Zion M. v. Southern

• Decision Date: 17 December 2015
• Docket Number: No. 1–15–1119.,1–15–1119.
• Parties: In re ZION M., a Minor, Minor–Respondent–Appellant (The People of the State of Illinois, Petitioner–Appellee, v. Neatre S. and Danquill M., Respondents–Appellees).
• Court: United States Appellate Court of Illinois

2015 IL App (1st) 151119
47 N.E.3d 252
399 Ill.Dec. 747

In re ZION M., a Minor, Minor–Respondent–Appellant (The People of the State of Illinois, Petitioner–Appellee, v. Neatre S. and Danquill M., Respondents–Appellees).

No. 1–15–1119.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 17, 2015.

47 N.E.3d 253

Robert F. Harris, Public Guardian, Chicago (Kass A. Plain and Mary Brigid Hayes, of counsel), guardian ad litem.

47 N.E.3d 254

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Nancy Kisicki, and Leslie Billings, Assistant State's Attorneys, of counsel), for the People.

Marvin Raidbard, Chicago, for appellee Danquill M.

Amy P. Campanelli, Public Defender, Chicago (Michele Hendrickson, Assistant Public Defender), for appellee Neatre S.

OPINION

Justice HOWSE delivered the judgment of the court and opinion.

399 Ill.Dec. 749

¶ 1 Zion is the youngest child of five children born to respondent, Neatre S. Prior to his birth, one of Zion's siblings found a gun in the home and shot another sibling in the head. The gun belonged to Neatre's former live-in paramour, who was subsequently convicted and sentenced to a six-year prison term for unlawful felony possession of a gun. Following the incident, the State filed petitions for adjudication for all four of Neatre's children who were in the home at the time of the shooting. Two months later, when Zion was born, the State also filed a petition for adjudication for Zion alleging he was neglected or abused. The hearing on all petitions proceeded simultaneously by stipulation. The trial court found that Neatre's paramour, not Neatre, was the perpetrator of the neglect and abuse of Zion's siblings and adjudicated Zion's siblings wards of the State. With respect to Zion, though, the trial court held that the State had failed to prove by a preponderance of the evidence that Zion was neglected or abused under a theory of anticipatory neglect. The public guardian appealed that decision, and the State filed a brief in support of the public guardian's appeal. For the reasons that follow, we affirm the trial court's ruling.

¶ 2 BACKGROUND

¶ 3 On October 24, 2014, the State filed a petition for adjudication of wardship for Zion M., who was born on October 19, 2014. Zion's natural mother is Neatre and natural father is Danquill M. Neatre had four children prior to Zion: Davion, who was born on August 31, 2007, Semaj, who was born on March 13, 2009, James Jr., who was born on February 20, 2011, and Elijah, who was born on February 28, 2013. Danquill is the father of Zion and Elijah; James Sr. is the father of Semaj and James Jr.; and Dominik A. is the father of Davion.

¶ 4 The petition for adjudication that was filed with respect to Zion alleged that Zion was neglected and abused because Neatre had two prior indicated reports, including one in 2013 when a case was opened after James Jr. sustained an injury to his neck, and one in 2014 when Semaj found James Sr.'s gun and accidentally shot James Jr. in the head. The petition also alleged that Neatre has a history of panic attacks and further stated that James Sr. admitted that it was his gun that was used in the shooting, and he has been incarcerated for being a felon in possession of that gun.

¶ 5 The adjudicatory hearing took place on April 1, 2015 by way of stipulation. The parties stipulated to the following facts that are relevant to this appeal.

¶ 6 Danquill is the natural father of Zion, and paternity of Zion was established pursuant to DNA testing and a court order entered on April 1, 2015.

¶ 7 If called to testify, Detective Joseph McCarthy would state that as a detective with the Chicago police department he was assigned to the case involving Zion's siblings on August 22, 2014. After speaking with Davion during the course of his investigation, he learned that on August 21,

399 Ill.Dec. 750

47 N.E.3d 255

2014, Davion, James Jr. and Semaj were inside the apartment alone while Davion's parents were outside. While inside, Semaj found a handgun on a bed or in a bag and fired it one time, striking James Jr. in the head.

¶ 8 Detective McCarthy would testify that he also spoke with Neatre about the incident that occurred on August 21, 2014. Neatre informed him that 1 ½ weeks prior to the incident, James Sr. told her that he wanted a gun because he had been getting into it with some people; however, as of the date of the incident, Neatre was unaware that James Sr. actually got a gun or that there was a gun in the house. On August 21, 2014, Neatre was outside on the porch with James Sr. when she heard something like a firecracker exploding. James Sr. jumped up and yelled "my gun" and ran inside. Neatre went inside to the back bedroom and observed a black handgun on the floor next to James Sr., and James Jr. who had been shot in the head. Before the police arrived, James Sr. picked up the gun, removed the bottom part and went out the back door.

¶ 9 Scott Peterson, if called to testify, would state that he is a child protection investigator with the Illinois Department of Children and Family Services (DCFS) who was assigned to investigate the case involving the shooting of James Jr. After speaking with Neatre, Peterson learned that on August 21, 2014, Neatre and the other adults were out on the porch when she heard a pop. Upon hearing the pop, James Sr. jumped up and stated "that was my gun." All the adults went inside to find James Jr. shot in the head.

¶ 10 Timothy McCray, if called to testify, would state that he is a child protection investigator with the Illinois DCFS who was assigned to this case on or about August 25, 2014. After speaking with Neatre about the incident, he learned Neatre had lived with her paramour James Sr. since July 2014. She also resided with her children James Jr., Semaj, Davion and Elijah. On August 21, 2014, Neatre was pregnant with Zion. That day, while the minors were inside, Neatre heard a pop sound and James Sr. ran inside the house, stating that his gun was in the house. Neatre stated that she was not aware that James Sr. owned a gun. When Neatre entered the bedroom in the house, Semaj and Davion were shaking and crying. Neatre ordered James Sr. to apply pressure to James Jr.'s head while she called 911 and restrained James Jr. from getting up. Before the police arrived at the house, James Sr. left the home with the gun. While the police were interviewing Semaj and Davion, they told the police that they found the gun in their father's bag. Neatre told them that Semaj was the one who accidently shot his brother James Jr. Neatre stated that she suffers from panic attacks, but is not currently taking any medication.

¶ 11 McCray would further testify that the minors were placed on a safety plan on or about August 23, 2014, and on or about September 23, 2013, McCray took protective custody of Davion, Semaj, James Jr. and Elijah. In the course of his duties, McCray was also assigned to investigate the case on Zion on October 20, 2014.

¶ 12 Elizabeth Perez, if called to testify, would state that she is employed by the Children Advocacy Center as a forensic investigator and that she interviewed Semaj and Davion after the shooting incident. During Davion's interview, he stated that he saw the gun on the bed and that Semaj took the gun and shot James Jr. by the black door. Davion also stated that he knew the gun was his "Daddy's" gun, and he had seen his "Daddy" with the gun before.

47 N.E.3d 256

399 Ill.Dec. 751

¶ 13 Marvin Ibarra, if called to testify, would state that he is an intact worker at Lutheran Social Services of Illinois who was assigned to Neatre's case in November 2013 after James Jr. was taken to the hospital with a welt on his neck. Neatre reported that her paramour, Danquill, whipped James Jr. with a belt after she left James Jr. at Danquill's house for babysitting. Ibarra would testify that Neatre was in need of a mental health assessment, and it was recommended that she follow up on all recommendations from the assessment. Neatre was also found to be in need of stable housing. The intact case was closed with further services needed, and Neatre was indicated under this sequence.

¶ 14 If called to testify, Danquill, the natural father of Elijah and Zion, would testify that he never whipped James Jr. with a belt.

¶ 15 The stipulation also indicates that: James Sr. was convicted of a felony offense of possession of a controlled substance in 2013 and was, thus, prohibited from owning a weapon; James Sr. was charged with unlawful use or possession of a weapon by a felon for possessing the gun that Semaj used on August 22, 2014 to shoot James Jr.; and James Sr. pled guilty to the charge of unlawful possession of a weapon by a felon and was sentenced to six years in prison. The stipulation further incorporates People's Exhibit 1 and 2, which are DVDs of the victim sensitive interviews of Semaj and Davion, respectively; People's Exhibit 3, which is a "Prior Indicated Report" for...