In re S.S. , 2023 IL App (4th) 221043-U ( 2023 )

NOTICE 2023 IL App (4th) 221043-UThis Order was filed under
FILED
NOS. 4-22-1043, 4-22-1044 cons. April 26, 2023
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
In re S.S. and L.F., Minors ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Fulton County
Petitioner-Appellee, ) Nos. 22JA1
v. ) 22JA2
Jessica S., )
Respondent-Appellant). ) Honorable
) William A. Rasmussen,
) Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court.
Justices Harris and Doherty concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, holding the trial court’s neglect finding was not
against the manifest weight of the evidence.
¶2 Respondent, Jessica S., is the mother of L.F., age 11, and the legal guardian of S.S.,
age 7. The minors were adjudicated neglected and subsequently made wards of the court.
Respondent appeals the adjudicatory order only, claiming (1) the State failed to sufficiently prove
the allegations of neglect by a preponderance of the evidence as to both minors and (2) the trial
court erred by applying a per se rule of anticipatory neglect as to L.F. We affirm.
¶3 I. BACKGROUND
¶4 On January 16, 2022, the Department of Children and Family Services (DCFS)
received a report that S.S. was receiving questionable treatment by respondent, her legal guardian
and stepgrandmother. It was reported that on January 14, 2022, S.S. was left in a recreational
vehicle (RV) for over four hours, where she was monitored by a video camera system. Respondent,
her husband Richard S., and L.F. were inside a residence at a holiday gathering. Respondent
reportedly repeatedly ordered S.S. to stay on the bed in the RV. S.S. was allowed to enter the
residence to eat. However, according to the reporter, S.S. appeared to be “ ‘emaciated.’ ” The next
day, S.S. was again kept in the RV for two to three hours at the same location. S.S. was eventually
allowed to enter the residence but was ordered to remain at a table in a room separate from where
the family’s holiday gift exchange was occurring. According to the reporter, respondent had told
her a psychiatrist agreed that S.S. should be locked up, “grounded,” and away from other people.
The reporter also said respondent kept a gate on S.S.’s bedroom door.
¶5 On January 28, 2022, after investigating the report, the State filed a petition for
adjudication of neglect in the interest of S.S. (Fulton County case No. 22-JA-1). On February 1,
2022, the State filed an amended petition as to S.S., adding an allegation of abuse, and an original
petition in the interest of L.F. (Fulton County case No. 22-JA-2). These cases were combined in
the trial court and have been consolidated in this appeal.
¶6 The allegations in the petitions of the two cases generally mirrored each other. That
is, the State alleged S.S. was a neglected and abused minor, while L.F. was neglected and abused
because she resided in the same home as S.S. Specifically, the State alleged (1) S.S. was a
neglected minor because she was not receiving the care necessary for her well-being from
respondent as her guardian in that she was not receiving adequate food (705 ILCS 405/2-3(1)(a)
(West 2020)) (count I); (2) S.S. was a neglected minor because respondent left the minor without
supervision for an unreasonable period of time without regard for S.S.’s mental or physical health,
safety, or welfare (id. § 2-3(1)(d)) (count III); and (3) S.S. was an abused minor because
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respondent had committed or allowed to be committed an act or acts of torture upon her (id. § 2-
3(2)(iv)) (count IV). The State alleged L.F. was neglected and abused on the same grounds because
she resided in the same home as S.S. and the person responsible for S.S.’s neglect and abuse was
L.F.’s mother, respondent. Respondent was not named in count II of either petition.
¶7 On May 12, 2022, the trial court conducted an adjudicatory hearing. The following
is a summary of the testimony relevant to the issues raised in this appeal.
¶8 Marci Well, S.S.’s pediatrician, testified she last treated S.S. in September 2019.
At the time, S.S. had a bruise on her cheek and on her head. This appointment had been “suggested
to the family by DCFS” after she had fallen at school. S.S. weighed 37 pounds—a “smaller than
average” weight but not worrisome.
¶9 Amy Stufflebeam, the caseworker, testified she was assigned the case the day after
DCFS received the hotline call. As a result of the call, on January 17, 2022, Stufflebeam and a
deputy sheriff made contact with respondent at her home. Respondent told them S.S. was
“grounded because she had shit and pissed on her floor.” Once Stufflebeam spoke with S.S. alone,
she learned S.S. had not eaten breakfast or lunch that day. This conversation took place at
approximately 3:30 p.m. S.S. told Stufflebeam she was hungry and Stufflebeam escorted S.S. to
the kitchen. S.S. asked respondent if she could have lunch and respondent said, “ ‘Of course.’ ”
Stufflebeam stepped outside to call her supervisor. She said after she had returned inside, she
noticed S.S. had eaten “every single bite of those [two] corn dogs and [she] picked up that glass
of milk and drank it without stopping before putting it down.”
¶ 10 Stufflebeam spoke with L.F., who denied any abuse and advised that S.S. was
“troublesome” for respondent, was “bad,” and was punished or grounded “ ‘most of the time.’ ”
L.F. said S.S. “poops her pants and gets in trouble.” Stufflebeam asked L.F. to say one good thing
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about S.S. and L.F. said, “ ‘I can’t think of anything good about [S.S.]’ ” When asked if there was
any fighting among the adults in the home, L.F. said yes, respondent and Richard fight with
“ ‘[w]ords and sometimes their hands.’ ” L.F. told Stufflebeam S.S. was in trouble at the time of
the holiday gathering, so she had to stay in the RV and stay on the bed.
¶ 11 Stufflebeam testified that, during her conversation with respondent about S.S.,
respondent indicated she knew who the reporter was and described her as one who “can’t keep
their nose out of their business.” Stufflebeam inquired whether S.S. had a medical condition that
caused incontinence. Respondent denied the existence of any medical issue and said the reason
S.S. soils her pants and defecates in her room “ ‘is because she’s an asshole’ ” and “lazy.”
Respondent told Stufflebeam she had previously taken S.S. to a therapist, who told respondent S.S.
was “defiant” and “that everything that [respondent] was doing for discipline was appropriate and
that she should continue doing what she was doing.”
¶ 12 Stufflebeam testified respondent then agreed to allow her to speak with S.S. alone.
They went to S.S.’s bedroom and, at this point, everything Stufflebeam had already asked S.S.
about had changed. S.S. now said she eats every day, the gate on her bedroom was never closed,
she was never locked in her room, everything was fine, and she was not scared to be there. She
said she had to stay in the RV because she was in trouble but did not know why.
¶ 13 Stufflebeam described seven-year-old S.S. as “extremely skinny[ and] very frail.”
She said her eyes and cheeks were “sunken [in].”
¶ 14 Stufflebeam spoke with respondent about the gate on S.S.’s bedroom. Respondent
explained it was for S.S.’s safety. Respondent said S.S. gets up in the middle of the night and
“get[s] into things *** and get[s] pills.” She also said S.S. had “gotten outside before.” Stufflebeam
questioned respondent about using a regular bedroom door with an alarm instead of using a gate,
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but respondent indicated doors were expensive. Stufflebeam described the gate as being
approximately chin-high for S.S. and it was locked from the outside.
¶ 15 Respondent agreed to intact services with counseling, but those intact services were
never started because, according to Stufflebeam, “there was more that happened within the
investigation.” Stufflebeam explained that on January 28, 2022, when she accompanied the intact
worker to respondent’s home for introductions, respondent answered the door but blocked the view
into the home. Respondent indicated S.S. had “ ‘bruises all over her’ ” from fighting with
respondent for over an hour in the bathtub. However, they were not able to see S.S. because she
was currently at respondent’s mother’s house. Stufflebeam searched for the identity of
respondent’s mother and then drove to Hazel W.’s house. There, Hazel reported she had not seen
S.S. in over two years. Stufflebeam contacted her supervisor and was told to take S.S. into
protective custody when she was found.
¶ 16 Stufflebeam testified she went back to respondent’s house, accompanied by two
police officers, and made contact with Richard S., respondent’s husband. Richard claimed
respondent and the minors were not home and would be gone for hours. Stufflebeam and the
officers waited for respondent’s return. They eventually approached the residence again, showing
Richard a warrant for S.S.’s custody. While searching the home, one of the officers found
respondent, S.S., and L.F. hiding in the attic.
¶ 17 Stufflebeam testified she took S.S. into protective custody and was going to take
her to the hospital. They stopped at McDonald’s on the way. S.S. ate four chicken nuggets, french
fries, apple slices, two containers of apple juice, and all of Stufflebeam’s french fries. S.S. said she
was still hungry, so Stufflebeam bought her a blueberry muffin, which she “devoured.” At the
hospital, the doctors diagnosed her with dehydration. She weighed 37.9 pounds. She had a black
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eye, a football-sized bruise on her back, a “pretty substantial gash out of her chin,” a “gash out of
the inside of her left ankle,” bruises on her legs, and several bruises on her buttocks.
¶ 18 On January 30, 2022, Stufflebeam took protective custody of L.F. “[b]ecause of the
abuse and neglect that [S.S.] had sustained while in the home, and since she was another child in
the home, she need[ed] to be removed as well.”
¶ 19 Respondent told Stufflebeam she was the guardian of S.S. because S.S. had
contracted salmonella poisoning and was hospitalized when she was six months old. According to
Stufflebeam’s conversation with Stephanie, S.S.’s biological mother, respondent “forced” her to
sign over guardianship to respondent at a time when Stephanie was unable to care for S.S.
Stephanie last saw S.S. when she was approximately one year old. Stufflebeam testified Stephanie
was interested in obtaining custody of S.S.
¶ 20 On cross-examination, Stufflebeam testified S.S. had a cardboard sign in her
bedroom over her desk that said “ ‘I pee my pants.’ ” According to Stufflebeam, S.S. was unable
to open the gate to her room. If she had to use the restroom, she had to yell for respondent to let
her out.
¶ 21 At the conclusion of Stufflebeam’s testimony, the State asked the trial court to take
judicial notice of an order of probation from a McDonough County court case where respondent
was convicted of cruelty to animals. Upon respondent’s objection on relevance grounds, the State
argued the evidence tended to demonstrate respondent’s propensity to “not take care of things that
are under her control.” The court agreed to take judicial notice.
¶ 22 Fulton County Sheriff’s Deputy Tim Harper testified about the events that occurred
on January 28, 2022, when he accompanied Stufflebeam to respondent’s residence. He searched
the residence for respondent and S.S. In an upstairs bedroom closet, he “separated the clothes on
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the hangers to see if there was any type of doors or whatnot.” He said he saw a door with a large
blue tote sitting in front of the door. He pushed the tote away from the door, opened it, and found
S.S., L.F., and respondent in the crawl space.
¶ 23 Dr. Channing Petrak, a pediatrician and the medical director of the Pediatric
Resource Center, testified he was board certified in child abuse pediatrics. He testified he evaluated
S.S. on January 31, 2022, at Children’s Hospital of Illinois. Dr. Petrak testified S.S. explained the
layout of her bedroom. She said she had a gate in her bedroom doorway that she was unable to
unlock, and she had a bucket in her room to use for the bathroom. On some occasions, if she yelled
“really loud,” she would be allowed to go into the bathroom, but she would have “to go right back
to her room.”
¶ 24 Dr. Petrak questioned S.S. about her visual injuries. S.S. said the bruise on her back
was from slipping in the tub and the cut on her chin was from the gate. She indicated the bruises
on her buttocks were from being spanked by respondent. Dr. Petrak noted S.S.’s weight was low
and below the growth curve. She had gained 0.9 pounds in two years, when she would have been
expected to gain four to eight pounds per year. It appeared from her medical records that S.S. had
not been seen by her primary care physician in two years.
¶ 25 According to Dr. Petrak, S.S. showed physical signs of malnutrition. For example,
she had very dry and scaly skin, thickened and cracked skin on her feet and palms, and overall
“decreased fat stores.” She also showed signs of physical abuse. In Dr. Petrak’s opinion, “[s]ome
of her bruises were not what you would find from typical childhood play.”
¶ 26 Stephanie, S.S.’s biological mother, testified that throughout her childhood, she
moved between her father’s home and her mother’s home. Her father, Richard, was married to
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respondent. Respondent often disciplined Stephanie with corporal punishment, timeouts, and loss
of privileges.
¶ 27 Stephanie gave guardianship of S.S. to respondent upon respondent’s request when
S.S. was an infant because Stephanie was unemployed and homeless, though she was living with
respondent and Richard. In 2015, respondent and Richard “kicked [her] out of the house” because
they felt Stephanie was not making sufficient efforts to better herself. Stephanie said she was not
“welcome back at the house.” And therefore, she has had little to no contact with S.S.
¶ 28 Respondent called her 18-year-old daughter, Skylar S., as a witness. She began her
testimony with an explanation of the holiday party and the RV. Skylar said, on that day, S.S. was
grounded for “pooping and peeing on the floor and everything at the house.” Skylar was not sure
why S.S. did such things and recalled that when they asked S.S. for an explanation, she said she
was mad at them. On the day of the party, respondent told S.S. to stay in the RV because she was
not allowed to play with the other children at the holiday gathering. According to Skylar,
respondent allowed S.S. to come into the house during the meal, but she had to open her gifts at
the table away from the other children. Skylar’s cousin, Harley, expressed her opinion that it was
unfair that S.S. was not allowed to play with the other children. Harley and respondent argued
about the situation until respondent and her family left the party.
¶ 29 Skylar described S.S.’s bedroom as having a toddler bed, toys, shelves, a television,
and a dollhouse. She said there was no door on S.S.’s bedroom but there was a “child’s gate that
went up at night so she wasn’t getting into anything.” Skylar said S.S. “could open it on her own
if she needed to.” Skylar said S.S. ate three meals a day plus snacks.
¶ 30 Skylar said S.S. would often act out by refusing to do her homework, throwing or
slamming things, or going to the bathroom throughout the house. With regard to the bathtub
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incident, Skylar said S.S. was in her bedroom “doing her own thing” when Skylar smelled
something suspect. She went to the bedroom, where she found S.S. had taken off all her clothes
and “peed and pooped all over her room.” Respondent said she was going to take a photograph “to
show DCFS what she’s doing.” Skylar said when S.S. heard that, she “started throwing a fit and
throwing herself around.” They got S.S. upstairs into the bathtub, but she refused to wash herself.
The following exchange occurred
¶ 31 “Q. Okay. Okay. And then once you got her in the bathtub, what happened?
A. She was wanting to throw a fit because she didn’t want to wash herself,
and at our house, if you’re being that age and you’re purposefully pooping and
peeing yourself, you have to wash yourself, and [S.S.] is more than capable of
washing herself, and she went to go throw herself down, and mom went to go catch
her which caused mom to fall, and I quickly caught mom from behind. My dad was
on the phone with my mom, and he says, ‘Jess, stopping [sic] hurting herself, let
her throw her fit.’ So we took a step back, we closed the curtain, mom sat on the
toilet, I sat on the floor, and every now and then we’d open up the curtain, look in,
try talking to her to calm her down, wouldn’t work, so we’d close the curtain again.
Eventually, she did calm down and washed herself up, we got her out, we—
Q. When she was having this sort of episode, I suppose, what was [S.S.]
doing?
A. She was screaming, hitting, kicking, throwing herself around, saying [‘]I
hate you,[’] and everything she could think of really.
Q. Okay. And then what happened after that?
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A. After we got her out of the shower, we dried her off and everything, we
went back downstairs, sat down, after cleaning up her room and everything, but we
went back downstairs, sat down, later on we had some supper, and went to bed, and
the next day, my mom took [S.S.] to my grandma’s just so we could have a cool
down.”
The record indicates the “grandma” Skylar was referring to was not respondent’s biological
mother, Hazel W., but her adopted mother, Jonnie S.
¶ 32 After considering the evidence and arguments of counsel, the trial court found the
State had proved by a preponderance of the evidence the minors were neglected. The court found
respondent was not providing adequate food and care to S.S. The court relied on (1) the medical
testimony, which indicated S.S. was well below average in terms of her weight, (2) Stufflebeam’s
testimony regarding S.S.’s conversations with her regarding her lack of food, and (3) the fact
respondent was hiding with the minors to avoid DCFS.
¶ 33 The trial court also found L.F. neglected. The court stated: “If there’s neglect in the
house for one, there’s neglect in the house for the other.”
¶ 34 On July 7, 2022, the trial court conducted a dispositional hearing. The State
presented as its only evidence the integrated assessment, family service plan, and the June 29,
2022, dispositional hearing report for each minor.
¶ 35 Richard S. testified that L.F. and respondent had a good relationship. In his view,
respondent took good care of L.F. and provided for all her needs.
¶ 36 The trial court found respondent unfit as to both minors and made the minors wards
of the court.
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¶ 37 Respondent filed a motion to reconsider the adjudicatory order, which the trial court
denied.
¶ 38 This appeal followed.
¶ 39 II. ANALYSIS
¶ 40 Initially, we note, in respondent’s amended notice of appeal and in the concluding
paragraph of her opening brief, she mentions appealing the findings from the dispositional hearing.
However, she makes no argument as to the trial court’s determination of her fitness, and therefore,
we find that argument forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (stating points not
argued in an appellant’s opening brief are forfeited).
¶ 41 In her brief, she claims the State failed to prove by a preponderance of the evidence
that both minors were neglected as determined by the trial court. In its adjudicatory order, the court
found both minors were neglected in that they were in an environment injurious to their welfare
pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b)
(West 2020)). We note respondent made no objection to the court’s injurious-environment finding
because that ground was not alleged against respondent in the petition. See In re April C., 326 Ill.
App. 3d 225, 242 (2001) (“Where a party fails to make an appropriate objection in the court below,
he or she has failed to preserve the question for review and the issue is [forfeited].”). As to S.S.,
the court based its finding on the “lack of care or concern; failure of [respondent] to provide food.”
As to L.F., the court based its finding on the “[f]ailure to show care or concern; failure to provide
food to minor in home.”
¶ 42 In a petition for adjudication of wardship under the Act, the “paramount
consideration is the best interest of the child” In re J.W., 386 Ill. App. 3d 847, 856 (2008). The
State must prove its allegation of neglect by a preponderance of the evidence. In re N.B., 191 Ill.
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2d 338, 343 (2000). Preponderance of the evidence means proof that makes the condition more
probable than not. Id. Upon review, the trial court’s finding “[shall] not be disturbed unless it is
against the manifest weight of the evidence.” In re E.S., 324 Ill. App. 3d 661, 667 (2001).
¶ 43 Generally, Illinois courts have interpreted “injurious environment” to mean a
breach of a parent’s duty to ensure a safe and nurturing shelter for her minor children. N.B., 191
Ill. 2d at 346. The State may use the evidence of neglect of one child as evidence of neglect of
another child who lives in the same household and for whom the same parent is also responsible.
In re T.B., 215 Ill. App. 3d 1059, 1062-63 (1991) (“Where an injurious environment has been
found to exist, the trial court need not wait until the child becomes a victim or is emotionally
damaged permanently in order to remove the child from the household.”); In re R.R., 409 Ill. App.
3d 1041, 1045 (2011) (“Proof of neglect of one minor is admissible evidence on the issue of neglect
of any other minor for whom the parent is responsible.”). In fact, section 2-18(3) of the Act states:
“In any hearing under this Act, proof of the abuse, neglect or dependency of one minor shall be
admissible evidence on the issue of the abuse, neglect or dependency of any other minor for whom
the respondent is responsible.” 705 ILCS 405/2-18(3) (West 2020).
¶ 44 A. Allegation of Inadequate Food for S.S.
¶ 45 Respondent claims the State failed to prove S.S. did not receive adequate food. She
claims the testimony of Stufflebeam, L.F., and Skylar supports her claim. Stufflebeam testified
that during her second conversation with S.S., the child said she eats three meals a day. L.F. and
Skylar corroborated S.S.’s claim, each testifying that S.S. received and had access to adequate
food. Respondent argues the doctors’ testimony that S.S. was small for her age did not prove it
was more probable than not her weight and size were from a lack of food.
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¶ 46 Respondent’s argument ignores the magnitude of the evidence demonstrating S.S.
was underfed and malnourished. The evidence of her weight alone suggests inadequate food. Dr.
Petrak testified S.S. had gained less than a pound in two years, when a typical child would be
expected to gain four to eight pounds a year. That is, S.S. should have gained 8 to 16 pounds
between her reported doctor’s visits. Stufflebeam described S.S. as “extremely skinny” and “very
frail.” She said her eyes and cheeks were “sunken [in].” According to Dr. Petrak, S.S. showed
physical signs of malnutrition, such as very dry and scaly skin, thickened and cracked skin on her
feet and palms, and overall “decreased fat stores.” The evidence also demonstrated that S.S. told
Stufflebeam at 3:30 p.m. she was hungry, as she had not eaten breakfast or lunch that day.
Stufflebeam also described witnessing S.S.’s unusual consumption of food and drink—as if she
was ravenous.
¶ 47 Based on this evidence and contrary to respondent’s position, we conclude the trial
court’s finding that S.S. was neglected based on respondent’s failure to provide adequate food was
not against the manifest weight of the evidence. We find the State established the allegations of
neglect are more probably true than not. That is, it is more probably true than not, based on this
evidence, that S.S. was in an environment injurious to her welfare because respondent failed to
provide her with adequate food.
¶ 48 Having found sufficient evidence to support the trial court’s order adjudicating S.S.
neglected based upon an injurious environment due to respondent’s failure to provide adequate
food, it is not necessary to address any further grounds or bases therefor. See In re Faith B., 216
Ill. 2d 1, 15 (2005) (the court found the minors neglected on one basis and determined there was
no need to review the additional bases).
¶ 49 B. Anticipatory Neglect of L.F.
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¶ 50 Respondent also claims the State failed to prove by a preponderance of the evidence
that L.F. was a neglected minor. In particular, respondent claims the trial court erred in finding
L.F. neglected based on anticipatory neglect. Respondent argues, because the State presented no
evidence relating specifically to the neglect of L.F., the court’s finding L.F. was a neglected minor
was in error. We disagree.
¶ 51 As our supreme court has found, under a theory of anticipatory neglect, the State
seeks to protect not only minors who are direct victims of neglect or abuse, but also those who
have a probability to be subject to neglect or abuse because they reside with an individual who has
been found to have neglected or abused another child. In re Arthur H., 212 Ill. 2d 441, 468 (2004).
Respondent relies on Arthur H. for the following proposition: “[T]he mere admissibility of
evidence does not constitute conclusive proof of the neglect of another minor. Each case
concerning the adjudication of minors, including those cases pursued under a theory of anticipatory
neglect based upon the neglect of a child’s sibling, must be reviewed according to its own facts.”
Id. at 468-69.
¶ 52 We reject respondent’s reliance on Arthur H. as factually distinguishable. In that
case, the evidence clearly established the minor in question did not live in the same home, or even
the same state, as the abused and neglected minors. See id. at 472-73. Because the minor was not
exposed to the same environment as the other abused and neglected minors, our supreme court
concluded the subject minor was not exposed to the same risk of harm and therefore not neglected.
Id. at 478. Unlike the minor in Arthur H., L.F. lived in the same home as S.S. and was under the
care and control of respondent, just like S.S., and was therefore exposed to the same risk of harm.
¶ 53 For these reasons, we conclude the trial court’s finding of anticipatory neglect was
not against the manifest weight of the evidence.
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¶ 54 III. CONCLUSION
¶ 55 For the reasons stated, we affirm the trial court’s judgment.
¶ 56 Affirmed.
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