People v. Melissa A. ( 2007 )

SIXTH DIVISION
SEPTEMBER 21, 2007
No. 1-07-1078
In re TYRESE J., a Minor ) Appeal from the
) Circuit Court
Respondent-Appellant, ) of Cook County.
)
(The People of the State of )
Illinois )
)
Petitioner-Appellee, )
)
v. ) No. 06 JA 823
)
Melissa A. and Tyrone J., ) The Honorable
) Richard Stevens,
Respondents-Appellees) ) Judge Presiding.
JUSTICE O'MALLEY delivered the opinion of the court:
Following a petition by the State for adjudication of
wardship wherein it alleged abuse and neglect, the circuit court
of Cook County entered an order for temporary custody of Tyrese
J., a minor (Tyrese). An adjudicatory hearing was subsequently
held and the circuit court found that Tyrese was not neglected,
abused or dependent pursuant to sections 2-3 and 2-4 of the
Juvenile Court Act of 1987 (the Act) (705 ILCS 405/1-1 et seq.
(West 2006)). The State and Tyrese appeal the judgment of the
circuit court contending that its finding was against the
manifest weight of the evidence and that the circuit court erred
in not allowing the State to amend its pleading. For the reasons
that follow, we reverse the judgment of the circuit court and
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remand this matter to the circuit court for further proceedings.
BACKGROUND
On December 5, 2004, Tyrese was born to Melissa A. at Mount
Sinai Hospital in Chicago, Illinois. Both Melissa and Tyrese
tested positive for opiates. Melissa named Tyrone J. as Tyrese's
father. The Illinois Department of Children and Family Services
(the Department) opened an "intact family" case file in an effort
to avoid removing Tyrese from his mother's custody. Melissa was
offered drug treatment services and support, which Melissa
accepted; however, it is not clear from the record whether
Melissa successfully completed her addiction treatment prior to
the closure of her case.
On November 4, 2006, Melissa gave birth to Teeron J. He and
Melissa both tested positive for cocaine on the day of his birth.
The Department was notified and took protective custody of Teeron
and Tyrese following an investigation.1 The Department placed
Tyrese with his paternal grandmother, who lived in the unit next
door to Tyrone. Teeron was to be placed with his paternal
grandmother upon release from the hospital.
The State subsequently filed a petition for adjudication of
wardship for Tyrese on November 14, 2006, alleging that he was a
neglected minor whose environment was injurious to his welfare
1
Teeron is not a party to this appeal.
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pursuant to sections 2-3(1)(b) and 2-3(2)(ii) of the Act.
Tyrese’s petition did not allege that he was born exposed to
narcotics under section 2-3(1)(c) of the Act; however, it did
allege that he tested positive for a controlled substance at
birth.
The State’s petition reads, in pertinent part, as follows:
"1. Tyrese J. is a male born on December 5, 2004 and who
resides or may be found in this county ***.
2. The names and residence addresses of the minor’s
parents, legal guardian and/or custodian are:
Mother’s Name: Melissa A.
Residence Address *** Keystone Ave #A
City, State Zip Chicago, IL ***
Father’s Name: Tyrone J.
Residence Address *** Keystone Ave #A
City, State Zip Chicago, IL ***2
3. The minor was taken into custody on November 9, 2006
at 3:30 pm.
4. A Temporary Custody Hearing has been set for November
14, 2006, at 11:00am.
2
The identifying information of the parties, who
successfully moved this court to proceed anonymously, will be
omitted from this opinion.
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5. The minor was neglected pursuant to the Juvenile Court
Act, section 0702 [sic] 405/2-3(1)(b); he is a minor under
18 years of age whose environment is injurious to his
welfare.
The facts supporting this are:
Mother has eight prior indicated reports of abuse and
neglect. Mother has five other minors who were in DCFS
custody with findings of abuse and neglect having been
entered. Mother admits to using illegal substances while
pregnant with this minor’s sibling. Mother tested positive
for illegal substances at the time of this minor’s sibling’s
birth. Mother admitted this minor was also born substance
exposed. Mother and putative father reside together.
Paternity has not been established.
6. The minor was abused in that his/her parent or
immediate family member, or any person responsible for
his/her welfare, or any person who is in the same family or
household as the minor, or any individual residing in the
same home as the minor, or paramour of the minor’s parent,
pursuant to the Juvenile Court Act section 0705 [sic] 405/2-
3(2)(ii); creates a substantial risk of physical injury to
such minor by other than accidental means which would be
likely to cause death, disfigurement, impairment of
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emotional health or loss or impairment of any bodily
function.
The facts supporting this are:
Mother has eight prior indicated reports for abuse and
neglect. Mother has five other minors who were in DCFS
custody with findings of abuse and neglect having been
entered. Mother admits to using illegal substances while
pregnant with this minor’s sibling. Mother tested positive
for illegal substances at the time of this minor’s sibling’s
birth. Mother admitted this minor was also born substance
exposed. Mother and putative father reside together.
Paternity has not been established.
7. The minor is not the subject of another child custody
proceeding or visitation order or has possible Indian Tribal
affiliation.
WHEREFORE, petitioner prays that the minor be adjudged a
ward of the Court and that the Court enter such orders as
are in the best interest of the minor, and other relief
under the Juvenile Court Act."
On November 14, 2006, the circuit court held a hearing on
the State’s petition for adjudication of wardship and motion for
temporary custody for Tyrese. Melissa and Tyrone stipulated to
the following facts:
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"1: If called to testify, DCP Investigator George Redmon
would state that Tyrese J. is a male minor born on December
5, 2004;
2: Teeron J. is a male minor born on November 4, 2006.
3: Melissa A. is the natural mother of the aforementioned
minors and was custodial at all relevant times;
4: Tyrone J. is the natural father of the aforementioned
minors and was custodial at all relevant times;
5: Mother has eight prior indicated reports for abuse and
neglect;
6: Mother has five other minors who were in DCFS custody
with findings of abuse and neglect having been entered;
7: Mother admits to using illegal substances while
pregnant with Teeron J.
8: Mother tested positive for illegal substances at the
time of Teeron J.'s birth.
9: Mother admitted Tyrese J. was also born substance
exposed;
10: Mother and natural father reside together;
11: Teeron was born with some amount of a controlled
substance of its metabolite in the minor's blood, urine or
meconium. And the presence of the controlled substance or
its metabolite was not the result of medical treatment
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administered to the mother or the minor."
All parties stipulated to the above facts and the circuit court
accepted the stipulation.
Following an admission of paternity, the circuit court found
Tyrone to be Tyrese’s father. The court appointed a private
attorney to represent Tyrone and the Cook County public defender
to represent Melissa.
Based on the stipulation, the circuit court found that
probable cause and urgent and immediate necessity existed and
ordered that temporary custody of Teeron and Tyrese be taken.
Counsel for Tyrese asked to elicit testimony from Redmon relative
to Tyrese's placement. The following colloquy occurred:
"MR. STERBENC [Assistant Public Guardian]: Q. Currently,
Tyrese, the older of the two children, is placed by the
Department in the home of his paternal grandmother, correct?
A. That's correct.
* * *
Q. The biological mother and father of these children
live in a family apartment building, and the parents live in
Unit A, correct?
A. That's correct.
Q. Along with the parents also lives a paternal aunt and
that aunt's boyfriend, is that right?
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A. The aunt lives there. The boyfriend do not [sic] live
there.
* * *
[THE COURT]: Just so I'm clear, the paternal aunt lives
with the mother and father?
[THE WITNESS]: Right
THE COURT: At XXX N. Keystone?
A. Correct.
MR. STERBENC: In the same building, unit C?
A. Not in the same building. They are two separate
units. A,B,C. Separate houses. Individual homes.
Q. At XXX N. Keystone, Unit C.
A. Right.
Q. That is where the paternal grandmother resides and
where the children will be placed?
A. Correct.
Q. Also in the home of the paternal grandmother, are a
paternal aunt, a paternal uncle and a paternal cousin,
correct?
A. Correct.
Q. The paternal aunt who lives in the same home as the
grandmother has a 1997 conviction for manufacture for [sic]
controlled substance for which she served prison time,
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correct?
A. That's correct.
Q. Also, the paternal uncle who lives in that same home
has five convictions, two of which are for armed robbery,
both of which resulted in prison time, correct?
A. Correct.
Q. The paternal cousin is an 18 year old female who was
arrested on October 17th of this year on a charge of
aggravated battery with a weapon, is that right?
A. Correct."
On cross-examination, testimony was elicited from Redmon that he
placed Tyrese with his paternal grandmother because he had a very
strong bond with her.
Gordon Newman, a follow-up case manager with Catholic
Charities, testified that he was assigned to review the placement
of the children. He testified that although he had not reviewed
the placement of the children, he expected his organization to
conduct a clinical staffing to assess the long-term
appropriateness of the Department's placement within a week's
time.
The State requested medical records for Melissa and Teeron.
The court noted that the petition did not allege that Tyrese was
a drug-exposed infant, yet it ordered Tyrese’s medical records
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sua sponte, stating:
"It's the court's duty to direct the proceedings to gain
all the jurisdiction [sic] facts, to determine what is in
the best interest of the minors.
She admits that the child was born drugs [sic] exposed.
The State didn't add a charge that the minor is born drug
exposed, and maybe that's because the minor wasn't born drug
exposed. But if the minor was born drug exposed, that's
something that I would need to know. I'm going to order the
release of the birth records of the minor, Tyrese J., based
on what is alleged in the petition.
The children were placed with their paternal grandmother;
however, on December 29, 2006, the children were removed from
their grandmother's house and placed with their adult half sister
and Tyrone's daughter, Venita C.
On January 3, 2007, Tyrone filed a motion for the return
home of Teeron and Tyrese. The assistant public guardian
requested a drug test of Tyrone, which was denied by the circuit
court before it continued Tyrone’s motion for a hearing. On
January 19, 2007, Melissa filed a motion for the return home of
Teeron and Tyrese and indicated that Tyrone desired to proceed on
his motion, but he did not appear in court. At this hearing, the
court proceeded with a family conference in Tyrone's absence.
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The court ordered that the conference take place on the record
due to Tyrone's absence. Rhonda Smith, a caseworker with
Catholic Charities, testified that Tyrone had a substance abuse
evaluation the previous month which indicated that no services
were necessary; however, two urine tests were required. Tyrone
completed one test, which tested positive for opiates. Both
Melissa’s and Tyrone’s motions were continued for hearings on
February 15, 2007. On that date, Melissa withdrew her motion and
the court struck Tyrone’s motion without prejudice. Tyrone did
not appear in court on February 15, 2007.
On April 7, 2007, an adjudicatory hearing was had on
Tyrese's and Teeron’s cases. The State called Nichole McArthur,
who testified that she was a Department investigator assigned to
Tyrese’s case in 2004. She received a hotline call on December
6, 2004, that an infant was born exposed to opiates at Mount
Sinai Hospital. Melissa also tested positive for marijuana.
Melissa admitted to McArthur that she used marijuana and heroin.
McArthur offered and Melissa accepted an inpatient drug treatment
service. McArthur opened an "intact family" case file at that
time.
The State called George Redmon, who was also an investigator
for the Department and was assigned to Teeron’s case on November
5, 2006, following a hotline call to the Department on November
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4, 2006, that Teeron was born exposed to cocaine. On November 7,
Redmon spoke to Melissa and Tyrone. Melissa told Redmon that she
had been in drug treatment, but left five or six months before
Teeron’s birth. She also told Redmon that she lived next-door to
Tyrese, who lived with his father, Tyrone. Melissa indicated
that she had attended Lutheran Social Services as an outpatient,
but that she left because she had a problem with her counselor.
Redmon testified that he referred her to an inpatient program for
rehabilitation due to her struggles with outpatient services.
On cross-examination, Redmon testified that Melissa was told
by her intact counselor that if she tested negative for drugs in
eight urine tests, her case would be closed. Although there was
no evidence that Melissa underwent and passed eight urine tests,
her intact case was, in fact, closed.
Redmon then spoke to Tyrone while Melissa was present in his
apartment. Tyrone admitted that he was Tyrese's and Teeron’s
father and that he attempted to assist Melissa in her drug
treatment. Tyrone also told Redmon that he completed a drug
addiction program at Bobby Wright in 1999. He indicated that
Melissa was staying with him in his apartment because there had
been a fire in her apartment. Tyrone admitted to Redmon that he
was aware that Melissa abused illegal drugs.
Tyrone told Redmon that Tyrese lived with him and that his
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mother and sister assisted him with Tyrese’s care. Redmon
testified that Tyrese appeared to be well cared for and happy and
he observed no signs of abuse or neglect. Tyrese also appeared
to be developing appropriately for his age. Redmon, however,
took the children into protective custody because he believed
that Melissa was living with Tyrone and viewed her presence as a
risk to the children.
The State entered Tyrese's medical records from Mount Sinai
Hospital into evidence, over Melissa's and Tyrone's objections.
According to the records, Tyrese's urine tested positive for
opiates on December 5, 2004. The following day, hospital
officials contacted the Department to investigate Tyrese and
Melissa. Gil Izraeli from the Department met with Melissa and
Tyrone on December 13, 2004. Melissa reported that she gave
custody of her children, other than Teeron and Tyrese, to her
grandmother because she was actively using drugs and unable to
care for them. Melissa stated that she was "clean" for seven
years, but began to use drugs again following several deaths in
her family and because she was in a troubled relationship.
Melissa reported to Izraeli that she used drugs on December 4,
the day before Tyrese's birth, but claimed that she was quitting
on her own.
Nursing discharge notes dated December 13, 2004, were also
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admitted into evidence. The notes indicated that "Mother reports
that she used heroin approx one wk ago and twice in the past
month. She states that she uses heroin on and off. States that
she used regularly for eight years and stopped without
rehabilitation." Also, registration records dated July 17, 2005,
for Tyrese show his address and Melissa's address as XXX N.
Keystone, Chicago, Illinois. Registration forms dated December
5, 2004, the date of Tyrese's birth, show the same address. The
infant discharge form for December 7, 2004, which also names
Tyrone as the father, is signed by Melissa and shows XXX N.
Keystone as her address.
The State admitted Teeron's medical records from Mount Sinai
Hospital into evidence. All medical records admitted relative to
Teeron and Melissa calling for an address showed the same
Keystone address. Tyrone was named as the father and his address
was also the Keystone address. The records indicated that
Melissa tested positive for marijuana, cocaine and opiates on
July 30, 2006. Records dated November 6, 2006, denoted that
Teeron exhibited withdrawal symptoms and his meconium tested
positive for cocaine. Melissa admitted to investigator Jennifer
Hall that she had been addicted to heroin on and off for 10
years.
Melissa's medical records and social work assessments were
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also admitted into evidence. These records included statements
from Melissa in a November 4, 2006 social worker's assessment
that she had custody of a two-year-old child and that she lives
with the child's paternal grandmother. She further stated that
she has been using heroin for 10 years and used cocaine
occasionally. Melissa declined inpatient treatment offered by
the social worker because she had been in treatment previously
and it would not help her. However, she indicated that Tyrone
and his mother did not abuse drugs. A patient progress report
from November 4, 2006, indicated that Melissa admitted using
heroin on November 3, 2006, one day before Teeron's birth.
Finally, the State admitted prior court orders finding abuse
and neglect pertaining to Melissa's older children who were not
fathered by Tyrone. On January 6, 1998, the court involuntarily
terminated Melissa's maternal rights to four of her children for
failure to maintain a reasonable degree of interest, being
addicted to illegal drugs and failure to make progress and
efforts. The parties rested.
In closing arguments the State argued that Tyrese and Teeron
were both neglected because they were born exposed to illegal
drugs and their environment was injurious. The State requested
that the court enter this finding as to Tyrese even though the
petition was not amended to allege that Tyrese was born exposed
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to controlled substances pursuant to section 2-3(1)(c) of the
Act. The State was of the view that the evidence supported a
conclusion that Tyrese was born substance exposed. The guardian
ad litem concurred with the State’s position.
Melissa objected to a finding of neglect based on exposure
to controlled substance at birth with regard to Tyrese or to
amending the pleadings, in which Tyrone joined. Melissa and
Tyrone both argued that it would be unfair to allow the State to
amend the petition to conform to the proofs after the close of
evidence.
The State responded that the pleadings were, in essence,
only technically incorrect and Tyrone and Melissa could not claim
surprise or prejudice because Tyrese’s medical records showed
that he was born drug exposed, they had those records long before
trial, and the petition alleged that the mother admitted that
Tyrese was born exposed to a controlled substance.
The circuit court found, with regard to Tyrese, that the
State was late in seeking to amend the pleadings and noted that
it would be unfair to the parents to allow the State do so after
the close of evidence. The court went on to state:
"Now, even in other cases, I’ve conformed my findings to
the facts; and the Court has, on its own, amended the
pleadings; but in this case, the Court does not believe that
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that would be in the interests of fairness or justice. So
at this time I’m not going to grant the State’s request to
amend the pleading to allege neglect/controlled substance.
There is just no explanation for why, prior to the close of
the proofs today, there hadn’t been a request to make that
amendment.
As to Teeron the Court makes a finding of
neglect/controlled substance. The minor was born exposed to
a controlled substance. That was alleged in the petition.
The evidence supports the State has proved that be a
preponderance of the evidence with regards to Teeron. His
toxicology, in the medical records, was positive. He also
had suffered, apparently withdrawal symptoms; and in fact,
the evidence from the testimony today corroborates the fact
that the mother had apparently been using an illegal
substance.
* * *
Now, with regard to Teeron, the Court believes that,
because the evidence does know [sic] here that Tyrese had
been born drug-exposed and now she has another child Teeron
being born drug exposed, that’s neglect/injurious
environment based on a theory of anticipatory neglect
because of the fact that we have (2) minors born exposed to
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controlled substances. So, as to Teeron, I’m finding both
neglect/controlled substances and neglect/injurious
environment. As to Tyrese, though, the argument is that
this Court should make a finding of neglect/injurious
environment as to Tyrese because of his mother’s drug
problem. But Tyrese is not situated in the same way as
Teeron. Tyrese was born December 5th of 2004 almost (2)
years before Teeron. Apparently during that period of time,
the minor was being cared for by his father who had support
from the paternal grandmother and the father’s sister, a
paternal aunt.
Now, at some point the natural mother apparently moved
into the father’s home. She apparently had been living next
door; and the evidence is at some point she moved in becuase
of - - there had been fire in her place; but it appeared to
the DCP investigator, Mr. Redmon, that in fact the minor
appeared to be healthy and well-cared for.
Now, at this point, the Court finds there is insufficient
evidence of neglect/injurious environment for this minor
(Tyrese) because, in fact, the minor been placed by his
father for (inaudible) years apparently without any problem
or without any incident so the Court believes that, in
theory of anticipatory neglect, it would be inappropriate.
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***
And, although the mother does present a risk, the Court
finds that, based on the fact that Mr. J. apparently
continuously parented the minor apparently with the consent
of the DCFS who had immediately investigated the
circumstances of Tyrese’s birth and allowed the minor to
remain with Mr. J. it doesn’t appear to me that at this
point there’s proof by a preponderance of the evidence of
neglect/injurious environment."
Following the court’s ruling, a recess was had and the case
recalled for purposes of scheduling Teeron’s dispositional
hearing. The State again renewed its motion to reopen the proofs
and conform its petition to the proofs relative to neglect due to
being born substance exposed. In addition, the State, joined by
the guardian, argued that the court should reconsider its ruling
that Tyrese was not neglected due to an injurious environment
and, if unsuccessful on its motions, that the court should stay
its order until a formal motion for reconsideration could be
filed. The circuit court denied the State’s motions and its
request to stay the proceedings and keep Tyrese in temporary
custody of the State. The court stated that, "I acknowledge that
there was proof that the minor was born exposed to controlled
substance. The minor was not alleged to have been born exposed
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to controlled substance; and, therefore, the court did not make a
finding of neglect/controlled substance as to Tyrese."
The circuit court entered its written adjudication order on
April 27, 2007, stating:
"No finding of DEI [drug exposed infant] b/c no 'good
cause' offered to the court for amending the petition after
the proofs had closed, and where the petition did not allege
neglect under section 2-3(1)(c).
Minor's environment was not injurious b/c minor was
living w/ his father since birth, for almost 2 yrs at time
of protective custory & was well cared for, even though his
mother gave birth to a drug exposed sibling in 11/06. DCFS
had monitored this minor's care after the minor's birth &
provided intact family srvcs [services] to the Mother and
closed this minor's case prior to the sibling's birth.
Previously born siblings who had been court involved in the
1980's & 1990's had fathers other than the father of this
minor. This minor was not in substantial risk of physical
injury based on the evidence presented."
The State and Tyrese timely appealed the judgment of the
circuit court.
ANALYSIS
I. JURISDICTION
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Preliminarily, we address the matter of appellate
jurisdiction because Tyrone contends that Tyrese's notice of
appeal lacks sufficient specificity relative to the State's oral
motion to reopen the proofs prior to the circuit court's ruling.
According to the record, the State made an oral motion to amend
the pleadings prior to the ruling, but after the proofs had
closed. The State again sought to amend its pleadings after the
court issued it's ruling. Tyrone claims that Tyrese's notice of
appeal does not indicate that he is appealing the circuit court's
denial of his oral motion to amend the pleadings prior to the
court's ruling.
A notice of appeal shall specify the judgment of part
thereof appealed from and the relief sought from the reviewing
court. Illinois Supreme Court Rule 303(b)(2) (155 Ill. 2d R.
303(b)(2)). "Supreme Court Rule 303(b)(2) [citation], requires a
notice of appeal to 'specify the judgment or part thereof or
other orders appealed from and the relief sought from the
reviewing court'. In Burtell v. First Charter Service Corp., 76
Ill. 2d 427, (1979), our supreme court noted that 'the appeal
from a subsequent final judgment "draws in question all prior
non-final orders and rulings which produced the judgment."
[Citation.]' Burtell, 76 Ill. 2d at 433. Furthermore, 'it is
generally accepted that a notice of appeal is to be liberally
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construed.' Burtell, 76 Ill. 2d at 433." In re D.R., 354 Ill.
App. 3d 468, 471 (2004); In re Marriage of Betts, 159 Ill. App.
3d 327 (1987). This court does not have jurisdiction to review
judgments that are not specified or fairly inferred from the
notice of appeal; however, appellate jurisdiction may still be
conferred if the notice of appeal fairly and accurately advises
the parties of the nature of the appeal. Burtell, 76 Ill. 2d at
433-34.
We reject Tyrone's contention that this court lacks
jurisdiction because Tyrese's notice of appeal states that he
"appeals from the trial court's April 27, 2007 order." In that
written order, the circuit court specifically made a finding that
Tyrese was not a drug-exposed infant because the State offered
"no good cause to the court for amending the petition after the
proofs had closed." Tyrese specifically requested, among other
things, in his notice of appeal that we "find that the trial
court erred in determining that he was not neglected due to
exposure by controlled substance." The circuit court's finding
that Tyrese was not born exposed to drugs was based on its denial
of the State's motion to amend the petition. In our view,
Tyrese's timely notice of appeal gave more than adequate notice
to appeal all findings contained in the April 27, 2007
adjudication order. We thus hold that jurisdiction for all
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claims on appeal properly lies with this court.
II. DENIAL OF THE STATE'S MOTION TO AMEND
"All proceedings under the [Act] [citation], are brought in
the best interests of the child involved and should not be
undertaken lightly. At an adjudicatory hearing, a trial court
must determine whether a minor is abused, neglected, or dependent
and the State must prove its allegations by a preponderance of
the evidence. [citation]." In re C.M., 351 Ill. App. 3d 913, 916
(2004). The findings of the circuit court are afforded great
deference and should not be disturbed unless those findings are
against the manifest weight of the evidence. In re A.P., 179
Ill. 2d 184, 204 (1997).
The State and Tyrese argue on appeal that the circuit court
erred in finding that Tyrese was not neglected due to an
injurious environment and by not allowing the State to amend its
pleadings to conform to the evidence showing that Tyrese was born
exposed to illegal substances.
We first address Tyrese's argument that the State should
have been allowed to amend the pleadings prior to the circuit
court's ruling. Section 2-13(5) of the Act states:
"The court shall liberally allow the petitioner to amend
the petition to set forth a cause of action or to add,
amend, or supplement factual allegations that form the basis
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for a cause of action up until 14 days before the
adjudicatory hearing. The petitioner may amend the petition
after that date and prior to the adjudicatory hearing if the
court grants leave to amend upon a showing of good cause.
The court may allow amendment of the petition to conform
with the evidence at any time prior to ruling. In all cases
in which the court has granted leave to amend based on new
evidence or new allegations, the court shall permit the
respondent an adequate opportunity to prepare a defense to
the amended petition." 705 ILCS 405/2-13(5) (West 2006).
In order to determine whether the trial court has abused its
discretion, a reviewing court must look at four factors
established in Kupianen v. Graham, 107 Ill. App. 3d 373 (1982)
and adopted by our supreme court in Loyola Academy v. S & S Roof
Maintenance, Inc., 146 Ill. 2d 263, 273-74 (1992). "These
factors are: (1) whether the proposed amendment would cure the
defective pleading; (2) whether other parties would sustain
prejudice or surprise by virtue of the proposed amendment; (3)
whether the proposed amendment is timely; and (4) whether
previous opportunities to amend the pleading could be
identified." Loyola Academy, 146 Ill. 2d at 273.
The circuit court has broad discretion in motions to amend
pleadings prior to entry of final judgment and, as a result, a
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reviewing court will not find that denial of a motion to amend is
prejudicial error unless there has been a manifest abuse of such
discretion. Loyola Academy, 146 Ill. 2d at 273-74, citing Mundt
v. Ragnar Benson, Inc., 61 Ill. 2d 151, 160-61 (1975), and Austin
Liquor Mart, Inc. v. Department of Revenue, 51 Ill. 2d 1, 8
(1972). The Loyola Academy court further noted that "
'[J]udicial discretion must be exercised within the bounds of the
law [citation] and any question regarding the proper exercise
thereof is always subject to our review [citation]. Further,
where the exercise of discretion has been frustrated by the
application of an erroneous rule of law, review is required to
permit the exercise in a manner 'consistent with the law'."
Loyola Academy, 146 Ill. 2d at 274.
In the instant case, we agree with the parties that the
proper rule to be applied here is the four-factor test enumerated
in Loyola Academy. However, we must also be mindful that all
proceedings under the Act are brought within the framework of the
minor's best interests. In re C.M., 351 Ill. App. 3d at 916.
With this standard in mind, we note that the circuit court
indicated that it would be unfair to the parents to allow the
State to amend its petition and did not mention Tyrese's best
interest when denying the State's motion. Although the fairness
to the parties is not irrelevant by any means, we find this basis
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to be insufficient under the circumstances of this case.
First, there is no doubt that the proposed amendment was not
timely and the State had identifiable opportunities to amend
prior to its request at the close of the evidence. However,
amending the petition in this case would not only cure the defect
with Tyrese's pleading, it would certainly conform the pleading
to the proofs. Second, and most importantly, no prejudice or
surprise would arise from amending the petition. The petition
stated that Melissa admitted that Tyrese was born drug exposed.
Melissa and Tyrone stipulated to Tyrese's drug-exposed birth at
the temporary custody hearing, Tyrese's medical records indicated
that his urine tested positive for opiates and Melissa's records
showed that she admitted using heroine the day before Tyrese was
born. We further note that the circuit court ordered Tyrese's
records sua sponte because it was "something that [it] would need
to know." Throughout the entire case, all parties were aware
that Tyrese was alleged to have been born exposed to heroin.
Tyrese was born exposed to opiates and no evidence in the record
indicated otherwise.
We agree with the circuit court’s conclusion that the State
had no good explanation for waiting until the close of the
evidence to seek leave to amend the petition pursuant to section
2-13 of the Act. This, however does not mean that the State’s
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basis for amending the petition did not amount to good cause.
The State acknowledged that it could not explain why it had not
alleged that Tyrese was born drug exposed and admitted that this
omission was a mistake. The State further argued that the focus
of the hearing is the best interests of the minor and he should
not suffer the consequences for its error. We agree and find Ott
v. Little Company of Mary Hospital, 273 Ill. App. 3d 563, 570-71
(1995), to be instructive on this issue.
In Ott, we reemphasized long-standing public policy in
Illinois that the rights of minors are to be guarded carefully.
Ott, 273 Ill. App.3d at 570, citing Mastroianni v. Curtis, 78
Ill. App. 3d 97, 100 (1979). "Every minor plaintiff is a ward of
the court when involved in litigation, and the court has a duty
and broad discretion to protect the minor's interests." Ott, 273
Ill. App. 3d at 570-71, citing Burton v. Estrada, 149 Ill. App.
3d 965, 976 (1986). While Ott and its predecessors imposed this
duty on courts dealing with minors in litigation that was not
brought under the Act, we hold that this same duty is as
applicable, if not more so, in an adjudication for wardship than
in the cases cited above, due to the fact that allegations of
abuse and neglect have been raised with regard to the minor. We
hold that the circuit court has an obligation to intervene when a
minor's representative fails to protect his interests. Tyrese
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should not be called upon to answer for the State's mistakes at
the cost of being placed in an injurious environment when there
is no reasonable explanation for State's omission. The circuit
court should have either allowed the State to correct the mistake
that it admitted or amend the petition sua sponte. Doing so
would have been in harmony with the purpose of the Act and in
accordance with its duty to protect a minor's interest.
We note that at one point, Tyrone and Melissa argued that
the State must have had strategic reason to not allege that
Tyrese was born exposed to drugs. We, however, cannot imagine
any logical reason for not alleging that Tyrese was born drug
exposed, especially when Melissa conceded the fact and medical
records confirmed that Tyrese had opiates in his urine. We
cannot see how ignoring the fact that Tyrese was born exposed to
heroin serves his best interests in this case. In light of the
fact that no party could claim surprise for this specific
amendment, no prejudice would arise, and the best interest of the
minor is always the focus of all proceedings under the Act, we
hold that the circuit court abused its discretion in denying the
State’s motion to amend the petition.
III. FINDINGS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
The circuit court based its denial of the State's petition
and it's finding that Tyrese was not neglected due to an
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injurious environment on its ruling that Tyrone was the sole
parent of Tyrese and that he and Melissa lived separately. The
State and Tyrese argue that these findings are against the
manifest weight of the evidence. We agree and specifically
address this finding because the circuit court found Teeron's
environment to be injurious due to exposure to Melissa. Yet, the
circuit court held that Tyrese was not neglected because Melissa
did not live with Tyrone and Tyrese was not exposed to Melissa.
A careful review of the record reveals that the only
evidence produced at the adjudication or temporary custody
hearing about Melissa’s living arrangements was Redmon’s
testimony that Melissa lived in a different unit within the same
building. Aside from that second-party testimony, Melissa and
Tyrone indicated in a stipulation that they resided together. In
other documents produced in preparation for the hearing and in
all medical records, Melissa, Tyrone, Tyrese and Teeron all
listed the same address. In addition there was no evidence that
Melissa lived anywhere other than with Tyrone or in the family
building. Furthermore, although Melissa and Tyrone deny carrying
on a relationship in their appeals and claim that they lived
separately, there was, no doubt, some contact approximately nine
months prior to Teeron’s birth and at the time Redmon
investigated Teeron’s case. Moreover, Redmon nevertheless took
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protective custody of both children because they were exposed to
Melissa and he viewed her as a risk to both Tyrese and Teeron.
Under the manifest weight of the evidence standard, the
circuit court’s ruling fails to meet the standard if the opposite
conclusion is clearly evident or the ruling is unreasonable,
arbitrary or not based on the evidence presented to the court.
In re D.F., 201 Ill. 2d 476, 498 (2002). We concede that the
manifest weight of the evidence standard is a very high bar and
significant deference is afforded the circuit court. In re D.F.,
201 Ill. 2d at 498-99. However, based on the evidence in the
record, the circuit court’s finding that Tyrone and Melissa did
not live together and that Tyrone was the sole custodial parent
of Tyrese was against the manifest weight of the evidence.
CONCLUSION
For the foregoing reasons, we hold that the circuit court
erred in denying the State’s motion to amend its petition. We
also hold that the court's finding that Tyrone had sole custody
of Tyrese and that Tyrese was not exposed to Melissa was against
the manifest weight of the evidence. Accordingly, the judgment
of the circuit court is reversed and this matter is remanded for
further proceedings consistent with this opinion.
Reversed and remanded.
McBRIDE, PJ., and JOSEPH GORDON, J., concur.
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