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In re S.R.
State: Illinois
Court: 4th District Appellate
Docket No: 4-04-0072 Rel
Case Date: 06/25/2004

NO. 4-04-0072

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


 
In re: S.R. and D.R., Minors,
THE PEOPLE OF THE STATE OF ILLINOIS,
                      Petitioner-Appellee,
                      v.
CAROL REDER,
                      Respondent-Appellant.

 
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Appeal from
Circuit Court of
Champaign County
No. 03JA76

Honorable
Holly F. Clemons,
Judge Presiding.


JUSTICE COOK delivered the opinion of the court:

Respondent, Carol Reder, appeals the dispositional orderof the Champaign County circuit court adjudicating her two minorchildren neglected, declaring them wards of the court, and granting custody and guardianship to the Department of Children andFamily Services (DCFS). We affirm in part and reverse in part.

Carol is the adoptive mother of S.R., a girl (born August23, 1993), D.R., a boy (born May 20, 1996), and a third child not atissue in this appeal. S.R. and D.R. are half-siblings and have spenttheir childhoods together. Carol is divorced and appears from therecord not to have any current romantic attachments. She firstassumed care of S.R. as a foster parent, later adopting her. Therecord does not show when this happened or how she came to adopt theother children.

On October 17, 2003, S.R. was hospitalized at a facilitycalled the Pavilion because she had been leaving home, acceptingrides from strangers, not following directions, and endangeringherself. She was defiant and verbally abusive toward the Pavilionstaff at first, but her behavior improved after a couple of days. The staff determined that S.R. was no longer a danger to herself anddecided to discharge her.

S.R.'s case manager at the Pavilion, Phil Chmielewski,attempted to phone Carol, leaving a message on her home answeringmachine, but Carol did not return the call. On October 24,Chmielewski called DCFS to tell them that Carol refused to take S.R.back. Sheri Foley, a child protective investigator from DCFS,received a call on the agency's hotline saying that S.R. had beenlocked out of her home and could no longer return there. Foleytried to call Carol but was unable to reach her until October 25. Carol told Foley that S.R.'s behavior was out of control, and thatshe did not want to care for her anymore. Foley went to Carol's homeand spoke to S.R., learning that Carol had told S.R. that she wasgoing to be adopted by somebody else and would have to behave in hernew foster home.

On October 27, 2003, the State filed a petition seeking tohave S.R. and D.R. adjudicated neglected. The petition alleged thatS.R. was neglected by having been abandoned without a proper plan ofcare and that D.R. was in an injurious environment based on theneglect of his sister. The trial court held an adjudicatory hearingon December 8, 2003, and issued an order two days later finding thetwo minors neglected. After a disposi-tional hearing on January 14,2004, the court issued the order adjudicating the two minors wards ofthe court the next day. It is from this order that Carol appeals.

We begin our discussion by addressing an argumentapparently aimed at the trial court's jurisdiction over this case. Carol states that "[t]he record is silent as to whether [Carol's]former husband was an adoptive parent of S.R. and D.R. and thereforeentitled to notice." She cites a case saying that the State mustprovide notice to a minor's parents in juvenile delinquencyproceedings. In re C.H., 277 Ill. App. 3d 32, 35, 660 N.E.2d 545,547 (1995). That may be true, but nothing in the record suggeststhat Carol's ex-husband also adopted the children. Moreover, adispositional report prepared by DCFS states that S.R. had sometrouble adjusting to a foster family because she "had not previouslyhad a father in her life." If Carol intends to argue that thecourt's order is void because her ex- husband was not notified, wemust disagree in the absence of any suggestion that he was a parentof S.R. and D.R.

Before turning to the evidence actually presented in thetrial court, we must address Carol's argument that the court had aduty to discover certain other evidence. She argues that the courtshould have uncovered reports from Streamwood Hospital, where S.R.was previously hospitalized, and from S.R.'s school. These reportswould have showed, Carol suggests, that S.R. was considerably moreout of control than the evidence presented at the adjudicatoryhearing indicated. While it is true that the court has the duty toconsider a child's best interest in proceedings under the JuvenileCourt Act of 1987 (Act) (705 ILCS 405/1-1 through 7-1 (West 2002))(In re D.S., 198 Ill. 2d 309, 324, 763 N.E.2d 251, 259 (2001)), theAct does not impose any obligation on the court to do its own factualinvestigation. In re Ashley F., 265 Ill. App. 3d 419, 424, 638N.E.2d 368, 371 (1994). In any event, the issue in the adjudicatoryhearing was whether Carol abandoned S.R. The extent to which S.R.was out of control in Streamwood Hospital or in school would have hadlittle bearing on whether Carol abandoned her.

Carol's central contention on appeal is that the trialcourt's findings that S.R. and D.R. were neglected were against themanifest weight of the evidence. At an adjudicatory hearing, theState must prove neglect by a preponderance of the evidence. In reN.B., 191 Ill. 2d 338, 343, 730 N.E.2d 1086, 1088 (2000). We willnot reverse the trial court's determination unless its findings areagainst the manifest weight of the evidence, in that the factsclearly demonstrate that the court should have reached the oppositeresult. N.B., 191 Ill. 2d at 346, 730 N.E.2d at 1090.

Carol first asserts that the State did not sufficientlyprove the minors' ages. Both children were found neglected underprovisions defining a neglected minor as a "minor under 18 years ofage" who is subjected to certain conditions (705 ILCS 405/2-3(1)(a),(1)(b) (West 2002)), but the State did not explicitly presentevidence of how old they were. Without deciding the issue of whethera minor's age is an element that must be proved in an adjudicatoryhearing, we conclude after reviewing the record that sufficientcircumstantial evidence indicated that S.R. and D.R. were indeedminors.

The trial court found that S.R. was a neglected minor onthe basis that she was abandoned. See 705 ILCS 405/2-3(1)(a) (West2002). "Neglect" under the Act generally means "the failure toexercise the care that circumstances justly demand and encompassesboth wilful and unintentional disregard of parental duty." In reM.K., 271 Ill. App. 3d 820, 826, 649 N.E.2d 74, 79 (1995). When aparent leaves a child with another person under circumstancesestablishing that the parent no longer wishes to care for the child,this can support a finding of neglect, even where the child is notplaced in danger. See In re Walter B., 227 Ill. App. 3d 746, 755-56,592 N.E.2d 274, 281 (1992) (First District) (child left at policestation); In re J.M., 245 Ill. App. 3d 909, 921, 613 N.E.2d 1346,1355 (1993) (Second District) (child left at hospital).

The testimony at the adjudicatory hearing showed thatCarol told the case manager of the Pavilion facility, a DCFS childprotective investigator, and S.R. herself that she was unwilling tocare for S.R. any longer. Carol even went so far as to tell S.R.that she would be adopted by a new family. By the time of thehearing, held December 8, 2003, S.R. had been in foster care for morethan a month. Nothing indicates that Carol communicated to DCFS anydesire to regain custody of S.R. On this record, we cannot say thetrial court's finding as to S.R. was against the manifest weight ofthe evidence.

Carol points to portions of the dispositional reportprepared by DCFS in advance of the dispositional hearing as supportfor her argument that the trial court's finding was erroneous. According to the report, Carol contacted DCFS on December 23, 2003,to say that she wanted to try to have S.R. returned to her. Based onthis new information, DCFS recommended in the report that S.R. bereturned to Carol's custody. The problem with Carol's argument isthat because this information was not presented at the adjudicatoryhearing, it was not part of the evidence on which the court foundthat S.R. was neglected.

We now turn our attention to D.R. The State's petitionalleged that he was neglected by being a minor "whose environment isinjurious to his welfare when he resides with Carol *** based uponthe neglect to his sibling, [S.R.]" The State's theory, sometimesreferred to as "anticipatory neglect" (see In re Arthur H., 338 Ill.App. 3d 1027, 1036, 789 N.E.2d 890, 897 (2003)), is that becauseCarol neglected one child, she is likely to neglect her other childin the future. Although Illinois law recognizes such a concept,there is no per se rule that the neglect of one child establishes theneglect of another child in the same household. In re Edricka C.,276 Ill. App. 3d 18, 28, 657 N.E.2d 78, 84 (1995).

The concept of anticipatory neglect is based on theprovision of the Act establishing that proof of the abuse or neglectof one minor "shall be admissible evidence on the issue of the abuse[or] neglect *** of any other minor for whom the respondent isresponsible." 705 ILCS 405/2-18(3) (West 2002). Although somecourts have stated that abuse of a minor's sibling is prima facieevidence of the minor's neglect (Edricka C., 276 Ill. App. 3d at 28,657 N.E.2d at 84), we do not agree that this can be justified underthe statute.

When the General Assembly uses a particular phrase in oneprovision and different language in another, we must assume that itintended different results for each. In re K.C., 186 Ill. 2d 542,549-50, 714 N.E.2d 491, 495 (1999). Here, subsection (2) lists anumber of things that can be "prima facie evidence of abuse orneglect," for instance proof that a parent is a habitual drug user. 705 ILCS 405/2-18(2) (West 2002). Subsection (3), on the other hand,provides that proof of neglect of one child is "admissible evidence"that another was also neglected. 705 ILCS 405/2-18(3) (West 2002). Because of the close proximity of the statutory subsections, weconclude that the General Assembly must have wanted "admissibleevidence" to mean something other than "prima facie evidence." "Prima facie evidence" means "[e]vidence that will establish a factor sustain a judgment unless contradictory evidence is produced." Black's Law Dictionary 579 (7th ed. 1999). It seems logical that"admissible evidence" in this context means some evidence, but notnecessarily sufficient evidence to prove the allegation.

In this case, the record of the adjudicatory hearingcontains only limited references to D.R. Foley from DCFS stated thatshe visited Carol's home and saw a male child. Another DCFS employeetestified that she had arranged visits between S.R. and D.R. sinceS.R. entered foster care and that these visits occurred once a week. This evidence does not suggest that D.R. was placed in an injuriousenvironment. The only evidence of this, therefore, is Carol'sabandonment of S.R. In light of the statutory distinction discussedabove, we conclude that the trial court's determination that D.R. wasa neglected minor because his environment was injurious to hiswelfare was against the manifest weight of the evidence.

Carol asserts that the State improperly argued that D.R.should be found neglected because it was in his best interests to bewith his sister. We need not address this issue because the trialcourt improperly found D.R. to be neglected. If the State cannotprove abuse or neglect, the petition must be dismissed. N.B., 191Ill. 2d at 343, 730 N.E.2d at 1088-89. Absent a finding of neglect,the court had no authority to proceed to a dispositional hearing asto D.R. or to make him a ward of the court.

Finally, although Carol has not addressed the issue, wenote that the trial court acted properly in making S.R. a ward of thecourt and granting custody and guardianship of her to DCFS. Once theState has proven neglect under the Act, the court holds adispositional hearing to determine whether it is in the bestinterests of the minor that she be made a ward of the court. N.B.,191 Ill. 2d at 343, 730 N.E.2d at 1089. By the time of thedispositional hearing in this case, Carol had expressed her wish toregain custody of S.R. and DCFS had recommended that the court returncustody and guardianship to Carol. The court nonetheless determinedthat it was in S.R.'s best interests to be in the custody of DCFS. Given Carol's recent change of heart about wanting to care for herdaughter and her history of having trouble handling her behavior, itwas reasonable for the court to decide that S.R. would be better offin the care of DCFS for the time being.

In light of the foregoing, we affirm the trial court'sjudgment regarding S.R. As to D.R., we reverse the finding ofneglect, which necessarily invalidates the dispositional order as tohim.

Affirmed in part; reversed in part.

KNECHT, P.J., and STEIGMANN, J., concur.

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