows to be inflicted upon [her] physical injury, by other than accidental
means, which caused death, disfigurement, impairment of physical or emotional health, or loss
or impairment of any bodily function” and further claimed that D.Q. was abused under section
2-3(2)(ii) of the Juvenile Court Act (705 ILCS 405/2-3(2)(ii) (West 2014)) in that her parent
“[c]reates a substantial risk of physical injury to such minor by other than accidental means
which would be likely to cause death, disfigurement, impairment of emotional health, or loss
or impairment of any bodily function.”
¶4 The facts in the petition underlying all three claims set forth above were the same.
According to the petition, on May 24, 2015, a video of respondent repeatedly hitting D.Q. with
a spatula and stick was turned over to “police personnel.” 1 In the video, respondent was
observed striking D.Q. on various parts of her body while dragging her across the floor.
Additionally, respondent and D.Q.’s father2 had a history of domestic violence with each other
in D.Q.’s presence. According to the petition, there was a no contact order between respondent
and D.Q. and an order of protection which prohibited the father from having contact with D.Q.
1
Testimony at the adjudication hearing establishes that the video was taken to the River Grove
police department.
2
The petition for adjudication of wardship named Christopher Q., D.Q.’s father, in addition to
respondent. However, Christopher Q. is not a party to the instant appeal. Accordingly, we relate facts
concerning him only where necessary to the understanding of respondent’s appeal.
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¶5 The adjudication petition relating to J.C. was similar, claiming that J.C. was a male minor
born on January 26, 2015, and was neglected under section 2-3(1)(b) of the Juvenile Court Act
in that “he [was] a minor under 18 years of age whose environment [was] injurious to his
welfare.” The adjudication petition also claimed that J.C. was abused under section 2-3(2)(ii)
of the Juvenile Court Act in that his parent “[c]reates a substantial risk of physical injury to the
minor by other than accidental means which would be likely to cause death, disfigurement,
impairment of emotional health, or loss or impairment of any bodily function.” The underlying
facts of J.C.’s claims were identical to those alleged in D.Q.’s petition.3 J.C.’s petition also
alleged that his putative father4 was currently incarcerated and that paternity had not been
established.
¶6 After a temporary custody hearing on June 16, 2015, at which the parties stipulated to the
facts alleged in the State’s petitions for adjudication of wardship, the juvenile court found
probable cause that both children were abused and/or neglected and that an immediate and
urgent necessity existed to support their removal from the home. The court granted temporary
custody of both children to the Department of Children and Family Services (DCFS)
guardianship administrator, with the right to place the children and with the authority to
consent to major medical care on their behalf.
¶7 On November 9, 2015, the State filed a motion to continue the trial date due to the State’s
“ongoing efforts to obtain evidence and information that would allow the People to locate the
source of the video referenced in the petition,” including outstanding subpoenas for telephone
subscriber information, metadata analysis of the video files, and a new individual with possible
knowledge of the video source. On November 10, 2015, the juvenile court took the motion
under advisement, and the parties proceeded with an adjudication hearing.
¶8 The State’s first witness was Christopher Q., D.Q.’s father, who testified that the DVD
marked as People’s Exhibit 1 contained “a video of [respondent] abusing my daughter [D.Q.]”
Christopher Q. testified that he was able to identify the woman in the video as respondent,
based on “[h]er body type, her voice, height, just[—]it’s her.” He further testified that he
recognized D.Q. in the video based on “her physical appearance, her—her size, her voice, the
sound of—the sound of her cheeks. It’s my daughter. I know my daughter.” He testified that he
had observed both respondent and D.Q. numerous times in the past and had known respondent
since 2011. Christopher Q. testified that there was no doubt in his mind as to who was on the
video “[b]ecause *** I’m absolutely familiar with their appearance and how they sound and
*** how they look.”
¶9 Christopher Q. testified that he became aware of the video when he received it on his cell
phone from respondent’s mother. After viewing the video, he brought it to the River Grove
police department. Christopher Q. was not present when the video was made and did not know
3
Under the Juvenile Court Act, proof of the abuse or neglect of one minor is admissible evidence of
the abuse or neglect of any other minor for whom the respondent is responsible. 705 ILCS 405/2-18(3)
(West 2014). Thus, the allegations of abuse and neglect with respect to J.C. were based on the facts
underlying the allegations of abuse and neglect as to D.Q.
4
The petition for adjudication of wardship named Elvin C., J.C.’s putative father, in addition to
respondent. However, Elvin C. is not a party to the instant appeal. Accordingly, as is the case with
D.Q.’s father, we relate facts concerning him only where necessary to the understanding of
respondent’s appeal.
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when it was taken or who recorded it. He testified that the video he received on his cell phone
and the video he reviewed in court were “the same exact video.”
¶ 10 The State next called respondent as a witness, but respondent refused to testify and asserted
her fifth amendment privilege against self-incrimination with respect to all questions
concerning the case; respondent only answered questions identifying herself as the mother of
D.Q. and J.C.
¶ 11 The State’s next witness was Alicia Pickett, a child protection investigator with DCFS,
who testified that she was assigned to the children’s case in May 2015 and met with D.Q. on
May 27, 2015, at approximately 4 p.m. at her maternal grandmother’s place of employment.
While D.Q.’s grandmother was present in the vicinity, she was not present during the
conversation that Pickett had with D.Q. Pickett testified that she asked D.Q. her name and age,
and D.Q. responded with her name and that she was three years old, and then showed Pickett a
tea set she had received; Pickett described D.Q. as a “happy, happy kid.” Pickett asked D.Q.
what happened when she did not listen to her mother, and D.Q. responded “that Mom had hit
her in the face.” Pickett asked D.Q. what respondent had hit her with, and D.Q. responded “a
stick.” Pickett asked D.Q. why respondent had hit her with a stick, and D.Q. responded that it
was because D.Q. was crying. Pickett did not observe any marks or bruises on D.Q. at the time.
On cross-examination, Pickett testified that she did not know what day or time D.Q.’s
statements referred to or any of the context surrounding what happened.
¶ 12 Pickett testified that she also had a conversation with respondent on May 27, 2015, at
approximately 4:30 p.m. at her mother’s place of employment, the same location at which
Pickett had spoken with D.Q. Respondent and Pickett were the only ones present for the
conversation. Pickett read respondent the CANTS report,5 and respondent denied hitting D.Q.
with a spatula. Respondent told Pickett that she “never knew about this videotape and that she
hired an attorney to see what’s going on at the River Grove Police Department.” Respondent
told Pickett that in the past, she had suffered from postpartum depression and “may have
tapped [D.Q.] on the hand” when disciplining her.
¶ 13 After Pickett’s testimony, the State renewed its motion for a continuance for the purpose of
further searching for the source of the video, but the motion was denied. The State then called
its next witness, Ida Lane, a DCFS investigator assigned to the children’s case. Lane testified
that in May or June 2015, she viewed the video and identified D.Q. as the child on the video
and respondent as the woman depicted in the video. Lane testified that, on the video, she
observed D.Q. being struck with a round stick-like object and then later hit with a spoon or
spatula. She also heard D.Q. saying “Stop mommy” on the video. Lane testified that she used
the video’s contents as a basis for the indicated finding of abuse and found the video to be very
concerning “[b]ecause [of] the baby’s pleas and the way she was crying, the way she was being
grabbed by Mom.” Lane further explained that “[s]he was crying really loudly, and
[respondent] walked into a room, told her to stay in the corner. The baby came out, proceeded
in the room. She came back out, grabbed her by her arm and was hitting her again with that
spoon, that spatula or whatever.”
5
According to the public guardian’s brief, a CANTS report “is a child abuse and neglect tracking
report. The initial CANTS form is a notification of a report of suspected child abuse/neglect, and it
explains DCFS’s child abuse/neglect investigation process.”
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¶ 14 Lane testified that she spoke with Christopher Q. over the telephone on June 10, 2015, at
approximately 10 a.m. concerning the video. Christopher Q. informed Lane that he had
received the video from respondent’s mother and took it to the police. Christopher Q. further
informed Lane that respondent and D.Q. were depicted on the video and that D.Q. was living
with respondent at that time.
¶ 15 Lane also testified that she spoke with respondent on June 12, 2015, in an empty juvenile
court courtroom. Lane asked respondent who took the video, and respondent “said that [it was]
someone who she thought was her friend.” Lane asked respondent the person’s name, but
respondent refused to identify the person who took the video. Respondent also told Lane that
the video was taken in April 2015 at the apartment in which she was then living with her two
children. Lane asked respondent “[w]hy did she hit the baby like that,” but respondent did not
answer. On cross-examination, Lane testified that during her conversation with respondent,
respondent denied hitting D.Q.
¶ 16 On cross-examination and redirect examination, Lane testified as to the contents of records
that she reviewed in the course of her investigation. On cross-examination, Lane testified that
D.Q. denied any abuse by respondent when she was evaluated at a hospital on May 27, 2015.
On redirect examination, Lane testified that her review of medical records during the course of
her investigation indicated that during a victim sensitive interview conducted with D.Q., D.Q.
stated that respondent hit her with a stick on her leg and that, as a result of that, “[t]he cop took
mommy.” In that same statement, D.Q. stated that respondent hit her “[l]ots of times” and that
there was a yellow mark on her leg; she stated that the conduct occurred at respondent’s home.
¶ 17 The State then called as a witness Maxine Morgan, a child development aid with DCFS,
who testified that she spoke with D.Q. at Morgan’s place of employment on June 10, 2015, and
heard her use a curse word, which she “wasn’t expecting a three-year old to say.” D.Q. also
told Morgan that “Elvie” “hit [her] in the stomach” and pulled a gun. Morgan forwarded this
conversation to Lane and Lane’s supervisor. On cross-examination, Morgan testified that she
did not ask D.Q. who “Elvie” was or when this incident occurred. She further testified that her
responsibilities as a child development aid were to assist the caseworker when children were in
the office and take possession of the children until they were ready to leave; she also
transported them to the hospital for an initial health screening and then to their placement.
Morgan was not aware of the reason the case came into the system at the time that the children
came to the office.
¶ 18 After Morgan’s testimony, the State offered the video into evidence. Respondent’s
attorney objected due to lack of a foundation, and the juvenile court overruled the objection
and admitted the video into evidence.
¶ 19 The video depicts a woman and a small girl who is crying. The woman follows the girl into
what appears to be a bathroom, where the girl crouches down, away from the woman. The
woman, holding what appears to be a wooden spatula or spoon in her hand, uses the object to
strike the girl’s body several times. The woman then drags the girl into the hallway, where she
stands the girl in the corner, near the doorway of another room. The girl leaves the corner, but
the woman pulls her back. While the girl stands in the corner, the woman goes into the next
room, then returns shortly thereafter, holding a different object in her hand. The woman again
grabs the girl, then hits the girl with the object. The girl is crying throughout, and it appears that
dialogue is spoken, but this court’s video equipment was unable to play the audio of the video.
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¶ 20 On November 10, 2015, the juvenile court found that the State had satisfied its burden of
proof in showing that both children were abused and neglected and that the conduct toward
them constituted neglect due to an injurious environment and abuse due to a substantial risk of
physical injury. The court also found that, with respect to D.Q., the State had satisfied its
burden of proof as to physical abuse and that respondent inflicted upon D.Q. physical injury,
which would be likely to cause impairment of emotional health, “at the very minimum.”
Furthermore, in light of the video, the court found that it was “going to amend the petition to
conform with the proofs and also find that the State has proved an excessive corporal
punishment count as well as to [D.Q.]”6 The juvenile court further found that there was no
indication that the video had been edited or spliced, and no evidence suggesting that such
actions had occurred. Accordingly, the juvenile court entered an adjudication order finding
D.Q. to be abused or neglected due to (1) an injurious environment, (2) physical abuse, (3)
substantial risk of physical injury, and (4) excessive corporal punishment. The court also
entered an adjudication order finding J.C. abused or neglected due to (1) an injurious
environment and (2) substantial risk of physical injury. In both orders, the court found that the
above was the result of abuse or neglect inflicted by respondent.
¶ 21 On February 8, 2016, the juvenile court entered a dispositional order finding it in D.Q.’s
best interest to be adjudged a ward of the court and finding both respondent and D.Q.’s father
unable for some reason other than financial circumstances alone to care for, protect, train, or
discipline her. The court ordered D.Q. placed in the custody of the DCFS guardianship
administrator with the right to place her. The court entered an identical dispositional order with
respect to J.C. and his parents. The court also entered a permanency order setting an initial
permanency goal of return home within five months. This appeal follows.
¶ 22 ANALYSIS
¶ 23 On appeal, the sole issue raised by respondent concerns the admission of the video into
evidence. Respondent claims that the juvenile court erred in admitting the video into evidence
due to a lack of foundation, and since the court’s findings relied on the video, respondent
argues that the court’s findings that the children had been abused and neglected were against
the manifest weight of the evidence.
¶ 24 “A proceeding for adjudication of wardship ‘represents a significant intrusion into the
sanctity of the family which should not be undertaken lightly.’ ” In re Arthur H., 212 Ill. 2d
441, 463 (2004) (quoting In re Harpman, 134 Ill. App. 3d 393, 396-97 (1985)). It is the State’s
burden to prove allegations of neglect or abuse by a preponderance of the evidence. In re A.P.,
2012 IL 113875, ¶ 17. “In other words, the State must establish that the allegations of neglect
[or abuse] are more probably true than not.” In re A.P., 2012 IL 113875, ¶ 17. With respect to
the admission of evidence, we must determine whether the juvenile court abused its discretion
6
Under the Juvenile Court Act, the juvenile court “may allow amendment of the petition to conform
with the evidence at any time prior to ruling.” 705 ILCS 405/2-13(5) (West 2014). We thus interpret the
juvenile court’s statement to mean that it was permitting the State to amend the petition in accordance
with section 2-13(5). We note that respondent did not object to a finding of abuse on this basis before
the juvenile court and does not make any argument on appeal concerning the juvenile court’s authority
to enter the finding, other than the argument concerning the admission of the video, which is applicable
to all counts of the petition.
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in admitting the video into evidence, and we will not reverse the juvenile court’s admission of
evidence absent an abuse of its discretion. In re A.W., 231 Ill. 2d 241, 254 (2008). “ ‘Under this
standard, an abuse occurs when the [juvenile] court’s ruling is fanciful, unreasonable or when
no reasonable person would adopt the [juvenile] court’s view.’ ” In re D.M., 2016 IL App (1st)
152608, ¶ 15 (quoting People v. Taylor, 2011 IL 110067, ¶ 27).
¶ 25 In the case at bar, the evidence at issue is a video that allegedly shows respondent
repeatedly striking D.Q. with several objects. Our supreme court has found that “videotapes
are admissible on the same basis as photographs,” and they “may be admitted if properly
authenticated, which is an evidentiary question” (Taylor, 2011 IL 110067, ¶ 27). Our supreme
court explained that while photographic evidence was historically admitted solely as
demonstrative evidence, “[m]ost jurisdictions now allow photographs and videotapes to be
introduced as substantive evidence so long as a proper foundation is laid.” Taylor, 2011 IL
110067, ¶ 32. A proper foundation may be laid “by someone having personal knowledge of the
filmed object, [who can testify] that the film is an accurate portrayal of what it purports to
show.” People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 283-84 (2003). Additionally, video
evidence may be admitted under the “silent witness” theory, under which “a witness need not
testify to the accuracy of the image depicted in the photographic or videotape evidence if the
accuracy of the process that produced the evidence is established with an adequate
foundation.” Taylor, 2011 IL 110067, ¶ 32. In the case at bar, we cannot find that the juvenile
court abused its discretion in admitting the video under either basis.
¶ 26 First, after viewing the video, Christopher Q., D.Q.’s father, positively identified both
respondent and D.Q. as the woman and child in the video, as did Ida Lane, the DCFS
investigator assigned to the children’s case. Thus, although they did not observe the incident
depicted on the video, two people with personal knowledge of both respondent and D.Q.
testified that the video was an accurate portrayal of the two individuals depicted on the video.
Additionally, Lane testified that she spoke with respondent on June 12, 2015, in an empty
juvenile court courtroom, where respondent informed Lane that the incident had occurred in
April 2015. Lane further testified that respondent identified the location of the video as her
former apartment and told Lane that the video was taken by “someone who [respondent]
thought was her friend.” Thus, through Lane’s testimony, respondent admitted to having
personal knowledge of the incident depicted in the video and to being present at the time that
the video was taken.7 In addition, D.Q. told Pickett that her mother struck her with a stick.
7
The State and the public guardian also argue that respondent’s invocation of the fifth amendment
privilege during her testimony permit us to treat respondent’s answers as admissions to the questions
asked. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (“the Fifth Amendment does not forbid
adverse inferences against parties to civil actions when they refuse to testify in response to probative
evidence offered against them”); People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro
Van, 177 Ill. 2d 314, 332 (1997). However, “although a court may draw a negative inference from a
party’s refusal to testify, it is not required to do so.” People v. Whirl, 2015 IL App (1st) 111483, ¶ 107.
In the case at bar, the juvenile court’s admission of the video into evidence was proper, regardless of
whether a negative inference would have been appropriate, and we consequently have no need to decide
the issue. We further note that there was no objection during the hearing concerning the admissibility of
respondent’s statements during the conversation with Lane other than a relevance objection, and
respondent makes no argument concerning the admissibility of her statements on appeal.
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Consequently, the juvenile court did not abuse its discretion in its determination that the State
had presented an adequate foundation for admission of the video.
¶ 27 Furthermore, even under the “silent witness” theory, under which “a witness need not
testify to the accuracy of the image depicted in the photographic or videotape evidence if the
accuracy of the process that produced the evidence is established with an adequate foundation”
(Taylor, 2011 IL 110067, ¶ 32), we cannot find that the juvenile court’s admission of the video
constituted an abuse of discretion. Our supreme court has instructed that factors that may be
considered when determining the reliability of the process by which a videotape was produced
include (1) the device’s capability for recording and its general reliability; (2) competency of
the operator; (3) proper operation of the device; (4) showing the manner in which the recording
was preserved (chain of custody); (5) identification of the persons, locale, or objects depicted;
and (6) explanation of any copying or duplication process. Taylor, 2011 IL 110067, ¶ 35. Our
supreme court has “emphasize[d] that this list of factors is nonexclusive. Each case must be
evaluated on its own and depending on the facts of the case, some of the factors may not be
relevant or additional factors may need to be considered. The dispositive issue in every case is
the accuracy and reliability of the process that produced the recording.” Taylor, 2011 IL
110067, ¶ 35.
¶ 28 Here, as noted, after viewing the video, Christopher Q. positively identified both
respondent and D.Q. as the woman and child in the video, as did Lane. Thus, the camera used
to record the video was clearly operational at the time and was able to record sufficiently
clearly so that the individuals in the video were identifiable, as were their actions. Our supreme
court has found that such evidence is sufficient to adequately demonstrate that the camera was
able to record and was generally operating properly. See Taylor, 2011 IL 110067, ¶ 39 (“As
one court has stated, ‘[t]he fact that the tape[ ] exist[s] at all is evidence that the tape recorder
was functional and that [the operator] knew how to operate it.’ [Citation.] Moreover, ‘the
evidence showed that the camera was working at least well enough for the events and persons
portrayed thereon to be recognizable.’ [Citation.] *** The State adequately demonstrated the
camera and system were able to record and were generally operating properly.”). Christopher
Q. also testified that he received the video from respondent’s mother and that, after viewing the
video, he took it to the River Grove police department. He further testified that the video he
received on his cell phone and the video played in court were “the exact same video.” Thus,
Christopher Q.’s testimony verified that the same video he received was played in court,
demonstrating the authenticity of the recording. Finally, the juvenile court found that there was
no evidence that the video had been altered or tampered with such that it would be rendered
unreliable or untrustworthy. Consequently, we cannot find that the juvenile court abused its
discretion in admitting the video into evidence. Since there was no error in the admission of the
evidence, we do not find respondent’s argument that the admission of the video rendered the
juvenile court’s findings against the manifest weight of the evidence and, accordingly, affirm
the juvenile court’s adjudication findings.
¶ 29 CONCLUSION
¶ 30 For the reasons set forth above, the juvenile court did not abuse its discretion in admitting
the video of respondent striking her daughter into evidence. Therefore, the juvenile court’s
adjudication findings are affirmed.
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¶ 31 Affirmed.
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