In re Angela P. , 2022 IL App (1st) 211092 ( 2022 )

2022 IL App (1st) 211092No. 1-21-1092
Opinion filed June 7, 2022.
Second Division
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re ANGELA P., a Minor, ) Appeal from the
) Circuit Court of
Minor-Respondent-Appellant, ) Cook County
)
(The People of the State of Illinois, )
)
Petitioner-Appellee, )
)
v. ) No. 2021 JA 114
)
Verna T. and Mamerto P., )
) The Honorable
Respondents-Appellees). ) Patrick T. Murphy,
) Judge Presiding.
_____________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and
opinion.
OPINION
¶1 This case arises from the circuit court’s denial of the State’s petition to adjudicate minor
Angela P., now age eight, a ward of the court due to an injurious environment under section 2-
3(1)(b) of the Juvenile Court Act of 1987 (705 ILCS 405/2-3(1)(b). (West 2020)). Angela P. was
No. 1-21-1092
born on February 13, 2014, and almost seven years later, her brother, Aaron P., was born on
January 11, 2021, to respondent mother, Verna T., and respondent father, Mamerto P. 1 Just after
Aaron P.’s birth, however, Verna T. tied Aaron P. inside a plastic bag, which she then placed at
the bottom of a trash can, where he was found by a janitor a few hours later. Aaron P. was rushed
to a nearby hospital and miraculously survived despite the horrific circumstances surrounding his
birth. Following an investigation, Verna T. was arrested and charged with the attempted murder
and child endangerment of Aaron P.
¶2 The State filed a petition to adjudicate both Aaron P. and Angela P. wards of the court,
alleging they were abused and neglected due to an injurious environment. Following an
adjudicatory hearing, the circuit court found the State proved by a preponderance of the evidence
that Aaron P. was abused and neglected on that basis but that his older sister, Angela P., was not,
since there was no overt evidence of abuse as to Angela P. The court dismissed the State’s
petition as to Angela P., while that of Aaron P. proceeded.
¶3 The Office of the Cook County Public Guardian, acting on behalf of Angela P., now
appeals that dismissal, arguing the evidence demonstrated that Angela P. was subject to an
injurious environment based on her mother having disposed of Angela P.’s newborn sibling
inside a trash can, as well as the family’s lack of awareness as to Verna T.’s pregnancy
condition. The State has adopted the Public Guardian’s arguments on appeal. 2 While Verna T.
has not filed a brief in response to their arguments, Mamerto P. has done so and maintains the
1
Although there appeared to be some question as to the paternity of Angela P.’s brother, Aaron P.,
nothing in the record indicates there is any doubt that Angela P. is the natural daughter of Mamerto P.
2
Technically the State is an appellee since it did not file a notice of appeal in this matter. Despite
that fact, as set forth, the State has filed a response brief adopting the Public Guardian’s arguments on
appeal.
-2-
No. 1-21-1092
circuit court’s decision was sound. 3 We disagree, and for the reasons that follow, we reverse the
circuit court’s judgment.
¶4 I. BACKGROUND
¶5 We begin with the stipulated facts that led the State to file a petition to adjudicate Angela
P. a ward of the court.
¶6 Shortly after noon on January 11, 2021, Verna T. was working at Glenview Terrace
Nursing Home (Glenview Terrace) when she asked a coworker to help her to the bathroom and
to call 911 because she had “a lot of pain in [her] back.” Vivian Sanchez, a nurse at Glenview
Terrace, took Verna T. to a bathroom on the second floor of the nursing home. When they got
there, Verna T. denied that she was pregnant. Yet there was a lot of blood coming from her
vaginal area, so Sanchez went to get some towels and a wheelchair.
¶7 Sanchez returned to the bathroom a short time later to find the door was locked. She
asked Verna T. to open the door, but Verna T. told her to wait. When Verna T. opened the door
several minutes later, Sanchez observed blood clots on the bathroom floor and blood on the lid of
the garbage can. Verna T. again denied that she was pregnant and asked Sanchez to “cancel
911,” claiming she felt “fine.” Contrary to that claim, Verna T. fainted shortly thereafter and was
transported to Evanston Hospital.
¶8 Over two hours later, Dmitri Agafonov, a nurse at Glenview Terrace, was informed by a
custodian that there was a “hissing sound” coming from the garbage can inside the bathroom on
the second floor. Agafonov, believing there was an animal trapped inside the garbage, used his
foot to remove the lid. Agafonov, however, did not find an animal trapped inside; instead, he
found a plastic bag loosely tied in the bottom of the trash can. When Agafonov opened that bag,
3
Although Verna T. was a party to the lower court proceedings, she elected to not file a brief in
this matter.
-3-
No. 1-21-1092
he found a newborn baby covered underneath several bloody paper towels. The baby was still
attached to an umbilical cord and what Agafonov presumed to be a placenta. Agafonov then
wrapped the baby in a towel, cut the umbilical cord, and brought the baby to a medical station
located in a hallway outside the bathroom.
¶9 The baby, eventually known as Aaron P., was subsequently transported to Lutheran
General Hospital (Lutheran General). When Aaron P. arrived at the hospital, he was 14.17 inches
long, weighed 2 pounds and 11.4 ounces, and was 29 to 30 weeks’ gestation. Aaron P. was so
cold that his body temperature did not register. Consequently, Aaron P. was admitted to the
intensive care unit at Lutheran General where he remained until he was discharged from the
hospital on April 1, 2021.
¶ 10 The Department of Children and Family Services (DCFS) and the police became
involved with Aaron P. and Angela P. as a result of the above-stated events. Although DCFS did
not immediately take custody of Angela P. (Aaron P. was still hospitalized), the Public Guardian
and State later explained there was little information available concerning the events surrounding
Aaron P.’s birth at that time and a police investigation was underway.
¶ 11 A few days after the incident with Aaron P. occurred, Verna T. was interviewed by the
police at the Glenview Police Department. While there, Verna T. maintained that she did not
know she was more than seven months pregnant. Verna T. also maintained that she did not
remember giving birth to Aaron P. and did not remember covering him with paper towels or
tying him inside a plastic bag, which she then put in the trash, even though she remembered
every detail before and after those events. Verna T. was arrested and charged with the attempted
-4-
No. 1-21-1092
murder and child endangerment of Aaron P. on February 4, 2021. 4 Her criminal case is currently
pending (case No. 2021 CR 02930-01). 5
¶ 12 A. Petition for Adjudication of Wardship
¶ 13 On February 17, 2021, the State filed a petition to adjudicate Angela P. a ward of the
court based on the above-stated facts. The petition alleged there was probable cause that Angela
P. was abused and neglected due to an injurious environment under section 2-3(1)(b) of the
Juvenile Court Act of 1987, because as set forth, Aaron P. was placed in the trash and left for
dead by their mother, Verna T., on January 11, 2021. The petition further alleged:
“During the time natural mother was in the bathroom, she refused to come out for
a period of time and thereafter did not inform anyone of the infant’s existence or location.
This minor’s infant sibling was discovered hours later by cleaning personnel and was
thereafter hospitalized. This minor’s infant sibling remains hospitalized currently.”
The State asserted that, given Verna T.’s actions with respect to Aaron P., she was “in need of a
full assessment for services to determine her continued risk” to Angela P. The State sought to
remove Angela P. from Verna T.’s legal custody; it did not, however, seek to remove Angela P.
from her home or her father’s legal custody since he “expressed a willingness to comply with
[the] requests of DCFS.”
¶ 14 The State’s petition was supported by an affidavit from Jino John, a DCFS investigator.
His affidavit stated that Verna T. gave “birth to [Aaron P.] in a wash room [sic] at her work and
threw the baby in the Garbage can inside the washroom” and that “[a]nother employee found the
baby after 3 hours.” John’s affidavit also stated that Verna T. and Mamerto P. both claimed they
did not know that Verna T. was over seven months pregnant. Furthermore, Verna T. claimed that
4
Verna T. was out on bond with an ankle monitoring device during these lower court proceedings.
5
Verna T.’s next court date is scheduled for June 6, 2022.
-5-
No. 1-21-1092
she did not know she gave birth to Aaron P. in the nursing home bathroom; rather, Verna T.
believed she had a “ruptured [c]yst.” Finally, John’s affidavit stated that, following her arrest,
Verna T. “bonded out” and was now “on an ankle monitor at home.”
¶ 15 The State also filed a separate petition for adjudication of wardship as to Aaron P.
¶ 16 A. Temporary Custody Hearing
¶ 17 A temporary custody hearing for Angela P. was held on February 17, 2021. 6 The parties
agreed to the entry of an order of protection under section 2-25 of the Juvenile Court Act (705
ILCS 405/2-25 (West 2020)) against Verna T. The circuit court entered the protective order
without prejudice, granting Mamerto P. temporary sole custody of Angela P. The order of
protection prohibited Verna T. from residing in the home and provided that she could only visit
Angela P. in the home under supervision by other family members.
¶ 18 B. Adjudicatory Hearing
¶ 19 Following Angela P.’s temporary custody hearing, the cause proceeded to the
adjudicatory stage beginning on May 24, 2021. At the time of the adjudicatory hearing, Verna T.
still had legal custody of Angela P. Angela’s adjudicatory hearing was continued several times,
and notably, the facts at Angela P.’s adjudicatory hearing focused primarily on Verna T.’s
behavior with respect to Aaron P. since those facts were the basis of the State’s petition.
¶ 20 Meanwhile, Aaron P. was adjudicated neglected based on an injurious environment and
abused due to a substantial risk of physical injury, pursuant to sections 2-3(1)(b) and 2-3(2)(ii) of
the Juvenile Court Act. 705 ILCS 405/2-3(1)(b), (2)(ii) (West 2020). Aaron P.’s cause proceeded
all the way to a dispositional hearing during which the circuit court made him a ward of the
6
Aaron P. was still hospitalized at the time of the temporary custody hearing.
-6-
No. 1-21-1092
court, after finding Verna T. “unable” to parent; the court, however, found Mamerto P. “fit,
willing and able to parent” and granted him legal custody of Aaron P.
¶ 21 At Angela P.’s adjudicatory hearing, the circuit court admitted the following stipulated
evidence, consisting of testimony from six witnesses, along with Verna T. and Aaron P.’s
hospital records, Verna T.’s personnel file from Glenview Terrace, and her electronically
recorded interview with the police at the Glenview Police Department.
¶ 22 If called to testify, Sanchez and Agafonov, both nurses at Glenview Terrace, would
elaborate on their statements above.
¶ 23 DCFS investigator John, if called to testify, would likewise elaborate on the statements
made in his affidavit, which, as stated, was attached to the State’s petition for adjudication of
wardship.
¶ 24 Katherine McNerney, an intact family services case worker from Lutheran Social
Services of Illinois, would testify that in January 2021 she was assigned to offer short-term
services, which are designed to stabilize and preserve family life and to enable children to remain
at home safely (see, e.g., In re Chance H., 2019 IL App (1st) 180053, ¶ 3), to Verna T. and
Mamerto P. Moreover, McNerney met with Verna T. and Mamerto P. twice before Verna T. was
arrested, but no intact family services were scheduled following her arrest.
¶ 25 If called to testify, Detective Kevin Conroy would state that he and his partner
interviewed Verna T. at the Glenview Police Department after the incident with Aaron P.
occurred at the nursing home. A video recording of that interview was presented to the court
below and was admitted into evidence by way of the parties’ stipulation.
¶ 26 Halema A. Townsend, a DCFS investigator, would testify that, following the incident
with Aaron P., she was assigned to the investigation involving Verna T., Mamerto P., and
-7-
No. 1-21-1092
Angela P. Townsend spoke to Verna T. on January 11, 2021. At that time, Verna T. told
Townsend that she had experienced vaginal pain and bleeding over the weekend and that
morning when she arrived to work at Glenview Terrace. According to Verna T., the pain
worsened at work, so she asked Sanchez to call 911. And while she was in the bathroom that
day, Verna T. cleaned up “blood and debris and placed everything in the garbage can.” Verna T.,
however, denied knowing that she gave birth to Aaron P., denied hearing him cry, and denied
observing an umbilical cord.
¶ 27 Furthermore, even though Aaron P. was over 14 inches long and weighed more than two
pounds, Verna T. told a social worker at Evanston Hospital that she did not remember giving
birth to him, did not remember placing him underneath paper towels, did not remember tying
him inside a plastic bag and did not remember putting that bag in the trash. Verna T.’s Evanston
Hospital records indicated that she was not exhibiting any signs of psychosis upon her
admission, yet her “affect [was] not congruent with [the] recent traumatic events” surrounding
Aaron P.’s birth.
¶ 28 More specifically, a social worker at Evanston Hospital noted that Verna T. did not
exhibit any “indication of relief, worry, fear, surprise or shock; nor any outward concern about
police or DCFS involvement.” In other words, Verna T. did “not seem to grasp the gravity of the
fact [that] her baby was found in a garbage can by a co-worker.” While Verna T. eventually
showed some concern regarding DCFS and police involvement, she seemed more concerned
about the media’s coverage of the incident. Verna T. denied that she was depressed but admitted
that she suffered from some “baby blues” following Angela P.’s birth. In any event, an Evanston
Hospital social worker recommended that Verna T. be “closely monitored” and that DCFS and
family intact services provide “regular contact and assessment of [her] mood and functioning.”
-8-
No. 1-21-1092
¶ 29 As set forth, Aaron P.’s hospital records showed that, when he arrived at Lutheran
General, he was about 29 to 30 weeks’ gestation and was so cold that his body temperature did
not register. Aaron P. was subsequently admitted to the intensive care unit at Lutheran General,
where he remained for more than two months.
¶ 30 Regarding Angela P.’s adjudication, the Public Guardian and the State argued that the
evidence of abuse and neglect to Aaron P. also supported a finding of neglect for Angela P., even
though there was no overt evidence of actual harm to her by Verna T. Stated differently, since
Verna T. was the caregiver of both children, her actions toward Aaron P. also put Angela P. at
risk.
¶ 31 In response, Mamerto P. moved to dismiss the State’s petition for adjudication of
wardship as to Angela P., arguing there was no evidence of physical harm to Angela P. to
support a finding of neglect and that the evidence of harm to Aaron P., while it was admissible,
did not dictate the same result for Angela P. Mamerto P. pointed out that Angela P. lived in the
home for six years without incident and asked the court to dismiss the State’s petition.
¶ 32 C. Abuse and Neglect Findings
¶ 33 After hearing arguments, the circuit court found that Angela P. was neither abused nor
neglected based on anticipatory neglect, a doctrine whose purpose is to protect not only children
who are the direct victims of neglect but also those children who have a probability to be subject
to neglect because they reside with an individual who has been found to have neglected another
child, as will be discussed in more detail below. In reaching its conclusion, the court noted that a
finding of abuse and neglect as to one child does not conclusively establish the neglect of another
child in the same household and pointed out that the incident with Aaron P. did not occur in front
of Angela P. or in her home. The court emphasized that a finding of neglect for Angela P. would
-9-
No. 1-21-1092
negatively affect Mamerto P.’s reputation. The State pointed out that, at the adjudicatory stage,
the issue is whether the child is neglected, not whether the parents are neglectful, but the court
rejected that argument, stating:
“I’ve been around this court for decades as you know and you can tell me and the
appellate court and the supreme court can tell me, Hey, it’s only neglect to the kid ***—
don’t give me that. We tar the parents. We blacken them. We tarnish their names with a
finding of neglect. So we can make all the highfalutin stuff we want to but once that
finding is made, you know, Ms. McNerney or whoever the worker is going to come in
and say, the father needs these services. The father has to do this. They’ve got to jump
over this. They’ve got to come back in. They’ve got to prostrate themselves before the
Court. *** Don’t tell me it becomes irrelevant to the father and if the judge in Arthur H[.]
pretended to say that they have no experience in dealing with this Court.”
¶ 34 The circuit court dismissed the State’s petition for adjudication of wardship for Angela P.
The court subsequently denied the State’s motion to reconsider its judgment dismissing the
petition.
¶ 35 This appeal followed.
¶ 36 II. ANALYSIS
¶ 37 On appeal, both the Public Guardian and the State argue that the circuit court erred in
dismissing the State’s petition for adjudication of wardship for Angela P. because the State
proved by a preponderance of the evidence that she was neglected due to an injurious
environment.
¶ 38 In response, Mamerto P. asserts that the circuit court correctly found that Angela P. was
neither abused nor neglected because the State failed to meet its burden where there was no
- 10 -
No. 1-21-1092
direct evidence of harm to Angela P. and the harm to her younger brother, Aaron P., occurred
outside of her presence and the home.
¶ 39 Under the Juvenile Court Act, once the State has filed a petition to adjudicate a minor
child a ward of the court, a temporary custody hearing must be held, during which the circuit
court has to determine whether there is probable cause to believe that the child is neglected,
whether it is necessary to remove the child from the home, and whether reasonable efforts have
been made to prevent the child’s removal or whether no efforts can be reasonably made to
prevent such removal. In re Arthur H., 212 Ill. 2d 441, 462 (2004); 705 ILCS 405/2-10 (West
2020). After the child is placed in temporary custody, the lower court proceeds with a two-step
process identified by the Juvenile Court Act, which is used to determine whether the child is
abused or neglected and whether the child should be removed from his or her parents and made a
ward of the court. In re Arthur H., 212 Ill. 2d at 462.
¶ 40 The first step is an adjudication hearing, during which the circuit court hears evidence on
the State’s petition for adjudication of wardship and determines whether the child is abused,
neglected or dependent based on that evidence. In re Z.L., 2021 IL 126931, ¶ 59; 705 ILCS
405/2-18(1) (West 2020). At this stage of the proceedings, the focus is whether the child is
neglected, not whether the parents are neglectful. In re Z.L., 2021 IL 126931, ¶ 59; see also In re
R.G., 2012 IL App (1st) 120193, ¶ 35 (noting that who, or which parent, committed the alleged
abuse or neglect is of no particular consequence at the adjudicatory hearing stage). It is the
State’s burden to prove, by a preponderance of the evidence, the allegations of neglect in the
petition for adjudication of wardship. In re Zion M., 2015 IL App (1st) 151119, ¶ 23.
¶ 41 If the circuit court finds abuse, neglect, or dependency by a preponderance of the
evidence, the court then moves to step two, where it conducts a dispositional hearing. In re Z.L.,
- 11 -
No. 1-21-1092
2021 IL 126931, ¶ 60; 705 ILCS 405/2-21(2) (West 2020). If, however, the State fails to prove
the allegations of neglect by a preponderance of the evidence, the court must dismiss the petition
for adjudication of wardship. In re Arthur H., 212 Ill. 2d at 464.
¶ 42 A. Standard of Review
¶ 43 Initially, the parties disagree about what standard of review should apply to this case. The
Public Guardian and the State argue that de novo review applies since the evidence presented in
this case at the adjudicatory hearing was stipulated testimony and exhibits. See, e.g., In re Zion
M., 2015 IL App (1st) 151119, ¶ 28 (where the lower court’s neglect finding was based upon a
stipulated record and the court did not make any observations of the witnesses or witnesses’
testimony, this court reviewed the neglect finding de novo). The Public Guardian and the State
also note that, while the circuit court heard live testimony from McNerney, the intact family
services case worker, it was consistent with her stipulated testimony. 7 Furthermore, they assert
that the lower court did not make credibility findings with respect to McNerney’s live testimony,
so de novo review of it is appropriate.
¶ 44 Mamerto P., on the other hand, argues that the manifest weight of the evidence standard
applies to McNerney’s live testimony in this case because the testimony was not part of the
stipulated evidence and the circuit court had the opportunity to observe the witness and assess
her credibility, even if the court did not make any specific findings with respect to her credibility.
¶ 45 In general, we will not disturb a circuit court’s neglect ruling unless it is against the
manifest weight of the evidence, i.e., only when the opposite conclusion is clearly evident or
when the court’s ruling is unreasonable, arbitrary, and not based on the evidence. Id. ¶ 27. Under
this standard of review, the circuit court is afforded significant discretion since it had the best
7
We note that, after the parties agreed to McNerney’s stipulated testimony, the circuit court
directed the State to have her provide live testimony.
- 12 -
No. 1-21-1092
opportunity to observe the witnesses’ testimony, assess their credibility, and weigh the evidence.
Id. In this case, however, the lower court’s neglect finding as to Angela P. was based upon
mostly stipulated evidence concerning the neglect to her younger brother, Aaron P. Because the
circuit court was in no better position than a reviewing court to assess the witnesses’ credibility
or weigh the evidence, our review of the stipulated evidence in this case is de novo. See id. ¶ 28
(where, as here, the lower court’s finding of neglect was based upon stipulated evidence, that
court is not vested with wide discretion, and our review is de novo). Contrarily, we review the
nonstipulated evidence in this case under the manifest weight standard, even if that evidence
consists of live testimony that is consistent with the witness’ stipulated testimony.
¶ 46 B. Injurious Environment
¶ 47 After reviewing the record in this case, we conclude that the circuit court erred in finding
that Angela P. was not neglected based on an injurious environment. Section 2-3(1)(b) of the
Juvenile Court Act provides that a “neglected minor” includes any minor under the age of 18
whose environment is injurious to his or her welfare. 705 ILCS 405/2-3(1)(b) (West 2020); In re
Zion M., 2015 IL App (1st) 151119, ¶ 24. “Neglect” is typically “defined as the failure to
exercise the care that circumstances justly demand and it encompasses both willful and
unintentional disregard of parental duty.” In re Zion M., 2015 IL App (1st) 151119, ¶ 24. The
term, however, has no fixed meaning, as “neglect” is determined based on the specific
circumstances of each case and may vary if such circumstances change. See In re Arthur H., 212
Ill. 2d at 463 (citing In re N.B., 191 Ill. 2d 338, 346 (2000)). Likewise, “[a]n injurious
environment is an amorphous concept that cannot be defined with particularity but has been
interpreted to include the breach of a parent’s duty to ensure a safe and nurturing shelter for her
- 13 -
No. 1-21-1092
children.” In re Zion M., 2015 IL App (1st) 151119, ¶ 24. Simply put, a parent has a duty to keep
his or her child free from harm. Id.¶ 48 We first focus on the period that gave rise to the allegations of neglect at hand. As set
forth above, the State filed a petition to adjudicate Angela P. a ward of the court, alleging that
she was neglected due to an injurious environment stemming from the incident involving her
brother, Aaron P., on January 11, 2021. The stipulated record shows that on that date Angela P.’s
mother, Verna T., gave birth to Aaron P. in a bathroom at the nursing home where she worked.
Just after his birth, Verna T. tied Aaron P. inside a plastic bag, then placed the bag with Aaron P.
inside in the bottom of a trash can. What is more, Verna T. covered Aaron P. with bloody paper
towels when she tied him inside the original plastic bag, further concealing him. Verna T. did not
inform anyone of Aaron P.’s existence or location and, notably, did not allow her coworker,
Sanchez, in the bathroom when these horrific events occurred.
¶ 49 While it remains unclear as to whether Verna T.’s actions with respect to Aaron P. were
willful or whether they were unintentional, her actions nonetheless demonstrated a serious
breach of a parental duty to ensure a safe and nurturing shelter, not only for Aaron P., but also
for Angela P., since at the time of the incident, Angela P. was residing with Verna T., who was
eventually arrested and charged with the attempted murder and child endangerment of Aaron P.
These are serious charges especially for someone who is responsible for that child’s older
sibling. And, to the extent Verna T. maintained that she did not know she was more than seven
months pregnant, did not remember giving birth to Aaron P., and did not remember placing him
inside the trash can, this lack of awareness further demonstrates an unsafe environment for both
children. In the same vein, Mamerto P.’s claim that he did not know Verna T. was over seven
- 14 -
No. 1-21-1092
months pregnant also shows a serious lack of awareness that raises concerns as to his ability to
parent and to provide a safe and nurturing environment for Angela P.
¶ 50 Regarding Mamerto P.’s claim that the events concerning Aaron P. occurred outside the
home and outside of Angela P.’s presence, it bears noting that, despite the amount of bleeding
Verna T. experienced that day and the amount of blood that she claimed to have cleaned up
inside the bathroom after she gave birth to him, she still asked Sanchez to “cancel 911.” This
request shows a serious lack of judgment on Verna T.’s part that clearly impacts the well-being
of both her children. For example, what if Angela P. was bleeding from an injury? Would Verna
T. act appropriately to ensure Angela P.’s safety in such a situation when she failed to do so in
the situation involving herself and Aaron P.? While we cannot answer that question, it raises
serious concerns that are not conducive to a safe environment for children.
¶ 51 To that end, no reasonable explanation for Verna T.’s actions with respect to Aaron P.
was ever provided to the circuit court, and as stated, both parents denied knowing that Verna T.
was more than seven months pregnant. While one could presume that such behavior by Verna T.
arises out of mental health concerns or criminal behavior, at this point, we do not know. Verna
T.’s medical records recommended mental health follow-ups, but no follow-ups are in the record.
This alone is sufficient to find an injurious environment for Angela P.
¶ 52 Although Mamerto P. argues there was “no evidence that his behavior was in any way
harmful or injurious to Angela P., or her environment,” the focus at this stage of the proceedings,
as stated, is whether the child is neglected, not whether the parents are neglectful. See In re Z.L.,
2021 IL 126931, ¶ 59. Moreover, even if that is true, environment is not constrained to the
confines of a home; it includes the overall environment in which the child is raised. And the lack
- 15 -
No. 1-21-1092
of explanation as to Mamerto P.’s involvement with Verna T.’s pregnancy and Aaron P.’s birth
is what placed Angela P. at risk.
¶ 53 We also reject Mamerto P.’s assertion that the State’s decision to wait to file the petition
for adjudication of wardship until after Verna T. had been arrested, rather than immediately after
the incident with Aaron P. occurred, established there was no risk to Angela P. Mamerto P. has
not cited any authority, or developed any legal argument, to support this claim. Furthermore, as
set forth, the Public Guardian and the State explained there was little information available
immediately following the events with Aaron P. and a police investigation was underway (see
supra ¶ 10). We cannot say that it was unreasonable for the State to wait until more information
became available before filing a petition to adjudicate Angela P. a ward of the court since it is
well settled that the proceedings that follow represent “ ‘a significant intrusion into the sanctity
of the family which should not be undertaken lightly.’ ” In re Zion M., 2015 IL App (1st)
151119, ¶ 23 (quoting In re Harpman, 134 Ill. App. 3d 393, 396-97 (1985)). Additionally, as
stated, McNerney, the intact family services caseworker, became involved with the family
immediately after the incident with Aaron P. occurred and continued to meet with both parents
until Verna T. was arrested (see supra ¶ 24).
¶ 54 In sum, we hold the plain language of the statute dictates that, where a child has been
brutalized to the point of almost losing his life, we can presume other natural siblings in the same
home have been subject to an injurious environment. In other words, by presenting such
evidence as to Aaron P., the State proved by a preponderance of the evidence that it was more
likely than not that the home was an injurious environment for Angela P., notwithstanding that
there was no overt evidence of her having faced the exact same treatment by her mother. See
In re Zion M., 2015 IL App (1st) 151119, ¶ 23 (noting that it is the State’s burden to prove, by a
- 16 -
No. 1-21-1092
preponderance of the evidence, the allegations of neglect in the petition for adjudication of
wardship). To the extent the circuit court drew its own inferences from the stipulated facts in
finding that Angela P. was not neglected, we find the court’s findings were against the manifest
weight of the evidence in this case and that the opposite conclusion clearly applies. In re Estate
of Koester, 2012 IL App (4th) 110879, ¶¶ 45-46 (applying the manifest weight of the evidence
standard to inferences drawn from uncontested evidence); but cf. In re Ryan B., 212 Ill. 2d 226,
231 (2004) (applying de novo review to a sufficiency of the evidence challenge to determine if
uncontested facts satisfied the statutory elements of the offense).
¶ 55 Furthermore, it bears noting that, following the incident with Aaron P., Mamerto P.
maintained physical custody of Angela P. and Verna T. had visitation rights. While this might
seem reasonable, Verna T. still maintained legal custody of Angela P. In other words, without
any DCFS or court involvement, the mother and father are free to do whatever they like
unsupervised with their children. We do not believe the record supports that as a reasonable
choice at this point for the reasons already stated.
¶ 56 C. Circuit Court’s Finding of No Anticipatory Neglect
¶ 57 Finally, the court below and Mamerto P. focus on anticipatory neglect. The Public
Guardian and the State, however, assert their reliance on that doctrine is misplaced since the
minor at issue here (Angela P.) had already been born when the incident involving Aaron P.
occurred and the doctrine applies only to after-born siblings. While we need not turn to the
anticipatory neglect doctrine based on our conclusion that Angela P. was neglected due to an
injurious environment, we find that doctrine was misapplied in this case.
¶ 58 Under the anticipatory neglect doctrine, the State seeks to protect not only children who
are the direct victims of neglect but also those children who have a probability to be subject to
- 17 -
No. 1-21-1092
neglect because they reside with an individual who has been found to have neglected another
child. In re Zion M., 2015 IL App (1st) 151119, ¶ 30. Although there is no per se rule that the
neglect of one child conclusively establishes the neglect of another child in the same household,
the proof of neglect of one minor is “admissible evidence” on the issue of the neglect of any
other minor for whom the parent is responsible. Id. “Under this theory, when faced with evidence
of prior neglect by parents, the juvenile court should not be forced to refrain from acting until
another child is injured.” Id.¶ 59 The supreme court, however, has distinguished that a case of pure anticipatory neglect
applies only if the minor at issue had not been born yet at the time of the incident. See In re Z.L.,
2021 IL 126931, ¶ 75 (contrasting In re Zion, 2015 IL App (1st) 151119, which involved a
“purely anticipatory neglect situation since the minor at issue had not been born at the time of the
incident,” with the “case sub judice,” which was “not a purely anticipatory neglect situation”
since, among other reasons, the siblings at issue had already been born at the time of Z.L.’s
injuries).
¶ 60 Here, the State’s petition for adjudication as to Angela P. alleged that she was neglected
due to an injurious environment. Yet the circuit court relied exclusively on the doctrine of
anticipatory neglect in finding that Angela P. was not neglected, even though she was already six
years old when the incident involving Aaron P. occurred and, therefore, was clearly not an after-
born sibling. In dismissing the State’s petition for adjudication of wardship, the court specifically
stated that, under the anticipatory neglect doctrine, it had to evaluate the individual with whom
the child will live, “not merely the circumstances that existed at the time of the incident
involving the child’s sibling.” The court then concluded that it had not “seen a scintilla of
evidence that anything ever happened inside that household at any point until the unfortunate
- 18 -
No. 1-21-1092
event on January 11th.” Because the anticipatory neglect doctrine did not apply to Angela P., as
an after-born sibling, and since this was the adjudicatory stage, the focus should have been on
Angela P., not Verna T. and Mamerto P. But cf. In re Zion M., 2015 IL App (1st) 151119, ¶ 34.
(noting that where a child is alleged to be neglected under the anticipatory neglect doctrine, the
circuit court must evaluate the individual with whom the child will reside).
¶ 61 For the reasons stated, we reverse the circuit court’s judgment dismissing the State’s
petition to adjudicate Angela P. a ward of the court; however, given the circuit court judge’s
obvious prejudice in this case (see, e.g., supra ¶ 33), we remand this matter to a different judge.
Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994) permits a reviewing court, in its
discretion, to make any order or grant any relief that a particular case may require, including the
power to remand a case to a different judge. Cushing v. Greyhound Lines, Inc., 2013 IL App
(1st) 103197, ¶ 370; see also Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248,
262-63 (2004); Eychaner v. Gross, 202 Ill. 2d 228, 279 (2002). While this discretionary power is
used sparingly, we believe it is warranted in this case. Accordingly, the circuit court shall
reassign this case to a different judge on remand.
¶ 62 III. CONCLUSION
¶ 63 Based on the foregoing, we conclude that the State proved by a preponderance of the
evidence that Angela P. was neglected due to an injurious environment. We therefore reverse the
circuit court’s judgment dismissing the State’s petition for adjudication of wardship as to Angela
P. Additionally, we remand this matter to a different lower court judge for further proceedings
consistent with this decision; the circuit court is directed to reassign this case to a different judge.
Finally, on remand, we direct the circuit court to reinstate the February 24, 2021, order of
protection under section 2-25 of the Juvenile Court Act against Verna T.
- 19 -
No. 1-21-1092
¶ 64 Reversed and remanded with directions.
- 20 -
No. 1-21-1092
2022 IL App (1st) 211092Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2021-JA-
114; the Hon. Patrick T. Murphy, Judge, presiding.
Attorneys Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain,
for of counsel), for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham and Gina DiVito, Assistant State’s Attorneys, of
Appellee: counsel), for the People.
Sharone R. Mitchell Jr., Public Defender, of Chicago (Jim
Jacobs, Assistant Public Defender, of counsel), for appellee.
- 21 -