In re Avery F.

Court: Appellate Court of Illinois
Date filed: 2024-03-04
Citations: 2024 IL App (1st) 231089
Copy Citations
1 Citing Case
Combined Opinion
                                           2024 IL App (1st) 231089
                                                 No. 1-23-1089
                                          Opinion filed March 4, 2024
                                                                                        FIRST DIVISION
      ______________________________________________________________________________

                                                    IN THE
                                     APPELLATE COURT OF ILLINOIS
                                               FIRST DISTRICT
      ______________________________________________________________________________
                                                                      )     Appeal from the
                                                                      )     Circuit Court of
      In re AVERY F., also known as Averi F., and ALIJAH F.,          )     Cook County.
                                                                      )
                                     Minors-Appellees,                )     No. 19-JA-5 and
                                                                      )         20-JA-581
      (The People of the State of Illinois, Petitioner-Appellee v.    )
      Alicia F., Respondent-Appellant).                               )     The Honorable
                                                                      )     Shannon P. O’Malley,
                                                                      )     Judge Presiding.



                 PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court,
      with opinion.
                 Justices Lavin and Coghlan concurred in the judgment and opinion.

                                                  OPINION

¶1        The mother-respondent, Alicia F., appeals from the orders of the trial court finding minors

     Avery F. (also known as Averi F.) and Alijah F. neglected under a theory of anticipatory neglect,

     adjudicating them wards of the court, and finding that the respondent is unable to care for or protect

     them. Appellee briefs have been filed by the State and by the Cook County Public Guardian on

     behalf of the two minors. We affirm.

¶2                                           I. BACKGROUND

¶3        From 2014 to 2023, the respondent was married to Joshua F. (father), and together they have
     No. 1-23-1089

     five children: daughter Anaya (born 2014), daughter Jurnee (born 2016), son Josiah (born 2017),

     daughter Averi 1 (born 2018), and son Alijah (born 2020). This appeal involves only the

     respondent’s challenges to the above orders concerning the two youngest children. The father is

     not a party to this appeal. Although this appeal also does not involve the cases for adjudication of

     wardship of the three oldest children, the background of their cases was introduced into evidence

     relevant to the State’s theory that Averi and Alijah are subject to anticipatory neglect. Accordingly,

     we begin with this background as to the three oldest children.

¶4                                           A. Older Siblings’ Cases

¶5                                                    1. Anaya

¶6        In April 2014, two months after Anaya was born, she was taken to a hospital and diagnosed

     with the following injuries: (1) subdural brain hemorrhages of varying ages, (2) intradural

     hemorrhage throughout the length of her spinal cord, (3) injury to her spinal ligaments, (4) multiple

     preretinal hemorrhages of both eyes and vitreous hemorrhage of the left eye, (5) multiple rib

     fractures of varying ages, (6) acute liver injury, and (7) brain ischemia (dead tissue). The State

     filed a petition for adjudication of wardship, and she was taken into custody of the Department of

     Children and Family Services (DCFS). It was stipulated in those proceedings that Dr. Marjorie

     Fujara, a physician with board certification in pediatrics and child abuse pediatrics, would testify

     to a reasonable degree of medical certainty that Anaya’s injuries “are inflicted and are indicative

     of chronic child physical abuse.” From the time of her birth until the she was taken into DCFS

     custody, Anaya had been in the care of either her parents or her grandparents. It was the position

     of the parents that they did nothing to cause Anaya’s injuries and did not know how they had



             1
              It appears that the correct spelling of this minor’s name is “Averi.” However, the spelling “Avery”
     was retained in the caption.

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       No. 1-23-1089

       occurred. No party sought a perpetrator finding.

¶7          In September 2015, based on the above facts, the court entered an adjudication order finding

       that Anaya was neglected based on an environment injurious to her welfare, abused due to the

       infliction of physical injury, and abused due to the creation of a substantial risk of physical injury

       by other-than-accidental means. No perpetrator of the abuse was identified. In December 2015, a

       disposition order was entered adjudicating Anaya a ward of the court, finding the respondent and

       the father unable to care for or protect her, and placing her in the guardianship of DCFS. In August

       2018, an order was entered closing Anaya’s case to private guardianship.

¶8                                                       2. Jurnee

¶9          In February 2016, one week following the birth of Jurnee, the State filed a petition for

       adjudication of wardship. Initially, the trial court entered an order of protection that allowed Jurnee

       to remain with the parents. 2 However, two months later, on April 16, 2016, Jurnee presented to a

       hospital with subconjunctival hemorrhage to her eye and fractures to her ribs, clavicle, both legs,

       both arms, and multiple fingers. The protective order was vacated, and the case proceeded to an

       adjudicatory hearing that spanned several days. The State presented three expert medical witnesses

       who expressed opinions that Jurnee’s injuries were the result of abuse. The parents also presented

       two expert witnesses who expressed opinions that there may have been other causes of the injury.

¶ 10        On November 29, 2016, the trial court entered an adjudication order finding that Jurnee was

       neglected based on an environment injurious to her welfare and abused due to the infliction of


               2
                 Certain details from the cases for adjudication of wardship of Jurnee and Josiah are taken from a
       motion in limine presented to the trial court prior to the adjudicatory hearing in Averi’s case, although these
       facts were not all entered into evidence in the cases for Averi or Alijah. The respondent, while represented
       by counsel, filed a response in the trial court stating that the pertinent facts as set forth in the motion
       in limine are accurate. The respondent reiterates their accuracy on appeal, and all parties cite facts taken
       from this motion in limine in their appellate briefs. The supporting exhibits to this motion in limine are not
       included in the record on appeal in this case.

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       No. 1-23-1089

       physical injury and the creation of a substantial risk of physical injury by other than accidental

       means. On December 2, 2016, the trial court clarified its adjudication order, stating that it found

       that the opinions expressed by the parents’ expert witnesses were not susceptible to peer review

       and that many of the factual premises required for their opinions were nonexistent, “including the

       existence of osteogenesis imperfecta or a genetic disease that would cause Jurnee’s injuries.” The

       trial court found, with the exception of the clavicle injury, that all of Jurnee’s other injuries were

       “the result of non-accidental physical abuse.” The trial court found that the adjudication testimony

       ruled out other causes for Jurnee’s injuries, such as other illnesses, genetic causes, and rickets.

       Although the trial court did not make a perpetrator finding, it found “that natural mother and

       natural father have had primary, exclusive control and alone time with Jurnee.” In April 2017, a

       disposition order was entered adjudicating Jurnee a ward of the court, finding her parents unable

       to care for or protect her, and placing her in the guardianship of DCFS.

¶ 11                                                 3. Josiah

¶ 12        One week following Josiah’s birth in 2017, a petition for adjudication of wardship was filed

       on his behalf. Based on a stipulation of facts, the trial court ultimately adjudicated Josiah as

       neglected “based upon anticipatory neglect” on October 25, 2017. The stipulation of facts provided

       in part that the family’s caseworker from Children’s Home and Aid would testify that the parents

       had completed all reunification services except individual therapy, that “they still have not made

       progress about why the siblings’ cases came into the system,” and that returning Josiah to their

       care would pose a risk of harm to him “because [the parents] have not acknowledged that [Josiah’s]

       siblings were physically abused.”

¶ 13        Several weeks later, on November 15, 2017, the parents attended a meeting with Dr. Margaret

       Scotellaro, a treating pediatrician of Anaya and Jurnee who specialized in child abuse. Both the



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       respondent and the father later testified, at the dispositional hearing in Josiah’s case on January 18,

       2018, that this meeting with Dr. Scotellaro had helped them come to the conclusion that both

       Anaya and Jurnee had been abused. Both reiterated that they had not perpetrated this abuse and

       did not believe that their spouse had done so either. The trial court adjudicated Josiah a ward of

       the court, found both parents unable to care for or protect him, and placed him in the guardianship

       of DCFS. Citing the lapse in time between the injuries to the older children and the parents’

       acknowledgement of abuse, the trial court stated that the parents “are really at ground zero in terms

       of addressing the physical abuse to Anaya and Jurnee in individual therapy, which is a requirement

       in the service plan and which would be expected by the Court before the Court could find that

       they’re fit, able, and willing to care for the child.” The court found them unable to care for or

       protect Josiah “because they need to continue in reunification services, including that individual

       therapy, to address and process the realization that Anaya and Jurnee were abused.”

¶ 14        On February 13, 2018, the respondent anonymously posted an article she had written to the

       website blackdoctor.org. The article’s title was “I Was Accused of a Crime that Doesn’t Exist—

       When Politics Meet Medicine.” This article was mentioned in testimony but was not admitted into

       evidence in the cases of Averi or Alijah.

¶ 15                                  B. Adjudication of Neglect for Averi

¶ 16        Averi was born on December 18, 2018. On January 4, 2019, the State filed a petition for

       adjudication of wardship, alleging that she was neglected because her environment was injurious

       to her welfare and abused due to substantial risk of physical injury. The factual basis for the

       allegations were as follows:

                    “Parents have four prior indicated reports for head injuries, bone fractures, internal

              injuries and substantial risk of physical injury/environment injurious to health/welfare.


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       No. 1-23-1089

              Parents have three other minors who are not in their care with findings of physical abuse,

              abuse and neglect having been entered. Parents minimize that this minor’s siblings were

              physically abused while in their care. Mother and father are in need of continued progress

              in reunification services prior to being able to safely parent a child. Parents are married and

              reside together.”

       That petition was later amended to add that the “parents believe this minor’s siblings’ injuries may

       have been due to a medical condition.” Based on the facts in the petition, the trial court found

       probable cause existed that Averi was abused or neglected and granted temporary custody of Averi

       to DCFS.

¶ 17        On April 19, 2021, an adjudicatory hearing was conducted on the petition. Prior to the

       hearing, the trial court granted a motion in limine by the State to bar testimony relitigating the issue

       of physical abuse of Anaya and Jurnee. The court admitted four exhibits into evidence: a therapy

       report for each of the parents, the family service plan from October 2018, and various orders and

       stipulations of facts from the cases of Anaya, Jurnee, and Josiah. We take note that the family

       service plan includes in part the following statements:

                    “[The respondent] is currently engaged in therapy to address the reasons why the case

              came into care. While [her] engagement in therapy is satisfactory, [she] is in need to further

              process her acknowledgement of abuse and the concerns presented in the July 2018 [Cook

              County Juvenile Court Clinic] *** recommendations for individual therapy:

                            ‘Both parents should work on addressing the following issues: *** processing

                       their thoughts on what to look for related to physical abuse of the children (both in

                       terms of physical/behavioral signs with the children, and related to potential

                       perpetrators of abuse); process the abuse to the children at a deeper level with


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                       discussions around the children’s experience of abuse, rather than just stating it

                       occurred[.]’ ”

¶ 18        The State’s first witness was Hillary Dvorak, the assigned caseworker for the family at the

       agency Children’s Home and Aid from May 2018 to September 2019. She testified that after Averi

       was born, she was concerned about Averi remaining in the parents’ custody due to their failure to

       make substantial process on the protective factors identified by the juvenile court clinic in its 2018

       assessment of the services required for reunification with Jurnee and Josiah. Dvorak explained that

       the juvenile court clinic’s report had stated that each parent needed individual therapy to work on

       empathizing with the children’s experience of trauma, taking responsibility for their role as role as

       parents, and addressing the protective factors needed to prevent any further harm to the children.

       Dvorak testified that there were concerns about the genuineness of the respondent’s initial

       acknowledgment that the children’s injuries were the result of abuse, due to the article she posted

       online in February 2018 stating that the children’s injuries were the result of a medical condition.

       She testified that the agency’s individualized treatment plan for the respondent indicated that she

       still had important aspects from the juvenile court clinic report to cover in treatment. She testified

       that as of the time when Averi was taken into custody in January 2018, the agency was not even

       recommending unsupervised day visits with Jurnee or Josiah.

¶ 19        On cross-examination, Dvorak was asked to further explain her testimony about the

       genuineness of the parents’ acknowledgement of abuse. She answered that the juvenile court clinic

       report stated that the parents needed to show a change in their thought process and a deeper

       internalization of the abuse that occurred to the children, and that is what she meant.

¶ 20        On redirect examination, Dvorak testified that for the agency to conclude that the parents

       were making progress, they had to understand that the injures were due to abuse as opposed to



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       being caused by an accident or something else. They also had to show that by their behaviors, such

       as discussions within therapy empathizing with the trauma that had occurred to the children.

       During the time she was caseworker until Averi came into care, the parents had not done that.

¶ 21        The second witness to testify was DCFS investigator Marcelita Vargas. She provided

       background testimony about how DCFS became involved in Averi’s case due to the pending cases

       involving the respondent’s older children. She testified that, upon speaking with Dvorak, it was

       the recommendation of DCFS that Averi be removed from the respondent’s care due to the serious

       injuries to her older siblings. She testified that, because it is unknown how the injuries to the older

       children occurred, it was a risk to allow Averi back into the home as a newborn baby. She also

       testified that, based on her conversation with Dvorak, the parents’ lack of progress in indicating

       that Anaya and Jurnee were physically abused was a factor in her opinion concerning Averi’s

       removal from the parents. No cross-examination occurred, and all parties then rested.

¶ 22        Following closing arguments, the trial court entered an adjudication order finding Averi

       neglected due to injurious environment under the theory of anticipatory neglect. The trial court

       explained the basis of its ruling as follows:

                    “Based upon a preponderance of the evidence, considering what’s in the best interest

              of the minors, this is a pretty simple case. *** [T]wo other kids besides Averi were injured

              horribly. The child returns home, the child comes back, the child is injured.

                    The parents have not come to the realization that abuse occurred, abuse and injury.

              Looks like the parents are trying to blame it on someone else, purpose unknown, and they

              haven’t faced up to the injuries that happened.

                    *** I believe that Anaya had injuries to her head. There were different stages of

              healing. Injuries all over her body.


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                   Jurnee *** was given back to the parents and then came back. She had all kinds of

              injuries all over her body, to her bones. The parents haven’t acknowledged abuse occurred.

                                                          ***

                   The parents must understand that the injuries happened due to abuse and not to an

              accident. There is extreme risk of harm. The parents don’t realize something wrong is going

              on. It wasn’t an accident.

                   No one is telling them to admit or to say that they did it. They just have to realize and

              understand that the injuries that happened are not due to an accident.

                   They don’t get it. If they still don’t get it, then there is injury to the child, and I am

              not returning the child home just yet for now.”

¶ 23                                 C. Adjudication of Neglect for Alijah

¶ 24        Alijah was born on March 27, 2020. The State filed a petition for adjudication of wardship

       on April 1, 2020. Its material allegations were similar to those of the petition in Averi’s case,

       namely that the parents had four indicated reports for head injuries and bone fractures, that they

       had four other minors in the custody of DCFS with findings of abuse or neglect, and that temporary

       custody was not recommended due to the parents’ continued denial that the extensive injuries to

       Alijah’s two older siblings were caused by physical abuse despite the court’s findings. The trial

       court entered an order finding that probable cause existed that Alijah was abused or neglected and

       granted temporary custody of Alijah to DCFS.

¶ 25        On September 9, 2022, an adjudicatory hearing was conducted on the petition for

       adjudication of wardship. Upon request by the State, the trial court took judicial notice that in

       Averi’s case, the court had made findings of neglect based on anticipatory neglect due to injuries

       to her siblings, whom the parents do not acknowledge as abused.


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¶ 26        The State’s first witness was Cynthia Celestine, the supervising investigator for DCFS with

       respect to Alijah’s case. She testified that the case came to the attention of DCFS following a

       hotline call. After meeting with caseworker Marima Ali on March 31, 2020, Celestine made a final

       determination that the respondent and the father were indicated on an allegation that Alijah was at

       substantial risk of physical injury due to an environment injurious to his health and welfare by

       neglect. Her basis for this determination was the parents’ extensive history with DCFS, the prior

       history of injuries to their other children, and Jurnee’s being placed in their care under a protective

       order but then experiencing a head injury and bone fractures. She testified that her agency

       recommended that protective custody be taken of Alijah, which occurred on April 1, 2020. The

       reason for this was that the parents had other children in care, Alijah was a newborn and could not

       protect himself, the parents had not complied with recommended services to the extent that the

       children could return home, and they had not rectified the situation that brought the family to the

       attention of DCFS. She testified that another concern behind the decision to take Alijah into

       protective custody was that the parents still had not indicated that they understood that the injuries

       to Jurnee and Anaya were due to abuse.

¶ 27        The State’s second witness was Scott Wolff-Klammer, a supervisor at Children’s Home and

       Aid who had been assigned to the cases for Jurnee, Josiah, and Averi since October 2019. Through

       his testimony, a DCFS integrated assessment and a family service plan, both from February 2019,

       were identified and admitted into evidence. He testified that, at the time he was assigned to the

       case, the main service that the respondent needed to complete for reunification with Jurnee, Josiah,

       and Averi was individual therapy to address that the injuries to Anaya and Jurnee were caused by

       abuse, as recommended in the 2018 juvenile court clinic report. He testified that the agency was

       not recommending unsupervised visitation at that time because the parents had not gained an



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       understanding that the injuries to Anaya and Jurnee were from abuse.

¶ 28        He testified that on February 4, 2020, both parents arrived at his agency’s office unannounced

       to discuss the respondent’s pregnancy. During that discussion, the respondent stated to him that

       she was a carrier of Ehlers-Danlos syndrome and that she wanted genetic testing to be done on the

       four older children. He explained his understanding that this was a genetic condition that can cause

       stretching of skin and delicate bones. He testified that also during that discussion, he clarified what

       the agency needed from the parents in therapy per the juvenile court clinic’s recommendations,

       which was recognizing that the injuries to Anaya and Jurnee were caused from physical abuse.

¶ 29        Wolff-Klammer testified that after this meeting, he spoke with Dr. Scotellaro about the

       respondent’s concerns that Ehlers-Danlos syndrome could have caused the bone breaks to Anaya

       and Jurnee. He testified that Dr. Scotellaro told him that the children had undergone extensive

       genetic testing and that Ehlers-Danlos syndrome had been ruled out. He testified that his agency’s

       recommendation at the time Alijah was taken into protective custody that he not be returned to the

       parents was due to the concern that he was at risk of harm due to the parents’ inability to recognize

       the signs of abuse to Jurnee and Anaya and that their injuries had come from physical abuse.

¶ 30        On cross-examination, Wolff-Klammer testified that he was not aware of whether the request

       for genetic testing of the children had come from the respondent’s physician. He was asked about

       testimony that he had given during an earlier hearing on temporary custody, in which he stated

       that the agency had rejected a relative, Ms. Oliver, to serve as Alijah’s temporary guardian, due to

       the risk posed to Alijah by Ms. Oliver’s failure to identify that the respondent and the father were

       the named perpetrators of abuse.

¶ 31        On redirect examination, Wolff-Klammer clarified that the parents were not being asked to

       indicate that they hurt a child, but they had to be able to determine risk to have a child in their care


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       and custody. He does not believe they could understand that because they do not believe that Jurnee

       and Anaya were physically abused. At that point, all parties rested.

¶ 32        Following closing arguments, the trial court entered an adjudication order finding Alijah

       neglected due to injurious environment. In ruling, the trial court stated the following:

                    “[B]ased on a preponderance of the evidence, I find the testimony of Scott Wolff-

              Klammer to be credible because it was credible. This is all based upon a preponderance of

              the evidence. We had medical doctors, and they confirmed that it was due to physical abuse.

              Parents still don’t think physical abuse happened, even though there were prior findings

              that physical abuse happened. We are blaming it on medical issues.

                    The child was returned home and came back, and another child was severely injured.

              This is ongoing. They still don’t recognize or will admit that physical abuse occurred, and

              it’s all they have to do, and they still will not do that.

                                                            ***

                    As to Alijah, it’s NEI based on anticipatory neglect.”

¶ 33                             D. Dispositional Hearing for Averi and Alijah

¶ 34        On May 17, 2023, the matter proceeded to a dispositional hearing concerning both Averi and

       Alijah. The State’s case commenced with the trial court taking judicial notice of its prior findings

       of neglect as to Averi and Alijah. The trial court also admitted two exhibits upon request of the

       State, which were DCFS integrated assessment reports focused on the two minors respectively.

       Four exhibits by the public guardian were also admitted into evidence at that time: a permanency

       planning report, a current service plan, and 2023 parenting capacity assessments for each parent.

¶ 35        The State called the respondent as its first witness. She testified that she and the father had

       divorced in Illinois as of April 14, 2023, but that she had not provided her caseworker with any


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       documentation concerning her divorce. She testified that she had moved to Tennessee as of July

       2022. She was testifying via Zoom from her home in Tennessee, and the father was in the room

       with her. However, she stated that they did not reside together and that she had no knowledge of

       where the father resided. She was not aware of whether the father had ever lived in Tennessee.

¶ 36        The State next called the father to testify. He testified that he had recently moved to Franklin,

       Tennessee. He believed that the respondent also resided in Franklin. However, they lived in

       different residences. The father stated that he did not know how far away they lived from one

       another or how long it had taken him to get to the respondent’s residence that day.

¶ 37        The State then called Leslie Martinez, a caseworker for Children’s Home and Aid since April

       2021. Martinez provided background testimony about how each of the parent’s minor children had

       come into the care of DCFS. She then testified to the respondent’s participation in recommended

       services. This included the respondent’s completing of a nurturing parent program in 2019, which

       included parenting classes and coaching. She also completed all sessions of individual therapy in

       2019. Martinez testified that one of the concerns in therapy was the respondent’s acknowledgment

       of the reason why Anaya and Jurnee had come into care, as well as protective factors for therapy

       for the children. She testified that the juvenile court clinic had recommended that the respondent

       complete a parenting capacity assessment, which occurs when parents have an issue making

       progress toward the returning home of their children. In this case, the psychologist involved in the

       parenting capacity assessment had concerns that the respondent had failed to acknowledge the

       reason why the cases of Anaya and Jurnee had come into care. Martinez testified that was the

       agency’s major issue as well.

¶ 38        Martinez testified that the respondent never had unsupervised visitation with Averi or Alijah,

       nor had the agency ever recommended it. She explained that unsupervised time is only given to



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       parents who acknowledge and understand why their children came into the care of DCFS, and the

       respondent had not stated why she believes the children came into care for abuse. Martinez stated

       that the respondent’s stated belief is that the injuries to Anaya and Jurnee were due to osteogenesis

       imperfecta. However, Martinez explained that her understanding was that this condition had been

       ruled out by medical professionals in the past. She testified that the respondent was allowed once-

       weekly visits with Averi and Alijah, and she came from Tennessee to Illinois for these visits. She

       testified that respondent was consistent with visitation at first. However, from June 2022 until the

       present she attended approximately 40% of the visits she is allowed. Martinez testified that the

       visits go well when they occur.

¶ 39        On cross-examination by the assistant public guardian, Martinez clarified that the respondent

       had attended a total of two in-person visits with the children between the end of June 2022 and the

       hearing date of May 17, 2023, which was out of approximately 40 opportunities at visitation. She

       agreed that when she references the respondent not “acknowledging” abuse, what she means is

       that the respondent does not believe that Anaya or Jurnee were physically abused but instead

       believes that medical explanations exist for the injuries received by both. She testified that Averi

       and Alijah have never had any broken bones. She testified that prior to the respondent’s January

       2023 disclosure to the psychologist involved in the parenting capacity assessment that she had

       moved to Tennessee, the respondent had never informed Martinez that she was intending to move.

¶ 40        On cross-examination by the respondent, Martinez testified that either she, her program

       manager, or her supervisor responded to every e-mail by the parents providing their availability

       for visitation. She testified that the agency tried its best to accommodate the schedules that the

       parents provided. She testified that the respondent had a “virtual visit” with the children in

       September 2022, and an in-person visit in December 2022. Martinez testified that those were the



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       two months for which the parents provided availability. She testified that she was aware that the

       respondent’s work schedule was ever-changing. She testified that she had asked the respondent to

       try to obtain the accommodation of one specific day off each week to allow for the scheduling of

       visitation, which she was not able to do.

¶ 41        Martinez testified that Averi lives in the same foster parents’ home as her three older siblings,

       and Alijah resides in a different foster parent’s home. Both minors’ homes are safe and appropriate,

       with no signs of abuse, neglect, or corporal punishment. Both are well-bonded to their foster

       parents. Martinez testified that the recommendation of Children’s Home and Aid was for Averi

       and Alijah to remain in their foster parents’ homes for the time being.

¶ 42        Following the testimony by Martinez, the State rested. The assistant public guardian

       requested that the trial court also take judicial notice of all evidence presented at the adjudicatory

       hearings for Averi on October 19, 2021, and for Alijah on September 9, 2022, which the trial court

       did. The public guardian then rested.

¶ 43        The respondent then requested to provide a narrative statement, which was allowed. The

       respondent stated she moved to Tennessee in July 2022 due to work opportunities that did not exist

       in Illinois. She testified that, in 2022, she had reached out to the agency twice in July, once in

       August, twice in September, and once in December regarding visitation; the agency had responded

       to only one of these communications, that of September 12, 2022; and the respondent was informed

       that the agency did not have the means to accommodate visits on that date. The respondent then

       stated, “Additionally, I fully understand why the case came into care. However, I do not agree.

       But, I fully understand the reasons why this case came into care to this day.”

¶ 44        On cross-examination by the assistant public guardian, the respondent stated that the reason

       she did not tell anyone at Children’s Home and Aid about her move to Tennessee was that she


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       distrusted the agency, and she did not feel that it was in her best interest to let them know. She

       testified that there was no reason for her to tell the agency of her divorce, which was public

       information.

¶ 45        Following closing arguments, the court entered disposition orders as to both Averi and Alijah

       that adjudicated them wards of the court. The court also made a finding that the respondent was

       unable to care for or protect them, and it placed them in the guardianship of DCFS. In entering this

       order, the trial court stated the following:

                      “Based on a preponderance of the evidence, I find the testimony of the caseworker

               Ms. Martinez to be credible. She was extremely credible.

                      Basically the parents completed most, if not all of their services. Our only problem

               here is *** Anaya and Jurnee were physically abused. One child was returned. Came back

               abused. This is serious.

                      Only two visits since July 2022. ***

                      The doctor told the parents what happened to Jurnee. Osteogenesis *** Imperfecta

               was ruled out. The doctor told the parents. Soft tissue injuries, broken bones to the kids.

               Parents never had unsupervised visits. Parents still don’t recognize it.

                      And the parents left the State of Illinois. They went to Tennessee. They didn’t tell

               anyone. It’s important to cooperate with DCFS, comply with the services. And you have

               to be open about this.

                      I am worried about the safety of these two minors at this time. The parents don’t

               believe physical abuse occurred. They still don’t. And that is important.”

¶ 46        This appeal followed thereafter.

¶ 47                                              II. ANALYSIS


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¶ 48        On appeal, the respondent argues for reversal of the trial court’s adjudication orders finding

       Averi and Alijah neglected due to an injurious environment under the theory of anticipatory

       neglect, as well as its disposition order finding the respondent unable to care for or protect them.

       The respondent argues that the trial court improperly based these determinations solely on

       evidence that she had not accepted or “internalized” the fact that Anaya and Jurnee had been

       severely injured as infants at the hands of an unknown perpetrator. She accepts that they were

       adjudicated as abused by the court, but she contends that a finding of anticipatory neglect as to

       Averi and Alijah cannot be based solely on her questioning of that conclusion or refusing to agree.

       She likewise contends that this is not an appropriate standard by which to evaluate her progress in

       therapy or to determine whether she is unable to care for or protect Averi and Alijah.

¶ 49        By contrast, the State and public guardian argue that the evidence supporting the trial court’s

       orders included more than the respondent’s refusal to acknowledge that Anaya and Jurnee were

       physically abused or maintaining that she was innocent of wrongdoing. They point out that, in

       addition to this factor, the trial court’s conclusion that the respondent’s home environment was

       injurious to the welfare of Averi and Alijah was supported by evidence including the severity of

       the injuries to the two older children and the fact that Jurnee was injured after initially being

       returned to the respondent after her birth. They further cite evidence that respondent has failed to

       complete services to address the reasons why Anaya and Jurnee had come into DCFS care, that

       she has never been allowed unsupervised visitation, and that visitation has been rare since she

       moved to Tennessee.

¶ 50        The Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2022)) establishes a two-

       step the process to determine whether a minor should be removed from the custody of his or her

       parents and made a ward of the court. In re Z.L., 2021 IL 126931, ¶ 58. The first step involves an



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       adjudicatory hearing to consider whether the minor is abused, neglected, or dependent. Id. ¶ 59. If

       such a finding is made, the matter proceeds to the second step, which is a dispositional hearing. Id.

       ¶ 60. There the court determines whether it is in the best interests of the minor and the public that

       the minor be made a ward of the court and, if so, the proper disposition best serving the health,

       safety, and interest of the minor and the public. 705 ILCS 405/2-22(1) (West 2022). The

       disposition may include committing the minor to care of DCFS if the court makes a finding

       including that the parents are “unable” for reasons other than financial circumstances alone to care

       for or protect the minor. Id. § 2-27(1). We note in this appeal that the respondent makes a singular

       argument, not one directed at these two steps individually.

¶ 51        Relevant here, a “neglected” minor includes any minor under 18 years of age “whose

       environment is injurious to his or her welfare.” Id. § 2-3(1)(b). The terms “neglect” and “injurious

       environment” do not have fixed meanings in this context, but they draw their definitions from the

       circumstances of each case. In re Jordyn L., 2016 IL App (1st) 150956, ¶ 29. Generally, neglect

       involves failure to exercise the care that circumstances justly demand, encompassing both willful

       and unintentional disregard of parental duty. In re Arthur H., 212 Ill. 2d 441, 463 (2004). Injurious

       environment is an amorphous concept that includes the breach of a parent’s duty to ensure a safe

       and nurturing shelter for his or her children. Id.

¶ 52        Flowing from this concept of injurious environment is the theory of anticipatory neglect,

       which allows for the protection of children who have a probability of being subjected to neglect or

       abuse because they reside, or in the future may reside, with an individual who has been found to

       have neglected or abused another child. Id. at 468. Although the abuse or neglect of one child does

       not conclusively show the neglect of another, the abuse or neglect of one minor is admissible as

       evidence of the neglect of another minor for whom the respondent is responsible. Id.; see 705 ILCS



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       405/2-18(3) (West 2022). This theory recognizes that a parent’s treatment of one child is probative

       of how that parent may treat his or her other children. In re Zion M., 2015 IL App (1st) 151119,

       ¶ 30. It is further a recognition that a juvenile court faced with evidence of prior abuse or neglect

       by parents should not be forced to refrain from acting until another child suffers injury. Arthur H.,

       212 Ill. 2d at 477. Anticipatory neglect cases must take into account not only the circumstances

       surrounding the previously abused or neglected sibling, but also the care and condition of the child

       named in the petition. Id. at 468; see Jordyn L., 2016 IL App (1st) 150956, ¶¶ 34-35. Each case is

       sui generis and must be reviewed according to its own facts. Arthur H., 212 Ill. 2d at 463.

¶ 53        It is the State’s burden to prove allegations of neglect by a preponderance of the evidence,

       meaning it must establish that the allegations are more probably true than not. Z.L., 2021 IL

       126931, ¶ 61. A trial court’s finding of neglect will not be reversed unless it is against the manifest

       weight of the evidence. Id. A finding is against the manifest weight of the evidence only if the

       opposite conclusion is clearly evident. Id.

¶ 54        Applying the above standards, we hold that the trial court’s adjudication orders finding that

       Averi and Alijah were neglected under the theory of anticipatory neglect were not against the

       manifest weight of the evidence. In so doing, we reject the respondent’s assertion that the trial

       court applied an incorrect legal standard or placed undue emphasis on her refusal to recognize that

       the severe injuries to her older two children were caused by physical abuse and not by a preexisting

       medical or genetic condition. Instead, we find that the trial court, in its consideration of anticipatory

       neglect, gave appropriate consideration to the evidence showing the extent to which the respondent

       remained steadfast in her beliefs of a genetic or medical cause for her older children’s injuries in

       the face of contrary medical evidence that their injuries were the product of inflicted physical

       abuse. The trial court also appropriately considered the evidence of the risk of harm posed to Averi



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       and Alijah if they were to remain in the respondent’s care, due to her potential failure to take

       protective measures and to empathize with her older children’s experience of abuse.

¶ 55        Importantly, and as the trial court fully recognized, we are dealing here with injuries to Averi

       and Alijah’s older siblings that were horrific. Particularly in Anaya’s case, they included multiple

       injuries to her brain, spinal cord, eyes, and other internal organs. The documentary evidence in this

       case indicates that her injuries have resulted in the development of significant special needs for

       which she is likely to require lifelong attendant care. And in Jurnee’s case, the injuries included

       inner-eye hemorrhages and multiple bone fractures.

¶ 56        Second, this is not a case in which injury to an older sibling could be attributed to an isolated

       occurrence. This is somewhat self-evident by the fact that Averi and Alijah had two siblings

       experience injuries on separate occasions. Moreover, medical evidence in Anaya’s case indicated

       that she had injuries of “varying ages,” and the testimony of Dr. Fujara, a specialist in child abuse

       pediatrics, was that they were indicative of “chronic” physical child abuse.

¶ 57        Third, although it is unknown how the injuries to the older children occurred and no

       perpetrator finding was entered in either case, the evidence showed that none of the respondent’s

       children had sustained injuries of this nature at any time when they were not in the respondent’s

       care. In Anaya’s case, the respondent was one of five individuals who had been her caregiver prior

       to her being taken into DCFS care (the others being the father and three grandparents). In Jurnee’s

       case, the court found that the respondent and the father had exclusive control and alone-time with

       her. A related factor of great significance to the trial court was that Jurnee’s injuries occurred after

       the court had initially returned Jurnee to the respondent’s care subject to a protective order, due to

       progress that the respondent was then making in reunification services in Anaya’s case. There is

       no evidence that any of the respondent’s children have sustained injuries while in foster care.



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¶ 58        Fourth, we find no evidence in the record that the respondent has a good-faith basis for

       believing that a medical or genetic condition was the cause of the older children’s injuries. All

       evidence in the record indicates the contrary. A summary example is the following statement

       contained in the DCFS integrated assessment of February 2019, introduced into evidence at

       Alijah’s adjudicatory hearing and the dispositional hearing:

                   “Per the 2017 Integrated Assessment, it was noted that despite medical documentation

              that her two daughters had been physically abused, [the respondent] was unable to provide

              a reasonable explanation as to how the injuries occurred. She continued to assert that the

              injuries were the result of a medical problem, but according to the Rush University Medical

              Center Child Protection Team Consult by Margaret Scotellaro, M.D., dated 4/19/16 and

              reviewed as part of the 2017 [integrated assessment]: ‘While there are medical disorders

              that may result in bone fragility and fractures that result from trivial injury, such as

              Osteogenesis Imperfecta or Rickets, the location/type of fractures that Jurnee has are very

              specific for abusive injury. Posterior rib fractures and metaphyseal chip/corner fractures

              are highly associated with physical abuse and not the location/type of fractures seen in

              cases of bone fragility. Jurnee’s skeletal survey shows normal bone mineralization. In

              addition, subarachnoid and parenchymal brain bleeding as well as encephalomalacia are

              not associated with these medical conditions of bone fragility, but are common findings in

              physical abuse of young infants. Jurnee also has elevations in her liver enzymes that may

              be the result of traumatic liver injury.’ ”

       We reject the respondent’s argument that the good-faith nature of her belief is shown by the

       testimony of the caseworkers that she informed them that she had been diagnosed with Ehlers-

       Danlos syndrome or carried a gene that causes osteogenesis imperfecta. The only evidence in the



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       case was that the children had undergone extensive genetic testing, which had ruled those

       conditions out as a cause of injury. We further reject her argument that the good-faith nature of

       her belief is shown by a statement in the State’s motion in limine suggesting that, at one time, she

       had disclosed Dr. Michael Holick to serve as an expert witness in Averi’s case to testify regarding

       the cause of the older children’s injuries. No such expert disclosure of Dr. Holick is contained in

       the record, and because of this we are unable to evaluate this argument.

¶ 59        Fifth, the record in this case contains evidence of efforts by various caseworkers and

       therapists to help the respondent understand that protecting her children from further instances of

       abuse in the future required her to understand that abuse was the cause of the older children’s

       injuries. She was not being asked to acknowledge that she or any specific person was the

       perpetrator. The evidence showed that the absence of such understanding could lead to her

       exposing the children to inappropriate caregivers, failing to accurately assess their need for safety

       and protection, and failing to empathize with her children’s experience of trauma.

¶ 60        The respondent argues that this court suggested in In re Yohan K., 2013 IL App (1st) 123472,

       that a parent’s refusal to acknowledge that one child’s injury resulted from abuse does not support

       a conclusion by preponderance of the evidence that another child is likely to be abused or neglected

       in the future. In that case, an infant named Yohan was taken to a hospital after experiencing

       twitching indicative of a seizure. Id. ¶ 16. Yohan underwent extensive testing that demonstrated

       brain and retinal hemorrhages, as well as a possible knee fracture. Id. ¶¶ 19-27. DCFS became

       involved and petitioned for adjudication of wardship of Yohan and his older sister. Id. ¶ 43. At the

       adjudicatory hearing, the State presented the testimony of seven physicians of different specialties

       who expressed opinions that Yohan’s injuries were caused by inflicted trauma or that nontraumatic

       explanations could be ruled out. Id. ¶¶ 46-74. By contrast, the parents presented the testimony of



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       No. 1-23-1089

       three highly-credentialed physicians that Yohan’s injuries were the product of preexisting medical

       conditions, including benign external hydrocephalus and congenital rickets, and the irregularity

       diagnosed as a knee fracture was not in fact a fracture. Id. ¶¶ 75-94. The trial court found that

       Yohan had been abused and his sister neglected, but at the dispositional hearing, it found the

       parents fit, willing, and able to parent both children. Id. ¶¶ 102, 104. Both orders were appealed.

       This court reversed the adjudication order, holding that the trial court’s finding of abuse and

       neglect was against the manifest weight the evidence. Id. ¶¶ 146-147.

¶ 61        The portion of the opinion cited by the respondent here involved the court’s affirmance of

       the disposition order finding the parents fit, willing, and able to care for their children. Similar to

       this case, the position of the State and guardian ad litem was that the parents’ therapy services

       needed to result in an acknowledgement that Yohan was a victim of abuse in order to eliminate

       future risk and fully protect both children from further abuse by the perpetrator. See id. ¶¶ 105,

       151. This court rejected that argument, finding no precedent for it. Id. ¶ 153. The court stated, “We

       completely reject any notion that parents should be declared unable to care for their children

       merely because they persist in their own belief of innocence of wrongdoing, particularly here

       where their insistence is supported by the evidence.” Id.

¶ 62        We find that this statement from Yohan K. fails to aid the respondent in her argument. Quite

       simply, Yohan K. presented a situation in which the parents were reasonable in believing that their

       child’s injuries were not the result of abuse. The parents’ belief was substantiated by the testimony

       of three medical experts, and the experts disagreed about whether a knee fracture existed. As

       discussed above, no similar evidence exists in this case to support the reasonableness of the

       respondent’s belief in a medical or genetic cause for her older children’s injuries. Instead, the

       evidence here fully supports the conclusion that Averi and Alijah are at risk of harm due to the



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       No. 1-23-1089

       respondent’s failure to acknowledge that the severe injuries to their older siblings were caused by

       abuse and to accept that protective measures therefore need to be taken for her children’s safety.

¶ 63        As indicated above, the respondent does not make a distinct argument directed at the

       dispositional stage finding that she was unable to care for or protect Averi or Alijah; rather, she

       makes a singular argument directed at both stages. The following standards govern the court’s

       ruling at the dispositional stage. The determination for the court is whether it is in the best interests

       of the minor and the public that the minor be made a ward of the court. 705 ILCS 405/2-22(1)

       (West 2022). If the minor is to be made a ward of the court, then the court also determines the

       proper disposition best serving the health, safety, and interest of the minor and the public. Id. The

       disposition may include committing the minor to the care of DCFS if the court determines that the

       minor’s parents “are unfit or are unable, for some reason other than financial circumstances alone,

       to care for, protect, train or discipline the minor or are unwilling to do so, and that the health,

       safety, and best interest of the minor will be jeopardized if the minor remains in the custody of his

       or her parents.” Id. § 2-27(1). The State bears the burden of proving inability to parent by a

       preponderance of the evidence. In re Kelvion V., 2014 IL App (1st) 140965, ¶ 23. A trial court’s

       dispositional finding of unfitness, inability, or unwillingness to parent will be reversed only if it is

       against the manifest weight of the evidence. In re Harriet L.-B., 2016 IL App (1st) 152034, ¶ 30.

¶ 64        We hold that the trial court’s disposition order finding that the respondent was unable to care

       for or parent Averi and Alijah, so as to warrant their placement in the care of DCFS, was not

       contrary to the manifest weight of the evidence. For the same reasons discussed above, we reject

       the respondent’s argument that the trial court’s finding of inability placed undue emphasis on her

       refusal to acknowledge that the injuries to her older children were caused by abuse. The trial court

       had ample evidence before it that the respondent’s failure to reach this understanding prevented



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       No. 1-23-1089

       her from making progress in the individual therapy aspect of reunification services, as it presented

       a risk to her children that she would fail to take protective measures to avoid exposing them to

       dangerous situations or people in the future or to recognize if they were injured by abuse. We note

       that the 2023 parenting capacity assessment in evidence stated that the children were at risk

       because the respondent had a weak bond with them, and her lack of understanding of the weakness

       of this bond was shown by her decision to move to Tennessee in July 2022. The evidence further

       showed that the respondent had visited her children only twice in the ten-month timeframe between

       her move to Tennessee and the dispositional hearing. Further, she did not inform the caseworker

       responsible for scheduling visitation about her move for nearly seven months, and even by the

       respondent’s own testimony her efforts at contacting the agency to schedule visitation were

       sporadic. The evidence also showed that despite years of having children in the care of DCFS, the

       respondent had never progressed to the point of having unsupervised visitation with any of them.

       Accordingly, the trial court’s finding that the respondent was unable to care for or parent Averi

       and Alijah was fully supported by the evidence.

¶ 65                                          III. CONCLUSION

¶ 66        For the foregoing reasons, the judgment of the trial court is affirmed.

¶ 67        Affirmed.




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No. 1-23-1089


                         In re Avery F., 2024 IL App (1st) 231089


Decision Under Review:       Appeal from the Circuit Court of Cook County, Nos. 19-JA-5, 20-
                             JA-581; the Hon. Shannon P. O’Malley, Judge, presiding.



Attorneys                    Jeffrey W. Gunn, of Tapia-Ruano & Gunn P.C., of Chicago, for
for                          appellant.
Appellant:


Attorneys                    Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for                          Abraham, Gina DiVito, and Marina C. Para, Assistant State’s
Appellee:                    Attorneys, of counsel), for the People.

                             Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain,
                             Jill Runk, and Christina Schleich, of counsel), guardian ad litem.




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