Posted on Thu, Aug. 13, 2009

Foster family fights for 2-year-old after judge gives custody to grandparents

BY BETH HUNDSDORFER AND GEORGE PAWLACZYK
News-Democrat

Associate Judge Ellar Duff on Tuesday removed a 2-year-old boy from his foster parents, the only home he has known, and placed him with his biological grandparents, despite a state administrative law judge's ruling that the move could put the boy at risk from his father -- who is accused of molesting a child.

 

Duff also cut off further visitation between the boy and the foster parents who raised him.

 

During a tense hearing in Madison County Court, Duff refused to allow foster parents Stella and Jimmy Hartwick to continue visits with Romell McGee while an appellate court reviewed her decision to give the boy to his biological grandmother. The Hartwicks raised Romell since he was 2 days old. Eleanora Mitchell discovered she was Romell's grandmother more than a year ago after a DNA test.

 

On June 29, 2007, Romell was born exposed to cocaine, according to a court document, and was removed by the Department of Children and Family Services from his mother. The Hartwicks, who have three adopted children, agreed to foster Romell, even though the boy suffered respiratory and digestive problems and developmental problems that required the Hartwicks to teach him how to suck from a bottle and to crawl.

 

Though the Hartwicks didn't initially intend to adopt Romell, they agreed after repeated inquiries from their caseworker. Nine months after Romell's birth, a DNA test determined that Steven Ballinger, Eleanora Mitchell's son, was Romell's father. Ballinger faces 2006 charges in two counties involving sex crimes against a 12-year-old girl including predatory criminal sexual assault of a child.

 

Mitchell then began her effort to obtain custody of Romell.Tom Kennedy is a Clayton, Mo., lawyer who represents the Hartwicks in their fight to adopt Romell.

 

Duff on Tuesday refused to stay her ruling returning Romell to the Mitchells until it can be reviewed by the Illinois Fifth Appellate Court. She terminated the Hartwicks' visitation immediately.

 

In an unrelated case, Duff ordered in October that 3-year-old Joseph Schoolfield be returned home after an abuse allegation was made against his mother, Valerie Schoolfield, and her boyfriend, Scott Endicott. The toddler was beaten to death four months later. Schoolfield, 27, and Endicott, 23, now face first-degree murder charges in connection with the beating death of the boy.

 

At the time, Duff relied on a finding by a DCFS caseworker that Joseph's injuries were accidental, even though another caseworker said earlier that they were intentional. Duff's ruling drew criticism from Madison County State's Attorney William Mudge.

 

Duff told the newspaper last week that she was unaware of the earlier caseworker's report that the boy had been intentionally harmed.

 

In Romell McGee's case, Duff wrote a two-page order dated July 7 that overruled numerous findings by DCFS Administrative Law Judge Carol Silcox, who has handled custody cases for 11 years. Silcox ruled in a 14-page decision that while the Mitchells were fit and proper parents for Romell, the only home the child had known was with the Hartwicks, who had provided exemplary parenting as well as medical care and therapy to treat Romell's ailments.

 

Silcox based her opinions on caseworkers' reports and interviews but did not hear directly from the Mitchells, who didn't attend a hearing last year. Silcox wrote that during a visit to the Mitchells' home in May 2008, Ballinger was found in the house with minor children, despite a court order stating he could not be present. Silcox also noted that DCFS never did a "bonding assessment" to determine Romell's attachment to the Hartwicks.

 

"The only parent figures he has ever known are appellants (Hartwicks)," Silcox's ruling stated, "All the evidence indicates that Romell received exceptional care, love and attention from appellants and he will suffer emotional trauma if that relationship is lost."

 

In her ruling overturning Silcox decision, Duff found:

 

* There was no evidence Ballinger was a threat to the child because he was accused of a sex crime and not convicted.

 

* Even if Ballinger was convicted, "There are no allegations that would reasonably cause one to conclude that other children may be in danger from contact with the Respondent father."

 

* Called the Hartwicks' case "one-sided innuendoes." Duff failed to note that Mitchell didn't show up for the hearing before Silcox.

 

* The administrative law judge made findings based "more on speculative outcomes; that had no substantial factual basis."

 

Under child protection law, John Ammann, a law professor at St. Louis University, said an administrative law judge's decision should be given deference because they hear actual caseworkers, where a county court judge like such as hears lawyers' arguments and reviews the court record.

 

"There are two reasons why a judge in circuit court can overturn an administrative law judge," Ammann said, "The first is because the administrative law judge's decision is wrong as a matter of law, or because the decision is against the manifest weight of the evidence. It can't be a close call."

 

Duff told the News-Democrat on Aug. 7 that she based her findings on more information than what was available to Silcox, including caseworkers' reports and from conversations with caseworkers.

Contact reporter Beth Hundsdorfer at bhunsdorfer@bnd.com or 239-2570. Contact reporter George Pawlaczyk at gpawlaczyk@bnd.com or 239-2625.