Child endangerment charges against DCFS staff in AJ Freund case being investigated

Prosecutors are investigating whether they should charge a former Department of Children and Family Services worker with child endangerment related to his actions after a 2018 report of injury to Crystal Lake’s AJ Freund, who later was killed.

McHenry County State’s Attorney investigator Robert Diviacchi filed a search warrant affidavit May 7 seeking the complete personnel file, training transcripts and employee evaluations of former DCFS supervisor Andrew Polovin.

The 47-year-old Polovin, who was fired from DCFS in December, was the agency supervisor who closed a 2018 investigation into a large bruise on AJ’s hip. No DCFS employees, including Polovin, have been charged with a crime in connection with AJ’s April 2019 death.

Prosecutors appear to be exploring their options when it comes to filing aggravated child endangerment charges in connection with AJ’s death.

Only the boy’s parents, 37-year-old JoAnn Cunningham and 61-year-old Andrew Freund Sr., have been charged in criminal court with AJ’s death. Cunningham pleaded guilty to first-degree murder late last year and is scheduled for sentencing July 16. Freund remained at the McHenry County Jail on Wednesday on a $5 million bond.

According to the affidavit, which also references former DCFS child protection specialist Carlos Acosta, Polovin allowed protective custody of AJ to lapse before conducting a proper investigation. He’s also accused of omitting a corresponding Crystal Lake police report, medical records and home safety checklist from AJ’s December 2018 file.

“From the Inspector General’s report, it is indicated that Mr. Polovin’s lack of supervisory oversight was willful and [wanton], given the nature of the injury, the explanations that had been given and rejected by police and unsupported by medical examination …” Diviacchi wrote in his affidavit.

Diviacchi claimed in his affidavit that Polovin failed to take a number of steps before allowing AJ to return home. Those include examining AJ’s home environment, interviewing AJ’s father, obtaining and reviewing police reports and medical records, securing a second medical opinion, and documenting the decision to return custody to AJ’s parents.

Polovin could not be reached for comment Wednesday.

The DCFS investigation cited in Diviacchi’s affidavit took place about four months before police say AJ’s parents beat and killed the boy in their Dole Avenue home. The house has since been demolished.

Crystal Lake police officer Kimberly Shipbaugh originally reported the 2018 case to DCFS after she responded to a call at Freund and Cunningham’s home the morning of Dec. 18 that year. It was the third investigation involving Cunningham and her children.

Acosta met with AJ at the Crystal Lake police department that day and asked him about the large bruise officers noticed on his hip. According to Diviacchi’s affidavit, Acosta later described the injury “by saying he had not seen bruising like it in his years as a child protection investigator.”

Reached by phone Wednesday, Acosta declined to comment on Diviacchi’s affidavit, which he had not seen.

During their conversation, AJ told Acosta he got the bruise when the family dog, Lucy, pawed at him. AJ was taken to the hospital shortly after and Acosta sent a photo of the bruise to Polovin via text, according to Diviacchi’s affidavit.

“Acosta texted his supervisor Mr. Polovin ‘Kid says [big dog] ‘put paw on me.’ I take that to mean a scratch.’ Mr. Polovin responded ‘That looks nasty but if that’s what the kid says,’” Diviacchi wrote.

Initially, AJ repeated the story about his dog to the doctor but later had the following conservation with her, according to Diviacchi.

Dr.: Has anyone ever spanked or hit you?

AJ: Yes

Dr.: With what?

AJ: A belt

Dr.: Is that what made this mark?

AJ: Yes

Dr.: Who did it?

AJ: Someone not in my family

AJ continued by saying that his mom didn’t mean to hurt him, and then returned to the story about the dog injuring him, according to the affidavit. After speaking with AJ, the doctor eventually asked Acosta to send a professional interviewer to examine the bruise, Diviacchi wrote.

According to DCFS records, Acosta documented that discussion by stating the doctor couldn’t determine the cause of the injury, because she was not a forensic or child abuse specialist. The doctor went on to say that she and her staff did not believe it was safe for AJ to go home with his mother, but Acosta indicated that he and Polovin determined the child would be safe under his father’s supervision, Diviacchi wrote.

One of the nurses who observed AJ at the hospital made an additional DCFS call to report the alleged abuse.

In the wake of AJ’s death, the community scrutinized DCFS’ handling of the Dec. 18, 2018, investigation and criticized the agency for not removing AJ from his parents’ dilapidated home sooner.

Acosta responded at the time by speaking publicly about the agency’s policies, all of which he said he followed. As for not seeking a second medical opinion about AJ’s bruise, Acosta has previously said that child abuse specialist pediatricians are a limited resource – often reserved for more severe injuries.

According to Illinois Department of Children and Family Services records, the bruise could have been caused by a football, a belt or the family dog.

Criminally charging a child welfare employee in connection with a child death is uncommon, but it’s not unheard of.

Los Angeles County tried to set a similar example in 2016, when prosecutors filed criminal charges against the DCFS workers who allowed 7-year-old Gabriel Fernandez to remain in the home with his mother and her boyfriend, despite multiple investigations.

About six weeks after DCFS closed its case, Gabriel died as a result of child neglect and severe head trauma. A California appellate court dismissed the felony child abuse and falsifying public records charges in January, however.

Moreover, DCFS employees are granted certain civil and criminal immunity under the Abused and Neglected Child Reporting Act. Illinois law clarifies that anyone making a report of child abuse or neglect is presumed to have done so in good faith.

Reached by phone Wednesday, McHenry County State’s Attorney Patrick Kenneally declined to comment on the matter while it was ongoing.