In re K.F.

2023 IL App (1st) 220816

• Court: Appellate Court of Illinois
• Decided: January 23, 2023
• Docket: 1-22-0816
• Status: Published

Opinion

2023 IL App (1st) 220816 No. 1-22-0816 Opinion filed: January 23, 2023

First Division ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT ____________________________________________________________________________

In re K.F. and A.F. ) Appeal from the Circuit Court ) of Cook County. (The People of the State of Illinois, ) ) Petitioner-Appellee, ) ) v. ) ) No. 21 JA 1009-20 Aylissa F. and John W., ) ) Respondents ) ) (Aylissa F., Respondent-Appellant)). ) The Honorable ) Levander Smith, Jr., ) Judge Presiding. ____________________________________________________________________________

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Lavin and Hyman concurred in the judgment and opinion.

OPINION

¶1 Aylissa F. (Aylissa) appeals from the adjudication orders finding her two minor children

neglected due to an injurious environment under section 2-3(1)(b) of the Juvenile Court Act of

1987 (Act) (705 ILCS 405/2-3(1)(b) (West 2020)), as well as from the subsequent dispositional

orders making the minors wards of the court. For the following reasons, we affirm the trial court’s

orders. 1-22-0816

¶2 I. BACKGROUND

¶3 Aylissa is the mother of K.F., a boy born in January 2016, and A.F., a daughter born in

August 2019. On October 28, 2021, the State filed petitions for adjudication of wardship for both

minors, alleging they were neglected under the Act due to an injurious environment and because

they were at a substantial risk of physical injury. The State alleged the following supporting facts:

“On or about October 7, 2020, mother’s paramour displayed violent

behavior in the home. Natural mother has continued to allow this

paramour to have contact with the minors and on 10/5/21, admitted

to using illegal drugs with him. On or about 10/15/21, mother’s

other paramour drove his car with mother in it into a tree

immediately after expressing suicidal ideations. Natural mother

continues to have contact with this paramour as well. Natural mother

and putative father have a history of domestic violence. Natural

mother has a history of illegal drug use and has tested positive for

cocaine, heroin and hydromorphone multiple times in September

and October 2021. The identity and whereabouts of putative father

are unknown.” 1

¶4 The State simultaneously filed motions for temporary custody of both minors. Following a

temporary custody hearing on November 10, 2021, the trial court entered orders placing the minors

in temporary custody of the DCFS Guardianship Administrator.

1 In March 2022, there was a paternity finding that John W. was K.F.’s father. Jonathan T. was later identified as the putative father of A.F. Neither father is a party to this appeal.

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¶5 A. Documentary Evidence Admitted at the Adjudicatory Hearing

¶6 On May 10, 2022, the court conducted an adjudicatory hearing. Without any objection from

Aylissa’s counsel, the court admitted two sets of documentary evidence: records from Treatment

Alternatives for Safe Communities (TASC) (exhibit 1) and records from the Gateway Foundation

drug treatment facility (Gateway) (exhibit 2).

¶7 TASC records reflected that a saliva specimen collected from Aylissa on September 24,

2021, tested positive for opiates, cannabinoids, cocaine, and heroin. A sample collected on October

6, 2021, tested positive for alcohol, opiates, cocaine, and morphine. A sample collected on October

21, 2021, tested positive for opiates and cannabinoids.

¶8 Gateway’s records indicated that Aylissa was assessed on October 11, 2021, admitted to a

treatment program the next day, and that she was discharged on November 4, 2021. At her

assessment, Aylissa reported that she had “more than a decade of heroin use,” having first used it

when she was 18. 2 She reported that she abstained from heroin between 2009 and 2021, before

relapsing.

¶9 As of October 11, 2021, Aylissa reported that for the last three months she was using “one

bag a day” of heroin via “inhalation” and that her last use was on October 8, 2021. The reported

“Method of Acquiring Substance” was a “Friend.” Under “Associated Relapse Factors,” Gateway

reported that Aylissa’s “Partner is currently usings drug/alcohol” but the same record stated that

“[h]e’s now her ex.”

¶ 10 Gateway records also reflect that Aylissa reported: “The landlord saw me getting high and

called DCFS, we have a case plan in place and my children stay with a family friend, I get to see

2 The record reflects that Aylissa was born in 1986 and was 35 years old as of October 2021. -3- 1-22-0816

them everyday.” She expressed a desire for treatment in order to be a better parent and have her

children return home.

¶ 11 On October 12, 2021, Gateway staff diagnosed Aylissa with “Heroin use disorder, severe,”

“opioid dependence,” and “Opioid use disorder, severe.” Gateway recommended intensive

outpatient treatment, stating that “client requires on-going engagement in an IOP setting to support

abstinence efforts” and that “[f]requent clinical interventions [are] required multiple times a week

to support gaining insight and enhancing motivation towards sobriety.” Gateway opined that

“[f]requent monitoring [is] required to reduce the risk of continuing harmful use.”

¶ 12 An October 28, 2021, case management note from a Gateway clinician, Lernard Person,

reflected that Aylissa said she “wanted to get into a detox after getting a referral from DCFS

Agent.” Person referred her to St. Anthony Hospital and advised if she could not get in there, she

should go to any hospital emergency room and request a detox.

¶ 13 In the final case management note, dated November 4, 2021, Person recorded that Aylissa

was discharged from Gateway as she “chose to check into detox at the advice of [an] outside

agent.” No other evidence at the adjudicatory hearing showed whether Aylissa received any

subsequent substance abuse treatment.

¶ 14 B. Testimony at the Adjudicatory Hearing

¶ 15 Lanese Kincaid-Turner, a DCFS investigator, testified that she spoke to Aylissa by

telephone on October 7, 2020 regarding an incident with a man named Mark, in which her home

was damaged. Aylissa called police and the minors were taken to the hospital. Following the

incident, Aylissa and the children went to live with her sister. Kincaid-Turner did not do further

investigation.

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¶ 16 Officer Patrick Flynn of the Schiller Park Police Department testified that on October 15,

2021, he responded to the scene of a single vehicle accident where a car struck a tree. Aylissa was

a passenger, but the minors were not in the vehicle. Aylissa told Flynn that the driver had stated

that he was “tired of dealing with this s***” and “jerked the wheel hard to the right” before hitting

the tree. She also relayed the driver had made suicidal comments. Aylissa was not charged in

connection with that incident.

¶ 17 The State then called Natalie Erickson, DCFS child protection specialist. On or about

August 30, 2021 she was assigned to investigate allegations of neglect of the minors, based on

“concerns of [Aylissa] using drugs with [a] paramour.”

¶ 18 Erickson visited Aylissa’s residence on September 21, 2021, while the minors were

present. She told Aylissa that there was a “concern of substance abuse.” Aylissa told Erickson she

was taking Norco, a prescription medicine for back pain. Erickson requested that Aylissa take a

saliva drug test, which Erickson administered. Aylissa tested positive for opiates and cocaine. 3

¶ 19 Erickson consulted her supervisor, and a “safety plan” was put in place for the minors.

Erickson explained a safety plan is an agreement between a parent and DCFS in which the parent

identifies someone with whom the minors can reside, pending the parent’s completion of certain

conditions. Under Aylissa’s safety plan, she could not be unsupervised with the children or have

overnight stays. The safety plan could be terminated if Aylissa had negative drug tests and

“start[ed] substitute services.” Erickson testified that later on September 21, 2021, Aylissa sent

Erickson a text message. At that time, Aylissa said the Norco she previously mentioned was not

3 The TASC records admitted at the hearing do not reference the September 21, 2021, drug test described by Erickson. However, the TASC records identify Erickson as the “contact person” with respect to three subsequent test results from samples collected on September 24, October 6, and October 21. -5- 1-22-0816

actually prescribed to her, but was actually from her “paramour.” She said that her paramour

obtained it from a dentist.

¶ 20 On September 24, Aylissa took another drug test and tested positive for opiates,

cannabinoids, cocaine, and heroin. When Erickson telephoned Aylissa with the test results, Aylissa

said that she smoked marijuana and “did cocaine [a] couple of days before our initial visit.” She

also suggested her ex-boyfriend, Mark, may have “put something in the marijuana.” Erickson told

Aylissa that in order to terminate the safety plan, she needed to begin substance abuse treatment

and test negative for drug use.

¶ 21 On October 21, Erickson told Aylissa that a new safety plan participant needed to be

identified to care for the minors because the initial plan participant could not continue. Aylissa

identified a sister, but that person was not approved by DCFS to be a safety plan monitor. Aylissa

then agreed for the minors to go to a program called Safe Families. However, when Safe Families

staff reached out to Aylissa for her consent, she declined. Aylissa then suggested her godmother,

but that person also was not approved. On October 25, Erickson took protective custody of the

children, as there was “continued concern” about Aylissa’s substance use and no one else was

identified to care for the children.

¶ 22 On cross-examination, Erickson acknowledged that when she visited Aylissa and the

minors’ home on September 21, 2021, she performed a Child Endangerment Risk Assessment

Protocol with a “safety threat identification” section. In that section, Erickson did not identify any

threat of violence or sexual abuse or other “plausible threat of harm” to the children. She did not

find that the children lacked “sufficient supervision,” food, shelter, clothing, or medical care. The

minors appeared to be healthy and properly dressed, had no visible marks or bruises, and showed

a strong attachment to Aylissa. Erickson agreed that the only identified threat was the concern that

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Aylissa was using drugs in the presence of the minors. Erickson agreed that there were no drugs

in plain view in the home.

¶ 23 Erickson completed subsequent Child Endangerment Risk Assessment Protocols on

September 27, October 4, and October 13, October 25, and October 27, 2021. On each of those

dates, Erickson identified no other threats besides concern that Aylissa used drugs in the presence

of the minors. Erickson never saw Aylissa using drugs in the presence of the minors, and she

agreed that the minors always appeared healthy and appropriately dressed.

¶ 24 In closing argument, the State emphasized evidence of Aylissa’s drug use and asked for

findings of neglect due to injurious environment. Aylissa’s counsel argued there was no evidence

that the minors had been harmed or “affected in any way” by her alleged drug use. Her counsel

argued that drug use, absent any nexus between the drug use and some harm to the child, is

insufficient as a matter of law to support findings of abuse or neglect.

¶ 25 The trial court found the minors neglected due to an injurious environment, noting the

parties had stipulated to the “validity and the proper performance of the drug tests” and their

accuracy. The court remarked that it was concerned by the “daily drug use, heavy drug use,

continued drug use as the mother seems to have been undergoing.”

¶ 26 C. Dispositional Hearing

¶ 27 The court proceeded to a dispositional hearing regarding the minors. DCFS caseworker

Loren Anthony testified that the minors had been in a safe and appropriate foster home since late

October 2021. Aylissa had not seen the children since they were placed in the foster home.

According to Anthony, Aylissa failed to appear for numerous scheduled appointments and drug

tests. Anthony testified that, in January 2022, Aylissa told her that she was still “trying to wean

herself off of heroin.”

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¶ 28 At the conclusion of the dispositional hearing, the court found that it was in the best interest

of both minors that they be made wards of the court. On May 10, 2022, the court entered orders

finding Aylissa unable to care for the minors and placing them in custody of DCFS guardianship

administrator with the right to place the minors.

¶ 29 On June 9, 2022, Aylissa filed a notice of appeal, indicating that she wished to challenge

the adjudication orders as well as the disposition orders for both minors.

¶ 30 II. ANALYSIS

¶ 31 On appeal, Aylissa asserts several arguments, all of which are directed to the court’s

adjudication order finding that the minors were neglected due to an injurious environment under

section 2-3(1)(b) of the Act. First, she argues that, as a matter of law, the State must show more

than the mere existence of parental drug use in order to support a finding of neglect due to injurious

environment. That is, she claims that the State must show that drug use had an adverse impact on

the minors’ environment. She asserts her position is supported by section 2-18(2)(f) and (g) of the

Act, which specifies certain circumstances in which a parent’s drug use can be deemed prima facie

evidence of neglect. 705 ILCS 405/2-18(2)(f), (g) (West 2020). According to Aylissa, those

provisions indicate that parental drug use alone is not sufficient to prove neglect. In a related

argument, Aylissa claims that the findings of neglect were against the manifest weight of the

evidence because the State failed to show such additional evidence.

¶ 32 Aylissa separately raises a number of constitutional challenges. She claims that the

injurious environment provision in section 2-3(1)(b), in conjunction with section 2-18(2)(f), were

unconstitutional “as applied” to her. She separately asserts that section 2-3(1)(b) is

unconstitutionally vague “as applied” to her because “simple drug use that does not impact a

parent’s kids in any way is in no way proscribed by” that provision. Alternatively, Aylissa contends

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that the drug test evidence was obtained in violation of her constitutional right to privacy and

should not have been admitted. Finally, she raises an argument that section 2-18(2)(f) of the Act

is void for vagueness.

¶ 33 Both the State and the Public Guardian (on behalf of the minors) have filed briefs

requesting that we affirm. For the following reasons, we find that Aylissa’s contentions are without

merit and affirm the trial court’s orders.

¶ 34 A. Proceedings Under the Juvenile Court Act

¶ 35 In proceedings under the Act, the paramount consideration is the best interests of the child.

In re Z.L., 2021 IL 126931, ¶ 58 (citing In re A.P., 2012 IL 113875, ¶ 18). “ ‘[C]ases involving

allegations of neglect and adjudication of wardship are sui generis, and must be decided on the

basis of their unique circumstances.’ ” Id. (quoting In re Arthur H., 212 Ill. 2d 441, 463 (2004)).

¶ 36 Under the Act, the trial court employs a “two-step process” in determining whether a minor

should be removed from parental custody and made a ward of the court. Id. The first step is the

adjudicatory hearing, at which “the court shall first consider only the question whether the minor

is abused, neglected or dependent.” 705 ILCS 405/2-18(1) (West 2020). “ ‘The only question to

be resolved at an adjudicatory hearing is whether or not a child is neglected, and not whether every

parent is neglectful.’ ” In re Z.L., 2021 IL 126931, ¶ 59 (quoting In re Arthur H., 212 Ill. 2d at

467). At the adjudicatory hearing, it is the State’s “burden to prove allegations of abuse or neglect

by a preponderance of the evidence.” Id. ¶ 61; In re Arthur H., 212 Ill. 2d at 464.

¶ 37 “If the trial court determines that a minor is abused or neglected at the adjudicatory hearing,

the court then moves to step two, which is the dispositional hearing.” In re Z.L., 2021 IL 126931,

¶ 60. At the dispositional hearing, the court determines “whether it is consistent with the health,

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safety, and best interest of the minor and the public that the minor be made a ward of the court.”

Id. (citing 705 ILCS 405/2-21(2) (West 2018)).

¶ 38 In this appeal, Aylissa’s arguments are directed to the findings of neglect at the

adjudicatory hearing. Section 2-3(1) of the Act defines the circumstances under which a minor can

be found “neglected.” 705 ILCS 405/2-3 (West 2020). Here, the trial court found the minors

neglected pursuant to section 2-3(1)(b) of the Act, under which “neglected” persons include “any

minor under 18 years of age *** whose environment is injurious to his or her welfare.” Id.

¶ 39 B. Whether Drug Use May Support A Finding of An Injurious Environment

¶ 40 We turn to Aylissa’s contention that, as a matter of law, the State needed to prove more

than parental drug use to support a finding of neglect due to injurious environment. She argues

that the findings of neglect cannot stand because the State did not show any evidence that her drug

use had an adverse impact on the minors’ environment. In making this argument, she directs our

attention to section 2-18(2)(f) and (g) of the Act, which specifies certain circumstances in which a

parent’s drug use can be prima facie evidence of neglect. According to Aylissa, these provisions

convey that the mere fact of parental drug use is not sufficient to prove neglect, absent additional

evidence of the effects of the drugs either on the parent or how the drugs at issue “ordinarily” affect

users. For the following reasons, we disagree.

¶ 41 “[T]he term ‘injurious environment’ has been recognized by our courts as an amorphous

concept that cannot be defined with particularity. [Citations.]” In re Arthur H., 212 Ill. 2d at 463.

“In general, however, the term ‘injurious environment’ has been interpreted to include ‘the breach

of a parent’s duty to ensure a “safe and nurturing shelter” for his or her children.’ ” Id. (quoting In

re N.B., 191 Ill. 2d 338, 346 (2000), quoting In re M.K., 271 Ill. App. 3d 820, 826 (1995)).

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¶ 42 Aylissa relies largely on Arthur H. to argue that there must be a showing of harm to the

minor, not merely findings of parental conduct (i.e., drug use), to support a finding of neglect due

to injurious environment. As explained below, we find Aylissa’s reliance on Arthur H. is

misguided.

¶ 43 In Arthur H., our supreme court emphasized that the function of the court at the

adjudicatory hearing is to determine whether a child is neglected, not to assess which adult is to

blame. Id. at 465 (rejecting as “contrary to the provisions of the Juvenile Court Act” the appellate

court’s reasoning that in order to find a minor neglected “both parents, or all persons responsible

for the welfare of the minor, must engage in acts or omissions that constitute neglect”). Arthur H.

explained:

“[T]he purpose of an adjudication hearing is ‘to determine whether

the allegations of a petition *** that a minor under 18 years of age

is *** neglected *** are supported by a preponderance of the

evidence.’ 705 ILCS 405/1-3(1) (West 2000). The plain language of

this provision instructs the circuit court to focus solely upon whether

the child has been neglected. The legislature made no mention in

this provision that *** the circuit court is also to determine who may

be responsible for the child’s neglect, and to assess the proportion

of blame with respect to such individuals. [Citations.]

In addition, in defining a neglected child in section 2-3 of the

Act, the legislature focused exclusively upon the status of the child,

and gave no consideration to an evaluation of the acts and/or

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omissions of the child’s parents *** in arriving at a determination

of neglect. [Citation.]” Id. at 465-66.

¶ 44 Arthur H. proceeded to note that

“pursuant to section 2-21, the circuit court is first to determine

whether the minor is neglected. There is no direction from the

legislature that the court shall consider the actions of the parents in

making this determination. It is only after the circuit court has

adjudicated the child neglected that the statute directs the court to

consider the actions of the parents. Even then, however, section 2-

21 provides that the court need consider such actions only ‘to the

extent possible.’ The plain language of this provision indicates that

the legislature recognized that there may occur circumstances when

a child is neglected, but it may be impossible to determine the

relative fault with respect to the child’s parents or guardians.

However, even if such a determination is not possible, the statute is

clear that this does not alter the finding that a child is ‘neglected.’ ”

(Emphasis in original.) Id. at 466-67.

¶ 45 Aylissa relies largely on the foregoing language from Arthur H. to argue that parental

conduct alone cannot support a finding of neglect due to injurious environment, without additional

evidence of an impact on the minor. Aylissa’s interpretation of Arthur H. is incorrect and

inconsistent with precedent regarding the meaning of an “injurious environment.”

¶ 46 To be sure, Arthur H. held that a finding that a minor is neglected due to injurious

environment does not require the court to apportion blame or fault among parents or guardians. Id.

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However, this does not mean that parental conduct cannot support a finding of injurious

environment. Nor does our precedent require proof of actual harm to a minor to sustain such a

finding.

¶ 47 Although the focus of the inquiry at an adjudicatory hearing is whether the “minors are

neglected, not whether the parents are neglectful” (In re Tamesha T., 2014 IL App (1st) 132986,

¶ 36), that does not mean that the court disregards parental conduct in deciding whether there was

an injurious environment. Indeed, “the term ‘injurious environment’ has been interpreted to

include the breach of a parent’s duty to ensure a ‘safe and nurturing shelter’ for his or her

children.” (Emphasis added.) Id. ¶ 40 (quoting In re N.B., 191 Ill. 2d at 346); see also In re John

Paul J., 343 Ill. App. 3d 865, 879 (2003) (“neglect is the failure to exercise the care justly

demanded by the circumstances and encompasses both willful and unintentional disregard of

parental duties”). Clearly, parental conduct may be considered in assessing whether a parent has

breached his or her duty to provide a safe environment.

¶ 48 Similarly, we are not convinced by Aylissa’s argument that parental drug use is insufficient

to find injurious environment, absent some additional showing that the drug use had an actual

negative impact on the child’s conditions. In essence, Aylissa suggests that the court could not find

her drug use created an injurious environment for her children, absent a showing that they were

actually harmed by it in some way.

¶ 49 We disagree, as our precedent makes clear that a finding of an “injurious environment”

does not require a showing of actual harm. In other words, courts need not wait for a child to get

hurt.

“[O]ur courts have repeatedly emphasized that the statutory provisions *** require simply

‘an injurious environment or substantial risk of harm’ in order to sufficiently support a

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finding of neglect or abuse and, once this has been found, the trial court need not wait until

the child becomes a victim or is permanently emotionally damaged to remove her ***.

[Citations.]” (Emphases in original and internal quotation marks omitted.) In re Jordyn L.,

2016 IL App (1st) 150956, ¶ 35.

¶ 50 Evidence that a parent exposed a child to a risk of danger is sufficient, even if the child has

not yet been harmed by the danger. For example, this court affirmed a finding of neglect due to

injurious environment where the minors’ mother allowed her boyfriend to reside with them, where

the boyfriend had a history of abusing his own child and a “bad temper.” In re M.K., 271 Ill. App.

3d at 827. The court found the boyfriend’s “presence in their home created an environment

injurious to their welfare” despite the fact that “there was no evidence that [minors] had actually

been harmed.” Id.

¶ 51 Similarly, in In re Jordyn L., this court upheld a finding of neglect due to injurious

environment, notwithstanding that the minor was a “healthy and nourished child who has not been

injured or harmed.” 2016 IL App (1st) 150956, ¶ 39. We emphasized that the fact that the child

was healthy “does not mean that [the minor] is not neglected and abused.” Id. We explained that

respondent, the minor’s mother, placed the child in the care of respondent’s mother and

grandmother, who themselves had a long-documented history of neglecting and abusing

respondent and her siblings. Id. ¶ 40 (“Despite her very own experience, and ignoring over a

decade of neglect and abuse, respondent has repeatedly chosen to leave her infant daughter in

Charletta and Antoinette’s homes, a choice that is clearly very dangerous.”).

¶ 52 Such cases illustrate that an injurious environment may be found based on parental conduct

that poses a risk, even if a child has not yet suffered any harm. In light of the foregoing, we cannot

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agree with Aylissa’s suggestions that drug use is not legally sufficient to support a finding of

neglect due to injurious environment.

¶ 53 C. Section 2-18(2)(f) of the Act Is Irrelevant and Does Not Support Aylissa’s Argument

¶ 54 In a separate argument in support of her position that her drug use was legally insufficient

to support the injurious environment findings, Aylissa directs our attention to section 2-18(2)(f) of

the Act. 4 That section provides that

“proof that a parent, custodian or guardian of a minor repeatedly

used a drug, to the extent that it has or would ordinarily have the

effect of producing in the user a substantial state of stupor,

unconsciousness, intoxication, hallucination, disorientation or

incompetence, or a substantial impairment of judgment, or a

substantial manifestation of irrationality, shall be prima facie

evidence of neglect.” 705 ILCS 405/2-18(2)(f) (West 2020).

¶ 55 Aylissa acknowledges that this provision was not mentioned by the State or the court at the

adjudicatory hearing. Nevertheless, she asserts that it is part of the “statutory scheme” at issue in

this case. She proceeds to argue that the State did not satisfy its requirements. That is, she avers

that, under section 2-18(2)(f), the State was required to prove not only that she repeatedly used

drugs, but also that the drugs “ha[d] or would ordinarily have a substantial effect on the parent

who used it.” She thus claims the State’s proof was legally insufficient, as the State did not elicit

evidence about the impact of drug use on Aylissa or “what the effect of those drugs ‘ordinarily’

would have been.”

At times, Aylissa’s brief erroneously refers to “Section 2-18(1)(f)” although the content of her 4

argument makes clear she intends to refer to section 2-18(2)(f) of the Act. -15- 1-22-0816

¶ 56 This argument is flawed for a simple reason: it confuses the specific proof necessary to

establish prima facie evidence of neglect under section 2-18(2)(f), with the level of proof generally

necessary for State to prove an injurious environment. They are not the same thing, and the

prima facie evidence provision in section 2-18(2)(f) was never implicated in this case.

Under section 2-18(2), proof of various enumerated circumstances “shall constitute

prima facie evidence of abuse or neglect.” Id. § 2-18(2). A number of the listed circumstances

relate to parental drug or alcohol use, including proof that a minor is diagnosed at birth with

narcotics withdrawal symptoms; proof that a parent or guardian of a minor “repeatedly used a drug

to the extent that it has or would ordinarily have the effect of producing in the user a substantial

state of stupor, unconsciousness, intoxication, hallucination, disorientation or incompetence, or a

substantial impairment of judgment, or a substantial manifestation of irrationality”; proof that a

parent “repeatedly used a controlled substance *** in the presence of the minor or a sibling of the

minor”; or proof that a newborn infant’s blood, urine, or meconium contain any amount of a

controlled substance. Id. § 2-18(c), (d), (f), (g), (h). Such prima facie evidence gives rise to a

rebuttable presumption of abuse or neglect. See In re K.G., 288 Ill. App. 3d 728, 736 (1997) (“But

even where prima facie evidence of abuse or neglect is presented, it creates only a rebuttable

presumption that may be overcome by the introduction of other evidence. [Citations.]”).

¶ 57 Aylissa’s argument erroneously assumes that because the State relied on evidence of

parental drug use to support a finding of neglect, it was also required to elicit specific proof of a

prima facie evidence of neglect under section 2-18(f). There is no support for that position in the

Act. Instead, section 2-18(2) simply sets forth a number of specific circumstances in which the

State may seek to establish prima facie evidence of neglect; if it does so, it creates a presumption

of neglect that may be rebutted by other evidence. Thus, if the State elicits proof of repeated

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parental drug use “to the extent that it has or would ordinarily have the effect of” causing stupor,

intoxication, or one of the other conditions listed in section 2-18(f)(2), the State has made a

prima facie case of abuse or neglect. 705 ILCS 405 2-18(2)(f) (West 2020). Yet, nothing in section

2-18(2)(f) or the other provisions of the Act suggests that the State must always elicit such specific

prima facie proof in order to obtain a finding of neglect due to injurious environment.

¶ 58 This is consistent with our supreme court’s recognition that an injurious environment is an

“amorphous concept that cannot be defined with particularly” and that such cases “must be decided

on the basis of their unique circumstances.” In re Arthur H., 212 Ill. 2d at 463. It is well-settled

that the State’s burden is simply to prove neglect by “a preponderance of the evidence,” meaning

that it “must establish that the allegations of neglect are more probably true than not.” Id. at 463-

64. There is no support for Aylissa’s suggestion that the State needed to present evidence sufficient

to establish a prima facie evidence of neglect within the meaning of section 2-18(2)(f) before the

court could find that the minors were exposed to an injurious environment pursuant to section 2-

3(1)(b).

¶ 59 On this point, Aylissa cites In re D.A., 2022 IL App (2d) 210676. However, that decision

does not support her argument. In that case, the State alleged that the minor’s environment was

injurious to his welfare, in part because he tested positive at birth for tetrahydrocannabinol (THC).

Id. ¶ 3. At the adjudication hearing, a caseworker testified that both parents used marijuana daily

but also acknowledged that TCH is legal and that there “ ‘really is not enough evidence to show

how it affects babies.’ ” Id. ¶ 5. The Second District found that the State did not establish neglect

by a preponderance of the evidence, as it “did not meet its burden of proving that D.A. was born

with THC in his system or that the use of marijuana during pregnancy poses risks to the unborn

child.” Id. ¶ 15. The Second District further observed that “[t]he trial court appeared to invoke

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section 2-18(2)(f) of the Act to support its conclusion that the environment was injurious to D.A’s

welfare.” Id. ¶ 16. After reciting that statutory provision, the court noted that “[n]o evidence was

offered at the adjudicatory hearing to show that respondent’s current use of cannabis produced any

condition described in section 2-18(2)f).” Id.

¶ 60 Aylissa cites In re D.A. to argue that the State is always required to elicit proof of the effect

of the drugs at issue to prove neglect. Yet, In re D.A. made no such suggestion. That decision

simply observed that, to the extent that trial court “appeared to invoke section 2-18(2)(f),” the State

had not elicited evidence that the use of cannabis would cause intoxication or any other of the

conditions listed in section 2-18(2)(f). Id.

¶ 61 Simply put, there is no support for Aylissa’s position that the State needed to produce the

prima facie evidence described in section 2-18(2)(f) of the Act in order for the court to ultimately

find that the State had proven an injurious environment by a preponderance of the evidence.

Moreover, section 2-18(2)(f) was never referenced or relied on by the State or the court during the

adjudication proceedings. Thus, that statute is simply irrelevant to our review of the court’s

adjudication orders. 5

¶ 62 D. The Trial Court’s Injurious Environmental Finds Were Not Against the Manifest Weight

of the Evidence

5 Aylissa briefly mentions that Erickson did not notice drugs at her residence, in arguing that the evidence was insufficient to find an injurious environment. We recognize that under section 2-18(2)(g) of the Act, proof that a parent “repeatedly used a controlled substance *** in the presence of” a minor is “prima facie evidence of neglect.” 705 ILCS 405/2-18(2)(g) (West 2020). Yet, as is the case with respect to section 2-18(2)(f), this does not mean that such evidence is required for the court to find an injurious environment. In any event, neither the State nor the trial court suggested that it was relying on section 2- 18(2)(g)of the Act.

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¶ 63 We turn to Aylissa’s related contention that the findings of neglect were “against the

manifest weight of the evidence on a factual basis,” which is derived from her prior arguments.

That is, she posits that “[b]ecause a finding of neglect based on a parent’s drug use requires some

form of additional evidence *** a trial court finding simply that a parent used drugs is insufficient

to factually sustain” a finding of neglect. She suggests that, because the trial court did not hear

specific evidence about the effects of the drugs on herself, evidence that she used drugs in the

minors’ presence, or evidence that her drug use had a “negative impact” on the minors, there was

an insufficient “factual basis” to support the court’s findings of neglect due to injurious

environment. This argument is without merit.

¶ 64 We reiterate that neglect cases are “sui generis, and must be decided on the basis of their

unique circumstances.” Arthur H., 212 Ill. 2d at 463; see also In re A.P., 2012 IL 113875, ¶ 24

(“where neglect is alleged, each case is to be decided on its particular facts”). Our supreme court

has repeatedly emphasized the “ ‘fact-driven nature of neglect and injurious environment

rulings.’ ” (Internal quotation marks omitted.) In re A.P., 2012 IL 113875, ¶ 17 (quoting Arthur

H., 212 Ill. 2d at 463). We also reiterate that while the term “injurious environment” is an

“ ‘amorphous concept that cannot be defined with particularity,’ ” the term “ ‘has been interpreted

to include the breach of a parent’s duty to ensure a safe and nurturing shelter for his or her

children.’ ” (Internal quotation marks omitted.) Id. ¶ 22 (quoting Arthur H., 212 Ill. 2d at 463).

¶ 65 The deferential standard of review is well-settled. “On review, a trial court’s finding of

neglect will not be reversed unless it is against the manifest weight of the evidence. [Citation.] A

finding is against the manifest weight of the evidence only if the opposite conclusion is clearly

evident. [Citation.]” Id. ¶ 17; In re Arthur H., 212 Ill. 2d at 464.

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¶ 66 We reject Aylissa’s contention that the court’s findings of neglect were against the manifest

weight of the evidence. First, her argument presumes (incorrectly) that the trial court could not

rely on her drug use to find an injurious environment, without some additional evidence of a

“negative impact on her kids” or proof that would otherwise constitute prima facie evidence of

neglect under section 2-18(2)(f) or (g). As already discussed, the court did not need to wait for the

minors to be harmed before finding that they were exposed to an injurious environment. See In re

Jordyn L., 2016 IL App (1st) 150956, ¶ 35. Nor did the State need to elicit specific proof that the

drugs Aylissa used would “ordinarily” cause a state of “stupor, unconsciousness, intoxication,

hallucination” or other condition listed in section 2-18(2)(f), or that she used the drugs “in the

presence of” the children pursuant to section 2-18(2)(g). As discussed, those provisions merely

establish ways in which the State may seek to prove prima facie evidence of neglect. The Act does

not require such specific evidence in order for the court to find that a minor’s “environment is

injurious to his or her welfare.” 705 ILCS 405/2-3(1)(b) (West 2020).

¶ 67 Moreover, given the uncontradicted documentary and testimonial evidence of Aylissa’s

drug use, we cannot say that the trial court’s injurious environment findings were against the

manifest weight of the evidence. This court has held that “ ‘[a]lthough isolated incidents of a

parent’s drug usage do not necessarily pose a danger to a child [citation], obviously an ongoing

pattern of substance abuse can create an injurious environment.’ ” (Emphasis added.) In re K.E.-

K., 2018 IL App (3d) 180026, ¶ 16 (quoting In re Z.Z., 312 Ill. App. 3d 800, 805 (2000)). Similarly,

a parent’s failure to engage in services to address a substance abuse problem also supports a finding

of an injurious environment. See, e.g., In re Sharena H., 366 Ill. App. 3d 405, 417 (2006) (“the

trial court found that respondent’s drug problem and inability/refusal to complete treatment caused

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an injurious environment for Sharena; the court’s finding was not against the manifest weight of

the evidence”).

¶ 68 Here, the State elicited detailed evidence showing an ongoing pattern of substance abuse.

First, TASC records showed she tested positive on three occasions in September and October 2021

for several substances, including heroin, cocaine, and opiates. Perhaps more significant, Aylissa

herself reported to Gateway that she used heroin on a daily basis for three months prior to October

8, 2021. Gateway diagnosed her with “[h]eroin use disorder, severe” and “opioid dependence” and

believed her condition was serious enough to recommend intensive outpatient treatment. The trial

court could certainly find that Aylissa’s illegal drug abuse compromised the safety of her children,

who were only two and five years old as of October 2021.

¶ 69 The trial court certainly find that the minors were subjected to an injurious environment.

We certainly cannot say the “opposite conclusion was clearly evident” as would be necessary to

reverse its findings. In re Arthur H., 212 Ill. 2d at 464. Accordingly, we reject Aylissa’s

contentions that the findings of neglect were against the manifest weight of the evidence.

¶ 70 E. Aylissa Lacks Standing to Challenge the Constitutionality of Section 2-3(1(b) In

Combination With Section 2-18(f)(2)

¶ 71 We turn to the various constitutional arguments raised by Aylissa. None of them is

convincing.

¶ 72 Her first constitutional argument attacks the combined application of two provisions of the

Act already discussed: section 2-3-(1)(b)’s injurious environment provision, and section 2-

18(f)(2), which specifies that proof of repeated parental drug use “to the extent that it has or would

ordinarily have the effect of producing in the user a substantial state of stupor, unconsciousness,

intoxication, hallucination, disorientation or incompetence, or a substantial impairment of

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judgment, or a substantial manifestation of irrationality, shall be prima facie evidence of neglect.”

705 ILCS 405/2-18(2)(f) (West 2020).

¶ 73 Aylissa asserts that this “statutory scheme” impermissibly infringes on parents’

fundamental right to raise their children because it is not “narrowly tailored” and “includes groups

of parents that it should not and omits groups of parents who are similarly situated to those it

includes.” She suggests that the statutory scheme is too “broad” because it encompasses parents

whose drug use does not negatively impact their children. For example, she posits that a parent

who uses hallucinogenic drugs at a festival or who drinks alcohol at a baseball game could be

found to have “fulfilled a prima facie case of neglect” even if another responsible adult was

watching the parent’s child. Aylissa otherwise asserts that since many conditions besides drug use

could cause a parent to be in a “stupor” or in one of the states of impairment listed in section 2-

18(2)(f), such that statute “arbitrarily singles out a parent’s drug use” and is not “narrowly

tailored.”

¶ 74 We do not assess the merits of these arguments. Aylissa’s challenges to the “combination”

of the injurious environment provision of section 2-3(1) and the prima facie evidence provision in

section 2-18(2)(f) are not properly before us for a simple reason: the latter statute was never

referenced or applied to prove neglect in this case. As Aylissa has not been impacted by that

provision, she lacks standing to challenge it.

¶ 75 “ ‘The purpose of the doctrine of standing is to ensure that courts are deciding actual,

specific controversies, and not abstract questions or moot issues.” (Internal quotation marks

omitted.) In re M.I., 2013 IL 113776, ¶ 32. “In order to have standing to bring a constitutional

challenge, a party must show that he is within the class aggrieved by the alleged

unconstitutionality. [Citation.]” Id. Our supreme court has articulated the test as follows:

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“In the absence of facts demonstrating an unconstitutional

application of the statute, a person may not challenge the statute on

the ground that it might conceivably be applied unconstitutionally

in some hypothetical case. Rather a person must be directly or

materially affected by the attacked provision and must be in

immediate danger of sustaining a direct injury as a result of

enforcement of the challenged statute. [Citation.]” (Internal

quotation marks omitted.) Id.

¶ 76 Aylissa does not meet this test for standing, as section 2-18(2)(f) was never applied to her.

As her brief concedes, that provision concerning prima facie evidence of neglect was never

invoked by the State or applied by the court in the course of finding the minors neglected. Thus,

Aylissa was not “directly or materially affected by the attacked provision.” Id. In turn, her

hypothetical arguments about ways in which section 2-18(2)(f) could be unconstitutionally applied

(either alone or in combination with section 2-3(1)(b)’s injurious environment provision) amount

to “abstract questions or moot issues” that are not proper for this court to discuss. (Internal

quotation marks omitted.) Id. ¶ 32; see also In re Alfred H.H., 233 Ill. 2d 345, 351 (2009) (“As a

general rule, courts in Illinois do not decide moot questions, render advisory opinions, or consider

issues where the result will not be affected regardless of how those issues are decided.

[Citations.]”). In turn, we decline to address these arguments due to lack of standing.

¶ 77 F. Aylissa’s “As Applied” Vagueness Challenge to the Injurious Environment Statute

¶ 78 We next address Aylissa’s contention that the Act’s injurious environment provision,

section 2-3(1)(b), is unconstitutionally vague “as applied” to her. That provision states that those

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who are “neglected” under the Act include any minor “whose environment is injurious to his or

her welfare.” 705 ILCS 405/2-3(1)(b) (West 2020).

¶ 79 Aylissa recognizes that our supreme court recently held that the same provision is not

unconstitutionally vague on its face. In re Z.L., 2021 IL 126931, ¶¶ 88-91. Nevertheless, she claims

that the injurious environment provision was unconstitutional as applied in her case, because

“simple drug use that does not impact a parent’s kids in any way is in no way proscribed by”

section 2-3(1)(b). She argues that there are “countless parents” whose drug use “will never fall

under the eye of DCFS precisely because such behavior is so common and does not invariably

create a risk of harm to their children.” She emphasizes that in her case there was “no indication

that her kids have been negatively impacted at all” by her drug use, citing the testimony that the

minors appeared to be healthy. Aylissa claims that the “sole reason” the minors were found to

neglected “was because she had tested positive for drugs” and that section 2-3(1)(b) “does not

adequately proscribe such conduct.” Thus, she claims this provision is unconstitutionally vague as

applied to her.

¶ 80 We note that Aylissa forfeited this argument because she failed to raise it below. See id.

¶ 88 (appellant forfeited challenge to section 2-3(1)(b) as unconstitutionally vague). Nevertheless,

“given the fundamental liberty interest of a parent to raise and care for her children as protected

by the United States Constitution [citation],” we may nonetheless address the merits of the

constitutional challenge. Id. (overlooking forfeiture and proceeding to reject vagueness challenge

to section 2-3(1)(b)). Even disregarding forfeiture, we find Aylissa’s as applied challenge lacks

merit.

¶ 81 “All statutes are presumed to be constitutional, and the burden of rebutting that

presumption is on the party challenging the validity of the statute to demonstrate clearly a

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constitutional violation.” People v. Wilson, 214 Ill. 2d 394, 398-99 (2005). “Both facial and as-

applied challenges face the same considerable burden of overcoming the strong judicial

presumption that the statute at issue is constitutional. [Citation.]” People v. Kelly, 2018 IL App

(1st) 162334, ¶ 20. “[A]ll as-applied constitutional challenges are, by definition, dependent on the

specific facts and circumstances of the person raising the challenge.” Id. ¶ 23.

¶ 82 “A vagueness challenge is a due process challenge, examining whether a statute give[s] [a]

person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he

may act accordingly.” (Internal quotation marks omitted.) People v. Greco, 204 Ill. 2d 400, 415-

16 (2003). “ ‘ “[T]he test is whether the language conveys sufficiently definite warning as to the

proscribed conduct when measured by common understanding and practices.” ’ ” In re Z.L., 2021

126931, ¶ 90 (quoting People v. Schoos, 15 Ill. App. 3d 964, 966 (1973), quoting Jordan v. De

George, 341 U.S. 223, 231-32 (1951)). “When considering a vagueness challenge to a statute, a

court considers not only the language used, but also the legislative objective and the evil the statute

is designed to remedy. [Citation.]” Greco, 204 Ill. 2d at 416.

¶ 83 As Aylissa recognizes, our supreme court in In re Z.L. rejected a request to declare that the

injurious environment statute was “unconstitutionally vague.” 2021 IL 126931, ¶ 88. In so doing,

it approvingly cited Schoos, 15 Ill. App. 3d 964, in which “the appellate court rejected the specific

arguments *** that the injurious environment category was unconstitutionally vague because it

lacked adequate notice of what parental acts were proscribed and allowed selective and

discriminatory enforcement by the State and the courts.” In re Z.L., 2021 126931, ¶ 90 (citing

Schoos, 15 Ill. App. 3d at 965-66).

¶ 84 Our supreme court recognized that “ ‘Child neglect is by its very nature incapable of a

precise and detailed definition ***.’ ” Id. (quoting Schoos, 15 Ill. App. 3d at 967). Our supreme

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court reiterated that “the term ‘injurious environment’ cannot be defined with particularity,” that

allegations of neglect are sui generis, and that the “fact-driven nature of neglect and injurious

environment rulings.” (Internal quotation marks omitted.) Id. ¶ 89. Thus, In re Z.L. held that “the

term injurious environment is not unconstitutionally vague.” Id. ¶ 91.

¶ 85 Aylissa nevertheless asserts that the injurious environment provision is unconstitutionally

vague as applied to her. She relies on the fact that the court’s findings of neglect were premised

on her drug use, despite the absence of evidence that “her kids had been negatively impacted at

all.” She reiterates Erickson’s testimony that the children were properly dressed, that they appeared

healthy, and that there was no evidence of drug use in the children’s presence. In this sense,

Aylissa’s vagueness challenge essentially repeats her prior assertion that her drug use was legally

insufficient to support findings of injurious environment, absent some additional proof of an actual

negative impact on the children. However, as we have already discussed, a court may find an

injurious environment based on the risk of harm to children created by parental conduct; the court

need not wait until the minors suffer actual harm. See In re Jordyn L. 2016 IL App (1st) 150956,

¶ 35 (the Act’s provisions “require simply ‘an injurious environment or substantial risk of harm’

in order to sufficiently support a finding of neglect or abuse and, once this has been found, the trial

court need not wait the child become a victim” (emphases in original) (quoting In re M.K., 271 Ill.

App. 3d at 827)).

¶ 86 Moreover, we reject the suggestion that the section 2-3(1)(b) statute was too vague to

apprise Aylissa that her conduct could support a finding of neglect due to injurious environment.

The evidence showed that, on four occasions, she tested positive for heroin, cocaine and other

substances. These were not isolated incidents, as Aylissa admitted she was using heroin on a daily

basis for three months. Indeed, she was diagnosed with “Heroin use disorder, severe” and opioid

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dependence. We emphasize that her children were only five and two years old at the time. Although

the term “ ‘injurious environment’ cannot be defined with particularity” (In re Z.L., 2021 IL

126931, ¶ 89), a reasonable person could certainly understand that a parent’s regular use of heroin

could compromise the safety of such young children in the parent’s care. That is, when applied to

the facts of this case, the injurious environment provision of the Act “conveys sufficiently definite

warning as to the proscribed conduct when measured by common understanding and practices.”

(Internal quotation marks omitted.) Id. ¶ 90.

¶ 87 We thus reject Aylissa’s contention that section 2-3(1)(b) of the Act was unconstitutionally

vague as applied to her.

¶ 88 G. Aylissa Forfeited Her Claim that the Drug Test Evidence Was Unconstitutionally

Obtained and Its Admission Was Not Plain Error

¶ 89 We turn to Aylissa’s argument that her constitutional rights, including her right to privacy,

were violated when DCFS investigator Erickson came to her home and administered drug tests of

her saliva. Aylissa asserts that “No evidence was ever admitted as to why [DCFS] did this” and

that “Erickson’s choices to prompt Aylissa to (1) allow Erickson into her home, and (2) take an

oral saliva drug test, amount to an unconstitutional interference into Aylissa’s privacy.” She asserts

“[t]his evidence should not have been admitted at adjudication,” although she does not specify

whether she is referring to the documentary evidence of drug test results contained in Exhibit 1,

Erickson’s testimony regarding the drug tests, or all such evidence.

¶ 90 Aylissa does not cite any Illinois state court authority discussing whether it is appropriate

for DCFS staff to administer drug tests, or whether the results of such tests are admissible at an

adjudicatory hearing. Rather, she generally cites to case law acknowledging the “fundamental right

to privacy” with respect to family life (McCluskey v. Clark Oil & Refining Corp., 147 Ill. App. 3d

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822, 825-26 (1986)) and the confidentiality of medical information. She argues that “just as the

Fourth Amendment of the U.S. Constitution protects people from unwarranted searches and

seizures, the Fourteenth Amendment protects people from invasions into their private family life.”

She suggests that the drug tests administered by DCFS were akin to an unwarranted search in

violation of the fourth amendment, citing Florida v. J.L., 529 U.S. 266 (2000) (holding that

anonymous tip reporting a person with a gun lacked sufficient indicia of reliability to justify police

officer’s stop and frisk of that person). She also directs us to a recent Pennsylvania decision holding

that a report from an unidentified source does not establish probable cause under the fourth

amendment to enter a home to investigate alleged child neglect. Interest of Y.W.-B., 265 A.3d 602

(Penn. 2021). Aylissa asserts “DCFS did not have a [c]onstitutionally-valid reason to believe that

Aylissa’s kids were at risk of harm, so its intrusion into Aylissa’s privacy was not justified.”

¶ 91 This claim was not raised in the court below and is forfeited. Further, the record does not

support a finding of “plain error” to excuse such forfeiture. Moreover, respondent’s counsel

affirmatively acquiesced to the admission of the drug test evidence. Thus, we reject Aylissa’s

argument concerning that evidence.

¶ 92 The record reflects that Aylissa never challenged admission of the DCFS-administered

drug tests at the adjudication hearing or in a post-hearing motion. See In re M.S., 2018 IL App

(1st) 172659, ¶ 26 (in appeal from appointment of foster parents as guardian, natural mother failed

to preserve claim of alleged ex parte conversation between trial judge and minor “by objecting at

trial and filing a written posttrial motion addressing it”); In re April C., 326 Ill. App. 3d 225, 242

(2001) (“Where a party fails to make an appropriate objection in the court below, he or she has

failed to preserve the question for review and the issue is waived.”).

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¶ 93 We recognize that “we may relax the rules of forfeiture where an issue impacts the

fundamental fairness of a proceeding and address it under the plain error rubric.” In re M.S., 2018

IL App (1st) 172659, ¶ 27 (citing In re Tamera W., 2012 IL App (2d) 111131, ¶ 30). “In civil

cases, the plain error rule usually applies ‘only where an act complained of was a prejudicial error

so egregious that it deprived the complaining party of a fair trial and substantially impaired the

integrity of the judicial process.” In re M.S., 2018 IL App (1st) 172659, ¶ 27 (quoting In re

Marriage of Saheb, 377 Ill. App. 3d 615, 627 (2007)). This court has stated that “the application

of the plain error doctrine to civil cases should be exceedingly rare.” Arient v. Shaik, 2015 IL App

(1st) 133969, ¶ 37.

¶ 94 In this case, we have no basis to conclude that there was any error, let alone plain error,

with respect to the saliva drug tests administered by DCFS. Notably, the record contains no

evidence to suggest that Aylissa did not consent to the administration of the drug tests. At the

adjudication hearing, Erickson testified that she requested Aylissa to submit to a drug test on

September 21, 2021, and that she administered that test on that date. However, Erickson was not

explicitly asked (by Aylissa’s counsel or anyone else) whether Aylissa consented to that or any

other test. If Aylissa consented, she could not claim that the tests violated her fourth amendment

rights. See People v. Anthony, 198 Ill. 2d 194, 202 (2001) (“[A] search conducted with a

defendant’s voluntary consent but without a warrant does not violate the fourth amendment.”).

¶ 95 Moreover, even assuming that Aylissa could establish that the drug test evidence was

improperly obtained and should not have been admitted, we would not find its admission was a

“prejudicial” error, as is required to constitute a plain error. See In re M.S., 2018 IL App (1st)

172659, ¶ 27 (“for plain error to apply, the error must be prejudicial; that is, the case must be a

close one”); Arient, 2015 IL App (1st) 133969, ¶ 37 (plain error doctrine applies in civil cases

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“only where the act complained of was a prejudicial error”). In this case, the drug test results were

cumulative of other evidence, and so their admission was not prejudicial. See In re M.S., 2018 IL

App (1st) 172659, ¶ 28 (alleged ex parte conversation was not plain error “as it was merely

cumulative of the evidence presented by multiple witnesses”). Here, in addition to the drug test

results, the evidence included Gateway’s records reflecting Aylissa reported that she used heroin

on a daily basis for three months. Further, Gateway’s records reflected that Aylissa was diagnosed

with heroin use disorder and opioid dependence. Thus, even without the drug test results, there

was ample evidence to support the trial court’s findings of injurious environment. In turn, even the

improper admission of the drug test results would not be prejudicial error.

¶ 96 Finally, we note the record reflects that Aylissa’s counsel acquiesced to the admission of

the drug test results. See People v. Bush, 214 Ill. 2d 318, 332-33 (2005) (“[W]hen a defendant

procures, invites, or acquiesces in the admission of evidence, even though the evidence is

improper, she cannot contest the admission on appeal. [Citations.] This is because, by acquiescing

in rather than objecting to the admission of allegedly improper evidence, a defendant deprives the

State of the opportunity to cure the alleged defect.”). Aylissa’s counsel stated there was [“n]o

objection” to the admission of the TASC records that included the drug test results. And Aylissa’s

counsel did not object to Erickson’s testimony regarding the drug tests. Indeed, when Erickson

was asked to describe the process of administering the first test, Aylissa’s counsel interjected: “For

the sake of time *** I am willing to concede [the] validity and accuracy of the test that was

performed.” Her counsel then agreed to stipulate that “[t]hey were performed properly, results

were as accurate as the test can be.”

¶ 97 For the foregoing reasons, Aylissa’s arguments concerning the drug test evidence are

unavailing.

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¶ 98 H. Aylissa Lacks Standing to Challenge Section 2-18(2)(f) as Void For Vagueness

¶ 99 Aylissa’s final contention is that section 2-18(2)(f) of the Act is void for vagueness.

Specifically, she focuses on the statutory phrase that proof of a parent’s drug use “to the extent

that it has or would ordinarily have” the effect of producing intoxication or one of the other

enumerated states therein, is prima facie evidence of neglect. (Emphasis added.) 705 ILCS 405/2-

18(2)(f) (West 2020). She claims the “or would ordinarily have” phrase does not convey sufficient

warning as to the proscribed conduct, because “[a] parent cannot know that the ordinary effect of

a specific drug use would be or even what an ‘ordinary’ person is.”

¶ 100 As discussed with respect to her prior contention challenging this provision as an

infringement of her right to parent, Aylissa also lacks standing to assert the instant argument. To

have standing to challenge a statute, a person “must be directly or materially affected by the

attacked provision.” In re M.I., 2013 IL 113776, ¶ 32. As noted, section 2-18(2)(f) was not

referenced or relied upon by the court in finding the minors neglected. That is, the State never

sought to establish prima facie evidence of neglect under this provision, and the court never made

any such finding of prima facie evidence. The court found the minors were neglected due to an

injurious environment pursuant to section 2-3(1)(b) of the Act, wholly independent of any

application of section 2-18(2)(f). As section 2-18(2)(f) was never implicated in her case, Aylissa

lacks standing to challenge this provision as unconstitutionally vague.

¶ 101 III. CONCLUSION

¶ 102 In sum, we reject all of Aylissa’s challenges to the adjudication orders finding the minors

neglected due to an injurious environment. We also note that, although her notice of appeal

indicated that she also sought to challenge the disposition orders entered for both minors, Aylissa’s

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briefing raises no contentions with respect to those orders. Thus, she has forfeited any challenge

to the disposition orders. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).

¶ 103 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 104 Affirmed.

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In re K.F., 2023 IL App (1st) 220816

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 21-JA-1009- 20; the Hon. Levander Smith Jr., Judge, presiding.

Attorneys Sharone R. Mitchell Jr., Public Defender, of Chicago (Alex Stein, for Assistant Public Defender, of counsel), for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Gina DiVito, and Brian A. Levitsky, Assistant State’s Appellee: Attorneys, of counsel), for the People.

Charles P. Golbert, Public Guardian, of Chicago (Kass A Plain and Christopher J. Williams, of counsel), for appellee.

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