2016 IL App (1st) 152034 No. 1-15-2034 Opinion filed March 9, 2016 THIRD Division ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re HARRIETT L.-B., a Minor, ) Appeal from the Circuit Court ) of Cook County. Respondent-Appellee ) ) (The People of the State of Illinois, ) No. 14 JA 1014 ) Petitioner-Appellee, ) ) The Honorable v. ) Richard A. Stevens, ) Judge Presiding. Tinisha L.-B., ) ) Respondent-Appellant). ) ______________________________________________________________________________
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Lavin and Pucinski concurred in the judgment and opinion.
OPINION
¶1 Mother/respondent-appellant Tinisha L.-B. (respondent) appeals from both the trial
court's adjudicatory order finding that her daughter, minor/respondent-appellee Harriett L.-B.
(Harriett), was neglected and its dispositional order declaring that respondent was unable and
unwilling to care for her. She contends that the trial court misapplied the doctrine of
anticipatory neglect, and that its findings based on medical evidence in the record were
contrary to the manifest weight of the evidence and in derogation of case law governing the 1-15-2034
practice of medicine as well as her constitutional rights regarding her own medical care. She
asks that we reverse, vacate or declare void "all [o]rders entered against her in this matter"
and remand for proceedings consistent with the immediate return home of Harriett. The
State and Harriett's public guardian have filed appellees' briefs. For the following reasons,
we affirm.
¶2 BACKGROUND
¶3 Harriett was born to respondent on August 20, 2014 via a home birth. The record reveals
that respondent had another child, D.K., born in December 2002, who was separated from
respondent when D.K. was two or three years old and who currently lives with her maternal
grandmother.
¶4 In mid-September 2014, the State filed a petition for adjudication of wardship and a
motion for temporary custody for Harriett, citing neglect due to injurious environment and
substantial risk of physical injury. The petition noted that Harriett was born at least one
month premature; that respondent tested positive for marijuana at Harriett's birth; that
respondent has epilepsy and seizures; that Harriett's father, Lyonal L.-B. (Lyonal), 1 refused
to cooperate with the Department of Children and Family Services (DCFS); that the parents
acted erratically at the hospital after Harriett's birth; and that respondent has another child not
in her care.
¶5 On September 18, 2014, the trial court conducted a temporary custody hearing, at which
both parents were present. Jerome Watkins, a DCFS child protective investigator, testified
that he was assigned to Harriett's case following a hotline call. Watkins stated that he spoke
1 Lyonal voluntarily acknowledged paternity of the minor (which was verified by testing) and has been married to
respondent since June 2014. He is not a party to this appeal.
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to a hospital social worker who confirmed Harriett was in the neonatal intensive care unit,
that respondent had experienced a seizure at home prior to giving birth, that the father had
been present but respondent reported that he "took his time calling for assistance," and that
respondent tested positive for marijuana. Watkins also discussed with the social worker that
hospital staff had some problems with the parents visiting the hospital, including their
leaving the hospital with Harriett's medical records and their refusal to return them. Watkins
then spoke with a doctor at the hospital who had cared for Harriett; although Harriett did not
test positive for marijuana, she had exhibited some withdrawal symptoms such as not feeding
well, which the doctor related to respondent's use of marijuana. Watkins also spoke to
Yvette Hughes, the building service coordinator of Lyonal's apartment building where he and
respondent lived. Watkins confirmed with her that the building was a senior citizens'
residence, that respondent was known to have seizures, and that there was some delay on
Lyonal's part in calling the ambulance on the day of Harriett's birth. Watkins further testified
that he visited with respondent at the hospital and with Lyonal at their apartment. With
respect to respondent, Watkins testified that she confirmed the information regarding
Harriett's birth but denied that she was a drug user, explaining that she had used marijuana
only once and it must have still been in her system. Watkins and respondent discussed her
history of seizures, and respondent provided him with the name of her doctor and the
medication she takes. With respect to Lyonal, Watkins testified that he went to the apartment
to conduct a home assessment but Lyonal did not permit it. Watkins returned some days
later with the police, whereupon Lyonal threatened him; when asked about the nature of the
threat, Watkins would not and/or could not recall it. Watkins stated he was still able to
conduct his home assessment and did not find any safety concerns. Finally, Watkins spoke
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to Harriett's maternal grandmother who cares for D.K. and who expressed concern to him
regarding respondent's ability to care for Harriett. Based on all this, Watkins took protective
custody of Harriett, assessing that she would not be safe in the care of the parents essentially
due to Lyonal's noncooperation and respondent's seizures. At the close of this hearing, the
trial court found that there was "more than sufficient evidence for a finding of probable
cause" of neglect in this case based on respondent's positive toxicology on the day of
Harriett's birth, combined with the information Watkins obtained from the doctor. The court
then went on to find that there was also "sufficient evidence" of the urgent and immediate
necessity to remove Harriett and place her in the temporary custody of DCFS, citing the
maternal grandmother's concerns, Lyonal's behavior, and the parents' actions at the hospital.
The court ordered service assessments be conducted for both Lyonal and respondent, as well
as supervised visitation with Harriett.
¶6 The cause then proceeded to an adjudicatory hearing. Yvette Hughes testified that she
was the resident service coordinator at the Minnie Riperton Apartments for seniors and
disabled tenants of the Chicago Housing Authority, coordinating social services for the
residents, including respondent and Lyonal, such as assisting with food, income, electricity
and obtaining medical insurance. Hughes stated that she witnessed respondent have seizures
on several occasions and called an ambulance each time to assist her. She recalled one
incident when she saw respondent have a seizure and hit the concrete. Hughes recounted that
she witnessed respondent have several seizures in the months of January, February, March,
April, May and June of 2014, and 7 to 10 seizures in July 2014, the month before Harriett
was born. Hughes noted that even though respondent would be taken to the hospital by
ambulance, she would walk home and return the same day. Respondent was usually alone
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when she had the seizures. Hughes averred that when she found out about respondent's
pregnancy, she met with her several times to assist her in obtaining a medical card and food.
She also met with Lyonal to assist him in obtaining income, as neither he nor respondent had
any. Hughes described that a few weeks later, they met again and Lyonal was "really angry"
that he had not received any money yet; he "yelled" at Hughes and ran out of her office.
Hughes further testified that on the day of Harriett's birth, she saw an ambulance take
respondent, who was holding the newborn while on a stretcher, from the apartment to the
hospital.
¶7 Watkins testified as to his visit with Lyonal at the apartment when police were present.
Just as during the temporary custody hearing, Watkins described that their conversation did
not "go well" and that Lyonal said "things that were not kind," but could not remember
exactly what these were; Watkins did state that Lyonal did not want to listen to anything he
(Watkins) had to say. Watkins then testified about a subsequent conversation the two had
some days later, when Watkins called to inform Lyonal about hearing dates. Watkins stated
that Lyonal responded he would come to court only via subpoena and immediately ended the
conversation. Watkins described that Lyonal then called him back the same day and
threatened to come to court and "take [him] out." Watkins at this time noted that this was the
same threat of physical violence Lyonal made when Watkins went to the apartment for the
home assessment, when police were called.
¶8 The trial court next accepted exhibits presented by the State, which included the
transcript of the temporary custody hearing, Harriett's medical records, and respondent's
medical records. Harriett's medical records revealed that she was born at home at 35 weeks'
gestation, that respondent tested positive for cannabis but she did not, and that she had
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hypothermia, hypoglycemia, sepsis and thickened frenulum of the upper lip; she was in the
hospital's special care nursery. Her records also noted several instances involving the parents
and hospital staff. For example, Lyonal visited Harriett on August 24, 2014, showed concern
and was appropriate with her, but smelled of alcohol and looked "unclean." On August 29,
2014, both respondent and Lyonal visited her; however, when told they had to wait for DCFS
clearance, Lyonal threatened to take Harriett "away from here." A social worker then tried to
calm Lyonal down; security was called and it was noted that Lyonal was
"aggressive/agitated" in dealing with DCFS. On August 31, 2014, Lyonal was told by
hospital staff that Harriett had lost 10 grams of weight, but was otherwise eating well.
Lyonal accused the nurse of not feeding Harriett and asked her if his "voice threaten[ed]" her,
if she was "going to get a gun and shoot" him, and mentioned something about "supremacy
issues." Also on that date, a nurse observed Lyonal feeding Harriett while she was flat on her
back and informed him that Harriett needed to be fed upright for safety. Lyonal became
defensive and told the nurse that he had raised seven children. On September 3, 2014, a
nurse discovered that Harriett's medical records were missing. She contacted the parents,
whereupon Lyonal wanted to know when Harriett would be discharged and told her that they
would bring the records back when she was ready to be discharged. The next day,
respondent returned Harriett's medical records to the hospital, but the footprint sheet was
missing. A nurse asked if they would return it, but Lyonal stated they would not because his
name was not listed as Harriett's father. Notations were also made in Harriett's medical
records in September 2014 stating that respondent and Lyonal were now barred from visiting
the special care nursery because of threats to hospital staff.
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¶9 Respondent's medical records revealed that she was admitted to the emergency room
repeatedly for seizures both before and during her pregnancy with Harriett. Hospital staff
each time recommended follow-up treatment and laboratory analysis of her medication
levels. For example, in February 2013, respondent was admitted following an incident in
which witnesses reported an altercation between Lyonal and respondent during which
respondent was pushed into a wall, struck her head and had a seizure; at the hospital,
respondent denied any recollection of the altercation. In January 2014, now pregnant with
Harriett, respondent was admitted twice for seizures; her medication levels were
subtherapeutic (indicating she was not taking sufficient medication for her seizures) and,
during one of these admissions, she refused to stay and wait for medication to be
administered. In March 2014, respondent was admitted for multiple seizures and told staff
that she was compliant with her medication, but then explained that she had run out of it two
days earlier. Lyonal told hospital staff he attempted to get her medication but was informed
that her insurance was not active. Respondent was placed on a "charity medication
program," but left the hospital against medical advice. In April 2014, respondent was
admitted for a seizure; records from the hospital noted that her "boyfriend" was abusive to
staff and had to be escorted out by security. Respondent refused to be admitted to the
hospital and left against medical advice; while waiting at the hospital for a ride home, she
suffered another seizure, again refused to be admitted and again left against medical advice.
On May 23, 2014, respondent, who was now 5½ months pregnant, was admitted for a seizure
but left against medical advice. Later that same day, she was admitted again, having had
another seizure, and refused any medication even after being informed about risks to her and
her baby. On July 9, 2014, respondent was admitted for a seizure, and her records indicated
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that she reportedly ran out of medication, she has been unable to fill her prescriptions, and
she admitted that she has not followed up with any doctor as directed upon her previous
admissions nor has she had any prenatal care or taken prenatal vitamins. On August 20,
2014, the day of Harriett's birth, respondent's medical records noted that she had a seizure
that day and was in "very poor prenatal care," having presented for only two prenatal visits
and never completing labwork or an ultrasound. Her pregnancy was also complicated by
preeclampsia. The records further noted that respondent provided "inconsistent information"
regarding her history, which included "a longstanding history of seizures" that "has been
poorly controlled due to patient noncompliance" and "chronically subtherapeutic" medication
levels. Respondent was "very agitated" and insisted that, if continually told she had to stay at
the hospital, she would " 'get up and walk the f*** up out of here,' " even after being warned
about the health risks of doing so. Respondent's seizures were classified as tonic clonic 2
epilepsy, and she reported that just a week before, she suffered a seizure with a postictal
period 3 of 10 minutes but had not presented for care. Respondent's medical records also
included a mother/baby psych assessment, which stated that respondent tested positive for
marijuana use and scant prenatal care, was noncompliant with medication and attending
scheduled appointments, and has sudden changes in mood and temperament. The assessment
further noted that she "has difficulty communicating cohesively" and "varies in response"
when asked questions, providing "different explanations of events" and taking "pauses in
middle of sentences," unable to form her thoughts. Regarding Harriett's home birth,
respondent described that the "baby started to 'push herself out' " and " 'wanted to get out
saying you doing something wrong and I need to get out now.' " Respondent at first reported
2 This is more commonly known as grand mal seizures. 3 This is the altered state of consciousness after an epileptic seizure.
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being in pain, then stated she had not experienced any pain at all, and explained she did not
want to go to the hospital or see a doctor during the birth. Rather, she waited until the baby
started to crown before asking her husband to call an ambulance. Similarly, regarding her
drug use, respondent at first denied using marijuana, but then stated she started smoking it
when she was 13 years old; she stated she stopped smoking it a year ago but then reported
she smoked it within the week prior to Harriett's birth.
¶ 10 At the close of the adjudicatory hearing, the trial court found that the State had "met [its]
burden of proof by a preponderance of the evidence," noting that this was "not really a close
case." The court then reviewed the evidence, noting that it was "more than sufficient to
establish anticipatory neglect." This included Hughes' testimony, which it found "was
credible" with respect to the fact that respondent was repeatedly having seizures, as
corroborated by the medical records presented. The court also noted that these records
demonstrated respondent "was not compliant" with her medical appointments or medication,
and that she was "self-medicating with marijuana." The court appreciated both respondent
and Lyonal’s "not being happy" with DCFS' involvement. However, it concluded that
Lyonal's "complete noncooperation with DCFS *** combined with his abusive attitude
toward hospital staff" and "the totality of the evidence here" supported its belief that "this
minor would be at risk of being neglected if the child had remained with the parents as
opposed to being taken into protective custody." Accordingly, the trial court issued an
adjudication order finding Harriet to be neglected due to an injurious environment based
upon anticipatory neglect.
¶ 11 The matter then proceeded immediately to a dispositional hearing. The State submitted
into evidence an Integrated Assessment (IA) conducted by DCFS on respondent. While the
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IA averred that respondent had visited Harriett prior to November 2014 and was otherwise
cooperative and respectful, it also stated that respondent exhibited "impaired judgment,"
citing as examples her prolonged illegal substance abuse, including while pregnant with
Harriett, and her having left D.K. home alone as an infant, leading to her removal. The IA
also revealed that five years ago, respondent had been diagnosed with schizophrenia and
bipolar disorder, but she had not received any treatment and there was no current diagnosis.
The IA noted that because respondent was not attentive to her own medical needs, it was
likely that she may not be able to adequately care for Harriett and described that if she were
to experience a seizure while caring for the child, she could possibly subject her to injury
(i.e., if holding her) or otherwise be unable to provide care for her. From all this, DCFS
recommended the following services for respondent: a psychiatric assessment, individual
therapy, a substance abuse assessment, parenting education, a domestic violence assessment,
child-parent psychotherapy (when deemed appropriate), visitation with Harriett and
compliance with medical and mental health treatment.
¶ 12 Carlos McFarlane, Harriett's case manager, testified that he was assigned in November
2014. Lyonal had already been assessed for services, and it was recommended that he
complete a psychiatric assessment and an integrated assessment interview. McFarlane stated
that Lyonal had repeatedly refused to participate in any services or come to court, and to date
he had not done so. In addition, neither Lyonal nor respondent had visited Harriett since he
was assigned to the case eight months ago. With respect to respondent, McFarlane testified
that she, too, had not to date participated in any of her recommended services; she had at first
indicated she would, but then stated she would not once Lyonal became involved in the
conversation. On one occasion when McFarlane went to the parents' apartment, respondent
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indicated she wanted to take care of Harriett, but Lyonal accused McFarlane of holding
Harriett illegally and said he would not participate in visits unless McFarlane left Harriett
with him. McFarlane did not speak with respondent again because he did not feel safe going
back to the apartment to meet with her. With respect to Harriett, McFarlane testified that she
lives with her foster mother, who is also her maternal aunt; they originally lived in an
apartment but recently moved in with Harriett's maternal grandmother who cares for
respondent's other child, D.K. Harriett was experiencing some "respiratory problems" of
late, but her foster mother obtained her prescribed medication and she is otherwise doing
well, developmentally on target and with no special needs. McFarlane recommended that
Harriett be adjudged a ward of the court.
¶ 13 At the close of the dispositional hearing, the State asked that Harriett be adjudged a ward
of the court based on a finding of unable, unwilling and unfit with respect to respondent and
Lyonal. The public guardian agreed with the State on this point, and following further
discussion about respondent in particular, asked that "she also be found unfit." Respondent,
meanwhile, asked the court "for a finding of unable only," arguing that no evidence had been
submitted demonstrating that she was unfit or unwilling to parent Harriett. 4
¶ 14 After considering all the statutory factors, the trial court found that "it is in the best
interest of the minor and the public that the minor be adjudged a ward of the Court." The
court noted that neither parent had been participating in any of the reunification services. It
also found McFarlane to be "very credible" and commended him for continually maintaining
communication with the parents to help them regain custody of Harriett. The court
concluded that, based on the evidence presented, respondent and Lyonal were "just not
4 For the record, Lyonal similarly asked for a finding of unable only.
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willing to participate, at this point, in any reunification services or visits with their child."
Accordingly, it held both respondent and Lyonal "unable for reasons other than financial
circumstances alone to care for, protect, train or appropriately discipline the child," and
further found them to be "unwilling to parent," but refused to find them unfit to parent
Harriett. The court set a permanency goal of return home pending a status hearing.
¶ 15 ANALYSIS
¶ 16 As noted, respondent presents two contentions on appeal. Her first focuses on the trial
court's adjudicatory finding that Harriett was neglected due to an injurious environment
based on anticipatory neglect. Relying principally on In re Arthur H., 212 Ill. 2d 441 (2004),
she asserts that the court's basis of "anticipatory neglect" is against the manifest weight of the
evidence because it applies only to cases where there is evidence of harm to a sibling of the
child at issue at the hands of the responsible parent and, as no evidence was presented that
Harriett was ever in respondent's care at the same time as her other child D.K., this doctrine
was inapplicable here. From this, she insists that the trial court's misapplication of the
doctrine requires reversal of her cause.
¶ 17 Our very court has just recently dealt with this precise matter in In re Jordyn L., 2016 IL
App (1st) 150956, a case which we find to be directly on point and wholly dispositive of
respondent's contention.
¶ 18 In Jordyn L., the trial court, following an adjudicatory hearing, found the minor to be
neglected due to injurious environment and abused due to substantial risk of physical injury
" 'under the doctrine of anticipatory neglect.' " Jordyn L., 2016 IL App (1st) 150956, ¶ 23.
On appeal, the respondent-mother, identical to respondent herein, argued that the trial court's
adjudicatory finding could not stand because it misapplied the concept of anticipatory
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neglect. See Jordyn L., 2016 IL App (1st) 150956, ¶ 31. Also citing Arthur H., she, too,
insisted that anticipatory neglect refers only to sibling neglect or abuse while in the care of
the parent at issue, that is, that a finding of neglect or abuse may only be found under this
concept if it is based upon the parent's similar behavior toward a sibling of the minor in
question. See Jordyn L., 2016 IL App (1st) 150956, ¶ 31. The respondent then concluded,
just as respondent here, that, because she was not the responsible parent for any sibling of
Jordyn who had been neglected or abused while in her care, 5 the trial court's findings were
automatically against the manifest weight of the evidence. See Jordyn L., 2016 IL App (1st)
150956, ¶ 31.
¶ 19 While we found the respondent's citation to Arthur H. in relation to the doctrine of
anticipatory neglect to be correct, we found her leap from the holding of that cause to her
assertion that the doctrine can only be applied in cases where the minor at issue has a sibling
for whom the parent at issue is responsible to be "entirely incorrect." See Jordyn L., 2016 IL
App (1st) 150956, ¶¶ 31-32. First, in examining Arthur H., the preeminent case on
anticipatory neglect, we noted its facts: a trial court had made findings of neglect premised
on anticipatory neglect as to the child at issue who resided with the father based upon what
occurred with several of that child's siblings who resided with the mother. See Jordyn L.,
2016 IL App (1st) 150956, ¶ 32 (citing Arthur H., 212 Ill. 2d at 468). The father appealed,
and our state supreme court reversed, finding that the State failed to prove the allegations of
neglect with respect to the named minor in relation to the father. See Jordyn L., 2016 IL App
(1st) 150956, ¶ 32 (citing Arthur H., 212 Ill. 2d at 477). The Arthur H. court discussed
anticipatory neglect and reiterated its primary basis, namely, that " ' "the juvenile court
5 Jordyn L. was the respondent's first and only child at that time.
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should not be forced to refrain from taking action until each particular child suffers an
injury." ' " Jordyn L., 2016 IL App (1st) 150956, ¶ 32 (quoting Arthur H., 212 Ill. 2d at 477,
quoting In re Brooks, 63 Ill. App. 3d 328, 339 (1978)). It then made specifically clear that
the only reason for its reversal was the specific circumstances presented with respect to the
named child which, in the court's view, amounted only to speculation of a risk of harm
involving the father (rather than the nonresidential mother) and, thus, failed to sustain the
State's burden of proof as to the father. See Jordyn L., 2016 IL App (1st) 150956, ¶ 32
(citing Arthur H., 212 Ill. 2d at 477-78).
¶ 20 The respondent in Jordyn L., just as respondent here, attempted to blindly leap from the
legal principles espoused in Arthur H. to the conclusion that anticipatory neglect could only
be applied in cases where, as there, the minor at issue has siblings and the parent at issue is
responsible for them, thereby exclusively linking this doctrine to a concept of transference,
i.e., to be applicable, the minor must have siblings who were neglected or abused while in the
parent's care. See Jordyn L., 2016 IL App (1st) 150956, ¶ 33. In direct contradistinction, we
immediately refuted any transference argument. See Jordyn L., 2016 IL App (1st) 150956, ¶
33.
¶ 21 Instead, we honed in on the broader discussion of anticipatory neglect as presented in
Arthur H. and its progeny. See Jordyn L., 2016 IL App (1st) 150956, ¶ 34. That is, we noted
that the theory the respondent was presenting was novel and may have some basis in that
anticipatory neglect does, indeed, consider the neglect or abuse inflicted on a sibling of the
minor at issue in determining whether to impose a similar finding with respect to that minor.
See Jordyn L., 2016 IL App (1st) 150956, ¶ 34. However, it is not so limited; that
consideration is only a small one involved in a much bigger picture that must focus on the
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minor at issue. See Jordyn L., 2016 IL App (1st) 150956, ¶ 34. As our supreme court stated,
" '[u]nder the anticipatory neglect theory, the State seeks to protect not only children who are
the direct victims of neglect or abuse, but also those who have a probability to be subject to
neglect or abuse because they reside, or in the future may reside, with an individual who has
been found to have neglected or abused other children.' " Jordyn L., 2016 IL App (1st)
150956, ¶ 34 (quoting Arthur H., 212 Ill. 2d at 468). Thus, we concluded, anticipatory
neglect protects both victims of neglect or abuse and those who may become neglected or
abused. See Jordyn L., 2016 IL App (1st) 150956, ¶ 34. And, as such, while evidence of
neglect or abuse of a sibling is an important consideration, we found that it is not
determinative or conclusive. See Jordyn L., 2016 IL App (1st) 150956, ¶¶ 34-35 (there is no
per se rule that neglect or abuse of one child conclusively establishes, or does not establish,
the neglect or abuse of another; it amounts only to admissible evidence). Rather, what is
more key is the " ' "care and condition of the child in question," ' " which is to be the central,
and primary, focus. Jordyn L., 2016 IL App (1st) 150956, ¶ 34 (quoting Arthur H., 212 Ill.
2d at 468, quoting In re Edward T., 343 Ill. App. 3d 778, 797 (2003)) (neglect or abuse of a
sibling "becomes incredibly less important than what is occurring with, and to, the specific
minor in question" (Jordyn L., 2016 IL App (1st) 150956, ¶ 35)); see also In re Edricka C.,
276 Ill. App. 3d 18, 26 (1995).
¶ 22 Based on all this, we concluded that anticipatory neglect, then, is "not only a legal
principle which seeks to protect those children who have a probability of being subject to
neglect or abuse from an individual who has been found to have neglected or abused another
sibling child, but also, and ultimately, as a method to protect, additionally, those children
who are direct victims of neglect or abuse." Jordyn L., 2016 IL App (1st) 150956, ¶ 35
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(citing In re Kenneth D., 364 Ill. App. 3d 797, 801 (2006)) (regardless of what has occurred
with a sibling, a trial court need not wait until the child named in the petition becomes a
victim or is permanently emotionally damaged to remove him); see also In re M.K., 271 Ill.
App. 3d 820, 826 (1995) (emphasizing that simply an injurious environment or substantial
risk of harm is required to find neglect or abuse and, once found, there is no need to wait for
child to actually be harmed); accord In re D.W., 386 Ill. App. 3d 124 (2008); In re T.B., 215
Ill. App. 3d 1059, 1062-63 (1991); In re A.D.R., 186 Ill. App. 3d 386, 393-94 (1989).
Accordingly, we rejected the respondent's limited interpretation and specifically held that
"[t]o interpret anticipatory neglect as applicable only to children who have siblings would
cause such a narrow interpretation of the concept as to render it absurd, something we will
not do in the critical context of child custody cases." Jordyn L., 2016 IL App (1st) 150956, ¶
36. Ultimately, the key issue was the minor's best interest in light of the circumstances
presented and, based on the record before us, we found that anticipatory neglect had been
properly applied regardless of the fact that no evidence had been submitted regarding any
sibling of the child at issue. See Jordyn L., 2016 IL App (1st) 150956, ¶ 36 (declaring trial
court's finding that child was neglected due to injurious environment and abused due to
substantial risk of physical injury based on anticipatory neglect to be proper, even though
minor was only child, as based on record presented, which included instances of the
respondent's aggression, violence towards others, refusal to follow safety plans, and failure to
complete services).
¶ 23 The instant cause mirrors Jordyn L. and merits the same result. Respondent here makes
the same argument regarding anticipatory neglect, namely, that because, at the time of
Harriett’s removal, she was not responsible for a sibling of Harriett’s, anticipatory neglect
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could not be used as a basis for the trial court’s finding of neglect due to injurious
environment. Just as in Jordyn L., we will not limit the doctrine of anticipatory neglect in
such a narrow manner. That D.K., who is 11 years older than Harriett, was not in
respondent’s care at the time Harriett was removed for neglect is not dispositive of anything–
at best, it is a factor of interest in this cause, but at worst, it is nothing more than irrelevant.
This is because the key here is what was occurring with, and to, the specific minor at issue in
the petition: Harriett. She was the trial court’s central focus, not D.K. nor D.K.’s presence or
absence in respondent’s home. In direct contradistinction to respondent’s insistence, under
the doctrine of anticipatory neglect, Harriett’s removal was not required to be premised upon
a finding that respondent had also neglected or abused D.K. while D.K. was in her home with
Harriett or, for that matter, that she had ever neglected or abused D.K. As Jordyn L. makes
clear, anticipatory neglect can be the premise of such a finding in sibling situations, but it is
more broadly, and just as equally, applicable as a method to protect those children who are
direct victims of neglect or abuse, regardless of what has happened–if anything–to their
siblings–if any.
¶ 24 Accordingly, for these reasons, we find, contrary to respondent’s contention, that the trial
court did not in any way misapply the doctrine of anticipatory neglect in the instant cause.
Rather, it was completely applicable and the trial court did not err in using it as the basis for
its finding that Harriett was neglected due to injurious environment.
¶ 25 Respondent’s second, and final, contention on appeal is that the trial court's findings that
were based on medical evidence in the record were contrary to the manifest weight of the
evidence and in derogation of Illinois case law governing the practice of medicine as well as
her own constitutional rights. First, in stating that there was a "lack of medical evidence to
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support the findings," respondent notes that the evidence showed Harriett's health was
normal, having not tested positive for marijuana at birth and otherwise testing normal
regarding other bodily functions, including her cardiopulmonary, respiratory and
neurological function. Next, she asserts that she was an able and willing parent, as the
evidence demonstrated she visited Harriett, took her to the hospital, consented to her
vaccination, held her and was otherwise respectful and considerate to hospital and DCFS
staff. Finally, she insists that she was compliant in her medication and acted within her own
rights regarding her medical care, with no testimony from any medical experts presented to
the contrary. However, we find that respondent mischaracterizes a good portion of the
evidence presented by not rendering a full and fair representation of its totality and, based
upon our thorough review of the record, we conclude that the trial court's findings were
proper and supported by the evidence.
¶ 26 In this second contention, respondent lumps together the trial court's adjudicatory finding
of Harriett's neglect due to injurious environment with its dispositional determination that
respondent was unable and unwilling to parent her, declaring that neither of these was
supported by the evidence presented. For the record, however, we note that this is a
bifurcated or two-step process, where abuse or neglect of the child is determined first, and
then her status in relation to the parent is then analyzed. See In re Prough, 61 Ill. App. 3d
227, 231-32 (1978). Accordingly, we turn to the adjudication phase first. Briefly, "neglect,"
as was found here at the adjudicatory stage, is the failure to exercise the care that
circumstances justly demand, and encompasses both willful and unintentional disregard of
parental duty. See Jordyn L., 2016 IL App (1st) 150956, ¶ 28 (citing In re Sharena H., 366
Ill. App. 3d 405, 415 (2006)). A neglected minor includes a child whose environment is
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"injurious" to her welfare, which has been interpreted as the breach of a parent's duty to
ensure a safe and nurturing shelter for that child. See Jordyn L., 2016 IL App (1st) 150956, ¶
28 (citing In re Kamesha J., 364 Ill. App. 3d 785, 793 (2006)). These concepts are
amorphous, and cases involving such allegations are sui generis and must be decided on the
basis of their unique facts, including consideration of a parent's past conduct, even a woman's
behavior during her pregnancy, to determine whether an injurious environment, and thus
neglect, exists for a child after its birth. See Jordyn L., 2016 IL App (1st) 150956, ¶ 29; see
also In re J.W., 289 Ill. App. 3d 613, 618 (1997). Upon review of a finding of neglect, which
the State must prove only by a preponderance of the evidence, we give deference to the trial
court and will not reverse its determination unless it is against the manifest weight of the
evidence. See Jordyn L., 2016 IL App (1st) 150956, ¶ 29 (and cases cited therein, noting that
trial court has broad discretion and there is strong and compelling presumption in favor of its
decision in child custody matters).
¶ 27 In the instant cause, the trial court's adjudicatory finding of neglect based on injurious
environment was not against the manifest weight of the evidence. Rather, just as the trial
court stated, we too find that this was "not really a close case." First, Hughes, whom the trial
court found to be quite credible, testified that, as the resident services coordinator at
respondent's apartment building, she had witnessed respondent have seizures on several
occasions, many of them throughout the months she was pregnant with Harriett and 7 to 10
of them in the month just before her birth. Hughes called an ambulance each time she
witnessed one of these seizures but respondent, who was usually alone when the seizures
took place, did not stay at the hospital but, rather, would walk home the same day. Hughes
also testified as to Lyonal's aggressive attitude. Watkins, Harriett's DCFS investigator,
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corroborated Hughes' description of Lyonal as he discussed multiple aggressive meetings
between them, including one where Watkins had to call the police over a threat of physical
harm made by Lyonal. In addition, the court examined both Harriett's medical records and
respondent's medical records, of which it took extensive note in its decision. Harriett's
records demonstrated, contrary to respondent's insistence, that, while she did not test positive
for cannabis upon birth and was otherwise normal, she was premature and had hypothermia,
hypoglycemia, sepsis and thickened frenulum of the upper lip. Because of this, Harriett was
placed in the special care nursery upon her admission to the hospital. Her records further
recorded several instances of disturbances from Lyonal, including threats of her removal,
aggressive and agitated behavior, accusations, inappropriate care and threats of violence.
And, respondent and Lyonal removed Harriett's medical records from the hospital, refusing
to return them until Harriett was released to their care and finally returning them, but with a
page missing.
¶ 28 Even more telling were respondent's own medical records, upon which the trial court
focused during its adjudicatory finding. These indicated a repeated pattern of respondent,
both before and during her pregnancy with Harriett, being admitted to the emergency room
following a seizure, hospital staff finding subtherapeutic medication levels in her system, and
respondent refusing treatment and leaving against medical advice, only to return to the
hospital a short time later–sometimes on the same day–having had another seizure.
Respondent's records also show that she has repeatedly admitted to being noncompliant with
both her medication and any follow-up care ordered. She reported she was unable to fill her
prescriptions because she did not have insurance or it was not active, but she had been placed
on a charity medication program by the hospital. Respondent's seizures were not minor but,
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rather, classified as tonic clonic epilepsy; she admitted that just a week before Harriett's birth,
she experienced such a seizure and was in an altered state of consciousness for at least 10
minutes following it, but never presented for care. She also failed to obtain any prenatal
care, save for two visits, and did not complete any labwork or an ultrasound during her
pregnancy with Harriett. Not only was her pregnancy complicated by preeclampsia, but
respondent had a home birth after waiting until the baby crowned before calling for an
ambulance. Moreover, respondent tested positive for marijuana when Harriett was born. She
insisted she had stopped smoking the drug a year before, but later admitted to hospital staff
that she had smoked it the week before Harriett's birth. And, in respondent's mother/baby
psych assessment, notations were made about her sudden changes in mood and temperament,
her difficulty in communicating cohesively, and her inability to form her thoughts while
pausing in the middle of sentences and providing different explanations of the same events.
¶ 29 All this clearly establishes, as the trial court found, that there was "more than sufficient"
evidence to support a finding of neglect due to injurious environment. Contrary to
respondent's assertions, Harriett was not born without health concerns, and she herself was
not compliant in her medication. This evidence further raised concerns about respondent's
ability to ensure a safe and nurturing shelter for Harriett, as demonstrated by her sudden
mood changes, her inability to form cohesive thoughts and her drug use, along with her
history of epilepsy and its effects on respondent. Accordingly, based on the unique facts of
this cause, we find that the trial court's adjudicatory finding of neglect due to injurious
environment was not contrary to the manifest weight of the evidence.
¶ 30 Having discussed the adjudicatory phase of Harriett's cause, we now turn to the
dispositional order entered herein, which comprises a somewhat different analysis. Once a
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child has been adjudged neglected and/or abused, a trial court may commit her to wardship
upon a determination that the parent is either unable or unwilling or unfit, for some reason
other than financial circumstances alone, to care for, protect, train or discipline the child and
that the health, safety, and best interests of the child will be jeopardized if she remains in the
custody of the parent. See Kamesha J., 364 Ill. App. 3d at 795; see also 705 ILCS 405/2-
27(1) (West 2014). Any one of these three grounds alone–either unable or unwilling or
unfit–provide a proper basis for removal. See In re Lakita B., 297 Ill. App. 3d 985, 992-93
(1998). The trial court's determination regarding this, similar to an adjudicatory finding of
neglect or abuse, will be reversed only if the factual findings at the dispositional hearing are
against the manifest weight of the evidence or if the court abused its discretion by selecting
an inappropriate dispositional order. See Kamesha J., 364 Ill. App. 3d at 795.
¶ 31 In regards to the issues she raises with respect to this phase of Harriett's cause, we note,
as a threshold matter, that respondent has essentially forfeited any challenge to the
dispositional order in this cause. As we noted earlier, following Harriett's adjudicatory
hearing and finding of neglect based on injurious environment, the cause immediately
proceeded to a dispositional hearing. At its close, respondent asked the trial court that it
enter "a finding of unable only," arguing that no evidence had been submitted demonstrating
that she was unfit or unwilling to parent Harriett. The trial court found her both unable and
unwilling, but not unfit. Accordingly, then, respondent conceded that she is unable to parent
Harriett. A finding on this ground alone is sufficient to uphold a trial court's dispositional
order. See Lakita B., 297 Ill. App. 3d at 992-93. Therefore, with respondent's concession
that she is unable to parent Harriett, any current challenge to the trial court's dispositional
order is waived and any issue regarding the trial court's additional finding that respondent
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was unwilling is moot. See Lakita B., 297 Ill. App. 3d at 992-93 (holding that issue of
whether trial court properly found mother to be unfit to care for her children was moot where
she conceded that the court properly found her unable to care for them); accord In re J.B.,
332 Ill. App. 3d 316, 321-22 (2002) (where father conceded he was unable to care for minor,
issue of whether the trial court's additional finding that he was also unfit was moot); In re
M.B., 332 Ill. App. 3d 996, 1004 (2002) (where mother only challenged the unfitness finding
but did not assert error regarding the trial court's determination that she was unable, issue of
whether unfitness finding was proper was moot).
¶ 32 Even if not moot, the evidence presented in this cause was nonetheless sufficient to
support the trial court's determination of both unable and unwilling here. Respondent's IA,
which was admitted during that dispositional hearing, made clear that, while she had visited
Harriett prior to November 2014, she had not done so since then. This was corroborated by
McFarlane, Harriett's case manager, who stated almost eight months had passed without a
visit. The IA further revealed that respondent exhibited "impaired judgment," had long ago
been diagnosed with schizophrenia and bipolar disorder but did not receive treatment, and
was inattentive to her own medical needs, making it likely that she could not adequately care
for Harriett, particularly if she were to experience a seizure while holding her or caring for
her. The IA recommended various services for respondent, including psychiatric, substance
abuse and domestic violence assessments, individual therapy, child-parent psychotherapy,
visitation with Harriett and compliance with medical and mental health treatment.
McFarlane also testified that, while she at first indicated she wanted to take care of Harriett
and would participate in services, respondent later told him she would not and, in fact, had
not performed any of the recommended services.
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¶ 33 Clearly, as the trial court found here, respondent has not participated in any service
recommended to her in an effort to be reunited with Harriett. She has exhibited no
willingness to do so, nor to even visit her child. Based on all this, we find that the trial
court's determination that respondent was unable and unwilling to parent Harriett was not
against the manifest weight of the evidence.
¶ 34 As a final note, we wish to comment directly to respondent's constitutional arguments, as
she devotes a considerable portion of her appellate and reply briefs to these concerns. Citing
cases in line with Roe v. Wade, 410 U.S. 113 (1973), respondent insists that she has "a
protected constitutional right pursuant to the privacy penumbra, to make decisions regarding
her own medical care," and that there is no legal duty for her or any woman in this state to
have medical or prenatal care at all. From this, she contends that she should not have had
findings made against her by the trial court as a consequence of her acting within her
constitutional rights.
¶ 35 Respondent is correct that a woman, even one who is pregnant, has the right to refuse
medical treatment (In re Brown, 294 Ill. App. 3d 159, 170-71 (1997)); and, indeed, there is
no recognized cause of action for a minor seeking damages from a mother for prenatal
injuries (Stallman v. Youngquist, 125 Ill. 2d 267, 275 (1988)). However, the issue here, over
which respondent glosses, is not what her medical rights are. Rather, the issue is whether her
conduct, including her past conduct while pregnant, provides a sufficient basis upon which
the trial court could find that Harriett is a neglected minor meriting her removal from
respondent's care. The trial court found, with ample support in the record, that Harriett was
neglected due to injurious environment and that her removal was necessary because
respondent was unable and unwilling to parent her. That respondent does not want to subject
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herself to doctors or their medical care and chooses instead to have repeated grand mal
seizures accompanied by postictal periods of altered consciousness without any medical
assistance to stop them is her concern, as is her decision not to participate in any of the
services DCFS has recommended for her reunification with Harriett. However, that
respondent's conduct in making these choices affects the security and welfare of this minor
child who is unable to care for herself and who would clearly be at serious risk at this point
in time if in respondent's custody is our concern, and one which we do not take lightly.
Whatever respondent's medically related constitutional rights are, they do not override
Harriett's rights to a safe and nurturing environment. The trial court's determinations in this
cause were wholly proper based on the circumstances presented.
¶ 36 CONCLUSION
¶ 37 Accordingly, for all the foregoing reasons, we affirm both the trial court's adjudicatory
order finding that Harriett was neglected due to injurious environment based on anticipatory
neglect and its dispositional order finding that respondent is unable and unwilling to parent
Harriett at this time.
¶ 38 Affirmed.