People v. Melissa A.

SIXTH DIVISION
SEPTEMBER 21, 2007

No. 1-07-1078

In re TYRESE J., a Minor ) Appeal from the
) Circuit Court
Respondent-Appellant, ) of Cook County.
)
(The People of the State of )
Illinois )
)
Petitioner-Appellee, )
)
v. ) No. 06 JA 823
)
Melissa A. and Tyrone J., ) The Honorable
) Richard Stevens,
Respondents-Appellees) ) Judge Presiding.

JUSTICE O'MALLEY delivered the opinion of the court:

Following a petition by the State for adjudication of

wardship wherein it alleged abuse and neglect, the circuit court

of Cook County entered an order for temporary custody of Tyrese

J., a minor (Tyrese). An adjudicatory hearing was subsequently

held and the circuit court found that Tyrese was not neglected,

abused or dependent pursuant to sections 2-3 and 2-4 of the

Juvenile Court Act of 1987 (the Act) (705 ILCS 405/1-1 et seq.

(West 2006)). The State and Tyrese appeal the judgment of the

circuit court contending that its finding was against the

manifest weight of the evidence and that the circuit court erred

in not allowing the State to amend its pleading. For the reasons

that follow, we reverse the judgment of the circuit court and
1-07-1078

remand this matter to the circuit court for further proceedings.

BACKGROUND

On December 5, 2004, Tyrese was born to Melissa A. at Mount

Sinai Hospital in Chicago, Illinois. Both Melissa and Tyrese

tested positive for opiates. Melissa named Tyrone J. as Tyrese's

father. The Illinois Department of Children and Family Services

(the Department) opened an "intact family" case file in an effort

to avoid removing Tyrese from his mother's custody. Melissa was

offered drug treatment services and support, which Melissa

accepted; however, it is not clear from the record whether

Melissa successfully completed her addiction treatment prior to

the closure of her case.

On November 4, 2006, Melissa gave birth to Teeron J. He and

Melissa both tested positive for cocaine on the day of his birth.

The Department was notified and took protective custody of Teeron

and Tyrese following an investigation.1 The Department placed

Tyrese with his paternal grandmother, who lived in the unit next

door to Tyrone. Teeron was to be placed with his paternal

grandmother upon release from the hospital.

The State subsequently filed a petition for adjudication of

wardship for Tyrese on November 14, 2006, alleging that he was a

neglected minor whose environment was injurious to his welfare

1
Teeron is not a party to this appeal.

2
1-07-1078

pursuant to sections 2-3(1)(b) and 2-3(2)(ii) of the Act.

Tyrese’s petition did not allege that he was born exposed to

narcotics under section 2-3(1)(c) of the Act; however, it did

allege that he tested positive for a controlled substance at

birth.

The State’s petition reads, in pertinent part, as follows:

"1. Tyrese J. is a male born on December 5, 2004 and who

resides or may be found in this county ***.

2. The names and residence addresses of the minor’s

parents, legal guardian and/or custodian are:

Mother’s Name: Melissa A.

Residence Address *** Keystone Ave #A

City, State Zip Chicago, IL ***

Father’s Name: Tyrone J.

Residence Address *** Keystone Ave #A

City, State Zip Chicago, IL ***2

3. The minor was taken into custody on November 9, 2006

at 3:30 pm.

4. A Temporary Custody Hearing has been set for November

14, 2006, at 11:00am.

2
The identifying information of the parties, who
successfully moved this court to proceed anonymously, will be
omitted from this opinion.

3
1-07-1078

5. The minor was neglected pursuant to the Juvenile Court

Act, section 0702 [sic] 405/2-3(1)(b); he is a minor under

18 years of age whose environment is injurious to his

welfare.

The facts supporting this are:

Mother has eight prior indicated reports of abuse and

neglect. Mother has five other minors who were in DCFS

custody with findings of abuse and neglect having been

entered. Mother admits to using illegal substances while

pregnant with this minor’s sibling. Mother tested positive

for illegal substances at the time of this minor’s sibling’s

birth. Mother admitted this minor was also born substance

exposed. Mother and putative father reside together.

Paternity has not been established.

6. The minor was abused in that his/her parent or

immediate family member, or any person responsible for

his/her welfare, or any person who is in the same family or

household as the minor, or any individual residing in the

same home as the minor, or paramour of the minor’s parent,

pursuant to the Juvenile Court Act section 0705 [sic] 405/2-

3(2)(ii); 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

4
1-07-1078

emotional health or loss or impairment of any bodily

function.

The facts supporting this are:

Mother has eight prior indicated reports for abuse and

neglect. Mother has five other minors who were in DCFS

custody with findings of abuse and neglect having been

entered. Mother admits to using illegal substances while

pregnant with this minor’s sibling. Mother tested positive

for illegal substances at the time of this minor’s sibling’s

birth. Mother admitted this minor was also born substance

exposed. Mother and putative father reside together.

Paternity has not been established.

7. The minor is not the subject of another child custody

proceeding or visitation order or has possible Indian Tribal

affiliation.

WHEREFORE, petitioner prays that the minor be adjudged a

ward of the Court and that the Court enter such orders as

are in the best interest of the minor, and other relief

under the Juvenile Court Act."

On November 14, 2006, the circuit court held a hearing on

the State’s petition for adjudication of wardship and motion for

temporary custody for Tyrese. Melissa and Tyrone stipulated to

the following facts:

5
1-07-1078

"1: If called to testify, DCP Investigator George Redmon

would state that Tyrese J. is a male minor born on December

5, 2004;

2: Teeron J. is a male minor born on November 4, 2006.

3: Melissa A. is the natural mother of the aforementioned

minors and was custodial at all relevant times;

4: Tyrone J. is the natural father of the aforementioned

minors and was custodial at all relevant times;

5: Mother has eight prior indicated reports for abuse and

neglect;

6: Mother has five other minors who were in DCFS custody

with findings of abuse and neglect having been entered;

7: Mother admits to using illegal substances while

pregnant with Teeron J.

8: Mother tested positive for illegal substances at the

time of Teeron J.'s birth.

9: Mother admitted Tyrese J. was also born substance

exposed;

10: Mother and natural father reside together;

11: Teeron was born with some amount of a controlled

substance of its metabolite in the minor's blood, urine or

meconium. And the presence of the controlled substance or

its metabolite was not the result of medical treatment

6
1-07-1078

administered to the mother or the minor."

All parties stipulated to the above facts and the circuit court

accepted the stipulation.

Following an admission of paternity, the circuit court found

Tyrone to be Tyrese’s father. The court appointed a private

attorney to represent Tyrone and the Cook County public defender

to represent Melissa.

Based on the stipulation, the circuit court found that

probable cause and urgent and immediate necessity existed and

ordered that temporary custody of Teeron and Tyrese be taken.

Counsel for Tyrese asked to elicit testimony from Redmon relative

to Tyrese's placement. The following colloquy occurred:

"MR. STERBENC [Assistant Public Guardian]: Q. Currently,

Tyrese, the older of the two children, is placed by the

Department in the home of his paternal grandmother, correct?

A. That's correct.

* * *

Q. The biological mother and father of these children

live in a family apartment building, and the parents live in

Unit A, correct?

A. That's correct.

Q. Along with the parents also lives a paternal aunt and

that aunt's boyfriend, is that right?

7
1-07-1078

A. The aunt lives there. The boyfriend do not [sic] live

there.

* * *

[THE COURT]: Just so I'm clear, the paternal aunt lives

with the mother and father?

[THE WITNESS]: Right

THE COURT: At XXX N. Keystone?

A. Correct.

MR. STERBENC: In the same building, unit C?

A. Not in the same building. They are two separate

units. A,B,C. Separate houses. Individual homes.

Q. At XXX N. Keystone, Unit C.

A. Right.

Q. That is where the paternal grandmother resides and

where the children will be placed?

A. Correct.

Q. Also in the home of the paternal grandmother, are a

paternal aunt, a paternal uncle and a paternal cousin,

correct?

A. Correct.

Q. The paternal aunt who lives in the same home as the

grandmother has a 1997 conviction for manufacture for [sic]

controlled substance for which she served prison time,

8
1-07-1078

correct?

A. That's correct.

Q. Also, the paternal uncle who lives in that same home

has five convictions, two of which are for armed robbery,

both of which resulted in prison time, correct?

A. Correct.

Q. The paternal cousin is an 18 year old female who was

arrested on October 17th of this year on a charge of

aggravated battery with a weapon, is that right?

A. Correct."

On cross-examination, testimony was elicited from Redmon that he

placed Tyrese with his paternal grandmother because he had a very

strong bond with her.

Gordon Newman, a follow-up case manager with Catholic

Charities, testified that he was assigned to review the placement

of the children. He testified that although he had not reviewed

the placement of the children, he expected his organization to

conduct a clinical staffing to assess the long-term

appropriateness of the Department's placement within a week's

time.

The State requested medical records for Melissa and Teeron.

The court noted that the petition did not allege that Tyrese was

a drug-exposed infant, yet it ordered Tyrese’s medical records

9
1-07-1078

sua sponte, stating:

"It's the court's duty to direct the proceedings to gain

all the jurisdiction [sic] facts, to determine what is in

the best interest of the minors.

She admits that the child was born drugs [sic] exposed.

The State didn't add a charge that the minor is born drug

exposed, and maybe that's because the minor wasn't born drug

exposed. But if the minor was born drug exposed, that's

something that I would need to know. I'm going to order the

release of the birth records of the minor, Tyrese J., based

on what is alleged in the petition.

The children were placed with their paternal grandmother;

however, on December 29, 2006, the children were removed from

their grandmother's house and placed with their adult half sister

and Tyrone's daughter, Venita C.

On January 3, 2007, Tyrone filed a motion for the return

home of Teeron and Tyrese. The assistant public guardian

requested a drug test of Tyrone, which was denied by the circuit

court before it continued Tyrone’s motion for a hearing. On

January 19, 2007, Melissa filed a motion for the return home of

Teeron and Tyrese and indicated that Tyrone desired to proceed on

his motion, but he did not appear in court. At this hearing, the

court proceeded with a family conference in Tyrone's absence.

10
1-07-1078

The court ordered that the conference take place on the record

due to Tyrone's absence. Rhonda Smith, a caseworker with

Catholic Charities, testified that Tyrone had a substance abuse

evaluation the previous month which indicated that no services

were necessary; however, two urine tests were required. Tyrone

completed one test, which tested positive for opiates. Both

Melissa’s and Tyrone’s motions were continued for hearings on

February 15, 2007. On that date, Melissa withdrew her motion and

the court struck Tyrone’s motion without prejudice. Tyrone did

not appear in court on February 15, 2007.

On April 7, 2007, an adjudicatory hearing was had on

Tyrese's and Teeron’s cases. The State called Nichole McArthur,

who testified that she was a Department investigator assigned to

Tyrese’s case in 2004. She received a hotline call on December

6, 2004, that an infant was born exposed to opiates at Mount

Sinai Hospital. Melissa also tested positive for marijuana.

Melissa admitted to McArthur that she used marijuana and heroin.

McArthur offered and Melissa accepted an inpatient drug treatment

service. McArthur opened an "intact family" case file at that

time.

The State called George Redmon, who was also an investigator

for the Department and was assigned to Teeron’s case on November

5, 2006, following a hotline call to the Department on November

11
1-07-1078

4, 2006, that Teeron was born exposed to cocaine. On November 7,

Redmon spoke to Melissa and Tyrone. Melissa told Redmon that she

had been in drug treatment, but left five or six months before

Teeron’s birth. She also told Redmon that she lived next-door to

Tyrese, who lived with his father, Tyrone. Melissa indicated

that she had attended Lutheran Social Services as an outpatient,

but that she left because she had a problem with her counselor.

Redmon testified that he referred her to an inpatient program for

rehabilitation due to her struggles with outpatient services.

On cross-examination, Redmon testified that Melissa was told

by her intact counselor that if she tested negative for drugs in

eight urine tests, her case would be closed. Although there was

no evidence that Melissa underwent and passed eight urine tests,

her intact case was, in fact, closed.

Redmon then spoke to Tyrone while Melissa was present in his

apartment. Tyrone admitted that he was Tyrese's and Teeron’s

father and that he attempted to assist Melissa in her drug

treatment. Tyrone also told Redmon that he completed a drug

addiction program at Bobby Wright in 1999. He indicated that

Melissa was staying with him in his apartment because there had

been a fire in her apartment. Tyrone admitted to Redmon that he

was aware that Melissa abused illegal drugs.

Tyrone told Redmon that Tyrese lived with him and that his

12
1-07-1078

mother and sister assisted him with Tyrese’s care. Redmon

testified that Tyrese appeared to be well cared for and happy and

he observed no signs of abuse or neglect. Tyrese also appeared

to be developing appropriately for his age. Redmon, however,

took the children into protective custody because he believed

that Melissa was living with Tyrone and viewed her presence as a

risk to the children.

The State entered Tyrese's medical records from Mount Sinai

Hospital into evidence, over Melissa's and Tyrone's objections.

According to the records, Tyrese's urine tested positive for

opiates on December 5, 2004. The following day, hospital

officials contacted the Department to investigate Tyrese and

Melissa. Gil Izraeli from the Department met with Melissa and

Tyrone on December 13, 2004. Melissa reported that she gave

custody of her children, other than Teeron and Tyrese, to her

grandmother because she was actively using drugs and unable to

care for them. Melissa stated that she was "clean" for seven

years, but began to use drugs again following several deaths in

her family and because she was in a troubled relationship.

Melissa reported to Izraeli that she used drugs on December 4,

the day before Tyrese's birth, but claimed that she was quitting

on her own.

Nursing discharge notes dated December 13, 2004, were also

13
1-07-1078

admitted into evidence. The notes indicated that "Mother reports

that she used heroin approx one wk ago and twice in the past

month. She states that she uses heroin on and off. States that

she used regularly for eight years and stopped without

rehabilitation." Also, registration records dated July 17, 2005,

for Tyrese show his address and Melissa's address as XXX N.

Keystone, Chicago, Illinois. Registration forms dated December

5, 2004, the date of Tyrese's birth, show the same address. The

infant discharge form for December 7, 2004, which also names

Tyrone as the father, is signed by Melissa and shows XXX N.

Keystone as her address.

The State admitted Teeron's medical records from Mount Sinai

Hospital into evidence. All medical records admitted relative to

Teeron and Melissa calling for an address showed the same

Keystone address. Tyrone was named as the father and his address

was also the Keystone address. The records indicated that

Melissa tested positive for marijuana, cocaine and opiates on

July 30, 2006. Records dated November 6, 2006, denoted that

Teeron exhibited withdrawal symptoms and his meconium tested

positive for cocaine. Melissa admitted to investigator Jennifer

Hall that she had been addicted to heroin on and off for 10

years.

Melissa's medical records and social work assessments were

14
1-07-1078

also admitted into evidence. These records included statements

from Melissa in a November 4, 2006 social worker's assessment

that she had custody of a two-year-old child and that she lives

with the child's paternal grandmother. She further stated that

she has been using heroin for 10 years and used cocaine

occasionally. Melissa declined inpatient treatment offered by

the social worker because she had been in treatment previously

and it would not help her. However, she indicated that Tyrone

and his mother did not abuse drugs. A patient progress report

from November 4, 2006, indicated that Melissa admitted using

heroin on November 3, 2006, one day before Teeron's birth.

Finally, the State admitted prior court orders finding abuse

and neglect pertaining to Melissa's older children who were not

fathered by Tyrone. On January 6, 1998, the court involuntarily

terminated Melissa's maternal rights to four of her children for

failure to maintain a reasonable degree of interest, being

addicted to illegal drugs and failure to make progress and

efforts. The parties rested.

In closing arguments the State argued that Tyrese and Teeron

were both neglected because they were born exposed to illegal

drugs and their environment was injurious. The State requested

that the court enter this finding as to Tyrese even though the

petition was not amended to allege that Tyrese was born exposed

15
1-07-1078

to controlled substances pursuant to section 2-3(1)(c) of the

Act. The State was of the view that the evidence supported a

conclusion that Tyrese was born substance exposed. The guardian

ad litem concurred with the State’s position.

Melissa objected to a finding of neglect based on exposure

to controlled substance at birth with regard to Tyrese or to

amending the pleadings, in which Tyrone joined. Melissa and

Tyrone both argued that it would be unfair to allow the State to

amend the petition to conform to the proofs after the close of

evidence.

The State responded that the pleadings were, in essence,

only technically incorrect and Tyrone and Melissa could not claim

surprise or prejudice because Tyrese’s medical records showed

that he was born drug exposed, they had those records long before

trial, and the petition alleged that the mother admitted that

Tyrese was born exposed to a controlled substance.

The circuit court found, with regard to Tyrese, that the

State was late in seeking to amend the pleadings and noted that

it would be unfair to the parents to allow the State do so after

the close of evidence. The court went on to state:

"Now, even in other cases, I’ve conformed my findings to

the facts; and the Court has, on its own, amended the

pleadings; but in this case, the Court does not believe that

16
1-07-1078

that would be in the interests of fairness or justice. So

at this time I’m not going to grant the State’s request to

amend the pleading to allege neglect/controlled substance.

There is just no explanation for why, prior to the close of

the proofs today, there hadn’t been a request to make that

amendment.

As to Teeron the Court makes a finding of

neglect/controlled substance. The minor was born exposed to

a controlled substance. That was alleged in the petition.

The evidence supports the State has proved that be a

preponderance of the evidence with regards to Teeron. His

toxicology, in the medical records, was positive. He also

had suffered, apparently withdrawal symptoms; and in fact,

the evidence from the testimony today corroborates the fact

that the mother had apparently been using an illegal

substance.

* * *

Now, with regard to Teeron, the Court believes that,

because the evidence does know [sic] here that Tyrese had

been born drug-exposed and now she has another child Teeron

being born drug exposed, that’s neglect/injurious

environment based on a theory of anticipatory neglect

because of the fact that we have (2) minors born exposed to

17
1-07-1078

controlled substances. So, as to Teeron, I’m finding both

neglect/controlled substances and neglect/injurious

environment. As to Tyrese, though, the argument is that

this Court should make a finding of neglect/injurious

environment as to Tyrese because of his mother’s drug

problem. But Tyrese is not situated in the same way as

Teeron. Tyrese was born December 5th of 2004 almost (2)

years before Teeron. Apparently during that period of time,

the minor was being cared for by his father who had support

from the paternal grandmother and the father’s sister, a

paternal aunt.

Now, at some point the natural mother apparently moved

into the father’s home. She apparently had been living next

door; and the evidence is at some point she moved in becuase

of - - there had been fire in her place; but it appeared to

the DCP investigator, Mr. Redmon, that in fact the minor

appeared to be healthy and well-cared for.

Now, at this point, the Court finds there is insufficient

evidence of neglect/injurious environment for this minor

(Tyrese) because, in fact, the minor been placed by his

father for (inaudible) years apparently without any problem

or without any incident so the Court believes that, in

theory of anticipatory neglect, it would be inappropriate.

18
1-07-1078

***

And, although the mother does present a risk, the Court

finds that, based on the fact that Mr. J. apparently

continuously parented the minor apparently with the consent

of the DCFS who had immediately investigated the

circumstances of Tyrese’s birth and allowed the minor to

remain with Mr. J. it doesn’t appear to me that at this

point there’s proof by a preponderance of the evidence of

neglect/injurious environment."

Following the court’s ruling, a recess was had and the case

recalled for purposes of scheduling Teeron’s dispositional

hearing. The State again renewed its motion to reopen the proofs

and conform its petition to the proofs relative to neglect due to

being born substance exposed. In addition, the State, joined by

the guardian, argued that the court should reconsider its ruling

that Tyrese was not neglected due to an injurious environment

and, if unsuccessful on its motions, that the court should stay

its order until a formal motion for reconsideration could be

filed. The circuit court denied the State’s motions and its

request to stay the proceedings and keep Tyrese in temporary

custody of the State. The court stated that, "I acknowledge that

there was proof that the minor was born exposed to controlled

substance. The minor was not alleged to have been born exposed

19
1-07-1078

to controlled substance; and, therefore, the court did not make a

finding of neglect/controlled substance as to Tyrese."

The circuit court entered its written adjudication order on

April 27, 2007, stating:

"No finding of DEI [drug exposed infant] b/c no 'good

cause' offered to the court for amending the petition after

the proofs had closed, and where the petition did not allege

neglect under section 2-3(1)(c).

Minor's environment was not injurious b/c minor was

living w/ his father since birth, for almost 2 yrs at time

of protective custory & was well cared for, even though his

mother gave birth to a drug exposed sibling in 11/06. DCFS

had monitored this minor's care after the minor's birth &

provided intact family srvcs [services] to the Mother and

closed this minor's case prior to the sibling's birth.

Previously born siblings who had been court involved in the

1980's & 1990's had fathers other than the father of this

minor. This minor was not in substantial risk of physical

injury based on the evidence presented."

The State and Tyrese timely appealed the judgment of the

circuit court.

ANALYSIS

I. JURISDICTION

20
1-07-1078

Preliminarily, we address the matter of appellate

jurisdiction because Tyrone contends that Tyrese's notice of

appeal lacks sufficient specificity relative to the State's oral

motion to reopen the proofs prior to the circuit court's ruling.

According to the record, the State made an oral motion to amend

the pleadings prior to the ruling, but after the proofs had

closed. The State again sought to amend its pleadings after the

court issued it's ruling. Tyrone claims that Tyrese's notice of

appeal does not indicate that he is appealing the circuit court's

denial of his oral motion to amend the pleadings prior to the

court's ruling.

A notice of appeal shall specify the judgment of part

thereof appealed from and the relief sought from the reviewing

court. Illinois Supreme Court Rule 303(b)(2) (155 Ill. 2d R.

303(b)(2)). "Supreme Court Rule 303(b)(2) [citation], requires a

notice of appeal to 'specify the judgment or part thereof or

other orders appealed from and the relief sought from the

reviewing court'. In Burtell v. First Charter Service Corp., 76

Ill. 2d 427, (1979), our supreme court noted that 'the appeal

from a subsequent final judgment "draws in question all prior

non-final orders and rulings which produced the judgment."

[Citation.]' Burtell, 76 Ill. 2d at 433. Furthermore, 'it is

generally accepted that a notice of appeal is to be liberally

21
1-07-1078

construed.' Burtell, 76 Ill. 2d at 433." In re D.R., 354 Ill.

App. 3d 468, 471 (2004); In re Marriage of Betts, 159 Ill. App.

3d 327 (1987). This court does not have jurisdiction to review

judgments that are not specified or fairly inferred from the

notice of appeal; however, appellate jurisdiction may still be

conferred if the notice of appeal fairly and accurately advises

the parties of the nature of the appeal. Burtell, 76 Ill. 2d at

433-34.

We reject Tyrone's contention that this court lacks

jurisdiction because Tyrese's notice of appeal states that he

"appeals from the trial court's April 27, 2007 order." In that

written order, the circuit court specifically made a finding that

Tyrese was not a drug-exposed infant because the State offered

"no good cause to the court for amending the petition after the

proofs had closed." Tyrese specifically requested, among other

things, in his notice of appeal that we "find that the trial

court erred in determining that he was not neglected due to

exposure by controlled substance." The circuit court's finding

that Tyrese was not born exposed to drugs was based on its denial

of the State's motion to amend the petition. In our view,

Tyrese's timely notice of appeal gave more than adequate notice

to appeal all findings contained in the April 27, 2007

adjudication order. We thus hold that jurisdiction for all

22
1-07-1078

claims on appeal properly lies with this court.

II. DENIAL OF THE STATE'S MOTION TO AMEND

"All proceedings under the [Act] [citation], are brought in

the best interests of the child involved and should not be

undertaken lightly. At an adjudicatory hearing, a trial court

must determine whether a minor is abused, neglected, or dependent

and the State must prove its allegations by a preponderance of

the evidence. [citation]." In re C.M., 351 Ill. App. 3d 913, 916

(2004). The findings of the circuit court are afforded great

deference and should not be disturbed unless those findings are

against the manifest weight of the evidence. In re A.P., 179

Ill. 2d 184, 204 (1997).

The State and Tyrese argue on appeal that the circuit court

erred in finding that Tyrese was not neglected due to an

injurious environment and by not allowing the State to amend its

pleadings to conform to the evidence showing that Tyrese was born

exposed to illegal substances.

We first address Tyrese's argument that the State should

have been allowed to amend the pleadings prior to the circuit

court's ruling. Section 2-13(5) of the Act states:

"The court shall liberally allow the petitioner to amend

the petition to set forth a cause of action or to add,

amend, or supplement factual allegations that form the basis

23
1-07-1078

for a cause of action up until 14 days before the

adjudicatory hearing. The petitioner may amend the petition

after that date and prior to the adjudicatory hearing if the

court grants leave to amend upon a showing of good cause.

The court may allow amendment of the petition to conform

with the evidence at any time prior to ruling. In all cases

in which the court has granted leave to amend based on new

evidence or new allegations, the court shall permit the

respondent an adequate opportunity to prepare a defense to

the amended petition." 705 ILCS 405/2-13(5) (West 2006).

In order to determine whether the trial court has abused its

discretion, a reviewing court must look at four factors

established in Kupianen v. Graham, 107 Ill. App. 3d 373 (1982)

and adopted by our supreme court in Loyola Academy v. S & S Roof

Maintenance, Inc., 146 Ill. 2d 263, 273-74 (1992). "These

factors are: (1) whether the proposed amendment would cure the

defective pleading; (2) whether other parties would sustain

prejudice or surprise by virtue of the proposed amendment; (3)

whether the proposed amendment is timely; and (4) whether

previous opportunities to amend the pleading could be

identified." Loyola Academy, 146 Ill. 2d at 273.

The circuit court has broad discretion in motions to amend

pleadings prior to entry of final judgment and, as a result, a

24
1-07-1078

reviewing court will not find that denial of a motion to amend is

prejudicial error unless there has been a manifest abuse of such

discretion. Loyola Academy, 146 Ill. 2d at 273-74, citing Mundt

v. Ragnar Benson, Inc., 61 Ill. 2d 151, 160-61 (1975), and Austin

Liquor Mart, Inc. v. Department of Revenue, 51 Ill. 2d 1, 8

(1972). The Loyola Academy court further noted that "

'[J]udicial discretion must be exercised within the bounds of the

law [citation] and any question regarding the proper exercise

thereof is always subject to our review [citation]. Further,

where the exercise of discretion has been frustrated by the

application of an erroneous rule of law, review is required to

permit the exercise in a manner 'consistent with the law'."

Loyola Academy, 146 Ill. 2d at 274.

In the instant case, we agree with the parties that the

proper rule to be applied here is the four-factor test enumerated

in Loyola Academy. However, we must also be mindful that all

proceedings under the Act are brought within the framework of the

minor's best interests. In re C.M., 351 Ill. App. 3d at 916.

With this standard in mind, we note that the circuit court

indicated that it would be unfair to the parents to allow the

State to amend its petition and did not mention Tyrese's best

interest when denying the State's motion. Although the fairness

to the parties is not irrelevant by any means, we find this basis

25
1-07-1078

to be insufficient under the circumstances of this case.

First, there is no doubt that the proposed amendment was not

timely and the State had identifiable opportunities to amend

prior to its request at the close of the evidence. However,

amending the petition in this case would not only cure the defect

with Tyrese's pleading, it would certainly conform the pleading

to the proofs. Second, and most importantly, no prejudice or

surprise would arise from amending the petition. The petition

stated that Melissa admitted that Tyrese was born drug exposed.

Melissa and Tyrone stipulated to Tyrese's drug-exposed birth at

the temporary custody hearing, Tyrese's medical records indicated

that his urine tested positive for opiates and Melissa's records

showed that she admitted using heroine the day before Tyrese was

born. We further note that the circuit court ordered Tyrese's

records sua sponte because it was "something that [it] would need

to know." Throughout the entire case, all parties were aware

that Tyrese was alleged to have been born exposed to heroin.

Tyrese was born exposed to opiates and no evidence in the record

indicated otherwise.

We agree with the circuit court’s conclusion that the State

had no good explanation for waiting until the close of the

evidence to seek leave to amend the petition pursuant to section

2-13 of the Act. This, however does not mean that the State’s

26
1-07-1078

basis for amending the petition did not amount to good cause.

The State acknowledged that it could not explain why it had not

alleged that Tyrese was born drug exposed and admitted that this

omission was a mistake. The State further argued that the focus

of the hearing is the best interests of the minor and he should

not suffer the consequences for its error. We agree and find Ott

v. Little Company of Mary Hospital, 273 Ill. App. 3d 563, 570-71

(1995), to be instructive on this issue.

In Ott, we reemphasized long-standing public policy in

Illinois that the rights of minors are to be guarded carefully.

Ott, 273 Ill. App.3d at 570, citing Mastroianni v. Curtis, 78

Ill. App. 3d 97, 100 (1979). "Every minor plaintiff is a ward of

the court when involved in litigation, and the court has a duty

and broad discretion to protect the minor's interests." Ott, 273

Ill. App. 3d at 570-71, citing Burton v. Estrada, 149 Ill. App.

3d 965, 976 (1986). While Ott and its predecessors imposed this

duty on courts dealing with minors in litigation that was not

brought under the Act, we hold that this same duty is as

applicable, if not more so, in an adjudication for wardship than

in the cases cited above, due to the fact that allegations of

abuse and neglect have been raised with regard to the minor. We

hold that the circuit court has an obligation to intervene when a

minor's representative fails to protect his interests. Tyrese

27
1-07-1078

should not be called upon to answer for the State's mistakes at

the cost of being placed in an injurious environment when there

is no reasonable explanation for State's omission. The circuit

court should have either allowed the State to correct the mistake

that it admitted or amend the petition sua sponte. Doing so

would have been in harmony with the purpose of the Act and in

accordance with its duty to protect a minor's interest.

We note that at one point, Tyrone and Melissa argued that

the State must have had strategic reason to not allege that

Tyrese was born exposed to drugs. We, however, cannot imagine

any logical reason for not alleging that Tyrese was born drug

exposed, especially when Melissa conceded the fact and medical

records confirmed that Tyrese had opiates in his urine. We

cannot see how ignoring the fact that Tyrese was born exposed to

heroin serves his best interests in this case. In light of the

fact that no party could claim surprise for this specific

amendment, no prejudice would arise, and the best interest of the

minor is always the focus of all proceedings under the Act, we

hold that the circuit court abused its discretion in denying the

State’s motion to amend the petition.

III. FINDINGS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

The circuit court based its denial of the State's petition

and it's finding that Tyrese was not neglected due to an

28
1-07-1078

injurious environment on its ruling that Tyrone was the sole

parent of Tyrese and that he and Melissa lived separately. The

State and Tyrese argue that these findings are against the

manifest weight of the evidence. We agree and specifically

address this finding because the circuit court found Teeron's

environment to be injurious due to exposure to Melissa. Yet, the

circuit court held that Tyrese was not neglected because Melissa

did not live with Tyrone and Tyrese was not exposed to Melissa.

A careful review of the record reveals that the only

evidence produced at the adjudication or temporary custody

hearing about Melissa’s living arrangements was Redmon’s

testimony that Melissa lived in a different unit within the same

building. Aside from that second-party testimony, Melissa and

Tyrone indicated in a stipulation that they resided together. In

other documents produced in preparation for the hearing and in

all medical records, Melissa, Tyrone, Tyrese and Teeron all

listed the same address. In addition there was no evidence that

Melissa lived anywhere other than with Tyrone or in the family

building. Furthermore, although Melissa and Tyrone deny carrying

on a relationship in their appeals and claim that they lived

separately, there was, no doubt, some contact approximately nine

months prior to Teeron’s birth and at the time Redmon

investigated Teeron’s case. Moreover, Redmon nevertheless took

29
1-07-1078

protective custody of both children because they were exposed to

Melissa and he viewed her as a risk to both Tyrese and Teeron.

Under the manifest weight of the evidence standard, the

circuit court’s ruling fails to meet the standard if the opposite

conclusion is clearly evident or the ruling is unreasonable,

arbitrary or not based on the evidence presented to the court.

In re D.F., 201 Ill. 2d 476, 498 (2002). We concede that the

manifest weight of the evidence standard is a very high bar and

significant deference is afforded the circuit court. In re D.F.,

201 Ill. 2d at 498-99. However, based on the evidence in the

record, the circuit court’s finding that Tyrone and Melissa did

not live together and that Tyrone was the sole custodial parent

of Tyrese was against the manifest weight of the evidence.

CONCLUSION

For the foregoing reasons, we hold that the circuit court

erred in denying the State’s motion to amend its petition. We

also hold that the court's finding that Tyrone had sole custody

of Tyrese and that Tyrese was not exposed to Melissa was against

the manifest weight of the evidence. Accordingly, the judgment

of the circuit court is reversed and this matter is remanded for

further proceedings consistent with this opinion.

Reversed and remanded.

McBRIDE, PJ., and JOSEPH GORDON, J., concur.

30