People v. Martha L.

THIRD DIVISION
March 15, 2006

No. 1-05-3627

In re KENNETH D., a Minor, ) Appeal from
) the Circuit Court
(The People of the State of Illinois, ) of Cook County.
)
Petitioner-Appellee, ) No. 05 JA 00012
)
v. )
Martha L., ) Honorable
) Robert Balanoff,
Respondent-Appellant). ) Judge Presiding.

JUSTICE THEIS delivered the opinion of the court:

Following an adjudicatory hearing, the trial court found that the minor, Kenneth D., was

neglected due to an injurious environment and abused due to a substantial risk of physical injury

pursuant to section 2-3 of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/2-3(1)(b),

(2)(ii) (West 2004)). At a subsequent dispositional hearing, the court held that respondent,

Martha L., was unable for some reason other than financial circumstances alone to care for,

protect, train, or discipline the child. The court made the child a ward of the court and placed

him in the custody of the Department of Children and Family Services (DCFS).

On appeal, respondent contends (1) the trial court=s adjudicatory findings based on the

theory of anticipatory neglect were against the manifest weight of the evidence; (2) the trial court

erroneously excluded evidence of respondent=s compliance with services after Kenneth was

taken into protective custody; and (3) the trial court erred in considering respondent=s lack of
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prenatal care as grounds for a finding of anticipatory neglect and violated her constitutional right

to privacy under the fourteenth amendment. For the following reasons, we affirm the trial

court=s adjudication of abuse and neglect.

BACKGROUND

Respondent is the mother of four children. Three of her children were born drug-exposed

and were in DCFS custody with findings of abuse and neglect. Her fourth child, Kenneth, was

born on December 27, 2004. On January 5, 2005, the State filed a petition for adjudication of

wardship and a motion for temporary custody. The State=s petition alleged that Kenneth was

neglected in that his environment was injurious to his welfare and that he was abused in that

there was a substantial risk of physical injury by other than accidental means. In support, the

State alleged that respondent and the putative father lived together. They had three other

children who were in DCFS custody with findings of abuse and neglect. Respondent had two

prior indicated reports for substance misuse and had an extensive history of illegal drug use.

Respondent had no prenatal care prior to Kenneth=s birth. The petition further alleged that in

March 2002, a case was opened to provide services to the family, and both parents had not

cooperated with services.

On August 22, 2005, the court commenced an adjudicatory hearing with respect to the

State=s petition. Respondent was not present. DCFS investigator Lanice Kincade-Turner

testified that on December 27, 2004, she was assigned to investigate a report that Kenneth had

been born exposed to a sexually transmitted disease. Turner was told by respondent that she

already had a caseworker and that she was cooperating with services. Kenneth=s putative father,

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Cedric D., told Turner that he lived with respondent and was the father of all of her children, and

expected that Kenneth would be returned home. 1 Turner then spoke with the family=s

caseworker, Susan Barry. Barry advised Turner that respondent was indeed not involved in

recommended services for drug treatment, counseling or parenting skills classes. Turner

believed that respondent=s last urine drop was in January 2004. Based upon her investigation,

Turner sought protective custody of Kenneth due to risk of harm.

Barry, respondent=s caseworker, testified that she had been working with the family for

the past two years. Respondent had three other children who were involved with DCFS because

all three were born drug-exposed. Two of her children were in private guardianship due to

respondent=s failure to complete services. According to Barry, respondent admitted to her that

she had an ongoing drug problem and admitted to smoking a cocaine-laced cigarette right before

she gave birth to her daughter, Kylie, on January 6, 2004. Barry further stated that as of the date

Kenneth was born, respondent had not cooperated with the recommended services and was still

in need of out-patient drug rehabilitation treatment, parenting skills training and consistent

random urine drops. Barry stated that respondent submitted to urine drops on June 18, 2004,

1
The record reflects that Cedric was served with notice of the petition, that he never
appeared in the trial court, and that the court ultimately entered a finding that he was unwilling
and unable to care for Kenneth. He is not a party to this appeal.

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August 19, 2004, August 26, 2004, September 2, 2004, and January 4, 2005. These tests were

negative. Barry requested that respondent submit to weekly urine drops, but respondent told her

she was not able to submit every week because she had summer employment with the Chicago

Park District and worked 30 to 40 hours per week.

The hearing was then continued to August 29, 2005. Respondent testified and

acknowledged that she tested positive for cocaine in September 2002. In May 2004, she enrolled

in a drug treatment program, but did not complete the program because she was working for the

park district. She reenrolled in September 2004, but did not complete treatment because she was

Apregnant, tired, miserable@ and Aheavy.@ Respondent further testified that she only sought

prenatal care once during her pregnancy with Kenneth because she was uncomfortable taking off

her clothes and being Astuck with those needles.@ She took prenatal vitamins and iron pills left

over from her previous pregnancy. She stated that she had no physical problems during the

pregnancy, but was experiencing emotional problems.

Respondent further acknowledged that she was supposed to participate in random drug

screening. According to respondent, her caseworker would call her regarding drug screening

and then she would not hear from her for another month or longer. Respondent testified that she

was asked to participate in drug screening in June 2004 and the result was negative. She also

testified that in order to work for the park district in the summer, she had to test negative for

drugs. No testimony was presented and no medical records were admitted during the

adjudicatory hearing by either party with respect to Kenneth=s health at birth and whether he was

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born drug exposed. 2

At the conclusion of the adjudicatory hearing, the trial court held that the State had met

its burden of proving that Kenneth was neglected due to an injurious environment and abused

due to substantial risk of physical injury. The trial court based its conclusion on respondent=s

failure to seek prenatal care and her failure to obtain and complete needed services. The court

noted that respondent=s discomfort was not a reason to forgo important prenatal care, and that

working full- time and being uncomfortable in pregnancy were not excuses for failing to obtain

the necessary drug treatment and other services for the welfare of her child. The court concluded

that Kenneth was subject to anticipatory neglect.

At a subsequent dispositional hearing, the trial court found it in Kenneth=s best interest to

make him a ward of the court, found respondent unable to care for him, and placed him in the

custody of DCFS. Thereafter, respondent filed a timely appeal, raising claims of error solely

with respect to the adjudicatory hearing.

ANALYSIS

Respondent contends that the court=s ruling, that Kenneth was neglected due to an injurious

2
Indeed, the records admitted at the dispositional hearing from Kenneth=s developmental,
occupational and physical therapists indicate that Kenneth was born exposed to cocaine and
syphilis.

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environment and abused because of a substantial risk of physical injury, was against the manifest weight of the

evidence where the evidence presented by the State was limited to past sibling abuse, and where her drug

tests results were negative during and after her pregnancy with Kenneth.

A Aneglected minor@ includes any minor under 18 years of age whose environment is injurious to his

or her welfare. 705 ILCS 405/2-3(1)(b) (West 2004); In re Arthur H., 212 Ill. 2d

441, 462, 819 N.E.2d 734, 746 (2004). ANeglect@ is defined as the failure to

exercise the care that circumstances justly demand and encompasses both willful and unintentional disregard of

parental duty. In re K.T., 361 Ill. App. 3d 187, 200, 836 N.E.2d 769, 779

(2005). An injurious environment is an amorphous concept that cannot be defined with particularity, but

has been interpreted to include the breach of a parent=s duty to ensure a safe and nurturing shelter for her

children. Arthur H., 212 Ill. 2d at 463, 819 N.E.2d at 746-47. Further, a parent has

a duty to keep her children free from harm. In re A.R., 359 Ill. App. 3d 1071, 1074, 836

N.E.2d 375, 378 (2005). An Aabused minor@ includes any minor under 18 years old whose

parent creates a substantial risk of physical injury to such minor by other than accidental means which would

be likely to cause death, disfigurement, impairment of emotional health, or loss or impairment of any bodily

function. 705 ILCS 405/2-3(2)(ii) (West 2004).

Under the theory of Aanticipatory neglect,@ 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 another child. Arthur H., 212 Ill. 2d at 468, 819 N.E.2d at 749. Although the

neglect of one child does not conclusively show the neglect of another child, the neglect of one minor is

admissible as evidence of the neglect of another minor under a respondent=s care. 705 ILCS

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405/2-18(3) (West 2004); Arthur H., 212 Ill. 2d at 468, 819 N.E.2d at 750.

Anticipatory neglect should take into account not only the circumstances surrounding the previously

neglected sibling, but also the care and condition of the child named in the petition. Arthur H., 212 Ill.

2d at 468, 819 N.E.2d at 749-50. Under this theory, when faced with evidence of prior

neglect by parents, the juvenile court should not be forced to refrain from acting until another child is injured.

Arthur H., 212 Ill. 2d at 477, 819 N.E.2d at 754.

Cases involving allegations of abuse and neglect are sui generis, and must be decided based upon their

unique facts. Arthur H., 212 Ill. 2d at 463, 819 N.E.2d at 747. The State has the

burden of proving allegations of neglect and abuse by a preponderance of the evidence. In re Faith B.,

216 Ill. 2d 1, 13, 832 N.E.2d 152, 159 (2005). On review, a trial court=s finding of

neglect or abuse will not be reversed unless it is against the manifest weight of the evidence, meaning that the

opposite conclusion must be A>clearly evident.=@ Faith B., 216 Ill. 2d at 13-14, 832 N.E.2d at

159, quoting Arthur H., 212 Ill. 2d at 464, 819 N.E.2d at 747. We may affirm the trial

court=s ruling if any of the trial court=s bases of abuse or neglect may be upheld. In re Faith B., 216 Ill.

2d at 14, 832 N.E.2d at 159.

Applying these principles to the present case, there was sufficient evidence to support the trial

court=s findings of anticipatory neglect of Kenneth. The State presented evidence of prior sibling neglect

due to respondent=s three previous children being born drug-exposed. Only 11 months before Kenneth was

born, she gave birth to a drug-exposed infant. Beyond that evidence, the record reflects that between the

time respondent=s daughter was born drug-exposed in January 2004 and the time Kenneth was born in

December 2004, respondent failed to take measures to correct the conditions that brought her previous

children into the DCFS system with findings of abuse and neglect.

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Inexplicably, no evidence was presented at the hearing regarding whether Kenneth was born drug-

exposed. Nevertheless, at the time he was born, respondent had a history of drug abuse, had failed to

complete a drug treatment program, had failed to attend recommended parenting classes, and had failed to

comply with consistent random drug screening. Although respondent tested negative on the few dates that

she chose to comply with drug screening, her compliance over the 11-month period was erratic and

inconsistent. According to Barry, respondent acknowledged that she had an ongoing drug addiction. The

evidence reveals that by the time Kenneth was born and the State=s petition was filed, respondent had made

no progress in ameliorating her drug problems and the attendant risks those problems posed to Kenneth.

Accordingly, the trial court=s findings of abuse and neglect were not against the manifest weight of the

evidence.

Next, respondent contends that the trial court erred in relying on her lack of prenatal care as

grounds for a finding of anticipatory neglect. Specifically, she argues that the State cannot compel her to

submit to medical care and that compelling her to take those measures would violate her constitutional right to

privacy. The State and the Office of the Public Guardian maintain that respondent waived this argument

because she invited the error. We agree.

Initially, respondent never objected to the allegations set forth in the petition for adjudication of

wardship, which included her failure to obtain prenatal care, and never moved to strike those allegations before

the trial court. See 735 ILCS 5/2-612(c) (West 2004) (A[a]ll defects in pleadings, either in

form or substance, not objected to in the trial court are waived@). Furthermore, the State had the burden

of proof at the hearing and never elicited any evidence on the issue of respondent=s prenatal care in its case-

in-chief. Indeed, it was respondent who injected the evidence into the proceedings and neither the State nor

the Public Guardian followed up on her testimony in cross-examination. A party cannot complain of error

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which that party induced the court to make or to which that party consented. In re Detention of Swope,

213 Ill. 2d 210, 217, 821 N.E.2d 283, 287 (2004). Illinois courts have applied the

invited error doctrine in numerous cases to bar a party from claiming error in the admission of improper

evidence where the admission was procured or invited by that party. People v. Harvey, 211 Ill. 2d

368, 386, 813 N.E.2d 181, 192 (2004). Accordingly, where respondent failed to

object to the allegation, and procured the evidence at the hearing, she has waived her right to complain of any

alleged error. Nevertheless, even if the admission of the evidence were erroneous, where the trial court=s

findings of abuse and neglect were sufficiently supported by other grounds, we would find no reversible error.

Next, we address respondent=s contention that the trial court erred in excluding evidence at the

adjudicatory hearing of respondent=s participation in services after Kenneth was taken into protective custody

by DCFS. At the completion of the hearing, respondent made an offer of proof that, if allowed to

testify, she would state that she completed parenting classes in the spring of 2005, completed outpatient

drug treatment in June 2005, tested negative for drugs in 2005, and visited Kenneth everyday in

2005.

Under the Act, the rules of evidence in the nature of civil proceedings are applicable to the

adjudicatory hearing. 705 ILCS 405/2-18(1) (West 2004). Whether evidence is admissible

is within the discretion of the circuit court, and its ruling will not be reversed absent an abuse of that

discretion. In re Kenneth J., 352 Ill. App. 3d 967, 980, 817 N.E.2d 940, 950

(2004). All evidence must be relevant to be admissible. Kenneth J., 352 Ill. App. 3d at

980, 817 N.E.2d at 950. Evidence is relevant if it tends to prove a fact in controversy or

render a matter in issue more or less probable. Kenneth J., 352 Ill. App. 3d at 980, 817

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N.E.2d at 950.

In determining the relevance of respondent=s conduct after Kenneth was taken into protective

custody, we find the case of In re S.W., 342 Ill. App. 3d 445, 794 N.E.2d 1037

(2003), instructive. There, the court addressed a mother=s argument that her participation in services

after the removal of her child should have been considered at an adjudicatory hearing where the State alleged

the child was dependent due to the mother=s inability to care for the child. The court rejected the mother=s

claim, finding that the mother Aseems to confuse the adjudicatory hearing and the dispositional hearing.@

S.W., 342 Ill. App. 3d at 451, 794 N.E.2d at 1042. In making its finding, the court

relied upon the supreme court=s decision in In re C.W., 199 Ill. 2d 198, 217, 766 N.E.2d

1105, 1116 (2002). Therein, the supreme court stated that:

AEvidence that a parent substantially completed offered services,

or otherwise refrained from prior objectionable conduct following removal of

the child, does not somehow absolve or erase the parent=s initial failing that

triggered State intervention and removal of the child. Rather, such

evidence is appropriately considered at the second stage of the termination

hearing, at which the court considers whether it is in the best interest of the

minor that parental rights be terminated. At that time, the full range of

the parent=s conduct can be considered.@ C.W., 199 Ill. 2d at 217,

766 N.E.2d at 1116.

Although the court in S.W. recognized that C.W. dealt with a termination of parental rights hearing and

not an adjudication hearing involving the abuse and neglect of a child, by analogy it found that the mother=s

subsequently completed services and subsequent behavior were properly considered at the dispositional hearing,

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and not the adjudicatory hearing. S.W., 342 Ill. App. 3d at 451, 794 N.E.2d at 1042.

This position is consistent with the purpose of an adjudicatory hearing, which is Ato 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 2004). Here, as in S.W.,

we find that respondent=s subsequent completion of services after the removal of Kenneth was not relevant

to the allegations in the petition, namely, whether at the time Kenneth was taken into protective custody,

respondent had a drug problem that made Kenneth=s environment injurious and created a substantial risk of

physical injury to him. Rather, her subsequent conduct was properly admitted at the dispositional hearing,

where A[a]ll evidence helpful in determining [the best interest of the child] *** 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 2004).

We further find this position consistent with the Act=s stated purpose to insure a just and

speedy resolution of abuse and neglect cases. The Act expressly Arecognizes that serious delay in the

adjudication of abuse, neglect, or dependency cases can cause grave harm to the minor and the family and that

it frustrates the health, safety and best interests of the minor and the effort to establish permanent homes

for children in need.@ 705 ILCS 405/2-14(a) (West 2004). As a result, the Act requires

that Aan adjudicatory hearing shall be commenced within 90 days of the date of service of process.@ 705

ILCS 405/2-14(b) (West 2004). Thus, to hold that evidence regarding a respondent=s efforts

to remediate the problem or evidence that she refrained from prior objectionable conduct following protective

custody of a child was relevant to the adjudicatory hearing would be inconsistent with the stated purpose of

the statute. It would encourage the respondent to delay the adjudicatory hearing beyond the stated time frame

and thereby potentially frustrate the health, safety and best interest of the child. Additionally, we note that

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a contrary holding would undermine the newly adopted Supreme Court Rule 901 (eff. July 1,

2006)(adopted February 10, 2006), which includes procedures designed to reinforce strict

compliance with statutory deadlines and impose limitations on continuances.

Respondent cites In re Edricka C., 276 Ill. App. 3d 18, 31-32, 657 N.E.2d

78, 87 (1995), in support of her argument that by excluding evidence favorable to her, she was

prejudiced in presenting her defense. In Edricka C., the reviewing court concluded that the trial court had

erroneously established a Abright-line rule@ that all post-petition evidence was irrelevant to the adjudicatory

hearing. For example, the court found it was error for the trial court to exclude evidence that after the

petition was filed, the child tested negative for an alleged blood disorder because this evidence was indeed

relevant to disprove the allegation that the child was medically neglected. Edricka C., 276 Ill. App. 3d

at 32, 657 N.E.2d at 87.

We agree with the general proposition of law in Edricka C. that there is no bright-line post-petition

test for admissibility of evidence. Rather, the test for admissibility of post-petition evidence will depend on

whether it is relevant to the allegations in the petition. Compare S.W., 342 Ill. App. 3d at 451,

794 N.E.2d at 1042 (evidence of post-petition participation in services was not relevant to the

allegation that child was dependent due to mother=s inability to care for child and refusal to take the child home

from the hospital), with In re Edward T., 343 Ill. App. 3d 778, 795-96, 799 N.E.2d

304, 318 (2003) (expert testimony regarding child=s improved health during post-petition hospital

stay was relevant to prove allegations of inorganic failure to thrive). Here, the trial court did not abuse its

discretion in finding that evidence of respondent=s subsequent participation in services and subsequent remedial

efforts were not relevant to the allegations in the petition that, at the time Kenneth was taken into protective

custody, his environment was injurious and there was a substantial risk of physical injury to him.

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For all of the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

HOFFMAN, P.J., and KARNEZIS, J., concur.

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