dissenting:
The majority’s first conclusion is that the trial court’s finding that Arthur H., Jr., was neglected by respondent was against the manifest weight of the evidence. The majority’s second conclusion is that “the finding of neglect as to Lorraine remains.” 338 111. App. 3d at 1041. I believe that the majority’s second conclusion eliminates the need for its first because the trial court does not need to determine that both parents engaged in acts or omissions constituting neglect in order to find a minor neglected under the Act. Consequently, the majority’s “neglected as to respondent” analysis is misdirected. The basic principle overlooked by the majority is that parents are not adjudicated neglectful at the adjudicatory stage of the proceedings under the Act; rather, minors are adjudicated neglected.
Section 2 — 3(1) of the Act provides in pertinent part:
“(1) Those who are neglected include:
(a) any minor under 18 years of age who is not receiving the proper or necessary support, education as required by law, or medical or other remedial care recognized under State law as necessary for a minor’s well-being, or other care necessary for his or her well-being, including adequate food, clothing and shelter, or who is abandoned by his or her parents or other person responsible for the minor’s welfare, except that a minor shall not be considered neglected for the sole reason that the minor’s parent or other person responsible for the minor’s welfare has left the minor in the care of an adult relative for any period of time; or
(b) any minor under 18 years of age whose environment is injurious to his or her welfare; or
(c) any newborn infant whose blood, urine, or meconium contains any amount of a controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act, as now or hereafter amended, or a metabolite of a controlled substance, with the exception of controlled substances or metabolites of such substances, the presence of which in the newborn infant is the result of medical treatment administered to the mother or the newborn infant; or
(d) any minor under the age of 14 years whose parent or other person responsible for the minor’s welfare leaves the minor without supervision for an unreasonable period of time without regard for the mental or physical health, safety, or welfare of that minor.” 705 ILCS 405/2 — 3(1) (West 2000).
Nowhere in the above-quoted section is there a requirement that all parents, or all persons responsible for the welfare of the minor, engage in an act or omission that constitutes neglect.
This fundamental principle has been recognized in the decisions of our appellate court. In In re Chyna B., 331 Ill. App. 3d 591 (2002), respondent-father challenged the trial court’s finding of neglect because it was based on the actions of only the other parent. Chyna B., 331 Ill. App. 3d at 593. In rejecting the challenge and concluding that the trial court’s finding of neglect was not against the manifest weight of the evidence, the Chyna B. court said:
“It was unnecessary for the trial court to find that Chyna B. was neglected on the basis of any action or inaction by respondent father. Chyna B. fit the definition of ‘any minor under 18 years of age whose environment is injurious to his or her welfare’ (705 ILCS 405/2 — 3(l)(b) (West 2000)) by reason of respondent mother’s actions and respondent father’s inactions in fading to correct the conditions of which he was aware. A minor child may be found neglected even though the primary fault for creating the injurious environment rests with one parent.” Chyna B., 331 Ill. App. 3d at 596.
This court’s holding in S.S. “that it is proper for the court to make a neglect finding and adjudicate wardship of a minor as to one parent while not finding neglect as to the other parent” (S.S., 313 Ill. App. 3d at 133) recognizes that a finding of neglect need not be based on the acts or omissions of both parents. The analysis of the evidence of acts or omissions of each parent constituting neglect in S.S. was necessary only to determine whether the trial court abused its discretion in entering the dispositional order. In deciding that issue in S.S., we said that section 2 — 27 of the Act requires both parents to be adjudicated unfit or unable to care for the child before placement with DCFS is authorized. We concluded that the trial court’s finding that respondent-mother neglected the minor was against the manifest weight of the evidence, and, presumably on that basis, we vacated the dispositional order placing the minor under the guardianship of DCFS and ordered that the minor be returned to respondent-mother immediately. S.S., 313 Ill. App. 3d at 133. In my view, the only reason we needed to address the issue of which parent did the neglecting in S.S. was to decide if there was evidence to support the conclusion that both parents were unfit, unable, or unwilling to care for the minor. I disagree with any suggestion in S.S. that both parents must neglect a minor before the court can adjudicate a minor neglected.
Proof by a preponderance of the evidence that Arthur H., Jr., was neglected by anyone responsible for his welfare is all that is required to adjudicate him a minor neglected under the Act. There is no requirement that the State prove acts or omissions constituting neglect on the part of all those persons responsible for the minor’s welfare.
The majority’s analysis of the trial court’s finding of neglect “as to respondent” mischaracterizes respondent’s contention on appeal. Respondent contends that the trial court’s finding that Arthur H., Jr., was a neglected minor was against the manifest weight of the evidence. He is not contending that the State did not prove an act or omission by him that constituted neglect. Respondent requests that we reverse the trial court’s finding and dismiss the petition alleging that Arthur H., Jr., is a neglected minor.
With respect to the sufficiency of the State’s evidence as to the allegations of neglect in count I, the majority admits that there was evidence that Lorraine was free to take Arthur H., Jr., back to her home, where the medical neglect of a sibling was occurring, but distinguishes the holding in B.C. on three bases: (1) the procedural posture of B.C. was a temporary custody hearing, not an adjudicatory hearing; (2) B.C. resided with her godmother while Arthur H., Jr., resided with his natural parent; and (3) Lorraine did not contest guardianship and custody at the dispositional hearing. For the following reasons, I do not believe that these are valid distinctions.
First, the only difference the procedural posture of the two cases makes is the burden of proof the State carries. The fact that the State need only establish probable cause that the minor is an abused, neglected, or dependent minor at a temporary custody hearing (705 ILCS 405/2 — 10(2) (West 2000)) and must prove neglect, abuse, or dependency by a preponderance of the evidence at an adjudicatory hearing (705 ILCS 405/2 — 18(1) (West 2000)) does not render unsound the B.C. court’s reasoning with regard to anticipatory neglect.
Second, the fact that Arthur H., Jr., was in his father’s custody when his siblings were being neglected and not in the custody of someone without custodial rights, like the godmother in B.C., is of no consequence. There was uncontradicted evidence that Lorraine could take custody of Arthur H., Jr., at any time. Respondent testified that the custody arrangement was voluntary and that if Lorraine wanted to take Arthur H., Jr., she could. In addition, Lorraine and respondent’s mother each testified that Arthur H., Jr., spent time with both parents. What is important is that, like B.C.’s mother, Lorraine could remove Arthur H., Jr., at any time and, therefore, the possibility of removal left Arthur H., Jr., subject to the neglect endured by his siblings. See B.C., 262 Ill. App. 3d at 909.
The last basis upon which the majority distinguishes B.C. misses the point. Lorraine’s actions at the dispositional hearing do not change the fact that she could put Arthur H., Jr., into an injurious environment at will while the injurious environment existed. Accordingly, I believe that B.C. is dispositive and that we should follow its reasoning in this case.
The majority’s other basis for reversing the finding of neglect under count I is that respondent was not on notice that the State was going to proceed on an allegation that Lorraine failed to attach the apnea monitor to sibling Earl H. I believe that this theory is contained within the allegations of count I. Count I alleges that Arthur H., Jr.’s environment was injurious to his welfare “in that the minor’s sibling had a hernia approximately 2V2 to 3 inches in diameter and the mother had previously failed to follow the doctor’s treatment and administer medication, thus putting the minor at risk of harm, pursuant to 705 ILCS 405/2 — 3(1)0)}.” (Emphasis added.) The emphasized portion of this allegation could be construed fairly to include the failure to keep Earl H. on the apnea monitor. In fact the trial court so found:
“So the argument that’s been made is that Count I doesn’t cover the failure to provide other medical care other than for this alleged hernia, and I am finding that it does, that that count pleads a sufficient cause of action to cover the failure to get the treatment for the sleep apnea and also for the failure to get the necessary immunizations.”
I also believe that the State proved anticipatory neglect of Arthur H., Jr., as alleged in count II, because B.C. controls. Lorraine could put Arthur H., Jr., into her care at will, and the State proved that she failed to supervise his siblings as alleged.
The majority addresses “[a]s a final matter” the dispositional order. 338 Ill. App. 3d at 1040. I agree that the dispositional order in this case is faulty in that it gives custody of Arthur H., Jr., to DCFS without a finding that respondent is unfit, unable, or unwilling to care for him as is required under section 2 — 27 of the Act. However, I believe that it is inappropriate to address the propriety of the dispositional order because respondent makes no argument regarding that order. See 188 Ill. 2d R 341(e)(7) (points not argued on appeal are waived).
For the foregoing reasons, I would affirm the order of the circuit court of Winnebago County. Therefore, I respectfully dissent.