In re V.M.

2023 IL App (1st) 221217-U

No. 1-22-1217

Order filed March 27, 2023.

First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

In re V.M., a Minor, ) Appeal from the
) Circuit Court of
Minor-Respondent-Appellee, ) Cook County
)
(The People of the State of Illinois, )
)
Petitioner-Appellee, )
)
v. ) No. 2020 JA 00238
)
K.M., )
) The Honorable
Respondent-Appellant). ) John L. Huff, and
) Tiesha L. Smith,
) Judges Presiding.
_____________________________________________________________________________

PRESIDING JUSTICE LAVIN delivered the judgment of the court.
Justices Pucinski and Hyman concurred in the judgment.

ORDER

¶1 Held: The circuit court’s adjudication of neglect and abuse to the minor was not against
the manifest weight of the evidence where the minor’s own statements that she was sexually
abused by her older brother were corroborated by the brother and respondent mother.
No. 1-22-1217

Additionally, respondent forfeited her claim that sexual abuse was not properly pled and did not
establish that she was prejudiced by the alleged error for plain error review. We affirm.

¶2 This case stems from the circuit court’s finding that minor Va. M., now age 11, was

neglected and abused based on an injurious environment and a substantial risk of physical injury

and emotional harm under sections 2-3(1)(b) and 2-3(2)(ii), (iii) of the Juvenile Court Act of

1987 (705 ILCS 405/2-3(1)(b), (2)(ii), (iii) (West 2018)).1 Va. M. was born on January 31, 2012,

and her older brother, V.M. (brother), was born on September 6, 2008, to respondent mother,

K.M. (respondent). Va. M.’s father is not party to this appeal. 2 The Department of Children and

Family Services (DCFS) received reports of allegations of sexual abuse of Va. M. by her brother,

leading the Department to seek protective custody of both minors. In addition, DCFS learned

during its investigation that respondent sometimes “whupped” Va. M. with either her hand, a belt

or a shoe, in some instances leaving marks or bruises.

¶3 The State filed a petition to adjudicate Va. M. and her brother wards of the court, alleging

they were neglected and abused due to an injurious environment and a substantial risk of

physical injury and emotional harm. The circuit court subsequently granted DCFS temporary

custody of Va. M. and her brother, although the court eventually allowed them to return home

with respondent.

¶4 After an adjudicatory hearing, the court dismissed the petitions as to Va. M. and her

brother, finding there was insufficient evidence of neglect and abuse to the minors. The court,

however, later granted the Public Guardian’s motion to reconsider the dismissal of Va. M.’s

petition, concluding there was sufficient evidence to support finding her neglected and abused

under the Juvenile Court Act based on her own statements that she was sexually abused, which

1
To avoid confusion, we refer to the minor as Va. M., rather than V.M. (as shown in the caption).
2
The record indicates that brother has a different father than Va. M.
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No. 1-22-1217

were corroborated by her brother and respondent’s admissions that the incident occurred. 3 The

cause proceeded to a dispositional hearing before a different judge. On July 26, 2022, the circuit

court found respondent fit, willing and able to care for, protect, train and discipline Va. M., and

allowed custody to stand with her. The court subsequently closed the case.

¶5 Respondent now appeals, challenging the lower court’s adjudication of neglect and abuse

to Va. M. based on the incident with her brother. For the reasons that follow, we affirm the

circuit court’s judgment.

¶6 I. BACKGROUND

¶7 We begin with the facts that led the State to file a petition to adjudicate Va. M. a ward of

the court.

¶8 In December 2019, DCFS received a report that Va. M., then age seven, had been

sexually assaulted by her older brother, then age eleven. Dedra Owens, an investigator with

DCFS, went to respondent’s home where respondent admitted the incident took place between

the minor siblings (although she later claimed at the adjudicatory hearing that she didn’t know

anything about it happening) while the family was living in Minnesota, not in Illinois where the

family currently resided. Respondent claimed there was already an investigation into the matter

in Minnesota and that nothing had happened since the family moved to Illinois. Respondent,

however, then became upset and slammed the door on Ms. Owens.

¶9 The next month, DCFS received another report of sexual abuse to Va. M. by her brother.

Markham Police Detective Rayshonda Lewis subsequently contacted respondent about the

report. Respondent again admitted the incident occurred between the minor siblings in

Minnesota. Respondent told Detective Lewis that she would provide her with documentation of

3
No motion to reconsider was filed with respect to the dismissal of brother’s petition, so the
dismissal of his petition stood.
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No. 1-22-1217

the investigation in Minnesota, but she never did. Respondent also refused to participate in

scheduling a victim sensitive interview for Va. M. When Detective Lewis tried to contact

respondent again, she hung up on her, leading Detective Lewis to contact Ms. Owens.

¶ 10 On January 17, 2020, Ms. Owens interviewed Va. M. and her brother at school. During

Va. M.’s interview, Va. M. admitted that the incident with her brother occurred but stated that it

only happened once in Minnesota.4 Va. M.’s brother likewise admitted that the incident occurred

once in Minnesota and stated that respondent and his older sister never left him alone with Va.

M. anymore. Brother further stated that he was young when the incident occurred, that he didn’t

know what he was doing, that he had learned his lesson and that he had attended therapy both in

Minnesota and in Illinois.

¶ 11 A. Petition for Adjudication of Wardship

¶ 12 On February 6, 2020, the State filed petitions to adjudicate Va. M. and her brother wards

of the court based on the above-stated facts. Because brother is not a party to this appeal, we will

only address the facts as they relate to his sister’s petition. Va. M.’s petition alleged there was

probable cause that she was neglected and abused due to an injurious environment and a

substantial risk of physical injury and emotional harm. Specifically, the petition alleged:

“[Va. M.] and sibling had an open case in Minnesota concerning allegations of

sexual abuse between the minors. Mother agrees that the incident took place. [Va. M.’s]

sibling admits that the incident took place. [Va. M.’s] sibling received an evaluation at

the Mayo Clinic for sexual abuse and suicidal ideation. Services were not completed in

Minnesota. [Va. M.] and sibling returned to Illinois in October 2017. In 2017 [Va. M.]

stated that mother hit her with a belt leaving marks. Mother admitted to hitting [Va. M.]

4
Although Ms. Owens claimed that Va. M. also said it happened in Markham, that claim was not
supported by the totality of the evidence.
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No. 1-22-1217

and that she would not stop. Mother refused services. In September 2019 DCFS received

another call concerning allegations of sex abuse. Mother was offered community-based

services to evaluate the situation. Mother again refused services. In December 2019

DCFS received another call concerning sex abuse. [Va. M.] stated that there had been a

new incident of sexual abuse within the last year. DCFS and law enforcement became

involved and requested that the mother cooperate with a [Victim Sensitive Interview] for

[Va. M.]. Mother refused to cooperate and would not bring [Va. M.] to [the] scheduled

[Victim Sensitive Interview].”

¶ 13 The same day, the State filed a motion for temporary custody of Va. M. The State’s

motion was supported by an affidavit from Ms. Owens. Her affidavit stated that Va. M.’s case

came to DCFS’ attention “due to [brother] sexually abusing his sister [Va. M.].” Additionally,

her affidavit stated that “[respondent] is aware of the behavior” and “is failing to protect [Va.

M.].” Finally, Ms. Owens’ affidavit stated that “[respondent] is putting her daughter [Va. M.] at

risk and failing to protect her from sexual abuse by her 11 year old son” and that “[respondent] is

not cooperating with the pending investigation or criminal investigation.”

¶ 14 B. Temporary Custody Hearing

¶ 15 A temporary custody hearing was held for Va. M. on February 6, 2020. Following the

hearing, the circuit court entered an order placing Va. M. and her brother in the temporary

custody of DCFS. The court also entered a visitation order prohibiting visits between Va. M. and

her brother, as well as parental visits with both siblings present.

¶ 16 We note that on February 18, 2020, a special prosecutor was appointed to the case due to

a conflict given that respondent’s sister was an assistant State’s attorney who had taken

temporary custody of one of the minors.

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No. 1-22-1217

¶ 17 On June 22, 2020, the circuit court amended the temporary custody order to allow Va. M.

to return home with her mother. While the court found there was probable cause that neglect and

abuse of Va. M. existed, there was no immediate and urgent necessity to support the continued

removal of the minor from her home. Additionally, the court ordered that brother not be in the

home at that time and that visits between the siblings be “therapeutically limited and

supervised.” Va. M. has remained in the care and custody of respondent since that time.

¶ 18 C. Adjudicatory Hearing

¶ 19 An adjudication hearing was held for Va. M. beginning on June 14, 2021. 5 The evidence

presented at the hearing was largely consistent with the above facts. In addition, the circuit court

admitted stipulated evidence consisting of testimony from Helema Townsend, a DCFS

investigator, and one of Va. M.’s electronically recorded victim sensitive interviews that took

place on February 12, 2020.

¶ 20 Ms. Townsend testified that she was assigned to Va. M.’s case after DCFS received a

report that “[brother] touched his sister in a sexually inappropriate manner.” Ms. Townsend tried

to visit respondent’s home, but responded did not allow her inside the residence. According to

Ms. Townsend, respondent said the incident had already been investigated in Minnesota and that

nothing was going on with her children. Ms. Townsend noted that respondent “was

uncooperative throughout the entire investigation” except for one instance when respondent

indicated that she was interested in services for her son. Ms. Townsend then referred the family

to Epic Counseling Services. Ms. Townsend, however, testified that, to her knowledge, the

family was not involved in any services when she closed their case.

5
Va. M.’s adjudicatory hearing was eventually continued on November 24, 2021.
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No. 1-22-1217

¶ 21 During Va. M.’s victim sensitive interview, Va. M. was asked what specifically happened

with her brother. Va. M. spelled out “S-E-X.” Va. M. claimed that she did not know what “S-E-

X” meant, but she stated that it happened once with her brother when they lived in Minnesota

and that it never happened after they moved to Illinois. Va. M. further stated that her mother was

home when the incident occurred but that she and her brother “had the door closed” which is

“why [respondent] doesn’t want [them] in each other’s room with the door closed” anymore.

¶ 22 Also during the interview, Va. M. stated that respondent “whup[s]” her on the butt or arm

with “[h]er hand or a belt, or sometimes she doesn’t have a belt so with a shoe.” Va. M. said that

respondent’s hand never left any bruises or marks but that the belt left a mark on her forearm

(which she showed the interviewer). Va. M. likewise stated that her grandmother sometimes

“whup[s]” her with a belt while respondent holds her down. Va. M., however, stated that her

grandmother never left any bruises or marks on her.

¶ 23 Finally, Harriett Holmes, a DCFS agent who had supervised Ms. Owens’ investigation,

testified at the adjudication hearing that she was assigned to the case in January 2020, after

receiving “more than two” reports of allegations of sexual abuse to Va. M. We note that Ms.

Holmes also testified about prior allegations of sexual abuse to Va. M. in Minnesota. The Public

Defender objected to that testimony, however, on the basis that the reports from Minnesota were

not certified and delegated, but the circuit court overruled the objection, noting that it would not

consider the testimony for the truth of the matter asserted.

¶ 24 In any event, Ms. Holmes interviewed Va. M. in February 2020, at the DCFS office

located in Harvey, Illinois. 6 During the interview, Va. M. again admitted that the allegations

6
During the cross-examination of Ms. Holmes, she admitted that DCFS is required to consult with
the Child Advocacy Center before interviewing a child who is suspected of being a victim of sexual
abuse, but that she did not do that in this case because she was interviewing Va. M. about protective
factors, rather than allegations of sexual abuse.
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No. 1-22-1217

surrounding the incident with her brother were true. Ms. Holmes claimed that Va. M. indicated

someone had inappropriately touched her butt, testimony the circuit court ultimately found to be

incredible. Nevertheless, Va. M. stated that she was told not to talk about the inappropriate

touching because it was “family business” and “what happens in the home stays in the home.”

According to Ms. Holmes, those statements led her to seek protective custody of Va. M.

¶ 25 As to Va. M.’s adjudication, the Public Guardian and the special prosecutor argued there

was sufficient evidence of neglect and abuse to Va. M. based on Va. M.’s own statements during

the interviews, her brother and respondent’s admissions that the incident occurred, and

respondent’s refusal to participate in the investigation or in any services for Va. M.

¶ 26 The circuit court initially disagreed with those arguments and dismissed both Va. M. and

her brother’s petitions for adjudication. In doing so, the court noted that “nothing happened

between the two [siblings] since they moved to Markham.” The court further noted that it found

Ms. Holmes’ testimony “less than credible” and that Ms. Holmes seemed to be “searching for

evidence to establish some kind of neglect or abuse.”

¶ 27 The Public Guardian, however, successfully moved to reconsider the circuit court’s

ruling as to Va. M’s petition, arguing that Va. M.’s own statements were corroborated by her

brother and respondent’s admissions that the abuse occurred. In addition, the Public Guardian

argued that the court should have allowed the Minnesota records into evidence and attached

those records to the motion.

¶ 28 In response, respondent argued the court was correct in dismissing Va. M.’s petition

because there was no evidence showing that Va. M. was unsafe, and furthermore, the court

properly determined the Minnesota records were inadmissible without proper certification.

¶ 29 D. Neglect and Abuse Findings

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No. 1-22-1217

¶ 30 After hearing arguments from the parties, the circuit court first found that, while the

Minnesota records were properly withheld, the statements in the records were “disconcerting.”

Turning to the merits of the Public Guardian’s motion to reconsider, the court concluded that it

had erroneously dismissed Va. M’s petition because there was sufficient evidence to show that

Va. M. was neglected and abused due to an injurious environment and a substantial risk of

physical injury and emotional harm.

¶ 31 As to the alleged sexual abuse of Va. M., the court noted that whether it occurred in

Minnesota or Illinois was “of no moment” since the relevant question was whether the abuse

occurred. And to that end, the court noted:

“[Va. M.] stated there was, and she said s-e-x – she spelled it out – in Minnesota.

Now, that activity, it was undefined. There was no real description of it. It could have

been a kiss. It could have been a hug. It could have been something else. However,

[respondent], the mother admitted to Detective Lewis that there was an incident of sex

abuse in Minnesota. And, moreover, [brother] admitted to Deedra [sic] Owens that he had

touched [Va. M.] in an inappropriate sexual way.”

The court found that brother and respondent’s own admissions that the abuse occurred,

sufficiently corroborated that “[Va. M.] was to one degree or another sexually abused in

Minnesota.”

¶ 32 Additionally, the court found that respondent’s subsequent actions (or lack thereof) in

refusing to engage in any services for Va. M. were harmful to the minor. Finally, the court

further found that Va. M.’s statement that respondent hit her with a belt was corroborated “by

[Va. M.] showing the wound or scar on her arm” during her interview. The court thus concluded

the above evidence was sufficient to establish neglect and abuse to Va. M.

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No. 1-22-1217

¶ 33 We note that although the State properly pled abuse under section 2-3(2)(ii) of the

Juvenile Court Act, it did not specifically cite sexual abuse under section 2-3(2)(iii) of that Act in

Va. M.’s petition, even though the State’s allegations were predicated on sexual abuse. As set

forth above, however, the circuit court concluded there was sufficient evidence of sexual abuse

to Va. M. to support a finding on the basis.

¶ 34 E. Dispositional Hearing

¶ 35 A dispositional hearing was held for Va. M. beginning on March 18, 2022, before a

different circuit court judge. Ultimately, the court found respondent to be fit, willing and able to

care for, protect, train and discipline Va. M., and it allowed custody to stand with respondent.

The court consequently closed the case.

¶ 36 This appeal followed.

¶ 37 II. ANALYSIS

¶ 38 On appeal, respondent argues the evidence presented in this case did not support the

circuit court’s findings that Va. M. was neglected and abused, and therefore, those findings must

be reversed.

¶ 39 In response, the Public Guardian and special prosecutor argue there was sufficient

evidence to support the lower court’s neglect and abuse findings as to Va. M., but regardless,

respondent has not shown that the opposite conclusion was clearly evident, as required for us to

reverse those findings.

¶ 40 Under the Juvenile Court Act, once the State has filed a petition to adjudicate a minor

child a ward of the court, a temporary custody hearing must be held, during which the circuit

court has to determine whether there is probable cause to believe that the child is neglected,

abused or dependent, whether it is necessary to remove the child from the home, and whether

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No. 1-22-1217

reasonable efforts have been made to prevent the child’s removal or whether no efforts can be

reasonably made to prevent such removal. In re I.H., 238 Ill. 2d 430, 439 (2010); In re Arthur H.,

212 Ill. 2d 441, 462 (2004); 705 ILCS 405/2-10 (West 2018). After the child is placed in

temporary custody, the lower court proceeds with a two-step process identified by the Juvenile

Court Act, which is used to determine whether the child is abused or neglected and whether the

child should be removed from his or her parents and made a ward of the court. In re Arthur H.,

212 Ill. 2d at 462.

¶ 41 The circuit court first conducts an adjudicatory hearing to determine whether the

allegations set forth in the petition that a minor is neglected, abused or dependent, are supported

by a preponderance of the evidence. In re K.T., 361 Ill. App. 3d 187, 200 (2005). “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.” Id. At this stage of the proceedings, the focus is whether the child is

neglected, not whether the parents are neglectful. In re Z.L., 2021 IL 126931, ¶ 59. If the circuit

court finds abuse, neglect, or dependency by a preponderance of the evidence, the court then

moves to step two, where the court conducts a dispositional hearing to determine whether it is in

the minor child’s best interests to be made a ward of the court. In re K.T., 361 Ill. App. 3d 187,

200 (2005).

¶ 42 A circuit court’s finding of neglect or abuse is afforded significant deference on appeal

and will be disturbed only if it against the manifest weight of the evidence, i.e., only when the

opposite conclusion is clearly evident or when the court’s ruling is unreasonable, arbitrary, and

not based on the evidence. In re Arthur H., 212 Ill. 2d 441, 464 (2004).

¶ 43 A. Circuit Court’s Finding of Neglect

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No. 1-22-1217

¶ 44 After reviewing the record in this case, we cannot say the circuit court’s finding that Va.

M. was neglected due to an injurious environment was against the manifest weight of the

evidence. Section 2-3(1)(b) of the Juvenile Court Act provides that a “neglected minor” includes

any minor under the age of 18 “whose environment is injurious to his or her welfare.” 705 ILCS

405/2-3(1)(b) (West 2018); In re Zion M., 2015 IL App (1st) 151119, ¶ 24. “Neglect” is

generally defined as the failure to exercise the care that circumstances justly demand, and it

encompasses both willful and unintentional disregard of parental duty. In re K.T., 361 Ill. App.

3d 187, 200 (2005). Because the term has no fixed meaning, “neglect” is determined based on

the specific circumstances of each case and may vary if those circumstances change. See In re

Arthur H., 212 Ill. 2d at 463 (citing In re N.B., 191 Ill. 2d 338, 346 (2000)). Similarly, “[a]n

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.” In re Zion M., 2015 IL App (1st) 151119, ¶ 24. In short, a parent has a duty to

keep his or her child free from harm. Id.

¶ 45 Here, Va. M. was adjudicated neglected based on an injurious environment after DCFS

received reports that she was sexually assaulted by her older brother when she was seven years

old. As set forth above, Va. M. stated in her interview that “S-E-X” occurred once with her

brother in Minnesota and that it occurred while respondent was home. Furthermore, Va. M.’s

statements were corroborated by brother and respondent who both admitted that the incident

occurred. Nevertheless, respondent refused to cooperate with DCFS when she was confronted

about the allegations of sexual abuse, and she refused to engage in any social or therapeutic

services for Va. M.

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No. 1-22-1217

¶ 46 While respondent now claims there was no clear evidence of sexual abuse presented

below because Va. M. did not know what “S-E-X” meant, this ignores that brother and

respondent herself conceded that the sexual assault occurred. And even if respondent was

unaware of the alleged sexual abuse to Va. M. at the time it happened, her actions following the

discovery of that abuse certainly demonstrated a failure to exercise the care that the

circumstances justly demanded. In other words, respondent’s refusal to engage in any services

for Va. M. after she was sexually abused as a young child was neglectful and amounted to a

breach of her parental duty to keep Va. M. free from harm. Accordingly, we conclude that the

circuit court properly found Va. M. neglected based on an injurious environment.

¶ 47 B. Circuit Court’s Finding of Abuse

¶ 48 Turning to the circuit court’s finding that Va. M. was abused based on a substantial risk

of physical injury and emotional harm, we likewise cannot say that finding was against the

manifest weight of the evidence. Section 2-3(2)(ii) of the Juvenile Court Act provides that an

“abused minor” includes any minor under the age of 18 whose parent or immediate family

member, as relevant here, “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

2018); In re K.T., 361 Ill. App. 3d 187, 201 (2005). Additionally, proof of serious physical injury

is not required to sustain a finding of abuse. See In re J.R., 2022 IL App (1st) 221109, ¶ 52

(noting that “[i]t is sufficient that there be substantial risk of physical injury; actual injury is not

required”).

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No. 1-22-1217

¶ 49 Here, Va. M. was adjudicated abused based on the same evidence that supported the

lower court’s neglect finding. Additionally, the court found Va. M. abused because evidence was

presented that she was harmed when respondent punished her with a belt.

¶ 50 We previously determined the evidence of sexual abuse to Va. M. was corroborated by

the minor’s own statements, as well as her brother and respondent’s admissions that the abuse

occurred. Furthermore, we determined that respondent’s actions following the incident

constituted a breach of her parental duty to keep Va. M. from harm. Those circumstances put Va.

M. at a substantial risk of physical harm that would be likely to result in emotional harm since

Va. M. was only seven years old when she was sexually assaulted and was not placed in any

services afterward. Given her young age, Va. M. could have been physically hurt from the sexual

abuse which could have also led to emotional abuse stemming, at least in part, from a lack of

services or understanding about what happened to her.

¶ 51 While that evidence alone is sufficient to support the lower court’s abuse finding, there

was also evidence presented below that Va. M. was physically hurt when respondent hit her with

a belt. As previously set forth, Va. M. stated that respondent punished her with her hand, a belt

or a shoe, sometimes leaving marks and bruises. During her interview, Va. M. pointed to a mark

on her arm, supposedly left by the belt. While it’s difficult to see the mark in the recorded

interview, we find no reason to doubt Va. M.’s credibility as respondent admitted that she

punished the minor with a belt and would not stop. Regardless, proof of physical injury is not

required to sustain a finding of abuse.

¶ 52 Based on the above, we conclude that sufficient evidence existed to support the lower

court’s finding of abuse as to Va. M. At the very least, respondent has not shown that the

opposite conclusion was evident. We therefore affirm the circuit court’s judgment.

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¶ 53 C. Circuit Court’s Finding of Sexual Abuse

¶ 54 Finally, respondent argues that the State did not properly plead sexual abuse to Va. M. in

her petition, and therefore, the circuit court’s sexual abuse finding must be reversed.

¶ 55 The Public Guardian, however, argues that respondent forfeited the issue by failing to

raise it below. Forfeiture aside, both the Public Guardian and the State assert that even though

Va. M.’s petition did not specifically cite sexual abuse, it clearly alleged sexual abuse to the

minor by her older brother; thus, respondent had a fair and meaningful opportunity to litigate that

issue.

¶ 56 In her reply brief, respondent concedes that she did not raise the issue below but asks this

court to consider it under the plain error doctrine.

¶ 57 Initially, we agree with the Public Guardian that respondent forfeited her challenge to the

circuit court’s sexual abuse finding of Va. M. by failing to argue the issue below, where it could

have been remedied. In re William H., 407 Ill. App. 3d 858, 869–70 (2011); see also In re S.L.,

2014 IL 115424, ¶¶ 17, 27 (concluding the respondent forfeited her claim that the State failed to

comply with statutory notice requirements because she failed to raise the issue in the trial court

where the alleged error could have been resolved).

¶ 58 Forfeiture aside, respondent’s claim still fails. Section 2-3(2)(iii) of the Juvenile Court

Act provides that an “abused minor” includes any minor under the age of 18 whose parent or

immediate family member, as pertinent here, “commits or allows to be committed any sex

offense against such minor, as such sex offenses are defined in the Criminal Code of 1961 or the

Criminal Code of 2012, or in the Wrongs to Children Act, and extending those definitions of sex

offenses to include minors under 18 years of age.” 705 ILCS 405/2-3(2)(iii) (West 2020); see

also In re Alexis H., 401 Ill. App. 3d 543, 558 (2010). Here, as set forth at length above, the

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sexual abuse to Va. M. was integral to the factual matrix of proving the alleged neglect and

abuse of the minor in the first place. Respondent was apprised of the State’s charges in this case

and even admits in her reply brief that “[t]he allegations regarding the sexual ‘incident’ form the

very basis of this case” and “hardly came as a surprise to the Special Prosecutor or GAL.” While

her contentions are somewhat unclear on appeal, we find the sexual assault charge could not

have come as a surprise to respondent.

¶ 59 Because respondent cannot show that she was prejudiced by the State’s failure to

properly plead sexual abuse since she was clearly aware of the sexual abuse allegations in the

petition, she cannot prove plain error. See People v. Hillier, 237 Ill. 2d 539, 549 (2010) (noting

that plain error requires a clear showing that an alleged error affecting substantial rights was

committed). Although respondent claims the sexual abuse finding affected her substantial rights

to the control, custody and care of Va. M., the minor resides with respondent and remains under

her custody, so those rights have not been affected. Cf. In re M.H., 196 Ill. 2d 356, 365 (2001)

(in determining whether parental rights should be terminated, the court noted that the control,

custody and care of a child is a fundamental interest and will not be terminated lightly).

Accordingly, we affirm the circuit court’s finding of sexual abuse to Va. M.

¶ 60 III. CONCLUSION

¶ 61 Based on the foregoing, we conclude that the special prosecutor proved by a

preponderance of the evidence that Va. M. was neglected and abused due to an injurious

environment and a substantial risk of physical injury and emotional harm. We therefore affirm

the circuit court’s judgment.

¶ 62 Affirmed.

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