In re R.W.

No. 3--09--1028
_________________________________________________________________
Filed June 10, 2010
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
In re R.W., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
a Minor ) Peoria County, Illinois,
)
(The People of the State of )
Illinois, )
)
Petitioner-Appellee, ) No. 09--JA--166
)
v. )
)
Rebekah W., ) Honorable
) Kim L. Kelley,
Respondent-Appellant). ) Judge, Presiding.
_________________________________________________________________
JUSTICE McDADE delivered the opinion of the court:
_________________________________________________________________
The trial court adjudged the minor, R.W., daughter of the
respondent, Rebekah W., to be neglected because of an environment
injurious to her welfare (705 ILCS 405/2--3(1)(b) (West 2008)).
On appeal, the respondent argues that the court's decision to
adjudge the child neglected was against the manifest weight of
the evidence. We reverse and remand.
BACKGROUND
R.W. was born on April 18, 2002. On June 26, 2009, the
Department of Children and Family Services (DCFS) filed a
petition alleging that the minor was neglected because of an
injurious environment, based on allegations:
?A) THERE HAVE BEEN TWO (2) PRIOR REPORTS TO DCFS FOR DIRTY
HOUSE CASES WHICH WERE UNFOUNDED AND A THIRD WAS CALLED IN MAY OF
2009, AND WHEN DCFS WENT TO THE HOME ON MAY 12, 2009 THE MOTHER
WAS OUTSIDE, SAW THE WORKER AND RAN INSIDE AND REFUSED ENTRY AND
WHEN DCFS WENT BACK ON MAY 22, 2009 THE MOTHER CAME OUT AND
REFUSED ENTRY INTO THE HOME AND THE MOTHER ALLOWED ENTRY AFTER
MAY 22, 2009 AND THE UPSTAIRS HAD BEEN CLEANED BUT WHEN THE
WORKER TRIED TO GET INTO THE BASEMENT THEERE [sic] WAS NO WAY TO
GET DOWN THE STAIRS AS IT WAS PACKED FULL OF ITEMS; AND
B) THER [sic] MOTHER IS A HOARDER WITH JUNK THROUGHOUT THE
BACKYARD AND DCFS IS UNABLE TO ASCERTAIN THE CFONDITION [sic] OF
THE BASEMENT DUE TO NO ACCESS AVAILABLE BECAUSE OF THE NUMEROUS
ITEMS; HOWEVER, THE MINOR REPORTS THAT SHE PLAYS IN THE BASEMENT
IN THE DIRTY WATER; AND
C) ON MAY 13, 2009, THE MOTHER WAS FINED BY CODE ENFORCEMENT
FOR THE CONDITIONS OF THE HOME; AND
D) THE MOTHER REFUSES TO COOPERATE WITH DCFS."
The court held the adjudication hearing on October 1, 8, and
15, 2009. The respondent testified that, on March 16, 2000,
after she married R.W.'s father, Rusty W., she moved into the
home where he had been residing in Peoria Heights.
Rusty W. stated that after R.W.'s birth in 2002, the
respondent's tendency to hoard items inside and outside the house
increased. The porch and backyard became cluttered with items,
many of which were duplicates and some of which were broken.
When Rusty W. would attempt to throw away the duplicate and
broken items, the respondent would become upset with him and
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would attempt to retrieve the items he had thrown away. Rusty W.
testified that the couple separated in April 2007, when he moved
out of the house. The respondent testified that some of the
items in the backyard belonged to Rusty W., who had not removed
these belongings after the separation.
The respondent stated that in April and December 2008, DCFS
workers came to her home with complaints about the house. Raelyn
Galassi, a DCFS investigator, testified that the two DCFS reports
in 2008 that the house was cluttered and unsafe were later
determined to be unfounded after the respondent "cleaned up the
home."
Cary Wamsley testified that he was the code enforcement
officer and building inspector for the Village of Peoria Heights.
He said that in October 2008, he had written the respondent a
warning for a code violation concerning items stored on the front
porch of the residence.
Galassi said that DCFS received a complaint on April 22,
2009, that "[t]here were concerns about the condition of the
[respondent's] home, that there were rats outside and possibly
inside of the home, that there was water in the basement and ***
possibly some mold." Consequently, Galassi talked with R.W. at
her school about the condition of the residence. According to
Galassi, "[R.W.] stated that there was water in the basement on
the floor, that it was *** brown, dirty water, and that she would
play in it."
Wamsley said that, on an unspecified date, he had received a
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complaint from one of the respondent's neighbors "stating they
saw rodents coming from the [respondent's] property."
Consequently, Wamsley went to the respondent's home on May 7,
2009, when he wrote the respondent a warning concerning the large
amount of debris in the backyard and the driveway, tall grass and
weeds in the backyard, debris stored on the front porch, and
plastic covering the openings of the porch. Photographs were
admitted in evidence showing these conditions. The warning also
noted that the garbage and debris in the backyard was a hazard
for rodent infestation. Because no one answered the door of the
residence, Wamsley left the warning on the door.
Galassi stated that another DCFS worker went to the home on
May 8, 2009, but no one was home. Galassi went to the house on
May 11, 2009, and no one answered the door. When Galassi learned
that R.W. was at home because she was sick on May 12, 2009,
Galassi went to the home again. After Galassi parked her car,
she saw the respondent come out of the house and "tie a dog up
outside." When Galassi got out of her car, the respondent came
out of the house, retrieved the dog, and went back inside the
home. When Galassi knocked on the door several times, no one
answered. Galassi observed that "[t]here was plastic that was
covering like half of the porch and then there was just a lot of
garbage and *** stuff piled up on the porch." Galassi stated
that later on May 12, the respondent called her and said that she
could return and look at the house. Galassi told the respondent
that she would return to the house on May 13, 2009.
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Galassi testified that when she returned on May 13, she was
accompanied by Wamsley. Wamsley testified that he had returned
to the house on May 13 to follow up on the warning he had written
on May 7. On this occasion, Wamsley observed that the backyard
was "[b]asically full of debris, garbage, junk, toys[,] plastic
containers, cardboard boxes, debris strewn everywhere, tall grass
and weeds." On May 13, Wamsley issued a citation to the
respondent, fining her for failing to clean up the items that he
had noted in the May 7 warning. A copy of the citation was
admitted in evidence.
Galassi testified, that on May 13, she saw that there were
several items stacked against the interior walls of the house.
On this date, both Wamsley and Galassi were unable to view the
basement because of the large number of items stacked in the
basement's stairway. Galassi testified, however, that the
upstairs of the house was clean. Wamsley stated that the blocked
basement stairway was a safety hazard because it prevented access
to the furnace and water heater in case of a fire. When Galassi
told the respondent that she needed to view the basement, the
respondent agreed to cooperate. Galassi told the respondent that
she would return on May 22, 2009, to inspect the basement.
The respondent testified that on May 14, 2009, with the help
of a friend, she cleared the stairs to the basement. She said
that on May 15 and 16, 2009, she cleared the debris from the
backyard. The respondent testified that thereafter, she kept the
backyard mowed. The respondent also stated that in May 2009
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water temporarily leaked into the basement because there had been
excessive rainfall that spring. The respondent said that she and
her friends mopped up the water in the basement.
Wamsley testified that on May 18, 2009, he returned to the
home and found that the backyard had been cleaned up and that the
home had no code violations. We note that Wamsley did not
testify that he had ever observed either rats or evidence of rats
on the respondent's property.
When Galassi returned on May 22, the respondent said that,
on the advice of her attorney, she would not allow Galassi to
inspect the home without a search warrant. Following the
respondent's refusal to allow Galassi to inspect the home,
Galassi presented Rusty W. with a DCFS safety plan that provided
for the removal of R.W. from the respondent's care and prohibited
Rusty W. from allowing R.W. to have contact with the respondent.
We note that the record shows that DCFS took this action without
having asked the trial court for either an emergency shelter care
hearing (see 705 ILCS 405/5--501 (West 2008)) or any other order
concerning R.W.'s custody.
Both Tina McKean and Sandra Lukehart testified for the
respondent. Both women testified that they had helped the
respondent clean and organize the house, including the basement.
Both women testified that there was standing water in the
basement that sometimes was clear and sometimes was muddy or
dirty. The women also testified that they helped the respondent
mop up the water.
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At the conclusion of the adjudication hearing, the court
announced its decision. The court considered that the respondent
had a history of DCFS involvement, including two unfounded
reports. The court found that the residence lacked a suitable
environment for the minor, which DCFS had brought to the
respondent's attention on numerous occasions. The court noted
that, although the respondent took corrective actions on various
occasions, the environmental problems were recurring.
The court observed that Wamsley had given the respondent an
opportunity to correct the unsafe conditions in and around the
house before citing her for code violations. The court further
observed that the respondent had refused DCFS entry to the house
on May 22, 2009. The court noted that the basement stairway had
been blocked with items on at least one occasion, which was an
unsafe condition. The court considered Rusty W.'s testimony that
the respondent was a hoarder, which was corroborated by
photographs of the porch and the backyard, as well as the
testimony of several witnesses.
The court found that R.W.'s report to Galassi that she had
played in dirty water in the basement was ?corroborated? by the
testimony of the respondent's witnesses that, at times, there was
dirty water in the basement. The court found that, considering
the totality of the circumstances, the State had proved by a
preponderance of the evidence that R.W. was neglected because of
an injurious environment.
The court issued its dispositional order on November 12,
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2009. In the order, the court found both the respondent and
Rusty W. dispositionally fit and made both of them guardians of
R.W. The court made R.W. a ward of the court, assigned tasks to
R.W.'s parents, and ordered that R.W. receive counseling. The
respondent appealed, without having filed a posttrial motion.
ANALYSIS
The respondent contends that the court's decision to adjudge
R.W. to be neglected was against the manifest weight of the
evidence.
A child may be found neglected if her environment is
injurious to her welfare. 705 ILCS 405/2--3(1)(b) (West 2008).
On appeal, a trial court's finding of neglect will not be
reversed unless it was against the manifest weight of the
evidence. In re Faith B., 216 Ill. 2d 1, 832 N.E.2d 152 (2005).
A court's ruling is against the manifest weight of the evidence
only if the opposite conclusion is clearly evident. Faith B.,
216 Ill. 2d 1, 832 N.E.2d 152.
Generally, the neglect of a juvenile is defined as a failure
to exercise the care that the circumstances warrant. In re
Arthur H., 212 Ill. 2d 441, 819 N.E.2d 734 (2004). Neglect
includes wilful as well as unintentional disregard of duty and
takes its meaning from the context of the surrounding
circumstances. Arthur H., 212 Ill. 2d 441, 819 N.E.2d 734.
Although an injurious environment does not have a fixed
definition, it includes the breach of a parent's duty to ensure a
safe and nurturing environment for the minor. Arthur H., 212
8
Ill. 2d 441, 819 N.E.2d 734.
We observe that the neglect statute at issue is contained
within the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1--1 et
seq. (West 2008)). The stated purpose of the Act is, in
pertinent part:
(1) *** to secure for each minor subject hereto such
care and guidance, preferably in his or her own home, as
will serve the safety and moral, emotional, mental, and
physical welfare of the minor and the best interests of the
community; to preserve and strengthen the minor's family
ties whenever possible, removing him or her from the custody
of his or her parents only when his or her safety or welfare
or the protection of the public cannot be adequately
safeguarded without removal ***. ***
(2) In all proceedings under this Act the court may
direct the course thereof so as promptly to ascertain the
jurisdictional facts and fully to gather information bearing
upon the current condition and future welfare of persons
subject to this Act. This Act shall be administered in a
spirit of humane concern, not only for the rights of the
parties, but also for the fears and the limits of
understanding of all who appear before the court.
(3) ***
* * *
(c) The parents' right to the custody of their
child shall not prevail when the court determines that
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it is contrary to the health, safety, and best
interests of the child.
(4) This Act shall be liberally construed to carry out
the foregoing purpose and policy." (Emphasis added) 705
ILCS 405/1--2 (West 2008.) See also In re O.S., 364 Ill.
App. 3d 628, 848 N.E.2d 130 (2006).
In other words, one purpose of the Act is to assist parents who
have engaged in allegedly flawed parenting so that their flaws
may be corrected while ensuring that their children are safe and
adequately cared for.
In this case, we note that there were no prior adjudications
and there were no court orders requiring respondent’s cooperation
with DCFS. We also note that by the time DCFS filed the neglect
petition on June 26, 2009, the problems regarding R.W.'s
environment, which were alleged to have occurred in May 2009,
were no longer problems. Indeed, on the day it was filed most of
the allegations of the petition were either outright false or
misleading because of significant factual omissions. In fact,
the Act had worked as it was intended, inasmuch as the respondent
had been apprised of problems with the porch, basement and
backyard that may have placed her child at risk, and she had
remedied the problems. Specifically, there had been two earlier
allegations of a dirty house that were determined to be unfounded
because the respondent had cleaned up the house. Following this
third allegation of a dirty house, the respondent and her friends
cleaned and organized the house, including the basement, as well
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as the backyard. Although there was evidence there had been
clutter in the backyard, the respondent testified that some of
this clutter belonged to Rusty W., who had not removed it
following the couple's separation. Moreover, the record shows
that by the time the petition was filed, the backyard clutter had
been cleaned up and other problems with the house had been
remedied.
Although Galassi testified that R.W. reported that she
played in dirty water in the basement, DCFS was unable to confirm
this allegation because of the items blocking the basement
stairway -- a condition that has been corrected. Nonetheless,
there was testimony that the water was caused by excessive spring
rain and that it had been mopped up by the respondent and her
friends before the petition was filed.
We acknowledge that the record shows that the respondent was
fined for code violations, as alleged in the neglect petition.
However, Wamsley's testimony showed that the conditions resulting
in the fine had been cleaned up more than a month before the
petition was filed.
We further observe that there was no evidence of the
respondent's lack of cooperation with DCFS, as was alleged in the
petition. Although the respondent initially refused DCFS entry
to the home on May 12, 2009, when her daughter was home sick, she
called Galassi later that day and allowed entry the following
day. The respondent also told Galassi that she could enter the
home on May 22, 2009, but, on her attorney's advice, she later
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withdrew her earlier consent to a search of her home without a
warrant. DCFS elected not to get a warrant, choosing instead to
go behind respondent’s back to execute a ?safety plan? with the
husband who was divorcing her - - a plan that removed the child
from the mother without any court involvement.
We note that the respondent had a constitutional right to
withdraw her earlier consent and to insist that DCFS obtain a
warrant. See People v. Prinzing, 389 Ill. App. 3d 923, 907
N.E.2d 87 (2009); People v. Baltazar, 295 Ill. App. 3d 146, 691
N.E.2d 1186 (1998). The exercise of the respondent's
constitutional right, on the advice of counsel, to be free from a
warrantless search of her home could not be construed as lack of
cooperation with DCFS, particularly since she was under no court-
ordered obligation to cooperate at that time.
In summary, all of the allegations of an injurious
environment in the neglect petition had been cleaned up before
the petition was filed. Consequently, we hold that the trial
court's finding of neglect was against the manifest weight of the
evidence because the opposite conclusion was clearly evident from
the record. See Faith B., 216 Ill. 2d 1, 832 N.E.2d 152. The
court’s observation that this had been a recurring problem does
not make a fear of relapse more than speculative. Furthermore,
this finding was contrary to one of the purposes of the Act. See
705 ILCS 405/1--2 (West 2008); O.S., 364 Ill. App. 3d 628, 848
N.E.2d 130.
CONCLUSION
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For the foregoing reasons, we reverse the judgment of the Peoria County circuit court
adjudging R.W. to be neglected and remand the cause for further proceedings consistent with this
opinion.
Reversed and remanded.
WRIGHT, J., concurs.
JUSTICE SCHMIDT, dissenting:
The record shows that respondent keeps a filthy house and a rodent-infested yard. When
cited by authorities, she temporarily corrects things and then the conditions recur. There is a child
living under these conditions. The majority holds that no reasonable person could find these facts
create an injurious environment for a child.
The idea of the Act is to help respondent learn appropriate parenting skills. Parenting
skills include housekeeping skills. The majority's conclusion "that this had been a recurring
problem does not make a fear of relapse more than speculative" defies common sense. Slip op. at
12.
With respect to respondent's failure to allow DCFS to confirm the condition of the
basement, the majority points out that there is no court order requiring respondent to do so. It
was alleged that respondent failed to cooperate with DCFS. There is no allegation that
respondent was guilty of contempt of court for violating a court order. By way of example, there
is also no court order in effect requiring the respondent to feed her minor child. The absence of a
prior court order has nothing to do with whether or not the child was neglected or whether the
respondent was cooperating or otherwise taking appropriate action toward the care of the child.
The court's finding of neglect is supported by the evidence. It is undoubtedly the first step
toward helping respondent develop appropriate parenting skills for the safety and welfare of her
child. This is consistent with the intent of the Act. Without the neglect finding, the court is
powerless to help respondent or the child.
The majority's finding that no reasonable person could find that a parent who keeps a child
in a filthy home is not guilty of neglect by virtue of providing an injurious environment defies all
reason. What happens to this child when the code enforcement officer or others fail to observe
the conditions? The respondent obviously needs help with parenting skills. The trial court put the
wheels in motion to provide her with that help. The majority has put a stop to that.
The majority substitutes its judgment for that of the trial court. This ignores the
appropriate standard of review. I, therefore, dissent.
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