FIFTH DIVISION
October 31, 2008
No. 1-08-0981
In re M.W., a Minor, )
) Appeal from the
Respondent-Appellant ) Circuit Court of
) Cook County
(The People of the State of Illinois, )
)
Petitioner-Appellant, )
)
v. ) Honorable
) Maxwell Griffin, Jr.,
Lori B. and Darrion W., ) Judge Presiding.
)
Respondents-Appellees). )
)
JUSTICE O'MARA FROSSARD delivered the opinion of the court:
At an adjudicatory hearing, the circuit court found M.W., the son of respondents Lori B.
and Darrion W., neglected due to an injurious environment. At a subsequent disposition hearing,
the court found, inter alia, Lori B. fit, willing and able to care for and protect M.W.
The Office of the Cook County Public Guardian (Public Guardian) and the State's
Attorney of Cook County appeal, contending that (1) the State met its burden to establish that
M.W. was abused due to a substantial risk of physical injury; and (2) the circuit court's ruling that
Lori B. was fit, willing and able to care for and protect M.W. was against the manifest weight of
the evidence.
For the reasons that follow, we affirm the trial court's adjudicatory hearing order but
reverse its disposition hearing order that found Lori B. fit, willing and able to parent M.W.
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I. BACKGROUND
Respondent Lori B. is the mother of D.J., who was born in April 2004, and M.W., who
was born in September 2007. Respondent Darrion W. is the father of M.W. This appeal
concerns the adjudication and disposition only of M.W. However, because M.W.'s involvement
with the Department of Children and Family Services (DCFS) arose from his half brother D.J.'s
adjudication of abuse and neglect, we briefly summarize that matter. See also In re D.J., No. 1-
05-3815 (April 21, 2006) (unpublished order under Supreme Court Rule 23).
A. The Neglect and Abuse of D.J.
In January 2005, Lori B. began a relationship with her paramour, Shawn Patterson. In
May 2005, she left the home she shared with D.J.'s father, and she and D.J. lived with Patterson.
In June 2005, a caller to the DCFS hotline reported scratches and bruises to D.J.'s body and that
his toenails were discolored. A DCFS investigator visited D.J. while he was in Patterson's care
and observed that D.J. had a healing scar on his forehead, discolored and infected toes, and
slightly pink buttocks. Patterson claimed that D.J. merely injured himself in a fall outdoors and
had diaper rash. Lori B. echoed Patterson's explanations and agreed to take D.J. to the doctor the
next day. Lori B., however, failed to take D.J. to the doctor, and the investigator's attempts to
contact Lori B. to verify that D.J. received treatment were unavailing.
DCFS received a second hotline call regarding D.J. on July 26, 2005. At the time,
Patterson, Lori B. and D.J. were living in a motel. While Lori B. was at work, Patterson called
the police to report that he had been robbed. When the police arrived, they saw D.J. lying still on
the bed and that his head was swollen. D.J. was hospitalized, and Patterson was arrested and
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charged with child endangerment, aggravated battery, and predatory criminal sexual assault.
Patterson admitted to pinching D.J.'s thighs, burning his hand, and inserting a plunger into his
rectum.
D.J.'s injuries included rectal trauma with evidence of healing, an enlarged rectal opening,
and rectal tears. He had oral injuries, chin lacerations, comminuted skull occipital skull fracture
with evidence of swelling, a greenstick fracture to the distal left radius, forehead bruising, an
adult-sized bite mark to his abdomen, multiple nonpatterned bruises to the abdomen, bilateral
healed hyper-pigmented lesions to the inner thighs, red linear bruises to the posterior right thigh,
gonorrhea of the mouth, a healed lesion to the right palm, and chronic bilateral toenail irritation
or trauma. He was diagnosed as a battered child and a victim of child sex abuse, repetitive child
physical abuse, medical neglect, and failure to protect from harm.
Concerning D.J.'s injuries, Lori B. told medical personnel that D.J. had fallen down the
stairs. She denied knowledge of the bite mark on his abdomen, scratches on his rectal and leg
areas, and the laceration to his anus. She thought the discoloration to his inner thigh was due to
diapers. She admitted seeing Patterson pinch D.J.'s thighs and claimed that she told Patterson
"not to do that."
When Lori B. met with a DCFS investigator on July 27, 2005, she said that Patterson
began babysitting for D.J. in the middle of May, that she knew he smoked marijuana, that her
neighbors told her Patterson swore at D.J. and told him to shut up, and that she saw Patterson
pinch D.J. between the legs in June. She admitted that she failed to comply with the doctor's
instruction to bring D.J. for a follow-up visit after he received treatment for his toes in June. She
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stated that she changed D.J.'s diapers three or four times on July 25, 2005, but only saw bruises
on his thighs. She denied noticing the bite mark on his abdomen, burn on his hand, or injury to
his arm. She admitted that she tried to protect Patterson by falsely telling the police that she did
not know how D.J.'s thighs were injured and by falsely telling hospital staff that D.J. fell down
the stairs in her presence.
After Lori B. took a polygraph test on July 27, 2005, she informed a Chicago police
detective that Patterson started babysitting D.J. when they moved in together and he usually
insisted on bathing D.J. and changing his diapers. She saw Patterson pinch the inside of D.J.'s
thighs in an effort to get him to stop crying, and sometimes when she got home from work, she
noticed bruises on D.J.'s legs, face, and arms. When she questioned Patterson, he said that D.J.
fell down a lot. Sometime after July 4, 2005, she started noticing more bruises on D.J.'s thighs
and abdomen and a bite mark on his abdomen. When she questioned Patterson, he said he was
trying to get D.J. to stop crying and bit him to show him "who was in charge." Lori B. claimed
that she told Patterson to stop biting D.J., and Patterson agreed. During the weekend of July 22,
2005, she noticed that when Patterson tried to take D.J. from her arms, D.J. shook his head no
and cried. When she left for work at 9:30 p.m. on July 25, 2005, she did not notice anything
wrong with D.J.
After D.J. was discharged from the hospital in August 2005, he was placed in a
residential medical facility and assessed for services. Lori B. was also referred for services,
including individual therapy. In March or April 2007, she surrendered her parental rights to D.J.
and all services were discontinued. She was pregnant with M.W. at the time.
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B. M.W.'s Case
Lori B. met M.W.'s father, respondent Darrion W., in June 2006, and he moved in with
her in September 2006. After several months, he started a relationship with another woman and
moved out. However, he resumed a relationship with Lori B. when she told him she was five
months pregnant. M.W. was born in September 2007, and four weeks later DCFS received an
anonymous telephone call expressing concern for his safety due to the abuse D.J. sustained.
M.W. was taken into protective custody in October 2007 and placed with a foster parent.
The State's petition for adjudication of wardship alleged that M.W. had been neglected
due to an injurious environment and abused due to the fact that his parent or some other person in
the household created a substantial risk of physical injury to him by nonaccidental means. At the
October 2007 hearing, the parties stipulated that DCFS investigator Carmelia Watson would
testify that Lori B. and Darrion W. resided together, but Darrion W.'s paternity of M.W. had not
been established; that a previous parenting capacity assessment indicated Lori B. was unable to
accept any responsibility for her part in the circumstances that led to DCFS's involvement with
D.J.; that Lori B. failed to successfully complete recommended services including individual
therapy; and that reasonable efforts could not prevent or eliminate the immediate and urgent
necessity of removing M.W. from the home.
The trial court granted DCFS temporary custody of M.W. but continued the matter
without prejudice as to Lori B. The court also limited her visits to supervised or unsupervised
day visits at the discretion of DCFS. In November 2007, the court entered a finding that Darrion
W. was M.W.'s father. In February 2008, the court held a rehearing on the temporary custody
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issue and awarded DCFS temporary custody of M.W.
C. The Adjudication Hearing
In March 2008, at the adjudication hearing, the State submitted into evidence the
adjudication order finding D.J. neglected and abused, the disposition order finding Lori B. unable
and unfit to parent and protect him, and the order terminating her parental rights to him. Those
orders detailed D.J.'s injuries and stated that Lori B. initially lied to the police and hospital
personnel to protect her paramour.
The State also submitted the certified DCFS indicated report for M.W., which stated that
when DCFS investigator Watson went to the home in response to the September 2007 hotline
call, M.W. appeared healthy and well cared for, Lori B. appeared to be very nurturing, and there
did not appear to be any risk to M.W. at that time. Furthermore, Watson reported that Lori B.
said she quit going to therapy when she surrendered her parental rights to D.J. Moreover, she
knew she was pregnant with M.W. at that time. She claimed that she stayed with Patterson,
D.J.'s abuser, despite the signs of abuse because she did not have anywhere to go, but
acknowledged that Patterson was unemployed and did not support her financially. Watson
checked Darrion W.'s criminal background and found that he had six arrests between August
2005 and September 2007.
The State also submitted Lori B.'s June 2006 parenting capacity assessment in connection
with D.J. According to that assessment, Lori B. claimed that she was living independently and
was not in a relationship, but the caseworker doubted those claims because when she called Lori
B. twice on her cell phone, a different man answered each time. Lori B. was in individual
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therapy since October 2005, and therapy reports indicated that she had neither taken full
responsibility for her failure to protect D.J. nor shown genuine remorse for that failure.
Moreover, she was unable or unwilling to discuss much of her past with the therapist. Her
dependent personality disorder diagnosis indicated that she would have difficulties becoming an
independent, self-functioning person without a relationship with a man, and might repeat a
pattern of selecting an abusive partner and prioritize that relationship above protecting her child.
Accordingly, the psychologist who completed the assessment recommended that Lori B. continue
in weekly individual therapy and complete parenting classes. The psychologist also
recommended that Lori B.'s progress be monitored carefully and that DCFS conduct random
visits to ensure that she lived alone.
The State also submitted into evidence Lori B.'s client discharge summary, dated March
30, 2007, which indicated that she was transferred in June 2006 to licensed clinical social worker
Christine Schaefer and had attended weekly therapy inconsistently. Because Lori B. was
functioning well, therapy was decreased to bimonthly. According to Schaefer's report, as of
March 2007, Lori B. achieved her first goal of exploring her responsibility for D.J.'s abuse and
understood her role in the abuse by allowing Patterson to care for D.J. despite the signs of abuse.
She achieved the second goal–resolving her grief surrounding separation from D.J.–to the best of
her ability. She was upset that the court determined D.J. would not be returned to her, but used
therapy to process further, accepted the determination, and thought it was okay that D.J. would
stay with his foster family. She made no progress on the third goal–attempting to resolve her
past trauma–because she was not able to deal with her own past and it affected her current
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functioning. Schaefer recommended that individual therapy stop for now and referred Lori B. to
a community resource for further therapy if needed. According to her discharge summary, Lori
B. was diagnosed with adjustment disorder with depressed mood, chronic, and dependent
personality disorder with borderline features. She received a planned discharge from counseling
services because she was "not able to benefit from further service," and the service evaluation
was categorized as "successful."
The State also submitted Lori B.'s psychological evaluation, done in October 2005 by Dr.
Paul Linden, a clinical psychologist. Dr. Linden reported that Lori B.'s full-scale IQ tested at 82,
in the low average range of intellectual functioning. She met the DSM-IV criteria for dependent
personality disorder with borderline features. She used denial to such an extent that she had very
poor judgment. Because she viewed herself as unattractive and defective, her fear of rejection
and criticism led her to seek out individuals with obvious character flaws. Her self-esteem
deficits caused her to be dependent on others and cling to dysfunctional relationships. She
needed to be referred to a highly qualified mental health professional with experience in working
with individuals with severe character disorders. Her severe characterological issues prevented
her from demonstrating reasonable judgment and interfered with her capacity to protect herself or
her child from others. Dr. Linden opined that Lori B. would be unable to care for D.J. until she
successfully addressed her issues in therapy. Furthermore, Dr. Linden noted that extensive
therapy for two to three years would likely be required.
The parties stipulated that DCFS investigator Watson would testify that D.J. was found
abused and neglected, including physical and sexual abuse; that a June 2006 parenting capacity
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assessment indicated Lori B. was unable to accept full responsibility for her part in D.J.'s abuse;
that she failed to successfully complete her recommended services, including individual therapy;
and that she and Darrion W. resided together.
Lori B. submitted into evidence the affidavit of Dr. Linden dated February 4, 2008, which
stated that his October 2005 evaluation of her was outdated. Due to the amount of time that had
passed since the 2005 evaluation, Dr. Linden had no current opinion concerning the risk Lori B.'s
personality characteristics posed for M.W.
The court found M.W. neglected due to an injurious environment, but found that the State
did not meet its burden concerning the allegation of abuse due to a substantial risk of physical
injury. The court noted that when M.W. was taken into protective custody, Lori B. had not
successfully completed individual therapy and other recommended services. Furthermore, the
court noted that although Dr. Linden could not testify that Lori B. currently had the same
psychiatric issues that were identified in 2005, Dr. Linden's concerns from 2005 were valid,
needed to be addressed, and the recommended therapeutic services needed to be completed.
D. Disposition Hearing
The case then proceeded to a disposition hearing in April 2008 to determine whether it
was in the best interests of M.W. to be made a ward of the court.
The State submitted into evidence the 46-page, January 2008 integrated assessment
report, which was prepared by licensed clinical social worker Kevin McMahon based on
interviews he and DCFS caseworker Javonna Smith conducted with the parties. McMahon and
Smith also reviewed numerous records. The report contained detailed information concerning
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(1) the DCFS case involving D.J.; (2) the parents' interviews, personal histories, education and
cognitive functioning, criminal background, work histories, relationships, current living
situations, substance use, hobbies, support systems, parenting abilities, medical conditions, and
mental and emotional health; (3) M.W.'s health condition, development, history, and interaction
with caretakers; (4) the family's functioning factors; and (5) recommendations.
According to the report, Lori B. showed limited awareness of the dynamics of her
relationship with D.J.'s abuser and, thus, was unlikely to recognize a similar dynamic in any
future relationship. She lacked an empathic understanding of her own experiences and those of
her child. Due to the deeply rooted nature of her vulnerability and anxiety concerning her own
childhood, she might not make sufficient timely progress in therapy to meet M.W.'s
developmental needs. M.W. was in foster care, attended daycare, and had visitation with Lori B.
every day. The foster mother indicated that M.W. could be difficult to soothe at times. She
described him as a somewhat fussy, unpredictable and demanding baby. The report concluded
that the prognosis for the family's reunification, as of January 2008, was poor. Lori B. had not
yet mastered her internal issues. Although she might benefit from engaging in recommended
services, the entrenched nature of her difficulties and her limited insight over the past two years
made it highly unlikely that she could make sufficient progress in time to meet M.W.'s
developmental needs.
The State also submitted a February 2008 general counseling quarterly report, which
showed that Lori B. had attended sessions inconsistently. Lori B. had made some connections
between her own childhood experiences and her own parenting, and her therapist recommended
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that she continue to attend weekly counseling on time and consistently.
The State also submitted letters written by DCFS caseworker Smith in February and
March of 2008 to Lori B. and Darrion W. The letters indicated that respondents failed to provide
dates to meet to discuss reunification with M.W. and that Darrion W. could no longer have
unsupervised visits with M.W. due to Darrion W.'s outstanding criminal issues.
At the hearing, Smith testified that she had been assigned to M.W.'s case since September
2007. In accordance with her assessed services, Lori B. attended weekly domestic violence
services and individual counseling twice a week, complied with monthly random urine testing,
and visited M.W. When the domestic violence services assessment was completed, the service
provider would make a recommendation regarding whether Lori B. needed further services
through their program. Because Lori B. needed more than just basic counseling, she was recently
referred to John Stokes for psychotherapy twice a week. Smith testified that Lori B. was
affectionate with M.W. and acted appropriately during their visits. Moreover, M.W. seemed to
feel secure with her, and they had an emotional attachment. From October 2007 to mid-March
2008, Lori B. had seen M.W. every day, unsupervised, for five hours per day, longer on
weekends and holidays, and there had been no unusual incidents. However, after DCFS
investigated Darrion W.'s criminal record and found recent arrests for nonviolent crimes, Lori
B.'s visits with M.W. since mid-March were restricted to supervised visits. That restriction was
based on concerns about her judgment because she had failed to protect D.J. from her past
paramour and failed to disclose negative information concerning Darrion W.'s recent arrests.
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Smith testified that Darrion W. failed to comply with his assessed services, including
attending individual therapy and domestic violence counseling, and engaging in intensive
outpatient drug treatment. He had not contacted the foster parent concerning visitation and failed
to maintain contact with Smith. Lori B. claimed that she and Darrion W. had separated and were
no longer living together. Smith, however, had not been able to verify that information, and Lori
B. could not provide a forwarding address for Darrion W.
Smith testified that M.W.'s current foster home was safe and appropriate and DCFS
recommended that he be adjudged a ward of the court and not returned to Lori B. yet because she
needed to be involved in services longer. DCFS would be better able to make a decision once the
recently involved therapists and professionals could assess Lori B.'s situation and make a
recommendation. DCFS was concerned about M.W.'s safety because Lori B.'s relationships
impaired her judgment. Smith stated that reunification of M.W. with Lori B. or Darrion W. was
a reasonable goal, and a return home under an order of protection might be possible if sufficient
progress was made over the next few months. Lori B. had steady employment as a certified
nursing assistant, possessed basic child-rearing skills, and had the appropriate space and
equipment to care for M.W. in her home. The only issue hindering M.W.'s return home was
DCFS's concern about Lori B.'s judgment with respect to significant others. Because a return-
home recommendation was based on the trust relationship between the caseworker and the
family, it was a major concern that Lori B. could not provide DCFS with Darrion W.'s address,
and DCFS could not contact him to get his address.
The trial judge informed the parties that he was considering splitting custody and
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guardianship of M.W., giving custody to Lori B. and guardianship to DCFS, while reserving
ruling on whether Lori B. was fit, willing and able to care for and protect M.W. DCFS, however,
objected, stating that, as M.W.'s guardian, it would not choose to place him with Lori B. at that
time. The trial judge asked whether Lori B.'s individual psychotherapy would continue in place
if she was found fit and M.W. was returned to her. The trial judge also was concerned that a
child as young as M.W. should benefit from being with his caregiver as much as possible, which
was difficult to accomplish given the realities of agencies with limited staff attempting to provide
supervised visits for a minimum of an hour a week. The Public Guardian and DCFS informed
the judge that Lori B. was having visitation with M.W. every day and DCFS would continue to
provide and pay for the services listed in Lori B.'s service plan even if M.W. was returned home
under an order of protection.
The trial court found that it was in M.W.'s best interest to be adjudged a ward of the
court. The court also found Lori B. fit, able and willing to care for M.W., but found Darrion W.
unable to care for him. The court vacated temporary custody and returned M.W. to the care and
custody of Lori B. under an order of protective supervision, which required, inter alia, that Lori
B. attend domestic violence counseling and individual psychotherapy sessions and follow all
recommendations. Darrion W.'s visitation with M.W. would be supervised by DCFS until he
engaged in services, and Lori B. was not permitted to supervise visits between Darrion W. and
M.W.. The Public Guardian asked for a stay of the judgment pending appeal, but the court
denied that request.
The Public Guardian immediately filed a notice of appeal and emergency motion for a
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stay, which this court granted on the same day, pending a response by Lori B. to the motion and
further order of this court. Thereafter, this court allowed the stay pending resolution of this
appeal. This court ordered that M.W. remain in the custody of DCFS with supervised visits only.
II. ANALYSIS
Following the filing of a petition for wardship by the State and the placement of a child in
temporary custody, the circuit court conducts an adjudicatory hearing to determine whether the
allegations of the petition that a minor is abused, neglected or dependent are supported by a
preponderance of the evidence. 705 ILCS 405/1-3(1), 2-21 (West 2006). "Preponderance of the
evidence is that amount of evidence that leads a trier of fact to find that the fact at issue is more
probable than not." In re K.G., 288 Ill. App. 3d 728, 735 (1997).
The best interest of the child is the paramount consideration whenever a petition for
adjudication of wardship or any proceeding is brought under the Juvenile Court Act of 1987 (705
ILCS 405/1-1 et seq. (West 2006)). In re K.G., 288 Ill. App. 3d at 735. At the adjudicatory
stage, the court must focus solely on whether the child has been neglected or abused, not upon
whether the parents were neglectful or abusive. 705 ILCS 405/1-3(1) (West 2006); see In re
Arthur H., 212 Ill. 2d 441, 465 (2004).
If the State satisfies its burden of proof, the circuit court proceeds to a disposition hearing
to determine whether it is consistent with the health, safety and best interests of the minor and the
public to make the minor a ward of the court, and to determine what order of disposition should
be made in respect to the minor so adjudged. 705 ILCS 405/1-3(6), 2-22 (West 2006).
A trial court's finding of abuse or neglect is entitled to great deference on appeal and will
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be disturbed only if it is found to be against the manifest weight of the evidence. In re A.D.W.,
278 Ill. App. 3d 476, 482 (1996). A trial court's finding is against the manifest weight of the
evidence if a review of the record clearly demonstrates that the opposite result would be the
proper one. In re T.B., 215 Ill. App. 3d 1059, 1062 (1991). The great deference afforded to the
trial court is warranted due to its superior position to observe the witnesses, assess credibility and
weigh the evidence. In re T.B., 215 Ill. App. 3d at 1062.
A. Substantial Risk of Injury
On appeal, the Public Guardian and State contend that the State proved by a
preponderance of the evidence that M.W. was abused due to a substantial risk of physical injury,
and the trial court's ruling to the contrary was against the manifest weight of the evidence.
Specifically, they note that Lori B. did not complete individual therapy, which stopped in March
2007 when she surrendered her parental rights to D.J. She was about four months pregnant with
M.W. at the time. On her discharge summary, her therapist still diagnosed her with adjustment
disorder with depressed mood, chronic, and dependent personality disorder with borderline
features. Because Lori B.'s therapy stopped, she did not resolve the psychiatric issues that
prevented her from protecting D.J. from physical and sexual abuse and, thus, did not become a
strong or capable parent for M.W. The Public Guardian and State assert the evidence established
that M.W. was exposed to a substantial risk of physical injury.
A neglected 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 2006). Neglect is defined as the
failure to exercise the care that circumstances justly demand and encompasses both willful and
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unintentional disregard of parental duty. In re Arthur H., 212 Ill. 2d at 463. The term is not one
of fixed and measured meaning, and it takes its content from the specific circumstances of each
case. In re Arthur H., 212 Ill. 2d at 463. 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 his or her children. In re Arthur H., 212 Ill. 2d at
463.
An abused minor includes any minor under 18 years of age 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 2006). Specific intent to hurt the child does
not need to be established to prove abuse. In re F.S., 347 Ill. App. 3d 55, 63 (2004). Cases
involving abuse, neglect and wardship are sui generis; each case must be decided on its own
distinct set of facts and circumstances. In re J.P., 294 Ill. App. 3d 991, 1002 (1998).
The allegations against Lori B. were based on a theory of anticipatory neglect, whereby
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 with an
individual who has been found to have neglected or abused another child. In re Arthur H., 212
Ill. 2d at 468. The theory of anticipatory neglect flows from the injurious environment concept
set forth in the Juvenile Court Act. In re Arthur H., 212 Ill. 2d at 468. There is no per se rule
that the neglect of one child conclusively establishes the neglect of another child in the same
household. In re Arthur H., 212 Ill. 2d at 468. Rather, such neglect should be measured by the
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circumstances surrounding the sibling, and the care and condition of the child in question. In re
Arthur H., 212 Ill. 2d at 468. Although proof of neglect of one minor is admissible evidence on
the issue of the neglect of any other minor for whom the parent is responsible, it does not
constitute conclusive proof of the neglect of another minor. In re Arthur H., 212 Ill. 2d at 468.
Each case must be reviewed according to its own facts. In re Arthur H., 212 Ill. 2d at 468-69.
Here, the State did not establish by a preponderance of the evidence that M.W. was
exposed to a substantial risk of physical injury. M.W. lived for the first month of his life at home
with respondents without incident. He appeared healthy and well cared for, and Lori B. had all
the items necessary for his care. Furthermore, both Lori B.'s unsupervised and supervised visits
with M.W. were appropriate and without incident. Although she did not successfully complete
individual therapy, she did engage in the recommended services until the court determined that
the goal for D.J. was no longer to be returned home to her. When she surrendered her rights to
him, therapy was discontinued because she was not able to benefit from further services.
Moreover, respondent Darrion W. had no history of any type of violent behavior. Patterson, the
perpetrator of D.J.'s injuries, was incarcerated and no longer involved with Lori B. The trial
court was well aware of the facts concerning the severe abuse Patterson inflicted on D.J. and was
well within its discretion to decide that Lori B.'s history and psychological issues put M.W. in an
environment that was injurious to his health and welfare, but did not rise to the level of a
substantial risk of physical injury. The trial court's finding was not against the manifest weight
of the evidence.
B. Fitness Finding
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Next, the Public Guardian and State contend the trial court's ruling that Lori B. was able
to care for and protect M.W. was contrary to the manifest weight of the evidence where M.W.
was found neglected due to an injurious environment and Lori B. needed to make progress in
therapy. We agree.
If a child has been found neglected or abused, the court proceeds to a disposition hearing
to determine whether it is consistent with the health, safety and best interests of the child and the
public that he be made a ward of the court. 705 ILCS 405/2-21(2), 2-22 (West 2006). If the
child is made a ward of the court, the court may order him to continue in his parents' custody;
place him–inter alia–with a suitable relative or in the care of DCFS; restore custody to his
parents; or order him partially or completely emancipated. 705 ILCS 405/2-23(1)(a) (West
2006). However, custody of the child shall not be restored to any parent whose acts or omissions
formed the basis of the court's finding of neglect or abuse until (1) a hearing is held on the issue
of the child's best interests and the fitness of the parent to care for the child without endangering
his health or safety, and (2) the court enters an order that the parent is fit to care for the child.
705 ILCS 405/2-23(1)(a) (West 2006).
Here, the evidence established that Lori B. was unable, for some reason other than
financial circumstances alone, to safely care for and protect M.W. and that reunification was not
in his best interest. DCFS recommended that Lori B. needed to complete therapy before M.W.
would be safe in her care. The caseworker testified that although the return home goal was
reasonable and it was conceivable that M.W. could be returned to Lori B. if she made sufficient
progress in her services, she had not made sufficient progress as of the date of the disposition
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hearing. During the first quarter of 2008, she attended therapy inconsistently, and she and
Darrion W. had failed to contact the caseworker about meeting to discuss reunification with
M.W. Furthermore, Lori B. was still being assessed for domestic violence services at the time of
the disposition hearing. Moreover, Lori B. was referred just that week to a more experienced
therapist for psychotherapy because the nature, duration and extent of her issues went beyond her
first therapist's reach.
The evidence showed that Lori B. and M.W. had an emotional bond, Lori B. cared for
him and interacted with him appropriately, and she had the capacity to feed, clothe and shelter
him. However, Lori B. had failed to protect her older son from severe physical and sexual abuse
by her previous paramour, and her unresolved psychological issues from her own past trauma
raised concerns about her judgment in relationships and capacity to protect M.W. Specifically,
the evidence established that Lori B. saw the signs of D.J.'s abuse over a period of time but failed
to report it or remove him from her paramour's care. Then, she lied to the police and medical
personnel in an attempt to protect her paramour.
The doctor's and therapists' evaluations consistently stated that Lori B. needed to fully
deal with her own history of trauma so that she could become an independent, self-functioning
person, capable of protecting herself and her child from others rather than seeking and clinging to
dysfunctional relationships. Her psychological assessments established that she had a dependent
personality disorder with borderline features. Contrary to respondents' assertion, that personality
disorder diagnosis was current for M.W.'s case where therapist Schaefer's analysis was done in
March 2007, just five months before M.W. was born. Furthermore, Dr. Linden did not disavow
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his October 2005 evaluation of Lori B. Rather, he simply did not opine about the risks her
personality characteristics posed for M.W. due to the two-year passage of time. He did not
disavow or express any doubt about the validity of the dependent personality diagnosis at the
time he made it. In addition, the January 2008 integrated assessment report concluded that
reunification of the family at that time was poor based on the entrenched nature of Lori B.'s
difficulties, her failure to master her internal issues, and her limited insight concerning the events
over the past two years.
The trial judge stated that the abuse suffered by D.J. was the worst the judge had seen for
such a young child. Moreover, the judge acknowledged that Lori B. still needed to make
progress in individual psychotherapy and domestic abuse counseling. Although the judge was
concerned that supervised visits might not afford M.W. ample contact with Lori B. to nurture
their bond, the evidence established that Lori B. had daily visitation with him. Furthermore, Lori
B. was responsible for the lack-of-trust issue that led DCFS to change her visits from
unsupervised to supervised. Specifically, she was not forthcoming about her knowledge of the
recent arrests of Darrion W., who failed to participate in individual therapy, domestic abuse
counseling, and drug treatment. In addition, DCFS doubted Lori B.'s veracity concerning
Darrion W.'s residence.
The trial court's decision finding Lori B. fit and returning M.W. to her under an order of
protection was against the manifest weight of the evidence where M.W. was neglected due to an
injurious environment and Lori B. had not made sufficient progress in therapy and counseling to
deal with the psychiatric disorder that had prevented her from protecting D.J. We therefore
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reverse the trial court's disposition hearing order, enter a finding that Lori B. was unable to parent
M.W., and vacate the order of protection under which he was returned home. In addition, we
enter a disposition order placing M.W. in the guardianship and custody of the DCFS
Guardianship Administrator.
III. CONCLUSION
We affirm the trial court's order finding M.W. neglected due to an injurious environment,
but reverse its order finding Lori B. fit, willing and able to care for and protect him. We enter a
finding that Lori B. was unable to parent M.W., and place him in the guardianship and custody of
the DCFS Guardianship Administrator.
Affirmed in part and reversed in part.
TULLY and GALLAGHER, JJ., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
In re M.W., a Minor,
Respondent-Appellant
(The People of the State of Illinois,
Petitioner-Appellant,
v.
Lori B. and Darrion W.,
Respondents-Appellees).
No. 1-08-0981
Ap pellate Co urt of Illinois
First District, FIFTH DIVISION
October 31, 2008
Jus tice M arga ret O 'Ma ra Frossard authore d the opinion of the co urt:
Justice Tu lly and Justice Ga llagher co ncur.
Ap peal from the Circuit Court of Cook C ounty.
The Hon. Maxwell Griffin, Jr., Judge Presiding.
COUNSEL FOR MINOR-RESPONDENT-APPELLANT
Robert F. Harris, Cook County Public Guardian, Chicago, IL 60612
OF CO UNSEL: Kass A. Plain, Susan S. W igoda and Jean M. Agathen
COUN SEL FOR RESPO NDENTS-APPELLEES
Legal Assistance Foundation of Metropolitan Chicago, Chicago, IL 60604
OF CO UNSEL: Steven L. Pick, Sara B. Block, Richard Cozzola and Jack Block
(USE REVERSE SIDE IF NEEDED)
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