CZUBA HELEN ADMINISTRATRIX OF ESTATE OF PAULINA SZCZEPANOWSKA DECEASED v. THE STATE OF ILLINOIS (2003)

OPINION

This matter comes to be heard on the claim of Helen Czuba, Special Administrator of the Estate of Paulina Szczepanowska, deceased, (Claimant) for personal injuries resulting in the death of Paulina Szczepanowska (Claimants decedent or Paulina) due to the alleged negligence of the State of Illinois by and through its agents and employees at the Illinois Department of Children and Family Services (DCFS). Claimant seeks compensation on behalf of Paulina's minor siblings (Adam Majos and Evalina Majos) for their loss of society, as well as for the Claimants decedent's pain and suffering prior to her death, which occurred on November 5, 1990.

Claimant asserts that the negligence of the DCFS employees from July 17, 1990 through the date of death, specifically during the investigation of reports of abuse and neglect involving Paulina, was a proximate cause of Paulina's death. More to the point, Claimant urges that the State's failures deprived Claimants decedent of a significant chance of survival.

The Respondent asserts that its agency, DCFS, owed no duty to the Claimants decedent since she was not in State or DCFS custody in any manner at the time of her death. Alternatively, the Respondent asserts that if a duty was owed, there is no evidence that DCFS was negligent in its investigation of Paulina's situation or that any of its actions (or inactions) proximately caused the death of Paulina. The sole cause of Paulina's death was the criminal acts of her own mother, Margaret Majos, Ms. Czuba's daughter.

To determine whether Claimants should succeed in their claim and be awarded compensation, two separate issues must be determined prior to any calculation of damages: (1) whether or not the State of Illinois (through DCFS) owed Claimants decedent, Paulina, a duty specific to the circumstances of this case, and if so, to define the duty owed, and (2) if a duty was owed, whether or not said duty was breached in a manner which was a proximate cause of her injuries and death. The Claimant bears the burden of establishing the existence of a duty, a breach of that duty and an injury that was proximately caused by the breach. Thornburg v. State of Illinois, 39 Ill.Ct.Cl. 139 (1986).

Background

For purposes of this Court's consideration, this tragic story is well documented by the record. Although there are numerous inconsistencies with regard to the details of the various witnesses recollections from ten (10) years prior, the details of what occurred with regard to the death of Claimants decedent are not entirely decisive.

A review of the record of proceedings in this matter reveals the following: grandmother of the two minor Claimants, Adam Majos and Evalina Majos. She is also Margaret Majos mother. She lived close to Margaret and Paulina in a separate apartment on the west side of Chicago, Illinois before the events of this cause of action. Ms. Czuba claimed that prior to July of 1990, she knew that Margaret beat Paulina based upon her observation of bruising on Paulina's body. She also stated that she had called both a Polish-language social services agency and DCFS about the observed abuse situation, but offered little further substantiation. Ms. Czuba had called and/or spoken to the police about the abuse she had seen and about offering to take care of Paulina herself on numerous occasions. Ms. Czuba stated she was rudely rebuffed, with threats of arrest and deportation by authorities. In particular, when Paulina was hospitalized in July, 1990, Ms. Czuba stated that she repeatedly requested police assistance and offered to take care of Paulina, but was told she had no rights to Paulina.

Ms. Czuba saw Paulina every day during the summer prior to her death and was often in charge of babysitting Paulina. She never sought to have Paulina examined by any authority or agency during these periods alone with Paulina. In October of 1990, she observed bruising on Paulina's face and that Paulina had difficulty seeing. As a result of her observation, Ms. Czuba sought help from an unidentified entity in Mount Prospect, Illinois in an attempt to have Paulina removed from her daughter, Margaret's care, yet she provided no details such as the name, address or telephone number of the entity or social service/medical facility.

Kristina Lukawaska was a neighbor of Margaret and Paulina. On July 17, 1990, she observed bruising on Paulina's face and had a friend call the police. She stated police responded later that day and went to the Majos apartment. Although after that date she observed Paulina with bruises, Ms. Lukawaska apparently never again called police or any other authority or child welfare agency regarding her concerns.

As a result of the July 1990 call, Paulina was taken to the emergency room at Resurrection Hospital by law officers and examined by Dr. Russell Eisenberg. Dr. Eisenberg testified that his examination of Paulina revealed she had been abused; specifically, he identified bruising to her face, head, back, left arm and left thigh. The bruising was of different ages, i.e. some more recent than others. Dr. Eisenberg delivered Paulina into the custody of the Chicago Police Department, namely Officers Snieg and Riordan, and had no further clinical relationship with Paulina or her mother after that date. Dr. Eisenberg did not indicate to the police that he thought Paulina was in imminent risk of harm, nor did he indicate to a DCFS investigator that he thought Paulina was in imminent risk of harm as the term is used in child custody/endangerment situations. Dr. Eisenberg had the authority to recommend to the police and/or to DCFS that, in his opinion, the child was in imminent danger and should be removed from the abusive situation (i.e. her natural mother's home).

As a result of the DCFS hotline call on July 17, 1990, a DCFS investigation was initiated and assigned to a DCFS Child Protection investigator, Luis Lopez. At that time, Mr. Lopez was a 16-year veteran of the DCFS and he had received training throughout his career in investigating reports of child abuse and neglect.

DCFS regulations required that a Child Protection investigator make a good faith effort to contact the child within twenty-four hours of receiving a report of suspected abuse. The initial reports are classified as follows: Priority I where the report involves death or serious injury; Priority II where the report involves bruising or welts. The July, 1990 report of Ms. Lukawaska's friend about Paulina was classified as Priority II. In accordance with DCFS rules, Mr. Lopez was required to interview one professional witness and one non-professional witness. The DCFS rules apparently required Mr. Lopez to also review any police report generated and re-interview witnesses identified therein. At the end of his investigation, Mr. Lopez was required to make a finding as to whether the report was indicated or not indicated. Indicated would mean the matter would be reviewed by his supervisor and most likely assigned for further follow up with DCFS services. Not indicated would likely mean the case was closed.

As a result of the assignment to Paulina's case, Mr. Lopez investigated the matter. Mr. Lopez visited the Majos home on July 18, 1990. Present at that visit were Margaret Majos (Paulina's mother), Stanley Majos (Paulina's father), Paulina (decedent) and Adam Majos (Paulina's brother). Margaret and Stanley were interviewed and denied the allegations of physical abuse, although Margaret did admit to leaving the child alone for long periods of time. Mr. Lopez observed the facial and thigh bruising on Paulina leading to the investigation but he did not observe evidence of chronic abuse in his opinion. He observed Adam Majos and found no bruising or other evidence of abuse or neglect. Mr. Lopez did not interview Paulina at this time since she did not speak English and he did not speak Polish, Paulina's native language.

Mr. Lopez subsequently spoke with Chicago Police Department Officer Riordan and Dr. Eisenberg. Officer Riordan related that he had interviewed Paulina with the assistance of a Police translator and she had denied any physical abuse by her parents. There was no indication from Officer Riordan that child custody removal actions should take place. Dr. Eisenberg also indicated his findings of bruising on Paulina's body to Mr. Lopez, but did not indicate that DCFS should institute child removal proceedings at that time upon the child's physical condition he observed.

On July 21, 1990, a woman named Ana Budasz contacted Mr. Lopez to inform him that she had observed bruises on Paulina on July 16, 1990. Mr. Lopez did not open a new file or indicate that this was a second abuse report, since it related to the initial report by Ms. Lukawaska's friend. Ms. Budasz did indicate that Margaret Majos was verbally abusive and threatening to Paulina. In a subsequent conversation, Ms. Budasz indicated that the abuse had stopped since the July 17, 1990 hospitalization.

On August 9, 1990, Mr. Lopez returned to the Majos home with a Polish interpreter. He re-interviewed Margaret Majos who once again denied abuse. He interviewed Paulina apart from her mother and found her to be relatively relaxed and physically free from signs of abuse.

From July 18, 1990 to August 16, 1990, Mr. Lopez attempted unsuccessfully to contact certain neighbors of the Majos family, including the persons who initiated the complaints of abuse. He did so by knocking on their doors or attempting to call them. He did not leave notes since this was against the policies of DCFS to protect anonymity of reporters. He did not review the police report generated by the hotline call, although he should have done so pursuant to DCFS policy.

Based upon his investigation, Mr. Lopez recommended the file be indicated for abuse and neglect and it was transferred to a DCFS caseworker named Arthur Abney for services. Mr. Lopez did not indicate the file for immediate removal or protective custody proceedings, as he did not find the circumstances warranted such an indication.

Arthur Abney was a DCFS caseworker with 13 years of experience in 1990 as a Child Welfare Specialist and, at that time, he was an intact services worker. Intact services is the DCFS term used to describe situations where children who are victims of abuse or neglect remain in custody of their parent(s) and family while services are administered to help the child and/or family.

Mr. Abney was assigned Paulina's case on August 23, 1990. He visited the Majos home on August 28, 1990 and September 5, 1990 but no one was home on both occasions. On the latter visit, he left a note for Margaret Majos to call him and arrange a meeting. On September 6, 1990, Margaret Majos called Mr. Abney and arranged a meeting at Abney's office for September 7, 1990.

On September 7, 1990, Margaret, Paulina and Adam Majos met with Mr. Abney at his office. Mr. Abney interviewed Margaret and she agreed to attend counseling at an agency called CAUSES, which was referred by DCFS clients for abuse and neglect counseling. The CAUSES counseling begins about 6-8 weeks post-referral by DCFS. Mr. Abney did not observe any bruising on Paulina and stated that Paulina was playing on a bike in a play area while he spoke with Margaret. To Mr. Abney, Paulina appeared healthy and happy, although he only observed her face and did not ask to see body parts covered by clothing. Mr. Abney said that he greeted Paulina who nodded or physically indicated through motions that she understood his greeting and responded.

Subsequent to the meeting in September, 1990, Mr. Abney was unable to visit Paulina again, although DCFS regulations required him to do so monthly. Mr. Abney admitted he was not able to visit because his caseload was too heavy. He did not see or speak to Paulina again prior to her death on November 5, 1990. He did speak with Margaret on one subsequent occasion when she called him to inform him of her new address. Mr. Abney admitted he was not able to visit because of a heavy caseload and more perceptibly serious cases of abuse.

Mr. Abney testified that in intact cases, DCFS has no legal custody over the child or authority over the parents. It is a voluntary matter and the parents have a right to refuse the service provided by DCFS. If service is refused or cooperation is lacking, DCFS has the right to seek court-mandated service by legal process. Mr. Abney testified that the necessity for legal actions to force parental compliance with counseling has occurred on occasion in his line of work, including when subsequent DCFS hotline calls have initiated an additional investigation of the same person(s). In this case, to his knowledge, no additional DCFS hotline calls were placed because Mr. Abney would have been notified of same and it would have been noted in his record of the case file for Paulina.

Mr. Abney did not feel circumstances existed in this case which necessitated either police or court intervention. He did not identify a pattern of abuse based upon the report of Mr. Lopez and his own observations of Paulina and her family.

Ana Budasz was a Polish speaking realtor in the area where Margaret and Paulina lived. Margaret Majos requested Ms. Budasz's assistance in finding a home to buy in the West Chicago area. During her relationship with Margaret, Ms. Budasz met and observed Paulina on many occasions. Ms. Budasz testified that she made numerous telephone calls to DCFS based upon her observations of bruising and cuts caused to Paulina by Margaret. Only the single telephone call on July 21, 1990 and the August conversation were acknowledged by DCFS records. Ms. Budasz specifically recalls that there was a period after DCFS's initial visit in July 1990 where Paulina appeared happier and without bruising. She recalled that bruising reappeared sometime in August, 1990 and then again in September, 1990. Ms. Budasz allegedly made numerous calls to Mr. Lopez and DCFS about these observations, i.e., new bruising, but was never contacted in response to her telephone calls. It is unclear, but probable that Ms. Budasz placed no calls to the DCFS hotline, only to DCFS directly. She did not observe Margaret actually abusing Paulina.

On November 1, 1990, an ambulance was called to the Majos home and Paulina was taken to Lutheran General Hospital in unresponsive condition. On November 5, 1990, despite surgery, Paulina died. Dr. Robert Kirschner was the forensic pathologist who performed an autopsy. Dr. Kirschner testified that Paulina was malnourished and emaciated for her age. He testified that Paulina not only had extensive acute injuries to her head which resulted in her death, but that there was evidence of injuries that he opined had occurred several weeks to several months prior to her death. He opined that Paulina was the victim of a pattern of abuse and neglect and that said pattern should have been observed by someone trained to investigate such situations.

Findings

Paulina Szczepanowska's death on November 5, 1990 was and is tragic and heart-wrenching. In addition, given the clarity of hindsight, it was likely preventable in a more perfect social setting. Sentiment aside, the duty of this Court is to make a determination of the Respondent's legal responsibility, if any, for Paulina's injuries and subsequent death. For the reasons that follow, this Court finds that the State of Illinois was not legally responsible for Paulina's death and therefore, the claim is denied:

1. It is undisputed by the parties that Paulina's mother, Margaret, physically caused the injuries which led to Paulina's death on November 5, 1990. Claimants argue that the State of Illinois, by and through DCFS and its staff, owed a personal duty to Paulina. According to Claimant, had DCFS fulfilled its duty, Paulina would have been removed from Margaret's custody and her death would not have occurred. The basic premise of Claimants argument relies upon the creation of a special duty1 owed to a child who is the subject of reported abuse pursuant to DCFS's written regulations for investigating a report of abuse and making its recommendations for further action including removing a child objectively found to meet criteria for imminent harm.

This Court finds that DCFS fulfilled any duty to Paulina that may be found in current Illinois law. No personal duty arose.

2. DCFS responded to a hotline call of possible child abuse involving the Claimants decedent. The end result of the DCFS investigation was that DCFS opened a services file in an attempt to help both Paulina and her mother, Margaret, deal with the abuse issues. The investigation and/or subsequent case work on the file did not reveal a situation where temporary or permanent removal of Paulina from her mother's custody or other court intervention was clearly mandated. Thus, at no time from the date of the verified hotline report (July 17, 1990) to the date of her death (November 5, 1990), was Paulina under any type of State Police or DCFS custody or guardianship. Neither she nor her mother were the subject(s) of any court proceeding(s); Margaret Majos interaction with DCFS was at all times voluntary and she appeared to be cooperating per the evidence and record. Claimants admit there was no State custody or guardianship, but argue that DCFS's investigation and decision not to seek custody was flawed and negligent. Presently, the allegation of a flawed investigation is not being considered only that the State/DCFS had no legal custody or guardianship of Paulina during the four-month period at issue.

3. We find our prior decision in Rapp v. State, 51 Ill.Ct.Cl. 72 (1998) applicable and controlling herein. In Rapp, DCFS took temporary protective custody of a four-month old child within a two-month period of the initial investigation of abuse. Rapp, at 74. Approximately one month after the second episode of protective custody, a hearing was held in the Circuit Court of Cook County. Id. As a result of that hearing, the child was placed with his maternal grandmother, despite the fact that she resided in the same building as his legally determined neglectful mother. Id. The Circuit Court did not take custody and did not grant guardianship of the child to DCFS. Id. The Court set conditions of protection with respect to the mother's responsibilities, but unfortunately, those conditions were not met and the young boy died. Id. Of particular interest is the testimony of the DCFS investigator (Mr. VanHoose) who investigated the allegations of abuse involving the infant decedent, Rapp, and took temporary protective custody of the minor. Id., at 74-75. Mr. VanHoose admitted that he failed to follow the policy and procedure of the DCFS; that a protective custody order should have been entered at hearing and that the father should have been granted custody. Id. Mr. VanHoose stated that the mother's negligent conduct per his investigation met the DCFS criteria for protective custody but that he failed to request said protective custody he obtained at the hearing in Circuit Court.

In Rapp, Id., Claimant argued that DCFS had a duty to investigate child abuse and, in making its report to the Court, to request guardianship and custody. The Court considered the circumstances of DCFS's investigation and the hearing on temporary protective custody against a backdrop of the statutory purpose for which DCFS was created and by which it conducts its affairs. The Court held:

The Illinois Department of Children and Family Services shall, upon receiving reports made under the Act, protect the best interests of the child, offer protective services in order to prevent any further harm to the child and to other children in the family, stabilize the home environment, and preserve family life wherever possible. (325 ILCS 5/2). Additionally, section 9 of the same act states: Any person, institution or agency under this Act, participating in good faith in the making of a report or referral, or in the investigation or referral or in the taking of photographs and ex-rays or in the retaining of a child in temporary protective custody *** shall have immunity from any liability....by reason of such actions. For the purpose of any proceedings, civil or criminal, the good faith of any persons required to report or refer, or permitted to report, cases of suspected child abuse or neglect... shall be presumed. Rapp, at 76.

Once the Rapp Court reviewed the totality of the facts and circumstances, it held that the investigation and report by Mr. VanHoose was performed in good faith, and therefore, DCFS had fulfilled its statutory duties and had no further special personal duties to the Claimant's decedent. Id. This finding was made despite DCFS's numerous admitted violations of its own policies and procedures because the child was ultimately fatally injured by his natural mother and the duties breached were owed by DCFS employees to DCFS, not decedent Rapp, personally. DCFS is required to fulfill only those duties imposed by law. Since DCFS had neither guardianship nor custody of Paulina at the time of her death, it owed her only its statutory duties, consistent with Rapp. If DCFS performed its investigation and report in good faith, those statutory duties are fulfilled and no claim shall lie against the Respondent.

4. As part and parcel of its determination, this Court is obligated to review the testimony and evidence of record as to the facts and circumstances surrounding the DCFS investigation and Paulina's death.

This Court finds that the investigation and report by DCFS investigator Lopez was performed in good faith and was reasonable in its scope and nature. As stated supra, with hindsight, it is readily apparent that this tragedy may have been preventable. However, most tragedies when analyzed lead to similar conclusions. Here, Mr. Lopez responded to a hotline call within twenty-four hours and made a reasonable effort to investigate the matter by, amongst other various actions, speaking face-to-face with the mother (two times) and father; talking by telephone with Dr. Eisenberg and Officer Riordan who investigated the verified abuse call; speaking with an independent witness, Ms. Budasz, and, speaking with the child herself through an interpreter. Based upon these interviews, the current policy intended to keep the family intact outweighed the need to remove Paulina for her own protection. Mr. Lopez had no authority of record to change legislated policy in Illinois or for DCFS.

The record indicates while Lopez investigated the case, Margaret Majos appeared to be cooperating with the investigation and her abuse of Paulina appeared to stop. In addition, Paulina's brother Adam appeared healthy and free from abuse, and the July 17, 1990 call was the first report of abuse involving Margaret or Paulina.2 Again, these are all factors in DCFS's mission of keeping a family intact which is mandated.

5. This Court may not speculate about what should have been done to prevent Paulina's injury and death. The Claimant asks the Court to do so. However, this is not the legal standard by which this Court is to review the investigation and report of the DCFS. If Mr. Lopez had failed to conduct a major part of his investigation, such as not conducting a visit to the Majos home or not interviewing the police officer of the physician, this Court might give more weight to a position that his investigation was negligent, thus a potential contributing cause to Claimants decedent's injuries. No malice was alleged as to Lopez and none is inferred by the record. Thus, this Court finds that Mr. Lopez performed a reasonable investigation under the circumstances and made a good faith report and recommendation within the auspices of DCFS's statutory purpose.

6. Pursuant to its review of the record, this Court finds that Mr. Lopez's and Mr. Abney's apparent violations of the DCFS procedures and policies during their work on this case are not the type which would compel the Court to remove it from the analysis promulgated by Rapp. This does not in any manner excuse those violations and the hope is that since 1990 considerable effort has been expended to see that such lapses do not occur again.

This Court finds that those violations are not so inextricably linked to Paulina's death that the Court is compelled to find DCFS actions a proximate cause of her death.

The violations were not malicious in nature nor did they constitute such grossly negligent conduct which might compel this Court to find DCFS breached the duties owed to Paulina. The intervening criminal conduct of Paulina's mother was the direct and proximate cause of her death. There is no competent proof that DCFS could have actually prevented Paulina's death.

The Claimants not only bear the burden of establishing the existence of a duty, but also that a breach of that duty has occurred and an injury has resulted from that breach. See Thornburg v. State of Illinois, 39 Ill.Ct.Cl. 139 (1986). In the present matter, the Claimants have failed to convince the Court that a special duty is created by DCFS's own regulations and furthermore, the Claimants have failed to convince the Court that the DCFS breached any duty at law that it owed personally to Claimants decedent, Paulina Szczepanowska, for the reasons stated herein.

This claim is hereby denied and dismissed with prejudice.

FOOTNOTES

1.  The special duty is created by DCFS regulations 300.80 and 300.70 provides, ...the Department may not relinquish its responsibility for assuring the safety of the alleged child victim....

2.  Subsequent to Paulina's death, several persons including Helen Czuba and Ana Budasz, offered extremely concerned and lucid testimony about the pattern of abuse experienced by Paulina. Although their testimony cannot be ignored, it is this Court's finding that their collective deep concern for Paulina's well-being ex post facto failed to be entirely credible.

JANN, J.