No. 3--04--0674

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE McDADE delivered the opinion of the court:

The State filed a juvenile petition for wardship allegingthat three-month-old K.R. was abused by his father, Todd R., andneglected by his mother, respondent Caroline M. Followingadjudicatory and dispositional hearings, the trial court allowedthe petition and granted the Department of Children and FamilyServices (DCFS) guardianship with the right to place. Respondent appeals. She argues that (1) the finding of neglect was contraryto the manifest weight of the evidence, and (2) the dispositionalorder was an abuse of the trial court's discretion. We affirm.

On December 12, 2003, the State filed its petition forwardship based on allegations that respondent's home wasinjurious to K.R.'s welfare, Todd broke K.R.'s leg, and hospitalpersonnel found that K.R. had two broken ribs that could not haveresulted absent abuse. The petition further alleged that Toddhad a history of drug dealing and drug use, Todd was growingcannabis in the home, and both parents used cannabis.

The adjudicatory hearing was held on March 8 and June 28,2004. Respondent's mother, Pam Bryan, was the State's firstwitness. She testified that she observed a greenish bruise onK.R.'s chest when he was about six weeks old. Respondent toldBryan that Todd may have grabbed the baby too hard. About amonth later, Bryan observed a greenish discoloration on all ofthe nail beds on one of K.R.'s hands. Respondent told her thebaby's fingers got smashed, but she did not know how. She saidthe dog may have stepped on them. Subsequently, on December 5,2003, respondent telephoned Bryan to tell her that something waswrong with K.R. Bryan told respondent to take him to thehospital. She said she could hear Todd in the background, sayingthat the baby was not hurt that bad and they did not need to takehim to the hospital.

Bryan further related that respondent had telephoned her onprior occasions, when Todd pushed her down the basement stairswhile she was pregnant and when he "body slammed" her followingtubal ligation. Bryan said that respondent subsequently told herthat Todd had not pushed her down the stairs, but only pushed heragainst a door.

Respondent's sister, Anna Johnston, testified that she sawK.R. and respondent at the hospital on December 6, 2003. Shesaid respondent asked her to stay with K.R. while she and Toddwent home to clean up the marijuana and paraphernalia in thehouse. Before respondent and Todd could leave, the policearrived at the hospital and ordered them to return to K.R.'sroom. Johnston subsequently overheard respondent ask a friendwho was with her in K.R.'s room to remove the contraband from thehouse.

Peoria Police detective Kerrie Davis testified that sheinterviewed respondent at the police station on the afternoon ofDecember 6, 2003, after receiving a report from the hospital thatK.R. had a "bucket handle" fracture of the left tibia. Respondent told her that Todd watched K.R. while she worked from8 p.m. on December 4 until 3 or 4 a.m. the next morning. Respondent said K.R. was fine when she left for work, but Toddtold her when she got home that K.R. had been unusually fussythat night. Later, when respondent changed K.R.'s diaper, hescreamed. Respondent noticed that K.R.'s left leg was shiny,swollen and hot to the touch. Respondent asked Todd what hadhappened to the baby's leg, and he told her he had not noticedanything wrong. When respondent's ride arrived to take her towork, respondent asked him if he thought the baby should be takento the hospital. He thought it was a good idea. Respondent thentelephoned her mother, and her mother also said the baby shouldbe taken to the hospital. Respondent said she told hospitalpersonnel that K.R. did not roll over by himself, so she did notbelieve he had fallen. She opined that the dog was jealous ofhim. However, there were no bite marks to account for a biteinfection. Respondent then suggested that Todd had "played agame" by pulling K.R.'s foot up to his mouth. She denied,however, that the baby had cried out as if the "game" hurt him.

Davis subsequently interviewed Todd. Todd related that K.R.had been unusually fussy the night of December 4-5. He could notbe comforted and did not fall asleep until after midnight. Toddsaid he did not notice anything unusual about the baby's leg thenext morning. He initially had no explanation for the brokenbone. After Davis asked him to try to remember what might havecaused the injury, Todd related the foot-to-mouth "game." Davissaid she did not believe that the injury resulted from thatactivity, and she asked Todd to tell her the truth. Todd thensaid that he had twisted the baby's leg while changing hisdiaper. Later, Todd changed his story and told Davis that he hadtripped down some stairs while carrying K.R. on his shoulders. He said he gabbed one leg to keep K.R. from hitting the floor and"heard a loud pop."

Todd admitted to Davis that he was growing marijuana plantsin the home. He said he had more marijuana in his bedroom and abong in his closet. He gave Davis permission to remove thematerial from the home. Both Todd and respondent admitted toDavis that they occasionally smoked pot.

Respondent testified in the State's case. She denied thatK.R. ever had a bruise on his chest, and she denied any knowledgeof his broken ribs prior to receiving the hospital report. Respondent admitted making a statement to her mother that Toddmay have grabbed K.R. too hard, but attributed this to Todd beinga "new daddy" unsure of how to keep the baby from slipping in thetub. Respondent also denied that Todd ever hit or pushed herwhen she was pregnant. Asked whether Todd "body slammed" her,respondent said that Todd had "picked [her] up and sat [her] onthe couch" the day after tubal ligation surgery, and that he was"somewhat" angry. Respondent said she observed the bruising onK.R.'s fingernails and asked Todd about the condition, but hedenied knowing how that happened. She said that only "three anda half" fingernails were discolored, and she opined that the dogor her five- and seven-year-old children by her first husband mayhave been responsible.

On cross-examination, respondent admitted that Todd hadother children, but she said K.R. was the first child he hadlived with. She did not believe that Todd's caring for K.R.full-time was a problem.

The State's last witness was respondent's next-doorneighbor, Michelle Rogers. Rogers testified that on five or sixoccasions, respondent had come over to use her telephone to callher mother when Todd had physically abused her. Rogers alsowitnessed Todd mistreating his dog when she did not obey Todd'scommand to go inside. She further related that Todd had pickedup a lamp and thrown it at respondent when he came home one dayto find that Rogers and her sister were visiting respondent.Rogers said the lamp did not hit respondent, but almost hit K.R. To keep the situation from escalating, Rogers and her sister leftthe house. Rogers did not telephone the police for fear ofalienating respondent. When Rogers asked respondent why she didnot leave Todd, respondent said she loved him.

The State also introduced (1) certified court documents ofTodd's 1997 convictions of possession drug paraphernalia andpossession of cannabis with intent to deliver; (2) certifiedrecords of Todd's 2002 conviction of possession of drugparaphernalia; (3) police photographs of potted marijuana plantsfound on the floor of a bedroom with a playpen in respondent'shome on December 6, 2003; (4) photographs of a bong and a clay"hitter" pipe recovered from respondent's home on December 6,2003; (5) police lab reports of January 22, 2004, showing that2.7 grams of plant material removed from respondent's home testedpositive for cannabis; and (6) hospital records establishing that K.R. had a recent fracture to his left tibia and healingfractures to two ribs when he was received at the hospital onDecember 5, 2003, and that medical personnel had determined thatthe fractures were most likely nonaccidental injuries.

At the close of the State's case, both sides rested. Following arguments of counsel, the court found K.R. abused andneglected and ordered respondent to cooperate with DCFS pendingdisposition, which was set by agreement for a hearing on August2, 2004.

Respondent's caseworker, Lela Keyes, was the State's solewitness at the dispositional hearing. She stated that she wasaware of an incident between respondent and Todd on June 21,2004, resulting in a domestic battery police report and an injuryto respondent's right wrist. Respondent told the police that shehurt herself by "punching the floor" during an argument and didnot want to pursue charges against Todd. Keyes said Todd movedout of respondent's home for a few days but returned, and thecouple were residing together at the time of the hearing. Keyesalso testified that respondent had been cooperative with socialservices, although she had missed several required drug tests andone random drug drop tested positive for methamphetamine andanother showed "dilute." Keyes' social history report to thecourt contained 14 recommended services for the parents,requested that DCFS be awarded guardianship of K.R. with theright to place and recommended that both parents be found fit.

Testifying on her own behalf, respondent denied that she hadused methamphetamine. She stated that she "got distracted" andhad "a bad attitude" when the drug test came back positive. As aconsequence, she explained, she declined to give several randomdrops. Respondent further explained that the reason subsequentdrug tests showed a diluted sample was that she was a very activeperson and drank a lot of water. On cross-examination,respondent admitted that she went to the hospital emergency roomon June 21, 2004, because her ribs were hurt. She related thefollowing:

"Todd and I were in bed and he asked me to move away. Apparently, I didn't respect that, and he flipped me overonce or twice in the ribs, and then I left for the rest ofthe night."

Asked for further explanation, respondent said, "He tapped me. He made contact with my ribs." Pressed further, respondentadmitted that Todd had punched her in the ribs. She hadcontusions and bruising; however, x-rays revealed no fractures.

Following arguments of counsel, the court found respondentunfit to care for K.R., made K.R. a ward of the court and grantedDCFS guardianship. The court specifically noted that, withrespect to respondent, the evidence showed that K.R.'s bestinterest would be jeopardized if he were returned to her because,

"One, she was not able to control her own anger or manageher own ability to communicate, so she broke her own hand;and two, *** she continues, after she tells this court underoath that the incident was a wake-up call and that sheseparated from [Todd], under the circumstances to reunitewith him approximately seven days later."

Accordingly, the court ordered respondent to (1) execute releasesas requested by DCFS, (2) cooperate with DCFS and its designees,(3) obtain a drug and alcohol reassessment and complete anyrecommended treatment course, (4) perform random drug drops fourtimes a month, (5) submit to a psychological evaluation andfollow recommendations, (6) participate in counseling to addressanger management and domestic violence issues, (7) complete adomestic violence course, (8) attend weekly NA or AA meetings,and (9) attend scheduled visits with K.R.

Respondent initially contends that the State failed to provethat she neglected the minor. We disagree.

A child may be found neglected if his environment isinjurious to his welfare. 705 ILCS 405/2--3(1)(b) (West 2002). An "injurious environment" may be found where a parent hasbreached her duty to ensure a safe and nurturing shelter for thechild. In re N.B., 191 Ill. 2d 338, 730 N.E.2d 1086 (2000). Indetermining whether the State has proved an allegation of neglectby a preponderance of the evidence, the court must focus on thestatus of the child, not the acts or omissions of the parent. Inre Arthur H., 212 Ill. 2d 441, 819 N.E.2d 734 (2004). On review,this court will not disturb a trial court's finding of neglectunless it is contrary to the manifest weight of the evidence. Inre L.M., 319 Ill. App. 3d 865, 747 N.E.2d 440 (2001). A findingis contrary to the manifest weight of the evidence only where theopposite conclusion is clearly evident. Arthur H., 212 Ill. 2d441, 819 N.E.2d 734.

In this case, the court's adjudication of neglect was notagainst the manifest weight of the evidence. The State'sevidence showed that respondent tolerated, minimized or coveredup her live-in boyfriend's abuse of herself and her child. Despite respondent's denials, the evidence established that Toddwas a violent person and that respondent placed her child at riskby leaving him at home with Todd while she worked. It was notuntil Todd broke the minor's leg that respondent finally took himto the hospital. There, rather than focusing on the minor'scondition, she concerned herself with cleaning up evidence ofcannabis possession in the house. Even after learning that theminor had suffered three broken bones while in Todd's care,respondent came into court and said she did not consider Todd aproblem.

Based on the evidence, the court was not required to awaitfurther proof of who or what was causing injuries to the minorbefore it found him neglected. See Arthur H., 212 Ill. 2d 441,819 N.E.2d 734. The evidence manifestly supports the conclusionthat respondent's refusal to acknowledge that Todd posed a dangerto herself and her child made her home an "injurious environment"to the minor's welfare.

Next, respondent argues that the court erroneously found herunfit to care for the minor. She contends that the court shouldhave adopted her caseworker's recommendation that she be foundfit. Again, we disagree.

In determining whether a neglected minor's parent is fit tocare for the minor, the court must consider whether the "bestinterest of the minor will be jeopardized if the minor remains inthe custody of his *** parent." 705 ILCS 405/2--27(1) (West2002). "All evidence helpful" should be considered in reachingthis decision. 705 ILCS 405/2--22(1) (West 2002). On appeal, atrial court's determination of unfitness will be reversed only ifthe finding is against the manifest weight of the evidence. Inre Lakita B., 297 Ill. App. 3d 985, 697 N.E.2d 830 (1998).

Here, evidence admitted at the dispositional hearingindicated that, even though respondent was cooperating with hercaseworker, she persisted in tolerating Todd's violence towardher and minimizing the consequences. In addition,notwithstanding the excuses respondent gave the court for herpartial compliance with drug drops, the court was justified inrequiring her to obtain a reassessment to address drug dependencyissues. It is apparent that, until respondent takesresponsibility to eliminate drugs and domestic violence from herown life, she cannot provide a safe, nurturing environment forher son. Accordingly, the court did not err in findingrespondent unfit to care for the minor and granting guardianshipto DCFS with the right to place.

The judgment of the circuit court of Peoria county isaffirmed.

Affirmed.

O'BRIEN and HOLDRIDGE, J.J., concur.