No. 3--04--0961

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE SCHMIDT delivered the opinion of the court:

BACKGROUND

T.S-P. was born on August 28, 2003. On November 20, 2003,the State filed an amended juvenile petition alleging that theminor was neglected, in that her environment was injurious to herwelfare. Specifically, the petition alleged:

"(A) her parents were previously indicated by DCFSfor death by neglect and malnutrition in June of 2002;and

(B) this minor's mother was breast feeding theminor's deceased sibling, [M.S-P.], in early 2002, andthe mother was smoking cannabis 3 times per day whilebreast feeding; and

(C) the mother was told by her pediatrician inearly 2002 that she needed to supplement breast milkwith formula and the mother failed to follow thedirections and when that baby, [M.S-P.], died, [M.S-P.]was undernourished; and

(D) on 8/14/03, the father grabbed the mother bythe neck and punched her on the leg at a time when hewas intoxicated and she was pregnant; and

(E) on 6/4/02, the mother tried to commit suicide;and

(F) the father has convictions for '99 possessionof drug paraphernalia and '94 possession of cannabisand the mother has a '96 domestic battery and retailtheft; and

(G) the mother has a history of depression and hadmade suicide attempts or gestures and self-mutilationsprior to June 4, 2002; and

(H) after the death of [M.S-P.], the mothercontinued to use cannabis and this minor was born

cannabis-positive."

T.S-P.'s father answered the petition on December 11, 2003. He admitted the allegations in paragraphs (A), (E), (F), and (G). Regarding paragraph (B), the father admitted that the respondentwas breast-feeding M.S-P. at the time M.S-P. died, but denied theremainder of paragraph (B). Concerning paragraph (C), the fatheradmitted that the respondent was told by her pediatrician tosupplement breast milk with formula, but that she did not do so. However, the father alleged that he fed formula to M.S-P. onseveral occasions. He denied the remainder of the allegations inparagraph (C). The father admitted that the respondent waspregnant on August 14, 2003, but denied the remainder of theallegations in paragraph (D). Regarding paragraph (H), thefather neither admitted nor denied that the respondent continuedto use cannabis after M.S-P.'s death, and denied that T.S-P. wasborn cannabis positive because the minor's urine sample testednegative for cannabis.

On January 12, 2004, the respondent answered the petition. She denied paragraphs (B), (C), and (D), with the exception thatshe admitted that she was pregnant on August 14, 2003, when"there was a verbal argument between her and the father." Therespondent admitted the allegations in paragraphs (A), (E), (F),and (G), with the exceptions "that she did not know about the1994 possession of cannabis conviction of the father," and "thatepisodes of self-mutilation did not occur except for a suicideattempt." She stated that she lacked sufficient knowledge toeither admit or deny the allegations in paragraph (H).

The trial court held the hearing concerning the petition onMarch 16, 2004. At the beginning of the hearing, the Statesubmitted several exhibits. These documents showed that M.S-P.was born on February 1, 2002, at a weight of 2,265 grams and alength of 47 centimeters. M.S-P. died on March 5, 2002. Dr.Kent Harshbarger conducted an autopsy on M.S-P.'s body onMarch 6, 2002. At the time of the autopsy, M.S-P.'s body was 49centimeters long and weighed 2000 grams. Harshbarger wrote thefollowing summary in the autopsy report:

"The cause of death is undetermined but likelyrelated to poor nutritional support. The decedent wasunderweight and actually under the birth weight despitean increase in length. *** The sudden death of aninfant under one year of age which remains unexplainedafter a thorough case investigation *** falls under theclassification of 'SIDS'. In my opinion, this casedoes not fit the classification due to the underweightstatus but the cause of death remains undetermined."

The State's exhibits documented the respondent's history ofmental health problems. A hospital report from May 3, 1997,stated that the respondent had contemplated committing suicide byinhaling car exhaust. The respondent said that she had beendiagnosed with depression at the age of 14. This report listedthe respondent's self-mutilations in the form of cigarette andlighter burns, cuts on the arms and stomach, and a woundinflicted with a sewing needle to the left ankle. The respondentreported that she had attempted suicide by an overdose of drugson an unspecified earlier date.

On July 31, 1997, the respondent cut her left wristsuperficially with a small knife. She told the hospital staffthat she did not want to hurt or kill herself, but that thingswere not working out in her life.

On June 4, 2002, the respondent attempted suicide byingesting alcoholic beverages and an overdose of ibuprofen. Shesaid that she had attempted suicide because of her grief overM.S-P.'s death.

The State's exhibits also concerned a variety of otherallegations in the petition. Hospital documents showed thatbefore being discharged from the hospital after M.S-P.'s birth,the respondent was advised by the pediatrician to supplementbreast feeding with formula.

A hospital report stated that the respondent said she had afight with the father on August 14, 2003, in which he yelled ather, grabbed her by the neck, threw her to the floor, and punchedher on her left thigh and the left side of her abdomen. Therespondent told the hospital staff that the father had beendrinking. The staff also said that there were no visible bruiseson the respondent.

A lab report from the Illinois State Police showed that 1.3grams of plant material found on the respondent's person, whichwas submitted to the lab on March 8, 2002, tested positive forcannabis. The respondent's urine samples tested positive forcannabis on August 15 and 18, 2003. A meconium sample collectedfrom T.S-P. on August 29, 2003, tested positive for cannabis.

At the hearing, Michael Eddlemon testified that he was adetective with the Peoria police department. During Eddlemon'sinvestigation of M.S-P.'s death, he spoke with the respondent onMarch 5, 2002. The respondent told Eddlemon that she stoppedsmoking marijuana during her pregnancy with M.S-P., but had beensmoking approximately "[t]hree one-hitters" of marijuana per daybeginning about a week after M.S-P.'s birth. T.S-P.'s fathertestified that the respondent told him she smoked marijuana oncea few weeks before T.S-P.'s birth.

The respondent told Eddlemon that she fed M.S-P. with breastmilk supplemented with formula until she ran out of the formulasupplied to her by the hospital. She told Eddlemon that aftershe ran out of formula, "she was pretty much exclusively breastfeeding." She said that she could not remember the pediatricianinstructing her to supplement breast feeding with formula. Therespondent told Eddlemon that she had made arrangements to obtaina breast pump, but had not received it.

Officer Earnest McCall stated that on August 14, 2003, hewent to the respondent's apartment to investigate the altercationbetween the respondent and the father. The respondent toldMcCall that the father was "very intoxicated and they got into averbal argument." McCall remembered that the respondent said thefather had choked her and had either kicked or punched her.

The father testified that he and the respondent had anargument on August 14, 2003. He denied both being intoxicatedand touching the respondent during the incident. However, inrebuttal, McCall stated that when he arrived at the residence,the father appeared to be intoxicated because of "[the father's]slurred speech and unstableness standing up."

The trial court announced its decision on September 28,2004. The court found paragraphs (A), (E), and (F) to have beenproved because of the admissions of the respondent and the fatherin their answers to the petition. The court said that paragraph(B) was proved because of Eddlemon's testimony about therespondent admitting smoking marijuana and the Illinois StatePolice lab test showing the respondent's possession of marijuana.

Regarding paragraph (C), the court found that the fatherconfirmed that the respondent was instructed by the pediatricianto supplement breast feeding with formula. The hospital recordsalso showed that the respondent had been so instructed. Additionally, the autopsy report indicated the likelihood thatM.S-P. died of malnutrition. The court found, therefore, thatparagraph (C) had been proved.

Concerning paragraph (D), the court found McCall's testimonyto be more credible than the father's testimony. The courtreviewed the other documentary evidence concerning the domesticviolence incident on August 14, 2003, and determined that theparagraph had been proved.

The court found paragraph (G) to have been proved by thedocumentation of the respondent's history of depression, suicideattempts and gestures, and self-mutilations prior to June 4,2002. Regarding paragraph (H), the court considered the exhibitsshowing the respondent's positive urine tests for cannabis andthe positive test of T.S-P.'s meconium sample in determining thatthe paragraph had been proved.

Next, the court stated that there was a nexus between thepast environment in the home and the environment for T.S-P. Thecourt identified three specific issues that showed this nexus,which were (1) the respondent's history of mental healthproblems; (2) the recent domestic violence incident; and (3) thehistory of drug use in the home. The court found "that with thebackdrop of the circumstances surrounding [M.S-P.] that there is*** a nexus *** with respect to the proper parenting of children,and *** that with the more recent incidences *** with respect tothose three specific issues that there is an environment that isinjurious to the welfare of [T.S-P.]" The court adjudged,therefore, that T.S-P. was neglected.

The trial court made T.S-P. a ward of the court andappointed the Department of Children and Family Services as thechild's guardian. The respondent now appeals only from the trialcourt's order adjudicating the minor to be neglected.

ANALYSIS

The respondent contends that the trial court erred byadjudicating T.S-P. to be neglected because of an injuriousenvironment. Specifically, the respondent submits that, with thepossible exception of paragraph (H), the allegations in theState's juvenile petition concerned events that occurred prior toT.S-P.'s birth and therefore did not concern the minor'senvironment. Furthermore, the respondent asserts that the theoryof anticipatory neglect did not apply in this case because therewas no nexus between the State's allegations of a past injuriousenvironment for M.S-P. and T.S-P.'s environment at the time ofthe amended petition.

A child may be found neglected if her environment isinjurious to her welfare. 705 ILCS 405/2--3(1)(b) (West 2002). The State has the burden of proving allegations of neglect by apreponderance of the evidence. In re Faith B., 216 Ill. 2d 1,832 N.E.2d 152 (2005). On review, the trial court's finding of neglect will not be reversed unless it was against the manifest weight of the evidence, which means that the opposite conclusion was clearly  evident. Faith B., 216 Ill. 2d 1, 832 N.E.2d 152.

Generally, the neglect of a juvenile is defined as a failureto exercise the care that the circumstances warrant. In reArthur H., 212 Ill. 2d 441, 819 N.E.2d 734 (2004). Neglectincludes wilful as well as unintentional disregard of duty, andtakes its meaning from the context of the surroundingcircumstances. Arthur H., 212 Ill. 2d 441, 819 N.E.2d 734. Although an injurious environment does not have a fixeddefinition, it includes the breach of a parent's duty to ensure asafe and nurturing shelter for the minor. Arthur H., 212 Ill. 2d441, 819 N.E.2d 734.

The theory of anticipatory neglect is dependent upon theconcept of an injurious environment. Arthur H., 212 Ill. 2d 441,819 N.E.2d 734. Although the neglect of one child does notconclusively show the neglect of another child, the neglect ofone minor is admissible as evidence of the neglect of anotherminor under a parent's care. Arthur H., 212 Ill. 2d 441, 819N.E.2d 734; 705 ILCS 405/2--18(3) (West 2002). Anticipatoryneglect should take into account not only the circumstancessurrounding the previously neglected sibling, but also the careand condition of the child named in the petition. Arthur H., 212Ill. 2d 441, 819 N.E.2d 734. Under the theory of anticipatoryneglect, when faced with evidence of prior neglect by parents,the juvenile court should not be forced to refrain from actinguntil another child is injured. In re S.S., 313 Ill. App. 3d121, 728 N.E.2d 1165 (2000).

In this case, the record shows that T.S-P.'s environment wasinjurious to her welfare because of the respondent's mentalhealth problems, the domestic violence in the home, and theillegal drug use in the home. These factors showed a failure byT.S-P.'s parents to exercise the care warranted by the presenceof a newborn child. The parents exhibited both a wilful and anunintentional disregard of their duty toward the newborn, as wellas a failure to ensure a safe and nurturing shelter for theinfant.

Furthermore, evidence that the parents had neglected toprovide adequate nutrition for M.S-P., leading to the infant'sdeath, was admissible as evidence concerning an injuriousenvironment for T.S-P. In considering this evidence, the trialcourt correctly took into account not only the circumstancessurrounding the neglect of M.S-P., but also the care andcondition of T.S-P. After M.S-P. was neglected, the trial courtwas not required to refrain from acting until T.S-P. was injured. See S.S., 313 Ill. App. 3d 121, 728 N.E.2d 1165.

Under the circumstances of this case, we cannot say that theopposite conclusion from the trial court's ruling was clearlyevident. We hold that it was not against the manifest weight ofthe evidence for the trial court to adjudge T.S-P. to have beenneglected because of an injurious environment. Therefore, weaffirm the judgment of the Peoria County circuit court.

Affirmed.

HOLDRIDGE and LYTTON, JJ., concur.