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Help Fine-Tuning Illinois Appeal Brief

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  • Gale McCahill
    ... Would any of you bright people help me with your comments on my brief for the Appellate Court--2nd Division? I am just learning to cut and paste and
    Message 1 of 1 , Apr 5, 2005
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      --- Gale McCahill <missaugust68@...> wrote:
      Would any of you bright people help me with your
      comments on my brief for the Appellate Court--2nd
      Division? I am just learning to cut and paste and
      didn't seem to include my Conclusion, but these are
      the basic Facts. I am seeking what you find
      good/strong points and what you think is weak. Please
      include any first impressions and any case laws in
      which I can use to back up my Argument.

      Statement of Facts

      At 7:00 p.m., or there about, on July 27, 2004, the Mother
      was served with a Notice of Shelter Care Hearing scheduled
      for July 29th, alleging neglect based upon sexual abuse.
      (Attachment A, p. 2). As she walked into the hearing on the
      29th, the mother was served with a petition alleging numerous
      counts of neglect, of which she received no notice. (July 29
      Transcript p. 7 line 18 through p. 9 line 22)

      The children were present for the July 29, 2004 Shelter Care
      Hearing. However, they were not allowed to testify, as DCFS
      and a detective whisked the children away prior to the case
      being called. (October 24 Transcript p. 28 lines 17-28).

      The mother was unfamiliar with the proceedings (July 29
      transcript p.6 lines6, 10-13) and unprepared for the numerous
      surprise allegations made against her (July 29 transcript p.7
      lines 18-22). Although she stated that she wanted to retain
      private counsel and did not want to rely on a public defender
      (July 29 transcript p. 5 lines 7-24), the judge proceeded to
      hearing rather than continue the matter (July 29 transcript p. 6
      line 12).

      The mother again requested that she be given time to retain an
      attorney. (July 29 transcript p.10 lines 1-15). Rather than
      continue unrepresented altogether, the mother accepted a
      temporary appointment of a public defender. (July 29
      transcript p.10 lines 1-5)

      The mother was given a mere five minutes to consult with
      appointed counsel. The DCFS worker James Jerome
      (�DCFS� Jerome�) testified that the children were removed
      from the mother�s care because of the allegation that the
      mother failed to follow the safety plan, and because of the
      allegation that the family was living in a car (July 29 transcript
      p. 8-14).

      Allegation of Sexual Contact Between the Children DCFS�
      Jerome testified that he interviewed Joshua alone, and that
      Joshua denied anything occurred with Tiffany (July 29
      transcript p.18 lines 6-11). Without objection from the
      mother�s newly-appointed counsel, the DCFS worker Jerome
      then testified to totem-pole hearsay, claiming that a detective
      claimed that Joshua claimed that he had oral sex with Tiffany.
      (July 29 transcript p.24 lines 1-7) From this unreliable
      evidence, the judge found that Tiffany had been abused
      sexually by Joshua (July 29 transcript p.32 line 23 through p.
      33 line 1; July 29 Order section 3(a)), and that Joshua had
      been neglected by engaging in sexual conduct with Tiffany
      (July 29 transcript p.33 lines 12-17; July 29 Order section

      Allegation of Failure to Follow Safety Plan

      On May 16, 2004, the mother had entered into a safety plan
      with DCFS when it was alleged that her daughter had been
      involved in some type of sexual contact. (SAFETY PLAN,
      section1) By its own terms, the Safety Plan was to expire on
      June 16, 2004 (Safety Plan �Termination� section 2), 41 days
      before the kids were ultimately taken.

      Per the Safety Plan, DCFS investigator Tim Rossi or his
      designee was to monitor the plan by contacting the family
      every five days. (Safety Plan section 3). Although the plan had
      expired, although the mother had no duty to contact DCFS,
      and although the state�s only witness admitted that he did not
      know if the safety plan had been violated (July 29 Transcript
      p. 26 lines 15-19), the judge found that the mother did not
      comply with the safety plan because she did not maintain
      contact with DCFS. (July 29 Transcript p. 32 lines 13-19; July
      29 Order, sections 3(a) and 4(a))

      Although the plan had expired, the mother continued to
      enforce its terms: In that Safety Plan, the mother agreed to not
      allow Joshua and Tiffany to have any unsupervised contact at
      any time. (SAFETY PLAN, section1) DCFS� Jerome testified
      that Joshua reported that he was never left unsupervised with
      Tiffany. (July 29 transcript p.18 lines 12-16). DCFS� Jerome
      also testified that Tiffany reported that she was never left
      unsupervised with Joshua. (July 29 transcript p.19 lines 10-14)
      No evidence was presented to even suggest that the mother
      had allowed unsupervised contact between the children. (July
      29 transcript). Nonetheless, the judge found that the minors
      continued to have contact, justifying their removal from the
      mother�s care. (July 29 Order sections 3(a) and 4(a)).

      Allegation That The Family Was Living In the Car

      DCFS claimed to have received a report that the family was
      living in their car (July 29 transcript p. 21 lines 1-7), yet
      offered no witness to substantiate this allegation. Mothers
      relatives, with whom the family had been living, were present
      during the hearing to testify, but were not called. (October 24
      Transcript p. 35 lines 22-24) Although the safety plan was
      silent regarding housing (See Service Plan), the judge found
      that the family was living out of their car (July 29 transcript p.
      32 lines 11-12; July 29 Order 3(a)), and that the mother did
      not comply with the Safety Plan as far as maintaining stable
      housing. (July 29 Order 4(a))

      Without making any factual findings regarding reasonable
      efforts (July 29 Order section 5; July 29 Transcript p. 33
      line22 through p. 34 line 5), the judge awarded guardianship of
      the children to DCFS. (July 29 Order)

      Motion for Rehearing and Motion to Modify or Vacate

      On August 30, 2004, the mother filed a Motion for Rehearing
      and a Motion to Modify or Vacate (Motion to Modify and
      Motion to Vacate), which were heard on October 14, 2004.

      The Mother asserted that the children were present but were
      prevented from testifying by the DCFS worker and the
      detective, and that therefore they were deprived of the
      opportunity to address the allegation of sexual contact, and to
      testify that they lived with their mother at their sister�s house
      on Ashland in Chicago, whose cell phone number they had,
      also. (Motion to Modify at 1, Motion for a Rehearing at 3)
      Moreover, the Mother argued that probable cause did not
      exist to find that sexual contact between the children had
      occurred, as the police investigated and determined that no
      charges were to be brought, and the matter was considered
      resolved. (October 14 Transcript p. 8 lines 17-23).

      The Mother also argued that the judge had made an error of
      law, in that he found that the mother violated the Safety Plan,
      as the minors continued to have contact and as to maintaining
      stable housing. (Motion to Modify of Vacate at 3) The
      Mother pointed out that the Safety Plan was silent as to
      housing, and prohibited unsupervised contact between the
      children. (Id) She also argued that no credible evidence was
      offered to support the allegation that the family was homeless,
      and that witnesses had been present to testify that the family
      was domiciled. (October 14 Transcript p. 35 lines 22-24) The
      mother argued that, in fact, no evidence was presented at all
      that supports the judge�s finding that she violated the Safety
      Plan. (October 14 Transcript p. 14 line 13 through p. 15 line
      23; October 14 Transcript p. 19 lines 9-16).

      The mother also argued that her due process rights were
      violated, in that on the day of the hearing she received only
      notice that sexual abuse was alleged,

      === message truncated ===

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