No. 3--03--0956

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT
A.D., 2005

After an adjudicatory hearing, the respondent's children,A.R. and Ax.R. (minors), were found to be neglected by reason ofan injurious environment. Following a subsequent dispositionalhearing, the respondent was found unfit. The minors were madewards of the court, and the Department of Children and FamilyServices (DCFS) was appointed guardian with the power to place. The respondent appealed the neglect adjudication, and this courtaffirmed. In re A.R., 354 Ill. App. 3d 452, 821 N.E.2d 332(2004) (publication subsequently withdrawn).

In a supervisory order, the Illinois Supreme Court deniedthe respondent's petition for leave to appeal but remanded thecause for further consideration. In re A.R., 214 Ill. 2d 531,824 N.E.2d 280 (2005). Having reviewed the cause anew, we nowaffirm the trial court's finding of neglect.

The respondent, Elmore R., is the father of the minors. Jennifer B. is the mother of the minors and the respondent's ex-wife. On June 5, 2003, the State filed a petition alleging thatthe minors were neglected by reason of an injurious environment. This allegation was based upon the fact that: (1) the respondentleft the minors with Jennifer B. while the respondent was servinga jail sentence, even though he knew Jennifer B. had previouslybeen found unfit; (2) the respondent had been experiencing mentalhealth problems; and (3) the respondent was convicted of domesticbattery in 2001, after he had obtained guardianship of theminors.

The children were placed in the temporary custody of DCFS,and an adjudicatory hearing was held on October 15, 2003. Evidence of the respondent's mental health history included thatin May of 2000, he reported feelings of depression and anxietylasting several months and had thoughts that he characterized asparanoia. At that same time, the respondent was prescribedpsychotropic medication. He was taken off that medication inSeptember of 2000, upon the recommendation of a psychiatrist. AnApril 2001 evaluation took exception with a prior indication of apsychotic disorder, but did find evidence of some paranoidideation.

Amy M. testified that she was married to the respondent from1998 until their divorce in 2002. The respondent exhibitedunusual behavior during their marriage, including telling herthat people were watching him. The respondent would keep thewindows of their residence covered and would turn the computermonitor toward the wall. He would also complain that George Bushwas following him and that there were rats in the house withcameras on their tails.

Raelynn Galassi, a DCFS child protection investigator,testified to a June 2003 conversation she had with A.R. about therespondent's behavior. A.R. reported that the respondent thoughtthat people in automobiles with tinted windows were takingpictures of him and that there were cameras in automobile trunks,hub caps, and stop lights. A.R. also indicated that therespondent believed that people could take pictures through thetelevision and that their house contained rats with cameras ontheir tails.

The evidence also established that Jennifer B. was foundunfit by reason of excessive corporal punishment in May of 1999and has remained unfit since that time. The respondent hadguardianship of the minors returned to him in October of 1999. In April of 2000, as part of an order discharging wardship, thecourt ordered that all visitation with Jennifer B. was to besupervised by the respondent or his designee. No unsupervisedvisits were to be allowed.

Amy M. testified that after their divorce, she went to courtto enforce a child support order for the child she had with therespondent. On May 16, 2003, the trial court found therespondent in contempt for his failure to pay the support andsentenced him to jail. In court, Amy M. agreed to care for A.R.and Ax.R. while the respondent was in jail. After his release onMay 19, the respondent called Amy M. to ask her to watch theminors for a few extra days while he searched for a job. AmyM.'s caller ID indicated that the respondent was calling from ahome shared by Jennifer B. and her mother.

On May 30, 2003, the respondent was once again sentenced tojail. That afternoon, DCFS investigator Galassi asked therespondent where he and the minors had been living prior to hisincarceration. The respondent indicated that the three had beenliving with Jennifer B. and her mother since he had been "kickedout" of his own residence a week before. The respondentindicated that the minors where still living there, and Galassirecommended that they be temporarily placed with Amy M. Therespondent agreed, and later that day the minors were removedfrom Jennifer B.'s home. A.R. confirmed that he, his brother andthe respondent had all been living at Jennifer B.'s house beforethe respondent went to jail. Later, Jennifer B. confirmed thatthe three had been living with her and her mother forapproximately one month.

Finally, the State introduced evidence that the respondentwas convicted of domestic battery at a time after custody andguardianship of the minors was returned to him.

After the close of evidence, the trial court found that thepetition had been proved in its entirety and that the minors werein an injurious environment. At a subsequent dispositionalhearing, the respondent was found unfit, the minors were madewards of the court, and DCFS was appointed guardian with thepower to place.

The respondent appealed the neglect adjudication, and thiscourt affirmed. A.R., 354 Ill. App. 3d 452, 821 N.E.2d 332(publication subsequently withdrawn). The respondent filed apetition for leave to appeal. In a supervisory order issued onMarch 30, 2005, the Illinois Supreme Court vacated this court'sopinion and remanded the cause for further consideration. In reA.R., 214 Ill. 2d 531, 824 N.E.2d 280. Specifically, the orderprovided that:

"The appellate court is directed to consider the effectupon its judgment, if any, of evidence of the apparentpresence of the maternal grandmother in Jennifer B.'shome, and whether under such circumstances as theevidence establishes, the minors were left unsupervisedwith Jennifer B. The appellate court is furtherdirected to adjudicate each issue raised on appeal." A.R., 214 Ill. 2d 531, 824 N.E.2d 280.

II. ANALYSIS

On appeal, the respondent contends that the State failed toprove an injurious environment in that: (1) there was no evidencethat the minors were harmed in any way by living in the housewhere their mother lived, and (2) the trial court improperlyrelied upon lay testimony in determining that the respondent hadmental health issues that contributed to an injuriousenvironment. We disagree.

Children are neglected if their environment is injurious totheir welfare. 705 ILCS 405/2--3(1)(b) (West 2002). "An'injurious environment' is an amorphous concept which cannot bedefined with particularity; therefore, each case should bereviewed considering the specific circumstances of that case." In re M.K., 271 Ill. App. 3d 820, 826, 649 N.E.2d 74, 79 (1995).Nevertheless, parents have a duty to keep their children freefrom harm; thus, their failure to provide a safe and nurturingshelter is statutory neglect. In re B.J., 316 Ill. App. 3d 193,735 N.E.2d 1058 (2000). It is the State's burden to prove anallegation of neglect by a preponderance of the evidence. In reN.B., 191 Ill. 2d 338, 730 N.E.2d 1086 (2000). That is, theState must demonstrate that an allegation of neglect is probablymore true than not. In re L.M., 319 Ill. App. 3d 865, 747 N.E.2d440 (2001). On review, we will not overturn a trial court'sfinding of neglect unless it is against the manifest weight ofthe evidence. L.M., 319 Ill. App. 3d 865, 747 N.E.2d 440. Afinding is against the manifest weight of the evidence only ifthe opposite conclusion is clearly evident. In re D.F., 201 Ill.2d 476, 777 N.E.2d 930 (2002).

We find that the trial court's adjudication of neglect wasnot against the manifest weight of the evidence. The respondenthad custody and guardianship of his children. He knew that theirmother had been found unfit based upon physical abuse and was tohave only supervised contact with the minors. Without regard tothe possibility of future abuse, the respondent moved his familyinto a house where the mother was living and left the children inthat house when he was to be incarcerated.

While we note that it appears that Jennifer B.'s mother alsolived in the home, we do not believe that her presence providedthe type of supervision contemplated by the order dischargingwardship. There was no evidence that she was present at alltimes that Jennifer B. was in the home, nor was there evidencethat she closely monitored Jennifer's interaction with thechildren. There was also no indication that the respondent hadmade it clear to her that she was to act as his designee. Insum, we agree with the trial court that it was inappropriate forthe respondent to place the minors in such a potentiallythreatening situation. Moreover, we believe that this conductalone justified the trial court's finding of neglect based uponan injurious environment. See In the Interest of M.K., 271 Ill.App. 3d 820, 649 N.E.2d 74 (1995) (a substantial risk of harm isenough to justify a finding of an injurious environment).

In addition, however, the trial court based its finding ofneglect in part upon the State's evidence that the respondent wasexperiencing mental health problems. The respondent contendsthat the trial court erred in basing its decision on thisevidence, because there was a divergence of opinion among severalevaluators as to the severity of the respondent's problems. Moreover, the respondent contends that the court improperlyrelied upon the statements from Amy M. and A.R. to support itsfindings. We disagree.

The trial judge noted the conflicting evidence but foundthat a number of the State's psychological reports and all of thestatements from Amy M. and A.R. supported the finding that therespondent had some troubling mental health issues. We find noerror in the trial court's consideration of the evidence of therespondent's erratic and paranoid behavior. Nor do we find errorwith its conclusion that this evidence, combined with thepresence of Jennifer B. in the home, established an injuriousenvironment. Therefore, we affirm the trial court's adjudicationof neglect.

III. CONCLUSION

For the foregoing reasons, the judgment of the circuit courtof Peoria County is affirmed.

Affirmed.

SCHMIDT and BARRY, JJ., concurring.