In re R.W.

2025 IL App (4th) 241614-U

Opinion

2025 IL App (4th) 241614-U NOTICE FILED This Order was filed under NO. 4-24-1614 May 15, 2025 Supreme Court Rule 23 and Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

In re R.W., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Mercer County Petitioner-Appellee, ) No. 24JA3 v. ) Greg W., ) Honorable Respondent-Appellant). ) Matthew W. Durbin, ) Judge Presiding.

PRESIDING JUSTICE HARRIS delivered the judgment of the court. Justices Zenoff and Vancil concurred in the judgment.

ORDER

¶1 Held: The appellate court granted appointed appellate counsel’s deficient motion to withdraw and affirmed the trial court’s judgment.

¶2 Respondent, Greg W., appeals from the trial court’s judgment in a juvenile

neglect case finding his minor child, R.W. (born in November 2022), neglected, adjudicating the

minor a ward of the court, finding him unfit and unable to care for the minor, and placing the

minor in the custody and guardianship of the Illinois Department of Children and Family

Services (DCFS). On appeal, respondent’s appointed counsel has filed a motion to withdraw. We

grant counsel’s motion to withdraw and affirm the trial court’s judgment.

¶3 I. BACKGROUND

¶4 On September 17, 2024, the State filed a petition for adjudication of wardship

with respect to R.W., alleging the minor was neglected pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b) (West 2022)) because his

environment was injurious to his welfare. Specifically, the State alleged that R.W. was living “in

a home where sexual abuse allegations were made without any additional protections or

precautions taken.” The State attached to its petition a “Formal Request for State’s Attorney to

File a Petition for Juvenile Court Intervention.” The attached document set forth the factual basis

underpinning the allegation of neglect. According to the document, I.J., the 14-year-old daughter

of respondent’s paramour, accused respondent of digitally penetrating her vagina. I.J. was

subsequently interviewed at the Mercer County Children’s Advocacy Center, and she reported

that respondent had sexually assaulted her on four or five separate occasions. DCFS found I.J.’s

accusations to be credible. Respondent was also interviewed. He denied the accusations and

confirmed that no protective measures had been taken to ensure I.J.’s safety. DCFS concluded

that respondent’s “explanations did not fit the timeline and he often provided nonsensical

excuses, so his denial was not deemed to be credible.” Respondent was also under investigation

for allegedly sexually abusing two other minors.

¶5 On November 12, 2024, the trial court conducted an adjudicatory hearing. At the

hearing, respondent stipulated to the State’s allegation of neglect. The court accepted

respondent’s stipulation and entered an adjudicatory order, finding R.W. neglected on the basis

he “was allowed to remain in an injurious environment pursuant to stipulation of father.”

¶6 On December 10, 2024, the trial court conducted a dispositional hearing. At the

hearing, the State informed the court that it had filed a dispositional report in anticipation of the

hearing and requested the court “to adopt and to order the recommended items *** as stated in

the dispositional report.” According to the report, respondent was charged with two counts of

aggravated criminal sexual abuse based on the same allegations which led to the opening of the

-2- instant juvenile case, and an order entered by the trial court in respondent’s criminal case

prohibited him from having any contact with minors, including R.W. Respondent argued that the

court should find him fit and able to care for the minor for the following reasons:

“MR. LARSON [(COUNSEL FOR RESPONDENT)]: The [respondent] is

not in any way unable. He has been taking care of the child for some time, so I

don’t think it’s a question of if he’s unable. The question is whether he’s unfit.

The allegations against the [respondent] in a separate criminal case relate to

inappropriate touching of a teenage female, not a juvenile male, and they are just,

at this point, allegations, Your Honor.

So I don’t believe there’s enough evidence to find him unfit, and I think

the child should be returned to him, Your Honor, because there’s no need for him

to have the child somewhere else. The child has been in his care the entire time.

There’s been no allegations of inappropriate behavior as it relates to this child.”

The court found respondent’s argument unpersuasive, finding instead that, “with the pending

criminal charges, he is unable and unfit at this time.” The court entered a written dispositional

order making R.W. a ward of the court and finding respondent unfit and unable to care for R.W.

due to “pending criminal matters relating to care of child, [and] concerns with housing.”

¶7 This appeal followed.

¶8 II. ANALYSIS

¶9 On appeal, appointed counsel has filed a motion to withdraw, which he asserts is

in accordance with Anders v. California, 386 U.S. 738 (1967). Counsel argues in his

accompanying brief that the dispositional findings were against the manifest weight of the

evidence.

-3- ¶ 10 An appellate attorney who seeks to withdraw from representation on direct appeal

from a final judgment in a juvenile neglect case under the Act must comply with the procedure

articulated by the United States Supreme Court in Anders. See, e.g., In re J.P., 2016 IL App (1st)

161518, ¶¶ 4-8. This court has outlined the proper Anders procedure as follows:

“Under Anders, appellate counsel’s request to withdraw must, first, ‘be

accompanied by a brief referring to anything in the record that might arguably

support the appeal.’ [Citation.] In other words, appellate counsel must set out any

irregularities in the trial process or other potential errors, which, although in his

judgment are not a basis for appellate relief, might arguably be meritorious in the

judgment of the client, another attorney, or the court. Second, [as to any such

issue] identified, counsel must *** sketch the argument in support of the issues

that could conceivably be raised on appeal, and then *** explain why he believes

the arguments are frivolous. [Citation.] Third, counsel must conclude the case

presents no viable grounds for appeal. [Citation.] Fourth, to enable us to properly

fulfill our responsibilities under Anders, counsel should include transcripts of the

relevant hearings.” (Emphasis in original.) In re S.M., 314 Ill. App. 3d 682, 685

(2000).

This court has also set forth the three options a reviewing court may choose from when

confronted with an appellate attorney’s motion to withdraw that fails to comply with the proper

Anders procedure outlined above:

“First, we could deny the motion with prejudice and order appellate counsel to file

an appellate brief. Second, we could excuse appellate counsel’s inadequate

motion, review the record ourselves, and then determine whether the trial court’s

-4- decision should be affirmed. Third, we could deny appellate counsel’s motion to

withdraw without prejudice.” In re Austin C., 353 Ill. App. 3d 942, 948 (2004).

¶ 11 Here, appointed counsel’s motion to withdraw and accompanying brief do not

comply with the proper Anders procedure outlined in S.M. For instance, counsel does not

indicate whether he reviewed the trial court’s finding of neglect; indeed, counsel only mentions

the court’s neglect finding in a single sentence located in the “Statement of Facts” section of his

brief. Moreover, in the “Argument” section of his brief, counsel’s only citation to authority is to

set forth the standard of review. He does not include a single citation to the Act or any relevant

case law. Importantly, despite moving to withdraw on the purported basis that the instant appeal

contains no nonfrivolous arguments, counsel goes on to argue in his brief that the dispositional

findings were against the manifest weight of the evidence. See S.M., 314 Ill. App. 3d at 687 (“It

should not appear appellate counsel wants to appeal on the merits and withdraw at the same

time.”). Counsel does not indicate whether he is arguing that the court’s finding of unfitness was

erroneous, whether the finding of inability was erroneous, or whether both were erroneous.

Although counsel has failed to comply with the proper Anders procedure in numerous respects,

we will nonetheless excuse his deficient motion to withdraw in the interests of judicial economy

and review the record on our own to determine whether the trial court’s judgment should be

affirmed.

¶ 12 The purpose of the Act is to secure for each minor subject to it “such care and

guidance, preferably in the minor’s own home, as will serve the safety and moral, emotional,

mental, and physical welfare of the minor and the best interests of the community.” 705 ILCS

405/1-2(1) (West 2022). In furtherance of its stated purpose, the Act establishes the procedures

that must be followed before a minor may be removed from the custody of his parents and made

-5- a ward of the court. In re Arthur H., 212 Ill. 2d 441, 462 (2004). The process begins with the

State filing a petition for wardship and the trial court conducting a temporary custody hearing to

determine whether there is probable cause to believe the minor is abused, neglected, or

dependent. 705 ILCS 405/2-10(2) (West 2022). If the court finds probable cause to believe the

minor is abused, neglected, or dependent, the minor is placed in temporary custody and the

process advances to the adjudicatory hearing. In re Z.L., 2021 IL 126931, ¶ 60. “At the

adjudicatory hearing, the court shall first consider only the question whether the minor is abused,

neglected or dependent.” 705 ILCS 405/2-18(1) (West 2022). A neglected minor includes any

minor “whose environment is injurious to the minor’s welfare.” Id. § 2-3(1)(b). Our supreme

court has defined “neglect” as the “failure to exercise the care that circumstances justly demand.”

(Internal quotation marks omitted.) In re N.B., 191 Ill. 2d 338, 346 (2000). “An ‘injurious

environment’ is an amorphous concept which cannot be defined with particularity; therefore,

each case should be reviewed considering the specific circumstances of that case.” In re M.K.,

271 Ill. App. 3d 820, 826 (1995). “[O]ur courts have interpreted ‘injurious environment’ to

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

children.” N.B., 191 Ill. 2d at 346.

¶ 13 “The State has the burden to prove allegations of abuse or neglect by a

preponderance of the evidence.” Z.L., 2021 IL 126931, ¶ 61. “We will not disturb the trial court’s

finding of abuse or neglect 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.” Id.

¶ 14 Here, our review of the record shows that any argument challenging the trial

court’s finding of neglect would be barred by the doctrine of invited error because respondent

-6- agreed to stipulate to the allegations in the State’s petition and proceed to a dispositional hearing.

“Under the doctrine of invited error, [a party] may not request to proceed in one manner and then

later contend on appeal that the course of action was in error.” People v. Carter, 208 Ill. 2d 309,

319 (2003). “Invited error differs from mere forfeiture. A [party] might not merely forgo

objecting to an alleged error but actively invite or acquiesce in it.” People v. Holloway, 2019 IL

App (2d) 170551, ¶ 44. “Thus, invited error does not raise a mere forfeiture to which the plain-

error exception might apply; it creates an estoppel that precludes plain-error analysis.” Id.; see

People v. Ramirez, 2013 IL App (4th) 121153, ¶ 79 (“[I]nvited errors are not subject to plain-

error review.”); In re Stephen K., 373 Ill. App. 3d 7, 25 (2007) (“A party is estopped from taking

a position on appeal that is inconsistent with a position the party took in the trial court.”).

Therefore, no nonfrivolous argument can be made that the trial court erred in finding R.W. to be

a neglected minor under the Act.

¶ 15 If the trial court determines at the adjudicatory stage that the minor is abused or

neglected, the court then moves to the next step of the procedure set forth in the Act, which is the

dispositional stage. Z.L., 2021 IL 126931, ¶ 60 (citing 705 ILCS 405/2-21(2) (West 2018)). “At

the dispositional hearing, the trial court determines whether it is consistent with the health,

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

Id. “Prior to committing a minor to the custody of a third party, such as DCFS, a trial court must

first determine whether the parent is unfit, unable, or unwilling to care for the child.” In re M.M.,

2016 IL 119932, ¶ 21 (citing 705 ILCS 405/2-27(1) (West 2012)). At the dispositional hearing,

“[a]ll evidence helpful in determining these questions, including oral and written reports, may be

admitted and may be relied upon to the extent of its probative value, even though not competent

for the purposes of the adjudicatory hearing.” 705 ILCS 405/2-22(1) (West 2022); see

-7- In re M.D., 2022 IL App (4th) 210288, ¶ 63 (“Essentially, there are no rules of evidence

governing what the court may receive and consider at the dispositional hearing.”).

¶ 16 “At the dispositional phase, the State bears the burden of proving unfitness by a

preponderance of the evidence. [Citation.] We will not reverse a trial court’s finding of unfitness,

unless it is against the manifest weight of the evidence.” In re K.E.S., 2018 IL App (2d) 170907,

¶ 51. “A decision is against the manifest weight of the evidence only if the opposite conclusion is

clearly apparent.” Id.

¶ 17 Here, our review of the record shows that no nonfrivolous argument can be made

that the trial court erred in finding respondent unable to care for R.W. The State presented

evidence at the dispositional hearing that respondent had been charged with two counts of

aggravated criminal sexual abuse and these charges led to the commencement of the instant

juvenile case. Importantly, an order entered by the trial court in respondent’s criminal case

prohibits him from having any contact with minors, including R.W. Clearly, respondent is not

able to care for R.W. if he is prohibited from even having contact with the minor. See

In re Joseph J., 2020 IL App (1st) 190305, ¶ 30 (noting that a “finding of inability is an

independent and sufficient basis to support the court’s judgment”).

¶ 18 III. CONCLUSION

¶ 19 For the reasons stated, we grant appointed appellate counsel’s deficient motion to

withdraw and affirm the trial court’s judgment.

¶ 20 Affirmed.

-8-