In re Stephen K.

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In re Stephen K.

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-2135, 1-06-2061 C

Case Date: 04/13/2007

Preview:SIXTH DIVISION April 13, 2007

Nos. 1-06-2135 & 1-06-2061 cons. In re STEPHEN K., a Minor, Respondent-Appellee, (The People of the State of Illinois ) Appeal from the Circuit Court of Cook County, Illinois, Child Protection Division. No. 05 JA 809 Honorable Mary Lane Mikva, Judge Presiding. ) )

) ) ) Petitioner-Appellee, ) v. ) ) Kathy K., Mother of Stephen K., ) ) Respondent-Appellant). ) ) __________________________________________) ) In re STEPHEN K., a Minor, ) ) Respondent-Appellee, ) ) (The People of the State of Illinois ) ) Petitioner-Appellee, ) ) v. ) ) Stephen K., Sr., Father of Stephen K., ) ) Respondent-Appellant). )

JUSTICE JOSEPH GORDON delivered the opinion of the court: At an adjudicatory hearing, the circuit court found the respondents, Kathy K. and Stephen K., medically neglected and exposed their child, S.K., to an injurious environment. At a

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Nos. 1-06-2135 & 1-06-2061 cons. subsequent dispositional hearing, the court ruled that the respondents were unable for some reason other than financial circumstances alone to care for, protect, train or discipline their child, and the minor was made a ward of the court and placed in the custody of the Department of Children and Family Services. The respondents now appeal. The mother, Kathy K., contends that: (1) the State failed to establish S. K. was medically neglected as a result of her actions; (2) the trial court's finding that she was unable for some reason other than financial circumstances alone, to care for, protect, train or discipline her child was against the manifest weight of the evidence; (3) the trial court erred in refusing to admit evidence of S. K.'s hospitalization after he was removed from the respondents' home and while in foster care; and (4) the adjudication of wardship should be dismissed because under Illinois law she had no duty to obey specific treatment plans and recommendations of the healthcare professionals treating her child. The father, Stephen K., solely contends that he was denied due process when, at the adjudicatory hearing, the circuit court refused to admit evidence demonstrating the minor's need for hospitalization while under the care of the foster parents. For the following reasons we affirm the trial court's adjudicatory and dispositional hearing orders. I. BACKGROUND S.K. was born on November 7, 1990, and was diagnosed with cystic fibrosis shortly thereafter. On August 4, 2005, S. K. was taken into the custody of the Department of Children and Family Services (DCFS) and on August 5, 2005, the State filed a petition for an adjudication of wardship. In that petition, the State alleged that S.K. suffered medical neglect and

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Nos. 1-06-2135 & 1-06-2061 cons. malnutrition, lived in an injurious environment and suffered a risk of physical harm by respondents Kathy K. and Stephen K., in violation of sections 2-3(1)(a), 2-3(1)(b) and 2-3-2(ii) of the Juvenile Court Act of 1987 (Act). 705 ILCS 405/2-3(1)(a), (1)(b), 2-3(2)(ii) (West 2002). The State alleged the following facts in support of these allegations: "On or about July 20, 2005, this minor was admitted to the University of Chicago Children's Hospital with a history of coughing up blood. Medical personnel have diagnosed this minor with cystic fibrosis, chronic malnourishment, and long standing medical neglect. Further, medical personnel have indicated that this minor's condition is potentially life threatening if not treated appropriately. Mother and father have an extensive history of marginal medical compliance on behalf of this minor. This minor will require close monitoring, exact medication compliance and regular medical follow-up upon discharge. Mother and father were residing together until approximately July, 2005. Mother reports a history of domestic violence with father." At the adjudicatory hearing, the State's first witness was Dr. Jill Glick, the medical director of the child protective services (CPS) team at the University of Chicago Hospital (UCH). The court qualified Dr. Glick as an expert in pediatrics, pediatric emergency, and child abuse pediatrics.1 On direct examination, Dr. Glick testified that as head of the CPS team at UCH, in July 2005, she was first involved with S.K.'s case when she was approached by pulmonologist Dr. Lucille Lester, S.K.'s primary treating physician. Dr. Lester had expressed her long-standing

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Dr. Glick was not qualified as an expert in cystic firbrosis. 3

Nos. 1-06-2135 & 1-06-2061 cons. concern about the respondents' ability to provide S.K. with adequate medical care. Dr. Lester indicated that even though S.K. had a worsening lung disease, the family did not follow through with instructions to obtain adequate medication. Dr. Lester was also concerned that S.K. suffered from "chronic malnourishment secondary to lack of appropriate environmental nutrition given to him," because he "had not gained weight since [M]arch of [2005]." According to Dr. Glick, Dr. Lester was "very uncomfortable" sending S.K. home, as he appeared depressed and was missing school, and she wanted Dr. Glick's assessment of the situation. Dr. Glick further testified that S.K. was diagnosed with cystic fibrosis shortly after birth, and that he had been treated for the disease at UCH many times throughout his life. Dr. Glick explained that cystic fibrosis is a multisystem disease which primarily affects the lungs and the gastrointestinal (GI) tract. According to Dr. Glick, cystic fibrosis patients are missing enzymes for digestion, have abnormalities in their salt metabolism, and a progressive pulmonary disease. Consequently, cystic fibrosis patients need daily ongoing medication by mouth and by aerosol to keep their airways open, and physiotherapy (with a "vibratory" vest) to battle the mucus production that clogs up their airways. Dr. Glick noted that without a daily regimented plan of medication, and chest therapy, the disease will progress. Dr. Glick also testified that because a good number of cystic fibrosis patients have problems with their GI track and digestion, resulting in serious diarrhea and weight loss, they must eat a caloric- and vitamin-enriched diet. Moreover, the diet must include a series of enzymes that help digestion and are timed and administered according to the type of food the patient is eating.

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Nos. 1-06-2135 & 1-06-2061 cons. According to Dr. Glick, children with cystic fibrosis are susceptible to infections because their immune systems are suppressed by the disease, often causing them to cough up blood or have bad coughing spells or fever. Dr. Glick also testified that although many patients with cystic fibrosis die in their 30s and 40s, if treated properly "they can have productive lives," and some may live longer. However, Dr. Glick also admitted that even with optimal care, cystic fibrosis patients will have exacerbations and pulmonary problems. Dr. Glick next testified that in assessing S.K.'s situation, she consulted the minor's treating medical team, including Dr. Lester, nurse Jeanine Cheetham, and other pediatric residents working under Dr. Lester's guidance. Dr. Glick stated that she also reviewed S.K.'s medical records and spoke with the social worker assigned to his case. In her assessment, in July 2005, Dr. Glick also interviewed and physically examined S.K., and remarked that he was not interactive and instead appeared very depressed and very thin at the waist. Dr. Glick further testified that Dr. Lester had informed her that she and her staff had educated both of the respondents about cystic fibrosis on numerous occasions, and had informed them about the "very ultimate importance of strict medical compliance," including attending all of S.K.'s medical appointments, and providing him with proper nutrition. Dr. Glick also testified that based on S.K.'s medical records, the respondents had been offered assistance in obtaining the proper nutrition-based medications and pancreatic enzyme. As Dr. Glick testified: "There were, I have to say to summarize there were multiple, multiple interventions that were offered. The most important was ensuring the pancreatic enzyme. That's very important for [S.K.'s] body to be able to absorb nutrients as

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Nos. 1-06-2135 & 1-06-2061 cons. well as the vitamins; particularly A, D, E and K. Those are the four vitamins that are fat soluble that are malabsorbed. I know that we had documentation very clearly that they had offered-there is an assistance program so that if you get the enzyme and you turn in your receipts you get reimbursed, and there is a whole bunch of different agencies to apply [to] ensure getting the proper nutrition-based medications, and there was a truly [sic] lack of follow through by the family; particularly with the enzyme ***." Dr. Glick finally testified that at the end of her assessment, based on her review of S.K.'s medical records and her discussions with S.K.'s treating team, she agreed with Dr. Lester that it was reasonable to file a complaint with DCFS because S.K. was suffering from medical neglect and was not provided appropriate medical care on a daily basis. On cross-examination by the guardian ad litem, representing the minor, Dr. Glick testified that the medical records indicated that during his hospital stays in January 2005 and July 2005, S.K. had gained weight and had exhibited lung function improvement. Dr. Glick also testified that after his release from the hospital in January 2005, S.K. missed four medical appointments. On cross-examination by counsel for the respondent father, Dr. Glick also testified that although she did not review every single page of S.K.'s medical records, she had spent hundreds of hours reviewing them, and had attempted to independently verify and corroborate the information she had received.

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Nos. 1-06-2135 & 1-06-2061 cons. When questioned about the apparent increase in S.K.'s weight indicated by his admission and discharge summaries for hospitalizations in January 2005 and July 2005,2 Dr. Glick stated that discharge and admission summaries are often written by residents, do not necessarily have accurate weights, and are not reliable data points. In fact, according to Dr. Glick, they are "notoriously incorrect." Accordingly, Dr. Glick testified that for a reliable and accurate review of S.K.'s weight, she had used Dr. Lester's growth chart, which was opened when S.K. was born. Dr. Glick further testified on cross-examination that S.K. was admitted to the hospital on July 20, 2005, because he was spitting up blood and coughing constantly for a week. Dr. Glick acknowledged that S.K.'s medical records indicated that on July 13, 2005, one of the respondents had taken the minor to see Dr. Lester, and that S.K. was prescribed Cipro. Dr. Glick, however, went on to state that this fact did not change her opinion that S.K. was medically neglected. Dr. Glick finally testified that, at the time of the adjudicatory hearing, S.K. was in the hospital because he had "a fever and exacerbation, and needed antibiotics." Dr. Glick stated, however, that she had just visited S.K. in the hospital, that he was gaining weight and "doing very well with his disease." On cross-examination by counsel for the respondent mother, Dr. Glick also testified that

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The discharge summary for S. K's hospitalization in January 2005, part of People's

Exhibit No. 1, states that S.K.'s weight on admission was 43.7 kg. The discharge summary of S.K.'s hospitalization in July 2005, states that upon admission to the hospital in July 2005, S.K.'s weight was 46 kg. Both discharge summaries were written by residents. 7

Nos. 1-06-2135 & 1-06-2061 cons. in assessing S.K.'s case, she never spoke to the respondent mother because numerous people had done so in the past. On redirect examination, Dr. Glick testified that in a case of a discrepancy between a medical record and information from the treating physician, she gives more weight to the treating physicians's original files, and that she had done so in S.K.'s case. In conclusion, Dr. Glick testified that in her opinion S.K. was at risk if he went back home to his parents. Thomas White, a child protective specialist with DCFS, next testified that he was assigned to investigate allegations of medical neglect and inadequate food at the respondents' home. During his investigation, White first visited S.K. in the hospital. On July 26, 2005, White also visited the mother. White noticed that her home was cluttered but not filthy. He further stated that although he found food in the house, it was not the kind of food that a child could easily eat because it would require a lot of preparation, and "assistance of someone like a mother or a caretaker to actually prepare [this kind of] food for him." More specifically, White indicated that he failed to find any "happy food," which a child in S. K's condition "would just get up and fix for himself." White further testified that the mother denied having been neglectful, and stated that on the advice of Dr. Lester she had turned over to S.K. the responsibility of taking his own medication, supplements, and food. The mother explained that she wished to make S.K. more independent. With regard to food, the mother stated that the father was not giving her money to purchase necessary food items, and that she was considering taking him to court to compel support. White also testified that at the time of the interview, the father had not been residing

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Nos. 1-06-2135 & 1-06-2061 cons. with the mother for approximately one month. During the interview, the mother expressed her belief that "her husband and her sister were setting her up by calling" DCFS. White further testified that he questioned the mother about substance abuse, and that she replied that she was taking diet pills and "that was the only thing she was taking." The mother also stated that she had not drunk alcohol in 10 or 15 years. White also testified that around August 2, 2005, he interviewed the father, who told him that the mother may be using some type of drugs. The father also told White that he did not think that the mother was giving S. K proper care and that S.K. "might be better off" living with his sister, who was married to a doctor in Wisconsin and who was willing to allow S. K to live in her home for two to three weeks. According to White, the mother rejected this plan, and the father's efforts in that regard failed. The father also told White that he had been "put out" of the family home, that he did not have a permanent residence, that he worked 80 hours a week, and that there had been an order of protection initiated by the mother against him that barred him from seeing his children. Accordingly, he told White that he "could not be there" to provide the care S.K. needed. According to White, at the conclusion of his investigation, he "indicated" S.K.'s case for medical neglect, but found the charges of inadequate food unfounded. White explained that "indicating a case" meant that DCFS found it had credible evidence that if the situation was not corrected, the child would be at risk of harm. On cross-examination by the respondent father, White stated that the evidence that led DCFS to indicate the case for medical neglect was information by Drs. Glick and Lester and

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Nos. 1-06-2135 & 1-06-2061 cons. other UCH staff, as well as medical reports, indicating that S.K. had not been eating properly, or taking his supplements regularly, and that as a result he had lost 12 pounds, 6 of which he regained once he was readmitted to the hospital. On cross-examination, White stated that in his investigation of the inadequate food issue, he simply looked into the cupboards to see if there was food that was sufficient to sustain life for that day, and was not looking to find any special food items. White testified that he observed food in the house that was sufficient to feed a family. White also defined "happy food" as a "hot dog [or] pizza," but admitted that he had "no medical opinion" of whether either of these was nutritionally adequate for S.K. On cross-examination by the respondent mother, White testified that the mother rejected the father's plan because it would have involved S.K. moving out of state to live with the father's, and not with her, relatives. During the adjudicatory hearing, the State also moved and was permitted without objection to admit People's Exhibit No. 1, 1,470 pages of certified and delegated medical records from UCH made in the course of S.K.'s treatment. The State drew the court's attention to discharge summaries dated August 5, 2005, January 14, 2005, June 28, 1999, December 15, 1998, and August 20, 1996; the Multi-disciplinary Pediatric Education and Evaluation Consortium (MPEEC) report; social service notes dated July 21, 2005, and August 4, 2005; and a social work note and assessment dated November 15, 2004. The State then rested. The guardian ad litem, on behalf of S.K., was allowed to publish from the medical records. The record reflecting S.K.'s admission to the hospital on July 20, 2005, showed that the

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Nos. 1-06-2135 & 1-06-2061 cons. "Complaints on Admission and Pertinent History" read in part "significant 5 pound weight loss in the last three months."3 A social history from the same document stated that S.K.'s "social environment contribute[d] dramatically to his poor health. *** There is rarely enough food in the house, and, therefore, he is malnourished. He receives little supervision to guarantee that he gets his medications." The document further indicated that after respiratory therapy, S.K. "significantly improved *** which was a signal of noncompliance at home." The record further showed that S.K. was admitted with a weight of 46 kg and within two days had gone up to 48.9 kg, which he maintained until discharge. Similarly, a social work note in S.K.'s Patient Record dated July 21, 2005, indicated: "During [S.K.'s] previous [UCH] hospitalization, his lung function improved and he gained weight. Over the last three months (since he was last seen by Dr. Lester), his lung function has decreased again and he has lost five pounds. Other concerns involve the home situation/environment. *** Aunt has provided food to S.K. and his brother and they know they can go down to her house when needed (which they have done)." Another "Social Service Note" referring to the same hospitalization, and dated August 4, 2005, stated: "Home: [S.K.] understands that DCFS was contacted and that his home situation, including his mother's parenting skills, are being evaluated. [S.K.] appears to agree with concerns about mother's parenting abilities and his living environment.

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The transcript incorrectly states that the history reads "significant 45 [lb.] weight loss." 11

Nos. 1-06-2135 & 1-06-2061 cons. He describes his mother as being `not responsible,' `not like a normal mom.' *** He further reports that she sleeps during the day and is believed to take `diet pills.' [S.K.] also reports that the household often lacks food."4 The guardian ad litem also published from S.K.'s hospital discharge summary of January 14, 2005. That summary included the following: "*** it was determined that [S.K.] needed to be admitted for IV antibiotics due to non-adherence [to his medication regimen]." In the same discharge summary, problem number three reads as: "Social. *** [A] social worker, followed and coordinated a family meeting. A family meeting was arranged and the importance of the patient's medication regimen was again addressed with the family." After the guardian ad litem rested, counsel for the respondent father opened his case in chief by asking the trial court to introduce into evidence the portion of Dr. Glick's testimony

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Beyond the portion published by the guardian ad litem, the note additionally stated that

S.K. felt that his home was "unlivable," and that these concerns had started to escalate the previous summer. The note further stated that S.K. had recently graduated from eighth grade, but did not look forward to high school, because he had very few friendships and had no one to turn to for support. S.K. stated that his grades had diminished greatly in the previous year because his attendance record was "so bad." S.K. further stated that he felt overwhelmed with decisions that he felt too young to be making. S.K. also reported that his mother was discouraging him from divulging too much about his family life. The note also pointed out that throughout the interview, S.K. never smiled or laughed, and that he had a "flat affect and at times appear[ed] angry." 12

Nos. 1-06-2135 & 1-06-2061 cons. concerning S. K's current hospitalization. Counsel argued that during the adjudicatory hearing, he had learned that S.K. was back in the hospital even though he was in the custody of foster parents, who "everyone would agree" had given S.K. "optimum medical care." Counsel argued that the present hospitalization was relevant because it showed that even with such optimal care S.K. could get ill and be rehospitalized. Counsel asked for leave of court and for time to brief this issue. Permission to do so was denied on the grounds of relevance. In denying the request, the court specifically noted that the fact that S.K. was hospitalized was already in evidence, and that "this petition was not filed because S.K. ended up in the hospital," but because he was not getting the appropriate care in the respondents' home. The trial court explained the standard of care: "[T]here's no petition against the [foster parents,] that

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