A Crystal Lake police officer broke into tears Monday as she spoke of her disbelief when a child protective specialist from the Illinois Department of Children and Family Services allowed a bruised 5-year-old boy to leave the police station with his mother.
That child, AJ Freund, would be dead four months later and his parents, JoAnn Cunningham and Andrew Freund Sr., eventually would be convicted and imprisoned for his death.
Police officer Kimberley Shipbaugh was the first witness for the state to take the stand in the bench trial of former DCFS employees Carlos Acosta, 57, of Woodstock, and Andrew Polovin, 51, of Island Lake, who – in a rare move by prosecutors – each are charged criminally in the child’s death.
“When your job is to protect children and you don’t,” McHenry County State’s Attorney Patrick Kenneally said in his opening statements Monday, it is not because of an overwhelmed system, it is because they were being “lazy, heartless” and “criminal.”
Kenneally detailed how AJ’s life began as a drug-addicted infant taken into custody of DCFS only to be returned to “drug-addicted psychopath and an addicted, weak pathetic cipher of a man.”
Police officer Kimberley Shipbaugh began crying when she said she did not believe the dog caused the bruise and “all the hairs on my arms stood up” when JoAnn Cunningham leaned in toward her son and said that.— Testimony during the trial of two former DCFS employees in connection with the death of AJ Freund, 5, of Crystal Lake.
Acosta and Polovin each are charged with two counts of endangering the life of a child and health of a minor, Class 3 felonies, and one count of reckless conduct, a Class 4 felony, related to their handling of the child’s case.
They have pleaded not guilty to the charges.
Attorneys for Acosta and Polovin said in their opening statements before Lake County Judge George Strickland, who is hearing the case, that their clients could not have known or predicted AJ’s death was a certainty.
“Hindsight is 20/20,” Acosta’s attorney Jamie Wombacher said during her opening statements.
If convicted on the more serious Class 3 felony, they each face between two and five years in prison and fines of up to $25,000. The offenses also are probational.
Shipbaugh said she responded to a call the morning of Dec. 18, 2018, to a Taco Bell where JoAnn Cunningham was in the parking lot with AJ and his younger brother. She said the boys, ages 5 and 3, were wearing just diapers and T-shirts without any shoes, pants or a coat.
Cunningham was upset and crying. She claimed her boyfriend, the now-deceased Daniel Nowicki, stole her cellphone, Suboxone and Adderall. The officer then followed Cunningham and her two boys back to their house at 94 Dole Ave., where Shipbaugh described filthy living conditions.
She said the house was cold and “disgusting” and smelled “atrocious,” of feces and urine.
She said she documented that the house was “unacceptable living conditions for children” and she called in the building and zoning department to assess. However, Cunningham denied them access when they arrived, Shipbaugh said.
While at the house, she saw a “horrific bruise” on AJ’s hip that “literally took [her] breath away.”
When she asked him where it came from, the officer said Cunningham leaned in toward AJ and said “Lucy did that to you, didn’t she?” referring to the family’s dog. AJ responded by nodding yes.
Shipbaugh began crying during her testimony Monday when she said she did not believe the dog caused the bruise, adding that “all the hairs on my arms stood up” when Cunningham leaned toward her son and said that.
She said she wished she had pulled AJ away from his mother and asked him again. She said the bruise wrapped around his hip and back side and she knew there was no way the dog could have possibly caused it.
During her testimony, photographs were shown in the courtroom of the small-framed, blue-eyed, blond child on that day in the police department. The photos showed the large bruise and a fat lip. Photos of the house in complete disarray also were shown.
The officer learned Cunningham was driving on a suspended license and took her into custody and arranged for the children also to go to the police department.
While there, Shipbaugh called the DCFS emergency hotline and detailed the morning events, the house, bruising, her doubts that the dog caused the bruise and Cunningham’s drug use.
She wanted to take the children into protective custody based on the condition of the house and the bruising on AJ, she said.
When Acosta arrived at the police department, he interviewed Cunningham and AJ, and again AJ agreed with his mother that the dog caused the bruise on his hip.
The 3-year-old brother was not checked for bruises.
Acosta, Shipbaugh said, allowed Cunningham to leave the police station with a family friend who picked them up and took AJ to be seen by a doctor to determine where the bruise came from.
“I was not comfortable with AJ walking out with somebody who potentially could have done this to him,” Shipbaugh said.
She said she raised her concerns with her supervisors and was told it was the DCFS’s case now. She said Acosta did not ask for any past reports of calls related to AJ, Cunningham or the house.
Later in the day at trial, Carol Ruzicka, who worked for DCFS for 31 years before retiring as a regional administrator, testified as an expert for the state.
She said that once DCFS takes over a case, they are the lead agency.
Ruzicka also said Acosta’s job as a child protection investigator requires that he follow deadlines and acquire and review all past police reports related to AJ and his family.
Kenneally read off several reports that Ruzicka said Acosta should have acquired and reviewed within 48 hours of the Dec. 18, 2018, incident. These reports included criminal records, mental health reports and reports of past neglect and abuse detailing instances of alleged domestic abuse, batteries, suicide attempts and her history of drug addiction, which he did not do, Ruzicka said.
When DCFS employees whose job it is to protect children do not perform the recommended steps to protect children, they “are endangering children,” Kenneally said. “These are not overwhelmed employees. These are two criminals who didn’t give a damn.”
After two days of not receiving any follow-ups from DCFS, Shipbaugh said she had “grave concern” and called Acosta. He told her that the doctor could not determine what caused the bruising and the case was closed “exceptionally,” meaning closed because there was not enough information to file charges.
Dr. Joellen Channon testified Monday that she was the doctor at Northwestern Medicine who examined AJ that day. Channon said she asked Cunningham how he got the bruise and Cunningham said she did not know, maybe it was from roughhousing or playing football.
Privately, away from Cunningham, AJ told Channon “someone not in his family” bruised him, then said it was from a belt and then said, “Maybe, mommy didn’t mean to hurt me.”
Channon said she was surprised the child offered up such information.
She also thought AJ’s reference to someone not in his family could have been a reference to Nowicki.
She felt then they had enough evidence to maintain protective custody and that potentially Cunningham or Nowicki was the abuser, Channon said.
She said she did not ask more questions because she is not a forensic interviewer and did not want to make any mistakes in the investigation. She asked Acosta for an expert in that field to interview AJ, which never happened, she said.
“We felt we could move forward and take AJ away from that situation,” Channon said. The new information “solidified it for us” that he should not go home with Cunningham. She believed Acosta was working on not letting him go home with Cunningham.
Channon said she made arrangements for AJ’s father – who she thought lived separately from his mother – to pick him up from the hospital and waited for hours after her shift ended to be sure it was his father who took him home, she said. She also filled out a report detailing her concerns and sent it to DCFS.
In opening statements, attorneys for Acosta and Polovin said their clients are not criminally responsible for AJ’s death.
The people responsible for the child’s death are in prison, Wombacher said, referring to AJ’s parents, with Cunningham serving 35 years, and Freund Sr. serving 30.
Wombacher said there is no proof that Acosta was aware Dec. 18, 2018, that AJ’s death was certain. She also said that the Woodstock field office where he worked was “overwhelmingly overworked and understaffed.”
Cunningham was cooperative that day and the boys did not seem afraid of her, and “Illinois law strongly favors keeping kids in protective custody with parents,” Wombacher said.
She said there were no “big red flags.”
Polovin’s attorney, Matthew McQuaid, said the state’s witnesses are “Monday morning quarterbacking” the events of Dec. 18, 2018.