In re H.C.

2023 IL App (1st) 220881No. 1-22-0881
Opinion filed June 8, 2023
Fourth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re )
H.C., J.J., and Nor. B., ) Appeal from the
Minors-Appellees, ) Circuit Court of
) Cook County.
(The People of the State of Illinois, )
Petitioner-Appellee, ) Nos. 20JA330, 20JA331, and
) 20JA333
v. )
) Honorable Tiesha Smith,
Anna L., ) Judge, presiding.
Respondent-Appellant.) )
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Justices Hoffman and Martin concurred in the judgment and opinion.
OPINION
¶1 This appeal arises out of proceedings to adjudicate wardship of appellant-mother Anna L.’s
four children, H.C., J.J., Nor. B., and Nol. B. under the Juvenile Court Act of 1987 (Act) (705
ILCS 405/1-1 et seq. (West 2020)). On May 19, 2022, the trial court found that H.C., J.J., and Nor.
B. 1 were abused or neglected as defined by the Act and subsequently ordered that (1) H.C. and
1
Nol. B. died of natural causes on March 31, 2021.
No. 1-22-0881
Nor. B. be placed in the custody of the Department of Children and Family Services (DCFS) and
(2) J.J. be placed in the custody of appellee-father, Kendrick J.
¶2 Our precedent instructs that a proceeding for adjudication of wardship “represents a
significant intrusion into the sanctity of the family which should not be undertaken lightly.”
(Internal quotation marks omitted.) In re Arthur H., 212 Ill. 2d 441, 463-64 (2004). The
proceedings below did not live up to that command. Instead, the hearing that unfolded was one
where discovery was not complete until appellant-mother was ready to begin her case-in-chief.
Just prior to resting, the State acquired and sought to admit a staggering 18,603 pages of medical
records, which included a prejudicial legal opinion from a medical doctor upon which the trial
court relied heavily. Defense counsel’s disconcerting acquiescence to this and failure to shield her
client from highly damaging evidence constitutes the central and dispositive issue of this case. We
are persuaded that, but for defense counsel’s deficient performance, there was a reasonable
probability that the outcome of this case would have been different. Accordingly, for the reasons
that follow, we reverse and remand for a new hearing. 2
¶3 I. BACKGROUND
¶4 A. Procedural History
¶5 At the time proceedings were initiated in this case on February 21, 2020, appellant-mother
was 32 years old. She had four children. At the time of filing, H.C. was 11 years old, J.J. was 9
years old, and twins Nor. B. and Nol. B. were 2 years old. H.C. and J.J. have diabetes, and H.C.
has been diagnosed with autism. Nol. B. was born with a host of severe medical conditions. After
2
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018),
this appeal has been resolved without oral argument upon the entry of a separate written order.
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his birth, he was diagnosed with neonatal sepsis and late onset Group B streptococcus (GBS)
meningitis. Among other issues, he was diagnosed with hydrocephalus (which required the
installation of a shunt to drain fluid from his skull), intraventricular hemorrhage, dysautonomia
(which prevented his body from properly regulating his temperature), a seizure disorder, cortical
blindness, and a developmental delay. On March 31, 2021, during the pendency of this case in the
trial court, Nol. B. died of complications from GBS meningitis. Although an autopsy revealed that
the manner of Nol. B.’s death was natural causes, allegations regarding appellant-mother’s care of
Nol. B. in 2018 and 2019 were the central basis for the initiation and continuance of this case.
¶6 On February 21, 2020, the State filed petitions for adjudication of wardship and motions
for temporary custody for H.C, J.J., Nor. B., and Nol. B. Those petitions alleged that appellant-
mother was hospitalized in May and July 2019 due to psychiatric issues and that appellant-mother
had declined to follow recommended medical interventions for Nol. B.’s significant medical
issues. The petitions also alleged that unspecified medical personnel opined that appellant-
mother’s actions regarding Nol. B.’s medical treatment constituted medical neglect and alleged
that the children existed in an environment injurious to their welfare and that they were at
substantial risk of physical injury. The State asked that the children be adjudged wards of the State.
The same day, the trial court entered orders awarding temporary custody to DCFS.
¶7 On February 24, 2020, the trial court entered an order permitting appellant-mother
supervised visits with H.C., J.J., and Nor. B. There are no transcripts in the report of proceedings
until April 1, 2021, so we are left wanting for context as to what happened between February 2020
and April 2021. Nevertheless, in October and November 2020, defense counsel filed
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approximately 20 exhibits in support of appellant-mother—possibly related to the issue of
temporary custody.
¶8 A February 21, 2020, letter from Sara Stern, an occupational therapist from an organization
named Sara’s Pediatric Care, stated that she first met appellant-mother on October 29, 2018. She
described appellant-mother as “extremely vigilant and resourceful in caring for her 4 children” and
said that appellant-mother taught J.J. and H.C. how to monitor their glucose levels. She described
appellant-mother’s skill in caring for her children as that of a trained professional, which she
attributed to appellant-mother’s training as a home health aide for hospice and palliative care. Stern
stated that appellant-mother avoided many hospitalizations for Nol. B. “through skillful feeding at
his level of tolerance” and that “she is patient and works within his abilities, making sure he does
not become dehydrated.” Stern had “nothing but praise to give this mother for her parenting skills
and her unselfish assistance she gives her children and friends when in need.”
¶9 A February 21, 2020, letter from Carlos Flores, a licensed clinical professional counselor
for an unknown organization, stated that appellant-mother had “plenty of understanding on how
to care for her son and other children” and that he had not seen any signs of neglect or abuse toward
the children. He wrote that appellant-mother “does all she can to support her family.”
¶ 10 A February 25, 2020, letter from Dr. Mary E. Keen, MD, of Northwestern Medicine in
Wheaton, Illinois, stated that its purpose was to “describe [her] confidence in the ability of
[appellant-mother] to care for her son [Nol. B.].” Dr. Keen stated that Nol. B. had severe
neurological impairments as a result of meningitis early in his life and that he was not expected to
survive more than a few months. She also wrote that, when she cared for Nol. B. in the hospital in
December 2019, appellant-mother demonstrated an “excellent ability to feed him even though
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many staff struggled to do so.” Dr. Keen described appellant-mother as being “very persistent in
her efforts to ensure he got optimal care while avoiding unnecessary hospitalizations,” and she
wrote that appellant-mother had called for medical advice several times over the preceding two
months.
¶ 11 While the State’s petitions were pending, efforts were made to locate the father of H.C.
and the father of Nor. B. and Nol. B. and serve them with notice of the proceedings. The State
published a notice in the Chicago Tribune on March 12, 2021, and attempts to find and contact
them were made over the course of the better part of a year. On September 24, 2021, the trial court
granted the State’s motion to default with respect to H.C.’s father, and on October 6, 2021, the
trial court granted a motion to default with respect to the father of Nor. B. J.J.’s father was
represented by appointed counsel.
¶ 12 B. Adjudication Hearing
¶ 13 The adjudication hearing took place on May 12, 2022. The State presented the live
testimony of one witness, a caseworker for Lutheran Social Services of Illinois, Katherine
McNerney.
¶ 14 1. Testimony of Katherine McNerney
¶ 15 a. Direct Examination
¶ 16 McNerney was assigned to appellant-mother’s case in July 2019 after she was alerted to
some mental health concerns. Appellant-mother told McNerney that she had gone to the police,
claiming that her ex-boyfriend was stalking her. McNerney subsequently determined that some of
appellant-mother’s children had special needs, and on August 9, 2019, she met with appellant-
mother to prepare to provide intact family services.
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¶ 17 At her first meeting with appellant-mother on August 9, 2019, McNerney determined that
appellant-mother was the sole caregiver for her four children. Both J.J. and H.C. have diabetes,
and Nol. B. was not present because he was in the hospital due to dehydration. Appellant-mother
told McNerney he had to be admitted because his maternal aunt had not been feeding him properly.
Appellant-mother told McNerney that she suffers from bipolar disorder, for which she took
Depakote and fluoxetine, and that her condition had resulted in psychiatric hospitalizations in the
past. Appellant-mother did not produce any medication for McNerney to examine despite
McNerney’s requests.
¶ 18 Appellant-mother initially resisted participating in intact family services, but she
eventually relented. When McNerney first met with appellant-mother at the family home, she was
not able to speak with any of the children independently. Appellant-mother claimed that her
children did not trust social workers or DCFS. However, McNerney was able to speak with the
children briefly with appellant-mother in the room. The testimony she gave shed no light on what
any of the children said.
¶ 19 In August and September 2019, McNerney visited appellant-mother’s home weekly. At an
unspecified time in August or September, McNerney asked appellant-mother to describe how often
she checked H.C. and J.J.’s blood sugar and how often appellant-mother had to administer insulin.
She did not provide appellant-mother’s exact response. Instead, she claimed only that appellant-
mother did not provide a “definitive answer.” McNerney asked appellant-mother how often she
obtained refills of their insulin prescriptions and how much insulin was being used every month.
According to McNerney, appellant-mother said that the prescriptions were refilled as needed and
that they never ran out. That response concerned McNerney because she did not get a specific,
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direct answer. Later, McNerney said that appellant-mother told her once that J.J. had run out of
insulin and she had to use H.C.’s insulin to supplement. There was no evidence at the hearing that
appellant-mother had ever completely run out of insulin or that she was not refilling prescriptions.
¶ 20 Nol. B. was nonverbal and required assistance for the purposes of day-to-day care.
McNerney learned that Nol. B.’s needs were “significant” and that he required “a lot” of medical
attention. She expressed concern that, when appellant-mother held Nol. B., appellant-mother was
“very rough,” and McNerney “felt” that he was very fragile. When asked how often she fed
Nol. B., appellant-mother said it depended on when he was hungry. McNerney asked appellant-
mother how she knew when Nol. B. was hungry because he was nonverbal. Appellant-mother said
she knew when Nol. B. was hungry because he was her son. This answer was apparently
unsatisfactory to McNerney, who testified that she “didn’t understand how that was communicated
or how mother actually knew when he was hungry because he isn’t—he wasn’t verbal.”
¶ 21 As to appellant-mother herself, McNerney initially recommended that she participate in a
psychological evaluation and a follow-up psychiatric appointment at Riveredge Hospital.
Appellant-mother scheduled an appointment for October 23, 2019, but maintained that she did not
need a psychiatrist and did not need to participate in therapy because she was fine. McNerney
described appellant-mother’s response to the intact family case during August and September 2019
as one where, “[s]he didn’t take responsibility. She minimized and didn’t acknowledge the risk to
the children.” Appellant-mother did not attend her October 23, 2019, appointment because she had
to care for Nol. B., and she did not reschedule it.
¶ 22 At the time McNerney was assigned to the case, Nol. B. was in the hospital. Appellant-
mother informed McNerney that Nol. B. was in inpatient care because he was dehydrated.
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Appellant-mother told McNerney that Nol. B. became dehydrated and had to go to the hospital
because his maternal aunt had not been feeding him.
¶ 23 During one of her home visits between September and November 2019, McNerney became
concerned about Nor. B.’s sleeping arrangements. Nor. B. was sleeping in a “pack-and-play” that
had blankets and stuffed animals inside it. McNerney attempted to discuss “safe sleep” with
appellant-mother, who said that Nor. B. was over the age of one, so it did not apply. McNerney
offered no testimony as to what “safe sleep” meant to her or for what ages it should be a concern.
Nor. B. was approximately 20 months old in September 2019.
¶ 24 McNerney also recommended that appellant-mother obtain a “0-to-3” evaluation for
Nor. B., and appellant-mother said it was not necessary. Although McNerney testified that she
explained why such an evaluation was important, the hearing testimony does not reflect what a “0-
to-3” evaluation is or how it would address what McNerney believed to be a speech delay.
¶ 25 In November 2019, appellant-mother informed McNerney that she no longer wished to
participate in the intact family program. Following that decision, McNerney obtained records from
Loyola Health for Nol. B.’s last two appointments from October 31, 2019, and early November.
An investigation into medical neglect was then opened following a hotline call from Loyola
Hospital. Following the hotline call, appellant-mother agreed to continue with the intact family
program because, according to McNerney, “she said that she wanted DCFS to get out of their lives
so she would just do what was recommended.” Appellant-mother subsequently followed through
with obtaining some of her own psychiatric care and also with obtaining a “0-to-3” evaluation for
Nor. B., though the record continued to be silent as to the purpose of such an evaluation.
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¶ 26 McNerney described appellant-mother as combative and argumentative and said that it was
difficult to get information from appellant-mother about the medical needs of the children.
McNerney then offered opinions that appellant-mother’s mental health issues were risk factors as
it related to the safety of her children and taking care of their needs. She also opined that appellant-
mother’s failure to follow through with the special needs of her children until the aforementioned
hotline call was placed was a risk factor, though she did not specify to which special needs she
was referring.
¶ 27 b. Cross-Examination from Public Guardian
¶ 28 On cross-examination, McNerney was questioned about appellant-mother’s statement that
she had supplemented J.J.’s insulin when she ran out by using some of H.C.’s insulin. McNerney
was asked if that statement concerned her. McNerney responded that there was a concern that
appellant-mother was not maintaining J.J.’s diabetes and that H.C. might run out of insulin.
¶ 29 She was also questioned about an incident where she was present with appellant-mother,
Nol. B., and an occupational therapist. McNerney saw appellant-mother trying to feed Nol. B. a
piece of a waffle, and it appeared Nol. B. was choking on the waffle. McNerney claimed that
appellant-mother was not concerned.
¶ 30 She also discussed an encounter with appellant-mother and a DCFS nurse in the fall of
2019 where appellant-mother told McNerney that J.J. has asthma and was prescribed an inhaler.
Although she asked to see it, she never saw J.J.’s inhaler. McNerney said, “the concerns were,
what would happen if she needed it and there wasn’t one accessible?”
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¶ 31 Finally, McNerney testified that, on multiple occasions, there was a man in the home that
McNerney believed was living there. Appellant-mother gave McNerney his name but did not
provide a birth date, which prevented McNerney from running a background check.
¶ 32 c. Cross-Examination by Defense Counsel
¶ 33 McNerney testified that she visited appellant-mother’s home weekly throughout August
and September 2019. In October and November 2019, she decreased the frequency of her visits to
every other week. McNerney admitted that she believed appellant-mother’s children were safe in
appellant-mother’s care between August and November 2019.
¶ 34 McNerney also acknowledged that appellant-mother had been working with an
occupational therapist for Nol. B., as well as a physician (Dr. King), and a licensed clinical
professional counselor named Carlos Flores. The occupational therapist and the counselor were
services that appellant-mother obtained herself before DCFS became involved.
¶ 35 When questioned further about the incident with the waffle, McNerney admitted that her
own notes said that Nol. B. simply had food in his mouth and said nothing about him choking. Her
notes also reflected that appellant-mother took the food out of Nol. B.’s mouth when she saw he
was not swallowing it.
¶ 36 2. Records from Riveredge Hospital, MacNeal Hospital, and Loyola Hospital
¶ 37 Following McNerney’s testimony and in lieu of other live testimony that might have been
subjected to cross-examination, the State sought to admit nearly 20,000 pages of medical records.
¶ 38 The State moved to admit People’s exhibit Nos. 1 and 2, which contained appellant-
mother’s medical records from MacNeal Hospital and Riveredge Hospital. Defense counsel
objected on the basis that both exhibits contained numerous records that were irrelevant, such as
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the birth records of Nor. B., Nol. B., and J.J., or records from appellant-mother’s psychiatric
hospitalization in July 2018. The trial court initially agreed that such records were not relevant,
but after further discussion it overruled the objection.
¶ 39 With the adjudication hearing in progress, the State asked the trial court to put the case “on
a hold posture” because it was trying to obtain additional records from Loyola Hospital. The record
indicates that the trial court recessed for approximately one hour, and when the matter was
reconvened, the State offered Nol. B.’s records from Loyola Hospital as People’s exhibit No. 3.
The State specifically pointed out that People’s exhibit No. 3C was “the opinion of Dr. Mary Jones
in regards to [Nol. B.’s] care at that time.” Defense counsel did not object, and the State rested.
¶ 40 Though we could not hope to summarize all of the records introduced, even if we wanted
to, below we discuss some of the more pertinent records in the State’s exhibits.
¶ 41 a. Riveredge Hospital Records
¶ 42 People’s exhibit No. 2 showed that appellant-mother was admitted to Riveredge Hospital
on July 25, 2018, and discharged on July 28, 2018. She presented with suicidal ideation and
feelings of hopelessness. She explained that the father of Nol. B. and Nor. B. had recently moved
out of the house, and she endorsed an increase in anxiety and more frequent panic attacks in the
previous weeks. She was discharged with a diagnosis of major depressive disorder, recurrent,
severe, and given prescriptions for Depakote, Ativan, and Ambien.
¶ 43 b. MacNeal Hospital Records
¶ 44 MacNeal Hospital records reflect that appellant-mother presented to the emergency room
on May 3, 2019, complaining of a number of physical ailments such as stomach issues and renal
failure. The treating physician noted that a complete workup was negative for any of the issues of
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which appellant-mother complained, and he believed her complaints rose to the level of somatic
delusions.
¶ 45 Appellant-mother was brought to MacNeal Hospital again on July 23, 2019, this time by
way of emergency medical services. Though the records are unclear as to who relayed this
information, they note that appellant-mother presented to a local police station and claimed that
she was being stalked and that she had claimed to have sent “over 60 incoherent text messages to
her alleged stalker” that day. A DCFS investigation was subsequently opened because appellant-
mother had four children who require medical care. In the emergency room, appellant-mother told
a staff member that she was being stalked and that she needed to be admitted to stay safe.
Appellant-mother was diagnosed with bipolar disorder and prescribed Depakote before her
discharge on July 26, 2019.
¶ 46 c. Loyola Hospital Records
¶ 47 People’s exhibit No. 3 reflects that Nol. B. was admitted to Loyola Hospital on July 29,
2018, with hypothermia and lethargy and that he was discharged on August 1, 2018. He was seen
for follow-up appointments multiple times throughout October, November, and December.
¶ 48 Nol. B. was admitted to the hospital again on January 1, 2019, for lethargy. While there he
was treated for vomiting, diarrhea, and “seizure like activity.” Eight months later on August 5,
2019, he was admitted again with shortness of breath, coughing fits, and gagging. The records
noted that, although appellant-mother was present, Nol. B. was in his aunt’s custody at that time.
Nol. B. was treated for dehydration and high sodium, and he was discharged on August 13, 2019.
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¶ 49 Appellant-mother brought Nol. B. to the pediatric clinic on August 22, 2019. The treatment
notes indicated that Nol. B. had hypernatremia during his last admission, which was thought to be
the result of dehydration due to inappropriate feeding when Nol. B. was living with his aunt.
¶ 50 Nol. B. presented for a visit on September 5, 2019. The notes indicated that, although he
was 18 months old, he was behind on his 12-month and 15-month vaccines, which were
administered that day. The notes also provided a lengthy list of Nol. B.’s diagnoses under the
heading of “Patient Active Problem List,” which we list here: altered mental status; hypothermia;
group B streptococcus infection; thrombocytopenia; intracranial hemorrhage; seizure;
subarachnoid hemorrhage; meningitis, bacterial; acquired obstructive hydrocephalus; temperature
instability in newborn; meningitis; hydrocephalus; intraventricular hemorrhage; presence of
cerebrospinal fluid drainage device; encounter for lumbar puncture; severe hypoxic ischemic
encephalopathy; decreased responsiveness; abnormal results of liver function studies;
transaminitis; diarrhea of presumed infectious origin; seizures complicating infection; dehydration
with hypernatremia; weight loss; and acute kidney injury.
¶ 51 Nol. B. presented for an appointment on October 17, 2019, with symptoms of an upper
respiratory infection that was suspected to be viral in nature. Nol. B. had some weight loss
associated with the infection. Appellant-mother was instructed to return in two weeks for a weight
check. He returned on October 31, 2019, with a temperature of 89.6 degrees and some wheezing.
The doctor suspected bacterial pneumonia and recommended chest X-rays, which appellant-
mother declined. The doctor offered inpatient admission. Appellant-mother declined and
demanded antibiotics. The doctor agreed that Nol. B.’s signs and symptoms were concerning for
an infectious process and prescribed Nol. B. with antibiotics.
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¶ 52 Nol. B. presented for a follow-up appointment on November 8, 2019. Appellant-mother
stated that Nol. B. was doing better and had been much more active that week compared to the
previous week. Nol. B’s temperature was 91.2 degrees, but appellant-mother stated that his
temperatures at home had been at least 96 degrees. His rhinorrhea and cough were resolving. The
doctor advised lab work and chest X-rays to rule out infection that could result in death. Appellant-
mother declined any additional work-up on the basis that Nol. B. was doing much better.
¶ 53 Appellant-mother returned to the hospital six days later on November 14, 2019, at which
time Nol. B. underwent a battery of tests and a chest X-ray. The X-ray was possibly indicative of
pneumonia, but the results were difficult to interpret because two weeks had passed since the start
of the infection. Nol. B.’s bloodwork showed low white blood cell and platelet counts. Appellant-
mother was told on November 15, 2019, to bring Nol. B. back the following day for repeat
bloodwork, which she did. At the time, Nol. B.’s white blood cell count had improved, but his
platelet count had not.
¶ 54 Between November 2019 and December 2020, it appears appellant-mother sought care for
Nol. B. through other providers unaffiliated with Loyola Hospital. However, Nol. B. returned to
Loyola Hospital on December 10, 2020, for an endocrinology visit. At nearly three years old,
Nol. B. was showing signs of early puberty. Appellant-mother declined magnetic resonance
imaging (MRI) based on his temperature instability issues. The doctor recommended that
appellant-mother bring Nol. B. back the following day to repeat lab work.
¶ 55 Appellant-mother returned seven days later on December 17, 2020, and Nol. B.’s tests
revealed testosterone levels of a boy between the ages of 12 to 15. A doctor left appellant-mother
a voicemail on January 29, 2021, that recommended Nol. B. start pubertal suppression therapy and
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have an MRI. However the records also noted that the doctor said they could discuss other options
because of Nol. B.’s temperature instability issues.
¶ 56 On December 31, 2020, Nol. B. presented for a neurosurgery follow-up where he was noted
to have a history of “delayed GBS sepsis and meningitis with seizures, SAH, and subsequent
extensive cystic encephalomalacia in both cerebral hemispheres.”
¶ 57 d. January 10, 2020, Report of Dr. Mary E. Jones
¶ 58 Included with the 18,000-plus pages of Loyola Hospital records was a “Child Advocacy
and Protection Clinical Update” written by Dr. Jones. The opening line of the report read, “Reason
for this note: this note is generated after DCFS report was made for medical neglect in Nov 2019.
Agency requested Child Advocacy and Protection evaluation of medical record. Pt is a child with
special health care needs following late onset GBS meningitis.”
¶ 59 Dr. Jones summarized Nol. B.’s visits between October 17, 2019, and November 17, 2019,
before writing:
“ASSESMENT; [Nol. B.] is a child with complex medical conditions, therefore the
evaluation for medical neglect is also complex. Mother was adherent bringing him to the
clinic for follow up visits after he was diagnosed with rhino/enterovirus upper respiratory
infection. However, there are 2 factors that support the allegation of medical neglect:
1. Seriousness of Illness: Medical providers expressed concern about his extreme
hypothermia and the risk that this may be a sign of serious infection. Of note: [Nol. B.] has
dysautonomia—the inability of the brain to regulate among other things heart rate and
temperature. It would not be unusual for him to present with hypothermia. However, after
review of his medical record, he has never presented with temp as low as 89.6 degrees, so
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the concern expressed by medical providers was warranted as well as the recommendations
for work up and possible admission.
Consequences of noncompliance. If he were septic or had pneumonia (which were
the concerns) the seriousness of the outcome could be death. The concern persisted after
labs and chest xray presented concerning findings. It is unknown whether [Nol. B.]
received follow up labs at Marian-Joy.
2. Parent’s knowledge and understanding of the health conditions and risk. It was
documented multiple times that mother understood the risks of not complying with the
recommended medical evaluation. She declined work up, admission, follow up in ED if
symptoms worsened and continued to request abx only. Although mother did eventually
comply with labs it appears it was done after the hotline report was made.”
¶ 60 Dr. Jones wrote that Nol. B. had recovered from his recent illness but that “it should not be
assumed that mother’s refusal to comply with medical recommendations caused no harm.” Dr.
Jones concluded her five-page report by writing that she had discussed her report with a DCFS
investigator and that she was recommending that the “allegation should be Medical Neglect of
Disabled Infant.”
¶ 61 3. Testimony of Yesenia Reyes
¶ 62 After the State rested, appellant-mother called Yesenia Reyes, who has known appellant-
mother since they were children. She accompanied appellant-mother and Nol. B. to Loyola
Hospital in November 2019 because Nol. B. was having chest pains and he was wheezing. She
was present for a conversation between appellant-mother and a doctor in which the doctor
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prescribed antibiotics for Nol. B. and said it was okay to go home. After Reyes’s brief testimony,
appellant-mother rested.
¶ 63 C. Trial Court’s Ruling and Disposition
¶ 64 On May 19, 2022, after closing arguments, the trial court issued its ruling. It found that the
State met its burden by a preponderance of evidence to show “lack of care for the minor [Nol. B.]
as well as neglect, injurious environment, and abuse, substantial risk of injury.” As to the other
minors, the trial court found “neglect, injurious environment only as to the other minors.”
¶ 65 The trial court focused on Nol. B’s hospital records from October 31, 2019, as well as Dr.
Jones’s opinion that the incident with Nol. B. at the hospital constituted medical neglect. The trial
court stated that it believed appellant-mother’s untreated mental health issues led to medical
neglect. It further stated that, “this mother was not really controlling any of her children’s medical
condition [sic]. It’s very concerning when you take one child’s medication and use it for another
child’s health condition which is diabetes and not keep up to date with the medication.”
¶ 66 At the disposition hearing, the State presented testimony from Andrew Weisgerber, a
caseworker for Kaleidoscope. At the time, Nor. B. was 4, J.J. was nearly 12, and H.C. was 14.
Weisgerber testified that Nor. B. and H.C. were living with their maternal aunt and had been since
the initiation of the instant case. It appears this is the same aunt that was caring for Nol. B. in
August 2019 when Nol. B. was hospitalized for dehydration. J.J. had been and was continuing to
live with her father, Kendrick J.
¶ 67 Weisgerber testified that appellant-mother was seeing a psychiatrist monthly, that she was
compliant with her medication, and that she was stable. He also stated that Nor. B.’s visits with
appellant-mother typically began with Nor. B. protesting the visit, but after five minutes they “are
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visiting pretty normally.” H.C. had declined every visit with appellant-mother, and J.J. had reached
out twice to appellant-mother for a visit, and appellant-mother did not get the messages because
her phone number had changed. However, she had not requested any visits with J.J. on her own.
¶ 68 The trial court found that it was in the best interest of H.C., J.J., and Nor. B. to make them
wards of the court and removed H.C. and Nor. B. from the custody of their natural parents. As to
J.J., the trial court found her natural father fit, willing, and able and vacated the wardship with
legal custody to stand with appellee-father.
¶ 69 The trial court placed H.C. and Nor. B. in the custody of DCFS with the right to place and
the right to consent to all major medical and dental care.
¶ 70 As to permanency, Weisgerber recommended H.C. return home in four months, although
he acknowledged that H.C. was nonresponsive when Weisgerber attempted to discuss that goal
with him. He also recommended that Nor. B. return home in 12 months. On cross-examination,
Weisgerber stated that appellant-mother was engaged in all of the services that were being asked
of her and that she was making progress in those services. The trial court ruled that the goal for
both Nor. B. and H.C. would be to return home in 12 months. This appeal followed.
¶ 71 II. ANALYSIS
¶ 72 The step-by-step framework for determining whether a child should be removed from his
or her parent(s) and made a ward of the court is set forth in the Act. Proceedings begin upon the
filing of a petition for wardship by the State, at which time the trial court must hold a temporary
custody hearing to determine whether there is probable cause to believe that the child is neglected,
whether there is an immediate and urgent necessity to remove the child from the home, and
whether reasonable efforts have been made to prevent the removal of the child or that no efforts
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reasonably can be made to prevent or eliminate the necessity of removal. 705 ILCS 405/2-10 (West
2020).
¶ 73 The trial court must then make a finding of abuse, neglect, or dependence before it conducts
an adjudication of wardship. Id. § 2-21. The Act defines a “neglected minor” to include “any minor
under 18 years of age *** whose environment is injurious to his or her welfare.” Id. § 2-3(1)(b).
The Act also defines an “abused minor” to include those under the age of 18 who live in the same
household as a parent, immediate family member, or person responsible for the minor’s welfare,
and that person creates 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 of impairment of any bodily function. Id. § 2-3(2)(i)-(ii).
¶ 74 Generally, “neglect” is defined as the “failure to exercise the care that circumstances justly
demand.” (Internal quotation marks omitted.) Arthur H., 212 Ill. 2d at 463. However, this term is
not limited to a narrow definition and, instead, by necessity has a fluid meaning. Id. “[Neglect]
embraces wilful as well as unintentional disregard of duty. It is not a term of fixed and measured
meaning. It takes its content always from specific circumstances, and its meaning varies as the
context of surrounding circumstances changes.” (Internal quotation marks omitted.) Id.¶ 75 Likewise, Illinois courts have recognized that the term “injurious environment” is an
amorphous concept that cannot be defined with particularity. Id. In general, however, the term has
been interpreted to include “the breach of a parent’s duty to ensure a “safe and nurturing shelter”
for his or her children.” (Internal quotation marks omitted.) Id. As a result, cases involving
allegations of neglect and adjudication of wardship are sui generis and must be decided on the
basis of their unique circumstances. Id. “This analytical principle underscores the ‘fact-driven
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nature of neglect and injurious environment rulings.’ ” Id. (quoting In re N.B., 191 Ill. 2d 338, 346
(2000)). “In any proceeding initiated pursuant to the [Act], including an adjudication of wardship,
the paramount consideration is the best interest of the child.” (Internal quotation marks omitted.)
Id. at 464.
¶ 76 A. Timeliness of this Decision
¶ 77 Before proceeding to the heart of this matter, we first address the timeliness of our decision.
The matter at bar is subject to an expedited disposition pursuant to Illinois Supreme Court Rule
311(a) (eff. July 1, 2018). Paragraph (a)(5) of Rule 311 requires us to issue our decision within
150 days after the filing of the notice of appeal, except where good cause is shown. Ill. S. Ct. R.
311(a)(5) (eff. July 1, 2018). The trial court’s final judgment was entered on May 19, 2022, and
appellant-mother filed a notice of appeal on June 17, 2022. This means we would have ordinarily
been required to issue our decision by November 14, 2022.
¶ 78 The record on appeal in this case was not filed until August 8, 2022. Appellant-mother then
requested, and was allowed, three extensions of time to file the appellant’s brief, which was not
filed until February 9, 2023. The various appellees in this case also each requested multiple
extensions of time to file their briefs, which were allowed, and the appellees’ briefs were filed
between April 20, 2023, and April 25, 2023. Appellant-mother filed her reply brief on May 8,
2023.
¶ 79 Under these circumstances, we find good cause for issuing our decision after the 150-day
deadline contemplated by Rule 311(a)(5).
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¶ 80 B. The Admissibility of Hospital Records at the Adjudication Hearing
¶ 81 Appellant-mother first claims that the trial court abused its discretion in admitting the
records from MacNeal Hospital and Riveredge Hospital on the basis that the records were
accompanied by certificates that did not comport with the rules of evidence and were therefore
defective. She also claims that the records from Loyola Hospital were inadmissible because the
signature on the certification accompanying those records was illegible.
¶ 82 These claims were not preserved with a timely objection at the hearing. However,
appellant-mother has also failed to support these arguments with any plain-error analysis in her
briefs. Just like it is possible to forfeit a claim, it is possible to forfeit a plain-error argument when
a litigant fails to explain how either of the two prongs of the plain-error doctrine is satisfied. People
v. Hillier, 237 Ill. 2d 539, 545-46 (2010). While forfeiture is a bar on the parties, and not a
limitation on the courts, this “oft-cited proposition does not abrogate standard waiver and forfeiture
principals and ‘should not be a catchall that confers upon reviewing courts unfettered authority to
consider forfeited issues at will.’ ” People v. Pellegrini, 2019 IL App (3d) 170827, ¶ 48 (quoting
Jackson v. Board of Election Commissioners of Chicago, 2012 IL 111928, ¶ 33).
¶ 83 Because appellant-mother has supplied us with no argument or analysis, even a cursory
one, as to which prong of the plain-error doctrine would permit review of these claims, we deem
them forfeited and need not address whether the trial court erred in admitting these records.
¶ 84 C. Ineffective Assistance of Counsel
¶ 85 Appellant-mother next argues that defense counsel provided ineffective assistance by
failing to (1) call medical professionals to rebut the State’s evidence; (2) object to People’s exhibit
No. 3 because of illegible signatures on the certification and delegation; (3) object to People’s
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exhibit No. 3 because it did not comply with Illinois Rule of Evidence 902(11) (eff. Sept. 28, 2018)
and section 2-18(4)(a) of the Act; (4) object to Dr. Jones’s report; and (5) request a continuance
after the State tendered 18,603 pages of records in the middle of the hearing.
¶ 86 The United States and Illinois Constitutions afford parents in abuse and neglect cases the
right to the effective assistance of counsel. In re Kr. K., 258 Ill. App. 3d 270, 280 (1994); U.S.
Const., amend. XIV; Ill. Const. 1970, art. I, § 2. This right flows from the gravity of the proceeding,
which can result in the separation of a parent from a child, and the fact that abuse and neglect
proceedings can often be a precursor to proceedings to terminate parental rights. Kr. K., 258 Ill.
App. 3d at 280. To sustain a claim of ineffective assistance, one must show both that defense
counsel’s performance was deficient, measuring it against an objective standard of competence
under prevailing professional norms, and that, but for counsel’s deficient performance, there was
a reasonable probability that the outcome of the case would have been different. Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. at 694. The benchmark for judging any claim of
effectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result. Id. at 686.
¶ 87 However, judicial scrutiny of counsel’s performance must be highly deferential. Id. at 689.
We should indulge the strong presumption that defense counsel’s conduct falls within a wide range
of reasonable professional conduct, and appellant-mother must overcome the presumption that the
challenged action might be considered sound trial strategy. Id. When a claim of ineffective
assistance is raised for the first time on appeal, our review is de novo. People v. Lofton, 2015 IL
App (2d) 130135, ¶ 24.
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¶ 88 With that framework at hand, we address the five different claims of ineffective assistance
raised here. After evaluating each issue to determine whether counsel erred, we consider the issue
of prejudice all at once because of the intertwined nature of these issues.
¶ 89 1. Failure to Call Medical Professionals to Rebut the State’s Evidence
¶ 90 Appellant-mother claims that defense counsel provided ineffective assistance by failing to
call five medical professionals who worked with appellant-mother and who would address her
ability to care for Nol. B. and her compliance with mental health treatment and who would provide
“incisive context for why [appellant-mother] rejected the pediatrician’s recommendations on
October 31, 2019.”
¶ 91 Appellant-mother points out, as summarized earlier, that Dr. Keen, Ms. Stern, and Mr.
Flores did, indeed, have glowing praise for appellant-mother and her ability to care for Nol. B. She
also identifies a May 28, 2020, letter from Dr. Sharon Lieteau, MD, at the Westside Family Health
Center and a July 1, 2020, letter from Allison Quinones, a clinical therapist. Dr. Lieteau wrote that
appellant-mother had been in Dr. Lieteau’s care since November 2019 and that appellant-mother
had been compliant with appointments and medication. Ms. Quinones wrote that appellant-mother
was cooperative, engaged, open, and honest and that she was skilled at advocating for herself to
make sure her needs and those of her family were met.
¶ 92 It is difficult to deny that the letters from these five people paint a picture of appellant-
mother as a responsible, caring, and capable mother, which is very different from how McNerney
portrayed her. On the face of these letters, it appears that their testimony would have been
extremely beneficial. However, there are several problems and hurdles that we cannot ignore.
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¶ 93 Specifically referring to Dr. Keen and appellant-mother’s claim that her letter provided
context for the decision not to admit Nol. B. on October 31, 2019, we cannot agree. When Dr.
Keen wrote that appellant-mother has been able to avoid unnecessary hospitalizations, there was
no indication that she was referring to the October 31, 2019, incident or that she disagreed with
the recommendation that Nol. B. be admitted. In fact, as Dr. Keen was affiliated with Northwestern
Medicine, not Loyola Hospital, there was no indication Dr. Keen even knew of what took place
on October 31, 2019.
¶ 94 As for the letters from Dr. Lieteau and Ms. Quinones, one of the arms of the State’s case
was not that appellant-mother never sought psychiatric care or therapy. Instead, it was that
appellant-mother was highly inconsistent in obtaining that care. In fact, the testimony at the
hearing was that appellant-mother only sought out psychiatric follow-up care in the winter of 2019
after DCFS opened an investigation into Nol. B.’s care and because she would do what DCFS
wanted to get DCFS out of their lives. These letters did not contradict that theory.
¶ 95 Additionally, to find that defense counsel’s actions here constituted ineffective assistance
would require us to engage in speculation as to matters outside the record. Nothing in the record
shines any light on discussions defense counsel might have had with any of these potential
witnesses or the degree to which defense counsel investigated calling these witnesses. We have no
way of knowing what defense counsel knew about these witnesses and what other testimony they
might have to offer. There may have been perfectly valid reasons for seeking their assistance at
the temporary custody stage prior to the hearing but not calling them as witnesses at the hearing.
While it would have been helpful to have context for why defense counsel did not call these
witnesses or what investigation defense counsel did, it is impossible to engage in any analysis
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No. 1-22-0881
about whether this was sound trial strategy without such context. The consideration is not simply,
as appellant-mother insists, whether these witnesses could have been helpful or hurtful based on
their brief letters that were never subjected to the scrutiny of the adversarial process.
¶ 96 Defense counsel’s conduct carries a presumption of reasonableness and a presumption that
their choices were sound trial strategy. Strickland, 466 U.S at 689. We simply cannot pretend to
know why defense counsel chose not to call these witnesses, whether they were even available, or
what else took place outside the record. Appellant-mother has not overcome these presumptions.
¶ 97 2. Failure to Object to People’s Exhibit No. 3 Because of Illegible Signatures
¶ 98 Appellant-mother claims that defense counsel was ineffective for failing to object to
People’s exhibit No. 3 because both the certificate and delegation contained a signature that was
illegible. Appellant-mother relies on Mashni Corp. v. Laski, 351 Ill. App. 3d 727 (2004), which
we find to be distinguishable. In Mashni we held that verifications pursuant to section 1-109 of the
Code of Civil Procedure (735 ILCS 5/1-109 (West 2002)), which did not contain names or
addresses and contained illegible signatures, were essentially anonymous, and thus there was no
way to hold the individual who had signed the verification accountable. Mashni, 351 Ill. App. 3d
at 735.
¶ 99 That is not the case here. The certificate and delegation for People’s exhibit No. 3 contain
two signatures, and while it is difficult to discern their precise names, their titles are perfectly
legible. The documents also contain basic contact information for Loyola Hospital. If anyone had
needed to ascertain the names of these individuals, it appears it would have been a trivial matter.
¶ 100 Moreover, there is nothing in the record to substantiate whether defense counsel knew their
names. It is conceivable that defense counsel did not object because the identity of these
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individuals was known to her and, thus, this was not a concern. Additionally, the idea that the
signatures did not subject these individuals to the penalty of perjury presumes that we agree that
Rule of Evidence 902(11) applies to records admitted pursuant to section 2-18(4)(a). As we discuss
below, we have not resolved that issue in appellant-mother’s favor.
¶ 101 Thus, it was not an error for defense counsel to fail to object to the nature of the signatures
on People’s exhibit No. 3.
¶ 102 3. Failure to Object to People’s exhibit No. 3 Because It Did Not
Comply with Rule 902(11)
¶ 103 Appellant-mother argues that defense counsel provided ineffective assistance for failing to
object to People’s exhibit No. 3 because its certificate did not comply with Illinois Rule of
Evidence 902(11) (eff. Sept. 28, 2018).
¶ 104 The certification for People’s exhibit No. 3 claimed that the records accompanying them
were made in the regular course of business and that it was the regular course of business for the
hospitals to make those records at the time or within a reasonable amount of time. But it was not
notarized or otherwise a written declaration made under oath subject to perjury. The principal
question before us is whether the certifications for records admitted under section 2-18(4)(a)
require the same oath contemplated by Rule 902(11).
¶ 105 The parties have not cited any case law that has held that Rule 902(11) applies to section
2-18(4)(a), and likewise we have been unable to find any. Thus, we are presented with something
of a conundrum. Determining whether Rule 902(11) applies requires statutory interpretation and,
while we could perform the analysis necessary to determine whether Rule 902(11) applies to
section 2-18(4)(a), to do so would be fruitless because it would not change our analysis. If we held
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that Rule 902(11) does not apply to section 2-18(4)(a), then defense counsel committed no error
and was not ineffective on that basis. If we held the opposite, it would be illogical of us to find that
defense counsel had committed an unprofessional error. See People v. Chatman, 357 Ill. App. 3d
695, 700 (2005) (requiring counsel to predict future appellate court holdings would render
“effective assistance” an impossible standard). What would become of the ineffective assistance
standard if we held that it was an unprofessional error to argue something that is unprecedented
or, at best, highly ambiguous? We cannot expect lawyers to predict the future or account for every
possible as-of-yet unmade argument.
¶ 106 Accordingly, we cannot say that defense counsel erred for failing to object to People’s
exhibit No. 3 on that basis.
¶ 107 4. Failure to Object to Dr. Jones’s Report
¶ 108 We wholeheartedly agree that defense counsel erred by failing to object to Dr. Jones’s
report because it was prepared in anticipation of litigation. Unlike the previous issue, this issue
only required defense counsel to apply existing, well-established evidentiary principles.
¶ 109 The rules of evidence for civil cases apply at adjudication hearings. 705 ILCS 405/2-18(1)
(West 2020). Hearsay is thus inadmissible unless subject to one of our established hearsay
exceptions. Ill. R. Evid. 802 (eff. Jan. 1, 2011). Business records created in the ordinary course of
business, at or near the time of the occurrence, are deemed admissible by the Illinois Rules of
Evidence and by the statutory exception contained in the Act. Ill. R. Evid. 803(6) (eff. Jan. 25,
2023); 705 ILCS 405/2-18(4)(a) (West 2020). However, records prepared in anticipation of
litigation are not made in the regular course of business and are therefore not admissible. In re J.Y.,
2011 IL App (3d) 100727, ¶ 13. A record is prepared in anticipation of litigation if it is prepared
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with an eye toward pending or anticipated litigation of any kind. In re A.B., 308 Ill. App. 3d 227,
236 (1999). Our business records hearsay exceptions forbid the admission of documents created
in anticipation of litigation because such documents lack the earmarks of trustworthiness and
reliability of other records prepared in the ordinary course of business. City of Chicago v. Old
Colony Partners, L.P., 364 Ill. App. 3d 806, 819 (2006).
¶ 110 Appellant-mother relies on In re A.P., 2012 IL App (3d) 110191, which we find persuasive.
In that case, the State alleged that the children were abused and that the boyfriend of the children’s
mother had burned A.P.’s face with hot water. Id. ¶ 3. The State admitted letters and reports from
the Pediatric Resource Center (PRC). These documents contained a statement from the boyfriend
who claimed that A.P. had burned his face in the bathtub. Id. ¶ 5. They also contained a doctor’s
report opining that A.P.’s burns were consistent with child abuse. Id. ¶ 6. That opinion was
supported by the reasoning that A.P. had no burns on his hands or arms, which would have been
expected because children use their hands to try to catch themselves when they fall. Id. The doctor
explained that it was not probable that A.P. fell and managed to catch himself in such a way that
only the left side of his face, ear, and back of his neck were burned. Id.
¶ 111 On appeal, the court found that the admission of the PRC records was an abuse of
discretion. Id. ¶ 16. The PRC’s examination of A.P. and his records was done at the request of
DCFS, and A.P. did not receive any follow-up medical care at the PRC. Id. Thus, the records and
reports were not made in the regular course of business but were instead prepared in anticipation
of litigation. Id. Our supreme court affirmed the appellate court’s judgment, but it was only called
upon to decide whether the outcome of the hearing was against the manifest weight of the evidence.
In re A.P., 2012 IL 113875.
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¶ 112 The Public Guardian offers two alternative explanations for why Dr. Jones’s report was
created, neither of which we can accept. First, the Public Guardian claims that Nol. B’s medical
conditions were complicated and therefore it was prudent for DCFS to obtain an explanation of
what care was required to meet Nol. B.’s needs.
¶ 113 Dr. Jones’s report says nothing about what care Nol. B. requires on a regular basis. The
bulk of her report is a summary of care Nol. B. already received between October 17, 2019, and
November 17, 2019. If the goal of this report was to explain to DCFS what kind of care Nol. B.
would need going forward, then her report was a failure. Dr. Jones’s report contained a diagnosis
section that lists 17 different conditions or ailments and does not explain any of them. Furthermore,
we cannot help but notice that Dr. Jones does not appear to be a neurosurgeon, neurologist,
endocrinologist, or any other specialist that might have had particular insight into Nol. B.’s
conditions. Instead, Dr. Jones signed her report, “Mary E. Jones MD, MJ, MPH, Child Advocacy
and Protection.”
¶ 114 The Public Guardian also claims that Dr. Jones’s report “could have been used to determine
the appropriateness of or if additional intact services were needed.” The record does not support a
conclusion that that was ever the case, but our concern is why it was prepared, not what other
ancillary uses the report might have had after it was prepared. A.B., 308 Ill. App. 3d at 236. This
is not a situation where the report was prepared in the regular course of business and also had a
coincidental use in litigation like the DCFS client service plans in A.B. See id.
¶ 115 Whatever aspirational uses Dr. Jones’s report might have had, the plain language of her
report makes obvious the reason why it was created. The very first line of the report is explicit that
it was created after DCFS requested a “Child Advocacy and Protection” evaluation. Exactly what
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type of evaluation DCFS sought was made clear later when Dr. Jones wrote, “[Nol. B.] is a child
with complex medical conditions, therefore the evaluation for medical neglect is also complex.”
(Emphasis added.) She then summarized two different points “that support the allegation of
medical neglect.” Finally, Dr. Jones concluded her report by writing, “The above issues were
discussed with DCFS investigator Debra Jones. [Nol. B.] is a disabled child. Suggest that
allegation should be Medical Neglect of Disabled Infant.” (Emphasis added.)
¶ 116 Dr. Jones’s report not only offered a specific legal opinion that Nol. B. was neglected,
rather than a medical diagnosis, but it recommended what allegations DCFS should make going
forward—recommendations that DCFS adopted in the affidavits attached to the State’s petitions.
Dr. Jones also provided no treatment in connection with that report. Created almost two months
after the last treatment date Dr. Jones summarized, and a little more than a month before the
petitions in this case were filed, her report was undeniably created in anticipation of litigation.
¶ 117 Father-appellee asserts that Dr. Jones’s report was not prepared in anticipation of litigation.
Instead, he insists it was “requested to determine if this case should be brought to court.”
Considering that litigation is the act of bringing a particular controversy to court by way of a
lawsuit, we reject this meager attempt at semantic wordplay.
¶ 118 Father-appellee also claims that to hold that Dr. Jones’s report was prepared in anticipation
of litigation would be to “assert that all medical opinions result in the anticipation of litigation.”
Section 2-18(4)(a) of the Act already contemplates the admission of records that contain diagnoses
and medical opinions. Dr. Jones’s report is a different animal. It is clear DCFS asked Dr. Jones for
an opinion about the legal issue of neglect and a recommendation for how DCFS should proceed.
It does not follow from this that all medical opinions should be barred from admission through
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section 2-18(4)(a), nor does this prevent anyone from seeking guidance from medical
professionals.
¶ 119 Dr. Jones’s report was inadmissible because it was prepared in anticipation of litigation,
and defense counsel erred by failing to object to its admission.
¶ 120 5. Failure to Request a Continuance
¶ 121 Appellant-mother claims that defense counsel also provided ineffective assistance because
she failed to object to the State tendering 18,603 pages of discovery midhearing and failed to
request a continuance. This issue, while perhaps not an error in a vacuum, is inextricably
intertwined with the other error we have recognized. After all, if we find that defense counsel was
ineffective for failing to object to Dr. Jones’s report, surely defense counsel’s failure to ask for the
requisite time to review and discover that evidence is at least partly to blame.
¶ 122 The notion that defense counsel felt she was prepared to proceed with appellant-mother’s
case-in-chief immediately after receiving 18,603 pages of records pertaining to the medical care
of Nol. B., the treatment of whom was at the very heart of this case, is disquieting to say the least.
It must be noted that nothing in the record reflects that defense counsel had seen these records
before that day, and none of the parties make such a claim.
¶ 123 As we have said, these proceedings are serious, and they place certain liberty interests at
stake. At a minimum they can, as occurred here, result in the separation of a parent from a child.
Kr. K., 258 Ill. App. 3d at 280. These cases can also often be precursors to proceedings to terminate
parental rights, and the evidence presented in an abuse or neglect case can be used against a parent
in those parental rights termination cases. Id.
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¶ 124 Basic discovery principles apply in proceedings under the Act. See In re R.V., 288 Ill. App.
3d 860, 868-69 (1997). The purpose of pretrial discovery is to promote fair, efficient, and
expeditious proceedings leading to the truth, as opposed to a trial that is nothing more than a battle
of wits. Velarde v. Illinois Central R.R. Co., 354 Ill. App. 3d 523, 531 (2004). That purpose was
subverted here. While there is no absolute right to a continuance and we have held that serious
delay in the adjudication of abuse, neglect, or dependency cases can cause grave harm to the minor,
the trial court can grant a continuance when consistent with the health, safety, and best interests of
the children. In re K.O., 336 Ill. App. 3d 98, 104 (2002).
¶ 125 The timeline for this case provides valuable context. It was initiated in February 2020,
approximately four months after the events at Loyola Hospital. This case did not proceed to an
adjudication hearing for more than two years after that. On the day of the hearing, May 12, 2022,
the State answered ready, even though it was still awaiting 18,603 pages of medical records from
Loyola Hospital. After presenting the testimony of one live witness, the State sought to move
People’s exhibit Nos. 1 and 2 into evidence. Then it requested a recess, at which time it returned
with the aforementioned deluge of Loyola Hospital records, and it was permitted to move those
into evidence. The State rested, and the very next thing to occur was appellant-mother’s case-in-
chief.
¶ 126 It must also be noted that the certification and delegation of authority attached to these
records were signed on January 27, 2022, approximately 3½ months earlier. While we do not
accuse anyone of intentional gamesmanship, whether the State had these records all along or
simply failed to follow-up in the lead-up to the hearing, the end result was the same. Defense
counsel was confronted with a mountain of records moments before beginning her case-in-chief.
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We cannot imagine how defense counsel could take no issue with this document production at the
eleventh hour and fifty-ninth minute, especially knowing that the alleged events at Loyola Hospital
on October 31, 2019, were central to this case. We also question why these records were not
produced until the middle of the hearing when the affidavits accompanying the February 21, 2020,
petitions specifically referenced Dr. Jones’s opinion that Nol. B. was neglected. This means that
DCFS and the State were aware of Dr. Jones’s report as early as February 2020.
¶ 127 The Public Guardian claims that defense counsel’s statement during closing argument,
“From everything in the record it appears that the mother was taking care of her children,” is proof
that defense counsel reviewed the records. It is one thing for zealous advocates to highlight helpful
facts and downplay harmful facts. But it is another to do violence to the record by misrepresenting
it. Closing arguments in this case took place on May 19, 2022, a week later.
¶ 128 We are fooling ourselves if we believe for even a moment that defense counsel could have
reviewed those records in the 70-minute recess that took place, assuming she had all 70 minutes
to review them. Some rudimentary math indicates defense counsel would have had to read nearly
4½ pages per second to have a chance at reviewing this information in that time frame. Of course,
that is merely reading, not understanding, and certainly does not account for the time necessary to
investigate or attempt to prepare a defense—particularly where those records contained a report
from a medical doctor that offered a legal conclusion that clearly required specialized knowledge.
Beyond that, whether defense counsel had the opportunity to review some of those records in the
week between the receipt of evidence and closing arguments is a meaningless inquiry because it
was too late to challenge those records, investigate them, or otherwise attempt to prepare a defense
around them.
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¶ 129 This could not have been a strategic decision. See Strickland, 466 U.S at 689. Defense
counsel would have to have known what was in the records in order to make an informed decision
about whether to proceed, and there was nothing that could conceivably be gained by proceeding
without a chance to review them. To the contrary, there was everything to lose––especially because
there is nothing to indicate defense counsel knew these records included an opinion from Dr. Jones.
¶ 130 Appellee-father urges us to adopt the position that even though these records were tendered
“late,” which is putting it mildly, they should still have been considered because our primary
concern is the best interest of the children.
¶ 131 First, a continuance would not have prevented them from being considered. Second, we
agree that our prime concern is the best interest of the children. Arthur H., 212 Ill. 2d at 464.
However, the phrase “the best interests of the children” cannot be a shibboleth that we repeat
blindly in opposition to any argument that error occurred. Believing evidence should be adequately
investigated and tested before separating children from their parent and the best interests of the
children are intertwined; after all, how can anyone presume to know what is in the best interests
of the children based on a flawed process? It would behoove us and the parties not to treat these
cases like a fait accompli.
¶ 132 A request for a continuance to allow defense counsel to review 18,603 pages of records
that were tendered midhearing would have been an appropriate response to what was a tardy action
on the part of the State. When we describe what is in the best interest of the children, we cannot
be describing a process where the State unloads a mountain of evidence on defense counsel at the
last minute. We think defense counsel’s comfort with and total acquiescence to what transpired
cannot be countenanced.
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¶ 133 The problems that flow from this are numerous. Defense counsel had no time to review
these records, discover Dr. Jones’s report, and prepare a defense or objection to it. She had no time
to investigate these records, put on evidence in response to them, or seek the assistance of a doctor
for consultation or expert testimony. And she had no opportunity to review these records with her
client to help appellant-mother make an informed decision about testifying. In other words, she
had no opportunity to do the things that we would expect of a reasonable litigator.
¶ 134 Defense counsel made an unreasonable error by not insisting on time to review 18,603
pages of records that the State tendered midhearing, which is directly connected to the failure to
object to Dr. Jones’s report.
¶ 135 6. Prejudice
¶ 136 Having determined that defense counsel committed two errors here, the Strickland standard
also requires us to consider prejudice to determine if there was a reasonable probability of a
different outcome but for defense counsel’s errors. To understand the magnitude of the prejudice
that resulted, we must discuss what would have been left if Dr. Jones’s report was properly
excluded. The remaining evidence was not particularly compelling.
¶ 137 We can start with the testimony of McNerney, which contained little in the way of concrete
evidence against appellant-mother and often amounted to subjective hand-wringing. McNerney
found appellant-mother to be difficult, combative, and providing vague answers, which is proof of
absolutely nothing when it comes to abuse or neglect. She also testified that appellant-mother
refused to produce bottles of medication or an inhaler and only produced prescription printouts,
which was similarly not proof that appellant-mother or her children were not getting their
medication. Likewise, McNerney took issue with Nor. B.’s sleeping arrangements and lack of a 0-
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No. 1-22-0881
to-3 evaluation, but the State never elicited enough testimony to tie these things together with the
ultimate theory that appellant-mother was neglectful or that the children were in an injurious
environment.
¶ 138 McNerney also had concerns that appellant-mother was not properly managing J.J.’s and
H.C.’s diabetes and that her psychiatric condition was preventing her from caring for her children.
But McNerney was not a medical doctor capable of determining that. There was no evidence
McNerney had any idea what it would mean for their diabetes to be uncontrolled or what that
would look like. Her concerns were nothing more than speculative. Appellant-mother’s last
hospitalization was in the summer of 2019, and McNerney learned about this supposedly
concerning information about insulin in August or September 2019. But she was not concerned
then. To the contrary, she testified that she thought the children were safe with appellant-mother
between August and November 2019. Apparently, these concerns manifested later after receiving
Dr. Jones’s opinion.
¶ 139 Importantly, the trial court relied on McNerney’s testimony to conclude that H.C. and J.J.’s
diabetes was not being controlled, but none of the evidence substantiated that. McNerney testified
that appellant-mother said that H.C. had run out of insulin and she had to supplement H.C.’s
prescription with J.J.’s insulin. There was no evidence at the hearing that either child had ever
gone without insulin, that appellant-mother was not administering insulin, or any other evidence
that would support the conclusion that H.C.’s and J.J.’s diabetes was uncontrolled.
¶ 140 That brings us to the various medical records from MacNeal and Riveredge, which detailed
appellant-mother’s two psychiatric hospitalizations in 2018 and 2019. While we do not downplay
the seriousness of requiring inpatient psychiatric admissions, these on their own do not establish
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anything related to the care of appellant-mother’s children or whether they were being subjected
to an injurious environment, particularly at the time the petitions were filed.
¶ 141 Finally, that leaves us with the remaining records from Loyola Hospital. The appellees
insist that these records themselves are incontrovertible proof of appellant-mother’s neglect. We
see no way to conclude that when there was no testimony from an expert witness to help us make
sense of them. This is not a case, for example, where Nol. B. had suffered injuries that were
obviously intentionally inflicted by a parent. Nor is it a case where Nol. B. was simply not getting
medical attention that he needed. To the contrary, the records entered into evidence indicate
appellant-mother was constantly and routinely seeking out medical care for Nol. B. Instead, this
case turned largely on whether appellant-mother’s decisions over approximately a two-week span,
which involved Nol. B. receiving some medical care and tests, were enough.
¶ 142 Nol B. had extremely complicated and numerous ailments, and it seems apparent from the
records that he repeatedly and often required significant medical care independent of what
appellant-mother was doing. To say whether appellant-mother’s actions were neglectful would
first require an understanding of those conditions. How can we say that appellant-mother failed
“to exercise the care circumstances justly demand,” without a full understanding of those
conditions? (Internal quotation marks omitted.) Arthur H., 212 Ill. 2d at 463.
¶ 143 We can only guess what these records mean, in both a literal sense and practically what
they meant for Nol. B.’s long-term health. Even if we were to impermissibly go beyond the record,
where would that leave us? It would be a far cry from understanding this material on the level
necessary to examine Nol. B’s records from October 31, 2019, and beyond and determine whether
appellant-mother’s decision not to admit Nol. B. and refuse X-rays constituted neglect. After all,
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No. 1-22-0881
might there be legitimate reasons why a mother would want to avoid inpatient hospitalization for
her immunocompromised child unless absolutely necessary? Moreover, on October 31, 2019, even
the treating physician agreed that Nol. B.’s signs and symptoms were consistent with an infectious
process and agreed to prescribe antibiotics. It was not as though appellant-mother was refusing all
medical intervention for Nol. B. or disregarding the fact that he was ill. Even Dr. Jones could not
identify specific, tangible harm that resulted from this incident and could only speculate. So how
could we do the same on our own?
¶ 144 The trial court’s ruling focused on three major aspects: (1) the issue of J.J.’s and H.C.’s
insulin; (2) Nol. B.’s records from October 31, 2019, and some of his subsequent treatment; and
(3) Dr. Jones’s report. Nol. B’s. medical records and Dr. Jones’s opinion were the focus of the trial
court, and it is clear that Dr. Jones’s opinion was instructive to the trial court as to how it should
interpret Nol. B.’s records. The trial court expressed no opinion of its own about what Nol. B’s
records meant––and how could it? If we remove Dr. Jones’s opinion from the equation, we find
there is little to show actual abuse or neglect. Dr. Jones’s report was powerful evidence, especially
when it was not subjected to any scrutiny or cross-examination, and we cannot say that the failure
to prevent its admission was without prejudice.
¶ 145 Ultimately, our question is whether defense counsel’s conduct prevented the adversarial
process from functioning and undermined our confidence in the result. Strickland, 466 U.S. at 686.
Dr. Jones was not required to come to court and testify under oath. She was not required to provide
qualifications that would render her competent to provide an expert opinion. There was no
examination of what information she reviewed or disregarded, or what criteria she used to
determine that Nol. B. was neglected. We have no way of knowing whether her definition of
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No. 1-22-0881
neglect is even the same as that provided by the Act. There was no ability to explore her biases or
motives or even whether DCFS compensates her for completing such a report. We cannot say the
adversarial process functioned properly with any confidence when such highly prejudicial and
persuasive evidence, which told the trier of fact what to make of the ocean of records before it,
was admitted without the slightest objection from defense counsel.
¶ 146 Accordingly, but for defense counsel’s errors there was a reasonable probability that the
outcome would have been different.
¶ 147 D. Hearing Procedure and Evidence
¶ 148 Although not necessary to the disposition of this case, and unrelated to any of the issues
raised by the parties, we take a moment to express our bewilderment at the way the evidence in
this case was presented.
¶ 149 First is the fact that the State intended to prove its case almost entirely through cold medical
records. Somewhere on the order of 20,000 pages of records were admitted into evidence in this
case. In its brief, the Public Guardian asserted that all 18,603 pages of Nol. B.’s medical records
were evidence of appellant-mother’s refusal to comply with her doctors’ recommendations. Even
a cursory examination of Nol. B’s records reveals that to be a rather severe embellishment, as a
huge number of those 18,603 pages have nothing to do with any of the events pertinent to this case.
On top of that, in closing argument in the trial court and in the briefing on appeal, the parties have
referenced only a tiny fraction of the mountain of documents that were submitted. Clearly, most
of these records were not particularly important.
¶ 150 We understand that there was disagreement in the trial court about whether these records
could be submitted piecemeal with irrelevant records omitted. But the certifications and
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No. 1-22-0881
delegations of authority for business records are foundational requirements, and nothing more. 705
ILCS 405/2-18(4)(a) (West 2020); Ill. R. Evid. 803(6) (eff. Jan. 25, 2023); Ill. R. Evid. 902(11)
(eff. Sept. 28, 2018). Assuming there are no defects in those documents, surely the parties could
reach some arrangement about which records are relevant to the matter at hand so as to avoid the
absurd result that was achieved here.
¶ 151 Additionally, while we recognize that section 2-18(4)(a) permits the admission of business
records and that it places no explicit limits on how much evidence can be admitted this way, we
are forced to ask: should there be limits?
¶ 152 Hearsay exceptions are meant to be just that––exceptions––and not the rule. Part of the
rationale for business records exceptions is that businesses will flounder if they cannot keep
accurate records, and therefore there is little reason to doubt the veracity of the information
contained in them. Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 414 (2005). But the
records admitted in this case were not admitted only for simple reasons such as proving whether a
diagnosis was made, or whether medical care took place on a certain day, or even if a particular
recommendation was made as to treatment. They were also admitted to prove a legal conclusion,
which is that Nol. B. was neglected or abused. But how can we be expected to evaluate records
like this and draw factual and legal conclusions from them when we are not doctors and have no
medical testimony to help us understand them?
¶ 153 To illustrate this point, here is an excerpt of Nol. B.’s records from August 22, 2019:
“[Nol. B.] is a 19m w/ PMHx ex 36 weeker, neonatal sepsis 2/2 late onset GBS bacteremia
and meningitis with significant neurologic sequelae, obstructive hydrocephalus s/p R
Ommaya, IVH, seizure disorder, and developmental delay.”
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No. 1-22-0881
¶ 154 What does any of this mean? Is this relevant? Does this provide any context for whether
Nol. B. was neglected? We can only guess, and the records in evidence are replete with examples
of this problem. The result here is that the State entered 20,000 pages of medical records into
evidence en masse and effectively said to the trier of fact, “you figure it out.” If our goal is to arrive
at fair and accurate dispositions in cases that have serious and far-reaching consequences,
expecting the judiciary to be able to decipher thousands of pages of medical evidence with no
assistance understanding that evidence would seem to be folly, at best. This is not a problem for
which we have no solution, either. Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) exists to
facilitate the use of expert testimony when specialized knowledge will aid the trier of fact––as it
would have here.
¶ 155 We must also take a moment to issue a brief reminder. The requirements of Illinois
Supreme Court Rule 341 (eff. Oct. 1, 2020) are not optional. When Rule 341 requires citations of
the record or authority, it is not a suggestion, nor is it a hollow ritual. Likewise, citation of
unpublished orders pursuant to Illinois Supreme Court Rule 23 (eff. Feb. 1, 2023) filed before
January 1, 2021, remains improper.
¶ 156 III. CONCLUSION
¶ 157 We reverse the trial court’s judgment and remand for a new hearing.
¶ 158 Reversed and remanded.
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No. 1-22-0881
In re H.C., 2023 IL App (1st) 220881Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 20-JA-330,
20-JA-331, 20-JA-333, the Hon. Tiesha Smith, Judge, -
presiding.
Attorneys Sharone R. Mitchell Jr., Public Defender, of Chicago (Ross K.
for Holberg), for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham and Gina DiVito) for the People.
Appellee:
Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain
and Carrie Fung), guardian ad litem.
Marv Raidbard, of Skokie, for other appellee.
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