In Re M.M.

• Decision Date: 21 May 2010
• Docket Number: No. 1-09-3468.,1-09-3468.
• Citation: 928 N.E.2d 1281,401 Ill.App.3d 416,340 Ill.Dec. 684
• Parties: In re M.M., a Minor, Respondent-Appellee (The People of the State of Illinois, Petitioner-Appellee, v. Robert M., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

401 Ill.App.3d 416

928 N.E.2d 1281

340 Ill.Dec. 684

In re M.M., a Minor, Respondent-Appellee (The People of the State of Illinois, Petitioner-Appellee, v. Robert M., Respondent-Appellant).

No. 1-09-3468.

Appellate Court of Illinois First District, First Division.

May 21, 2010.

Steven O. Ross, Chicago, IL, for Respondent-Appellant.

Bruce H. Bornstein, Chicago, IL, for Minor-Respondent-Appellee.

Justice LAMPKIN delivered the opinion of the court:

Respondent, Robert M., appeals the trial court's order entering a finding of nonpaternity of the minor, M.M., pursuant to deoxyribonucleic acid (DNA) testing. Robert M. contends the trial court's finding was erroneous where he and the minor's mother, Shante M., executed a voluntary acknowledgment of paternity (VAP) and he signed the minor's birth certificate as the father. Based on the following, we affirm.

FACTS

M.M. was born to Shante M. on February 8, 2009. At all relevant times, Shante M. has been a ward of the court herself and will remain as such until her twenty-first birthday on July 16, 2010.

The case began when the Department of Children and Family Services (DCFS) received a hotline call alleging M.M. was at risk of harm and sexual abuse based on an incident of domestic violence between Shante M. and Robert M., a registered sex offender living with Shante M., that occurred while M.M. was present. Timothy Otunde, a division of child protection investigator, was assigned to investigate the allegation. Based on Otunde's investigation, M.M. was taken into custody on July 27, 2009. On July 28, 2009, the State filed a petition for the adjudication of wardship of M.M.¹ based on allegations that the minor was abused or neglected pursuant to section 2-3(2)(ii) of the Juvenile Court Act of 1987 (Juvenile Act) ( 705 ILCS 405/2-3(2)(ii) (West 2008)). A temporary custody hearing was held on that date.

Preliminary testimony and admonishments were made. Shante M. testified that Robert M. is M.M.'s biological father and that his name appears on the minor's birth certificate. Robert M. also testified that he is the biological father of M.M.; however, he requested a paternity test. The trial court granted the request over the State's objection. The parties initially expressed their intention to proceed by way of stipulation, but both Shante M. and Robert M. requested a full hearing.

Otunde testified that he began his investigation in late May 2009. He learned that Shante M., Robert M., and M.M. lived together and that Robert M. was a registered sex offender, had a DCFS indicated sexual abuse report ², and was convicted of sexually abusing a three-year-old. The initial name and address given for Shante M. were incorrect and Otunde did not learn her correct name and address until July 7. Otunde discovered Shante M. was a DCFS ward and contacted Shante M.'s caseworker, Patricia Brown. Brown said Shante M. had not been cooperating with the offered UCAN services, which is a teen parenting program. Brown added that Shante M. was living in an unapproved self-selected placement. Later, Brown informed Otunde that Shante M. had been offered parenting classes and counseling, but she refused both. Shante M., however, did complete her GED and began beauty school.

Otunde went to Shante M. and Robert M.'s apartment several times in an attempt to speak with them. On his first attempt, a neighbor told Otunde that the couple lived in the basement, but Robert M. had been arrested and was in jail. Otunde later learned Robert M. had been arrested for domestic battery and was in jail for approximately one week. Shante M. was the victim of the domestic battery charge. She allegedly suffered burn injuries and was taken to the University of Chicago hospital. The case, however, was dismissed Otunde also discovered a second domestic battery arrest that was never prosecuted. Otunde left notes at the apartment with his contact information. On July 15, Robert M. called Otunde. Otunde and Robert M. arranged a meeting with the family the following day at their apartment. When Otunde arrived at the designated time, no one answered the door. Robert M. called Otunde on July 17 to arrange another meeting.

Otunde finally met with Shante M. at the apartment during the morning of July 21, 2009. Robert M. was not present; however, he and Shante M. spoke on the telephone several times while Otunde was there. Otunde informed Shante M. that he was investigating an allegation of possible abuse and neglect. Shante M. told Otunde she knew Robert M. was a registered sex offender; however, she said Robert M. had never harmed M.M. Shante M. told Otunde that she and Robert M. had been together for three years. Shante M. admitted she and Robert M. argue, but denied that they had physical altercations. Otunde informed Shante M. that, due to Robert M.'s background, either she and the children had to move out of the home, Robert M. had to move out, or the children had to move out. Otunde told Shante M. that she could enter the Safe Family Program, but she refused. She later agreed to place M.M. in the program.

Otunde testified that he met with Robert M. at the apartment later in the evening on July 21, 2009. Otunde explained that, due to Robert M.'s registered offender status, indicated DCFS report, and conviction, he was not supposed to be around children. Otunde added that the only way Robert M. could be around children was if he entered treatment and a therapist provided safety clearance on his behalf. Robert M. responded that he did not believe any therapist would be willing to provide the requisite clearance even though he had been out of jail for many years and had not reoffended. Robert M. said he had received treatment from Doctor Harris at an agency called Emages.

Otunde called Dr. Harris on July 21, 2009. Dr. Harris said Robert M. was in treatment “a few years back.” Robert M. did not complete the treatment; instead, once he was released from parole, he no longer attended treatment. Dr. Harris could not give a recommendation as to Robert M.'s ability to reoffend.

According to Otunde, Shante M. did place M.M. in the Safe Family Program on July 22 or 23. Otunde testified, however, that he took M.M. into protective custody on July 27 because the Safe Family Program was only a two-month solution, at best, and Shante M. could remove the minor at any time.

Shante M. testified that she elected to enroll at UCAN at the end of August 2008 when she had one child and was pregnant with M.M. Shante M. said she left UCAN around May 15, 2009, and moved back in with Robert M. Shante M. disputed telling Otunde that she lived with Robert M. for three years. However, she said she occasionally left UCAN during the period of August 2008 and May 2009 to stay with Robert M. Shante M. added that she stayed with Robert M. from “time to time” before she entered UCAN. Shante M. admitted she was supposed to attend parenting training and classes at UCAN. She said class enrollment was full while she was there. Shante M. said she attended therapy while at UCAN, but ceased attending when she left the facility.

Shante M. testified that she knew Robert M. had been convicted of sexual abuse and was a registered sex offender. She was aware that the victim was a minor, but denied knowing the victim was three years old. Shante M. said she never left M.M. alone with Robert M.

Shante M. admitted she was the complaining witness for Robert M.'s domestic battery charge on June 28, 2009; however, she chose to drop the charges. Shante M. said the incident was “actually an accident” in that Robert M. tripped over her curling iron and she was burned on her arm as a result. Shante M. testified that M.M. was not present during the incident. Shante M. admitted the couple had a prior domestic battery incident in which she was arrested and Robert M. was the complaining witness.

Shante M. further admitted that she was indicated for lack of supervision of M.M. in March 2009; however, she said the case was “unfounded.” Shante M. also was indicated for risk of harm to her older child in 2008.

Shante M. testified that she was familiar with and fond of the Safe Family Program, which she had used on prior occasions. Specifically, prior to giving birth to M.M., Shante M. placed her older child in the program from approximately January to March 2009. Shante M. then placed M.M. in the program around May 31, 2009, for approximately four to five weeks when Shante M. began beauty school. At the time, she did not have M.M.'s birth certificate or social security number and therefore could not place M.M. in daycare. According to Shante M., she never placed M.M. in the Safe Family Program due to concern about Robert M. After her meeting with Otunde, Shante M. agreed to enroll her children in the Safe Family Program with the understanding that they would remain for two or three months while she moved out of the apartment and got settled.

Robert M. testified that he was convicted of the sex offense 16 years ago when he was 18 years old. He admitted the victim was three years old. Robert M. served almost 9 years of an 18-year prison term. He was released in early 2002. Robert M. said he was on parole for two years. One condition of his parole was to attend sex offender therapy, which he did “off and on” for two years with Dr. Harris at the Emages agency. According to Robert M., he attended therapy “off and on” because he had to pay for the sessions and did not have the money to do so on some occasions. When he completed his parole, Robert M. ceased attending therapy because he believed that he was “cleared.” He has never had a court order entered barring him from seeing M.M.

The trial court found probable cause and an urgent and immediate necessity to remove M.M. to temporary custody.

On September 14, 2009, the paternity test results were read in open court. The results showed a “combined paternity of zero that [Robert M.] is the father of [M.M.].” The State informed the...