Asia S. was just 17 years old when her life was turned upside-down by a misplaced accusation against her concerning an injury to her toddler, N., who was 7 months old at the time. Asia lived with her own mother and was doing well in school, all while trying to be the best mother she could be. Teachers and friends all attested to Asia’s dedication to her child and her attentiveness to her needs but a 10-second episode—a freak accident while Asia’s head was turned—changed Asia and N.’s life and threatened to derail their hopes for the future.

Knowing that the case would be a tough one, the FDC reached out to its seasoned pro bono lawyers for help. Elizabeth Lewis and Lisa Loesel from McDermott Will & Emery stepped forward; little did they know that they were embarking on a more than two year long project to exonerate Asia.

Asia was doing her homework, an art project, on the afternoon of November 30, 2008. The art project required her to use some colored pencils, which she had in front of her on a table while N. was crawling some feet away. Suddenly, in a moment when Asia had turned her head away, N. was able to grab a pencil and then fell on it, causing the pencil to pierce through the skin on her neck.

Asia became hysterical and called her mother for help; Asia and her mother raced N. to the nearest emergency room. While the pencil had broken through skin and had been lodged in N’s neck, fortunately it did not cause any internal damage. Nevertheless, DCFS was called to investigate the circumstances of the injury. [Note: the FDC does not challenge the authority of DCFS to investigate genuine injuries although the FDC does often raise concerns that child abuse and neglect reports frequently backfire, causing more damage to children than they solve].

The pencils Asia had been using for the project were not particularly sharp, in fact witnesses later described them as “dull.” And no one disputed Asia’s claim that the injury happened while she was working on her school project and was watching her daughter in the same room. No one claimed Asia was generally inattentive; to the contrary, witnesses all praised Asia’s care and concern for her daughter. None of this mattered, however, since the accident occurred while Asia was watching N. Thus, Asia was labeled guilty of neglecting her daughter.

At first DCFS would not even let Asia continue to care for her daughter. Without seeking or obtaining a court order, DCFS changed N.'s custody, requiring N. to live with her father under a so-called Safety Plan that Asia never signed or agreed to. Moreover, N.’s father was abusive to Asia and she had difficulty seeing N. while she was placed with him. Finally, with help from the Family Defense Center, Asia regained custody of N., but a “neglect finding” remained on her record--a black mark that could be used against her in a custody battle or if she sought a position working with children in the future.

The Family Defense Center thought the neglect label was unfair: accidents can happen to any child and to the best of parents. That is why they are called accidents! We believe that an accident, even one that is as serious as N.’s accident was, should not be enough to put the name of a good and reasonably attentive parent into the State Central Register for child abusers and child neglectors. Unfortunately, the FDC was short staffed and we knew that the battle to clear Asia’s name from the register wouldn’t be simple given the commonplace reaction to N.’s injury—i.e. that a parent must be at fault and, with 20-20 hindsight, she should have known not to allow her baby to grab an object that could hurt her. Indeed, the FDC has had a number of cases in which DCFS has treated a severe or unusual injury as necessarily due to neglect or abuse and has treated parents more harshly depending on how serious the injuries are, even if the evidence of wrongdoing by the parents is very weak.

Knowing that the case might be a tough one, the FDC reached out to its seasoned pro bono lawyers for help. Elizabeth Lewis and Lisa Loesel from McDermott Will & Emery stepped forward. Little did they know that they were embarking on a more than two year long project to exonerate Asia.

Lewis and Loesel represented Asia at a full trial in the DCFS Administrative Hearings Unit. The lawyers presented a strong case that DCFS had not met its burden of proving abuse or neglect. Indeed, they established that no one was claiming Asia abused her daughter; rather, that she had turned her head for only a few seconds and that she had gotten immediate attention for N.’s injury as soon as it happened. They established that Asia was a very good mother and a good student who was doing her homework at the time the injury occurred and was keeping her eye on N. to the best of her ability. Despite this detailed presentation of the evidence, however, the DCFS Administrative Law Judge ruled against Asia, finding a “blatant disregard for [Asia’s] parental responsibilities was demonstrated” because Asia had left out “sharp objects” (the colored pencils) when she knew N. was able to “cruise around.”

The FDC staff were not entirely certain that continuing the fight to exonerate Asia would be worth the time and energy that a further appeal would take and they could not have taken on the battle in a higher court if the McDermott team had decided it could not press on. Reviewing courts defer to the administrative law judges as to the assessment of the facts and the application of the law to the facts. In the FDC’s experience, it is difficult to overturn findings of fact and conclusions of law by DCFS’s hearing unit unless a legal error had been committed. Nevertheless, the McDermott lawyers were so convinced of the unfairness of Asia's indicated finding that they readily agreed to take the case up to the Circuit Court in an Administrative Review Action and to do all the briefing required. At this stage, McDermott lawyer Michael Weaver joined forces with Lewis and Loesel and he began to lead the charge for higher court review.

Not surprisingly, the seriousness of N.’s injuries continued to pose a roadblock. On August 12, 2010, after extensive briefing and oral argument, Circuit Court Judge Martin Agran ruled against Asia and sustained the finding that she had neglected N., finding that she had failed to exercise necessary precautionary measures to protect N. from injury.

After one level of review, many lawyers and clients would decide that continuing to battle for justice is not worth the time, money, and emotional turmoil that comes with any prolonged litigation. Nevertheless, the indefatigable McDermott team continued to believe that the decision that Asia had neglected her daughter was unjust and wrong as a matter of law. They agreed to continue to believe that they should press for exoneration for Asia.

The stakes were getting higher: An appeals court decision against Asia might not only continue to haunt her but could cause other parents to face an uphill battle to exonerate themselves in the future. If the Appellate Court ruled that Asia had not been neglectful, that ruling might help other parents to clear themselves of wrongdoing when they are not at fault in an accidental injury. After careful consideration, the McDermott team and the FDC, in consultation with Asia, decided the appeal strategy was worth the risks because the legal arguments were strong and the facts had established Asia’s excellent parenting abilities and care. These facts made the case a good one to test the flawed DCFS premise that injuries alone can be held against a parent, effectively holding parents “strictly liable” when their children are injured on their watch.

After the decision to appeal to the First District Appellate court was made, the McDermott team, led by Michael Weaver joined by Aron Frakes, wrote two excellent legal briefs laying out all the arguments why Asia could not be considered neglectful in causing the injuries her daughter sustained.

On June 17, 2011, fully two years after the initial hearing that went against Asia, in a decision by Justice Robert Gordon, the Illinois Appellate Court declared that the accident to N. was just that: an accident, not child neglect. In so ruling, the Court held that the decision that Asia neglected N. is, “clearly erroneous. There is no doubt that N. was seriously injured by one of Asia’s colored pencils. However, it cannot be the case that the existence of the injury itself automatically results in a finding of neglect. Instead, the ALJ was required to determine whether N.S.’s injury was the result of Asia’s neglectful conduct.” Here, the Court went on to find to evidence that N. was not receiving “care necessary for her well-being” given that the incident was “isolated” and “could happen to anyone” and Asia was “generally attentive to N.” and her “history of being a good mother was not refuted.” The Court stated it could not accept the DCFS judge’s conclusion that “merely having pencils in the same room as an infant, when the child was otherwise being supervised, is neglectful conduct.” Therefore, the Court stated it had the “definite and firm impression that a mistake had been committed.”

Sometimes it takes two years or more to right a wrong. Sometimes it is far too easy to blame parents when children are injured without carefully considering what the parent did wrong. And sometimes it just takes a very special group of lawyers with a commitment to seeing a case through to the end. Luckily for Asia and N., their bad luck turned when they found the outstanding legal team of pro bono lawyers at McDermott Will and Emery. And luckily for the FDC, our pro bono partners are helping us to clarify Illinois law, making it clear for all of us that it isn’t fair to blame good parents when their children have accidental injuries.

This case is an example of a growing trend of Appellate court decisions that reverse charges of neglect when accidents or other unintentional happenings cause parents to be wrongly accused of abuse or neglect. For example, the following story (written by Maryann Spoto for the New Jersey Star-Ledger on August 8, 2011) details the case of a New Jersey woman who accidentally left her child alone once and nearly lost both her child and her livelihood: read story here or access a PDF of the story here.

Submitted by: Family Defense Center | More news from this organization
Posted: 08/26/2011