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

2024 IL App (1st) 231089-UNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
FIRST DIVISION
February 5, 2024
No. 1-23-1089
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
) Appeal from the
In re AVERY F., also known as Averi F., and ALIJAH F., ) Circuit Court of
minors, ) Cook County
)
Respondents-Appellees, ) No. 19-JA-5 and
) 20-JA-581
(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.
Justices Lavin and Coghlan concurred in the judgment.
ORDER
¶1 Held: The appellate court affirms the trial court’s orders adjudicating minors as neglected under
the theory of anticipatory neglect and finding the respondent mother unable to care for or
protect the minors.
¶2 The mother/respondent, Alicia F. (respondent), appeals from the orders of the trial court
finding the minor respondents, Avery F. (also known as Averi F.) and Alijah F., as 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 minor respondents. We affirm.
No. 1-23-1089
¶3 I. BACKGROUND
¶4 From 2014 to 2023, the respondent was married to Joshua F. (father, collectively the parents),
and together they have five children: daughter Anaya (born 2014), daughter Jurnee (born 2016),
son Josiah (born 2017), daughter Averi1 (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.
¶5 A. Older siblings’ cases
¶6 1. Anaya
¶7 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
pre-retinal 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 DCFS custody. 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
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
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 occurred. No party sought a perpetrator finding.
¶8 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.
¶9 2. Jurnee
¶ 10 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.
¶ 11 On November 29, 2016, the trial court entered an adjudication order finding that Jurnee was
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
neglected based on an environment injurious to her welfare and abused due to the infliction of
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 the parents unable
to care for or protect her, and placing her in the guardianship of DCFS.
¶ 12 3. Josiah
¶ 13 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 Society 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.”
¶ 14 Several weeks later, on November 15, 2017, the parents attended a meeting with Dr. Margaret
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No. 1-23-1089
Scotellaro, a treating pediatrician of Anaya and Jurnee who specialized in child abuse. Both the
respondent and the father later testified, at the dispositional hearing in Josiah’s case on January 18,
2018, that this meeting with Dr. Scotallero 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.”
¶ 15 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.
¶ 16 B. Adjudication of neglect for Averi
¶ 17 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
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No. 1-23-1089
injuries and substantial risk of physical injury/environment injurious to health/welfare.
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.
¶ 18 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
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No. 1-23-1089
perpetrators of abuse); process the abuse to the children at a deeper level with
discussions around the children’s experience of abuse, rather than just stating it
occurred[.]’ ”
¶ 19 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.
¶ 20 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.
¶ 21 On redirect examination, Dvorak testified that for the agency to conclude that the parents
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No. 1-23-1089
were making progress, they had to understand that the injures were due to abuse as opposed to
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.
¶ 22 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.
¶ 23 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
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healing. Injuries all over her body.
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.”
¶ 24 C. Adjudication of neglect for Alijah
¶ 25 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.
¶ 26 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
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No. 1-23-1089
to her siblings, whom the parents do not acknowledge as abused.
¶ 27 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.
¶ 28 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
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not recommending unsupervised visitation at that time because the parents had not gained an
understanding that the injuries to Anaya and Jurnee were from abuse.
¶ 29 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.
¶ 30 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.
¶ 31 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.
¶ 32 On redirect examination, Wolff-Klammer clarified that the parents were not being asked to
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indicate that they hurt a child; but they had to be able to determine risk to have a child in their care
and custody, and 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.
¶ 33 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.”
¶ 34 D. Dispositional hearing for Averi and Alijah
¶ 35 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.
¶ 36 The State called the respondent as its first witness. She testified that she and the father had
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divorced in Illinois as of April 14, 2023, but that she had not provided her caseworker with any
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.
¶ 37 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.
¶ 38 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.
¶ 39 Martinez testified that the respondent had never had unsupervised visitation with Averi or
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No. 1-23-1089
Alijah, nor had the agency ever recommended it. She explained that unsupervised time is only
given to 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.
¶ 40 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.
¶ 41 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
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September 2022, and an in-person visit in December 2022. Martinez testified that those were the
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.
¶ 42 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.
¶ 43 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.
¶ 44 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.”
¶ 45 On cross-examination by the assistant public guardian, the respondent stated that the reason
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she did not tell anyone at Children’s Home and Aid about her move to Tennessee was that she
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.
¶ 46 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.”
¶ 47 This appeal followed thereafter.
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¶ 48 II. ANALYSIS
¶ 49 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.
¶ 50 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.
¶ 51 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
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No. 1-23-1089
parents and made a ward of the court. In re Z.L., 2021 IL 126931, ¶ 58. The first step involves an
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.
¶ 52 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.¶ 53 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
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No. 1-23-1089
evidence of the neglect of another minor for whom the respondent is responsible. Id.; see 705 ILCS
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. Id. at 463.
¶ 54 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.¶ 55 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
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No. 1-23-1089
abuse. The trial court also appropriately considered the evidence of the risk of harm posed to Averi
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.
¶ 56 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.
¶ 57 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.
¶ 58 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
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No. 1-23-1089
no evidence that any of the respondent’s children have sustained injuries while in foster care.
¶ 59 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-
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No. 1-23-1089
Danlos syndrome or carried a gene that causes osteogenesis imperfecta. The only evidence in the
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.
¶ 60 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 requires 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.
¶ 61 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
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No. 1-23-1089
explanations could be ruled out. Id. ¶¶ 46-74. By contrast, the parents presented the testimony of
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.
¶ 62 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.
¶ 63 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
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No. 1-23-1089
evidence here fully supports the conclusion that Averi and Alijah are at risk of harm due to the
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.
¶ 64 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.
¶ 65 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
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No. 1-23-1089
had ample evidence before it that the respondent’s failure to reach this understanding prevented
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.
¶ 66 III. CONCLUSION
¶ 67 For the foregoing reasons, the judgment of the trial court is affirmed.
¶ 68 Affirmed.
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