                                                                      FIFTH DIVISION
                                                                      October 31, 2008




No. 1-08-0981

In re M.W., a Minor,                                          )
                                                              )       Appeal from the
       Respondent-Appellant                                   )       Circuit Court of
                                                              )       Cook County
(The People of the State of Illinois,                         )
                                                              )
       Petitioner-Appellant,                                  )
                                                              )
       v.                                                     )       Honorable
                                                              )       Maxwell Griffin, Jr.,
Lori B. and Darrion W.,                                       )       Judge Presiding.
                                                              )
       Respondents-Appellees).                                )
                                                              )

       JUSTICE O'MARA FROSSARD delivered the opinion of the court:

       At an adjudicatory hearing, the circuit court found M.W., the son of respondents Lori B.

and Darrion W., neglected due to an injurious environment. At a subsequent disposition hearing,

the court found, inter alia, Lori B. fit, willing and able to care for and protect M.W.

       The Office of the Cook County Public Guardian (Public Guardian) and the State's

Attorney of Cook County appeal, contending that (1) the State met its burden to establish that

M.W. was abused due to a substantial risk of physical injury; and (2) the circuit court's ruling that

Lori B. was fit, willing and able to care for and protect M.W. was against the manifest weight of

the evidence.

       For the reasons that follow, we affirm the trial court's adjudicatory hearing order but

reverse its disposition hearing order that found Lori B. fit, willing and able to parent M.W.
1-08-0981

                                        I. BACKGROUND

       Respondent Lori B. is the mother of D.J., who was born in April 2004, and M.W., who

was born in September 2007. Respondent Darrion W. is the father of M.W. This appeal

concerns the adjudication and disposition only of M.W. However, because M.W.'s involvement

with the Department of Children and Family Services (DCFS) arose from his half brother D.J.'s

adjudication of abuse and neglect, we briefly summarize that matter. See also In re D.J., No. 1-

05-3815 (April 21, 2006) (unpublished order under Supreme Court Rule 23).

                                A. The Neglect and Abuse of D.J.

       In January 2005, Lori B. began a relationship with her paramour, Shawn Patterson. In

May 2005, she left the home she shared with D.J.'s father, and she and D.J. lived with Patterson.

In June 2005, a caller to the DCFS hotline reported scratches and bruises to D.J.'s body and that

his toenails were discolored. A DCFS investigator visited D.J. while he was in Patterson's care

and observed that D.J. had a healing scar on his forehead, discolored and infected toes, and

slightly pink buttocks. Patterson claimed that D.J. merely injured himself in a fall outdoors and

had diaper rash. Lori B. echoed Patterson's explanations and agreed to take D.J. to the doctor the

next day. Lori B., however, failed to take D.J. to the doctor, and the investigator's attempts to

contact Lori B. to verify that D.J. received treatment were unavailing.

       DCFS received a second hotline call regarding D.J. on July 26, 2005. At the time,

Patterson, Lori B. and D.J. were living in a motel. While Lori B. was at work, Patterson called

the police to report that he had been robbed. When the police arrived, they saw D.J. lying still on

the bed and that his head was swollen. D.J. was hospitalized, and Patterson was arrested and


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charged with child endangerment, aggravated battery, and predatory criminal sexual assault.

Patterson admitted to pinching D.J.'s thighs, burning his hand, and inserting a plunger into his

rectum.

        D.J.'s injuries included rectal trauma with evidence of healing, an enlarged rectal opening,

and rectal tears. He had oral injuries, chin lacerations, comminuted skull occipital skull fracture

with evidence of swelling, a greenstick fracture to the distal left radius, forehead bruising, an

adult-sized bite mark to his abdomen, multiple nonpatterned bruises to the abdomen, bilateral

healed hyper-pigmented lesions to the inner thighs, red linear bruises to the posterior right thigh,

gonorrhea of the mouth, a healed lesion to the right palm, and chronic bilateral toenail irritation

or trauma. He was diagnosed as a battered child and a victim of child sex abuse, repetitive child

physical abuse, medical neglect, and failure to protect from harm.

        Concerning D.J.'s injuries, Lori B. told medical personnel that D.J. had fallen down the

stairs. She denied knowledge of the bite mark on his abdomen, scratches on his rectal and leg

areas, and the laceration to his anus. She thought the discoloration to his inner thigh was due to

diapers. She admitted seeing Patterson pinch D.J.'s thighs and claimed that she told Patterson

"not to do that."

        When Lori B. met with a DCFS investigator on July 27, 2005, she said that Patterson

began babysitting for D.J. in the middle of May, that she knew he smoked marijuana, that her

neighbors told her Patterson swore at D.J. and told him to shut up, and that she saw Patterson

pinch D.J. between the legs in June. She admitted that she failed to comply with the doctor's

instruction to bring D.J. for a follow-up visit after he received treatment for his toes in June. She


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stated that she changed D.J.'s diapers three or four times on July 25, 2005, but only saw bruises

on his thighs. She denied noticing the bite mark on his abdomen, burn on his hand, or injury to

his arm. She admitted that she tried to protect Patterson by falsely telling the police that she did

not know how D.J.'s thighs were injured and by falsely telling hospital staff that D.J. fell down

the stairs in her presence.

       After Lori B. took a polygraph test on July 27, 2005, she informed a Chicago police

detective that Patterson started babysitting D.J. when they moved in together and he usually

insisted on bathing D.J. and changing his diapers. She saw Patterson pinch the inside of D.J.'s

thighs in an effort to get him to stop crying, and sometimes when she got home from work, she

noticed bruises on D.J.'s legs, face, and arms. When she questioned Patterson, he said that D.J.

fell down a lot. Sometime after July 4, 2005, she started noticing more bruises on D.J.'s thighs

and abdomen and a bite mark on his abdomen. When she questioned Patterson, he said he was

trying to get D.J. to stop crying and bit him to show him "who was in charge." Lori B. claimed

that she told Patterson to stop biting D.J., and Patterson agreed. During the weekend of July 22,

2005, she noticed that when Patterson tried to take D.J. from her arms, D.J. shook his head no

and cried. When she left for work at 9:30 p.m. on July 25, 2005, she did not notice anything

wrong with D.J.

       After D.J. was discharged from the hospital in August 2005, he was placed in a

residential medical facility and assessed for services. Lori B. was also referred for services,

including individual therapy. In March or April 2007, she surrendered her parental rights to D.J.

and all services were discontinued. She was pregnant with M.W. at the time.


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                                         B. M.W.'s Case

       Lori B. met M.W.'s father, respondent Darrion W., in June 2006, and he moved in with

her in September 2006. After several months, he started a relationship with another woman and

moved out. However, he resumed a relationship with Lori B. when she told him she was five

months pregnant. M.W. was born in September 2007, and four weeks later DCFS received an

anonymous telephone call expressing concern for his safety due to the abuse D.J. sustained.

M.W. was taken into protective custody in October 2007 and placed with a foster parent.

       The State's petition for adjudication of wardship alleged that M.W. had been neglected

due to an injurious environment and abused due to the fact that his parent or some other person in

the household created a substantial risk of physical injury to him by nonaccidental means. At the

October 2007 hearing, the parties stipulated that DCFS investigator Carmelia Watson would

testify that Lori B. and Darrion W. resided together, but Darrion W.'s paternity of M.W. had not

been established; that a previous parenting capacity assessment indicated Lori B. was unable to

accept any responsibility for her part in the circumstances that led to DCFS's involvement with

D.J.; that Lori B. failed to successfully complete recommended services including individual

therapy; and that reasonable efforts could not prevent or eliminate the immediate and urgent

necessity of removing M.W. from the home.

       The trial court granted DCFS temporary custody of M.W. but continued the matter

without prejudice as to Lori B. The court also limited her visits to supervised or unsupervised

day visits at the discretion of DCFS. In November 2007, the court entered a finding that Darrion

W. was M.W.'s father. In February 2008, the court held a rehearing on the temporary custody


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issue and awarded DCFS temporary custody of M.W.

                                    C. The Adjudication Hearing

        In March 2008, at the adjudication hearing, the State submitted into evidence the

adjudication order finding D.J. neglected and abused, the disposition order finding Lori B. unable

and unfit to parent and protect him, and the order terminating her parental rights to him. Those

orders detailed D.J.'s injuries and stated that Lori B. initially lied to the police and hospital

personnel to protect her paramour.

        The State also submitted the certified DCFS indicated report for M.W., which stated that

when DCFS investigator Watson went to the home in response to the September 2007 hotline

call, M.W. appeared healthy and well cared for, Lori B. appeared to be very nurturing, and there

did not appear to be any risk to M.W. at that time. Furthermore, Watson reported that Lori B.

said she quit going to therapy when she surrendered her parental rights to D.J. Moreover, she

knew she was pregnant with M.W. at that time. She claimed that she stayed with Patterson,

D.J.'s abuser, despite the signs of abuse because she did not have anywhere to go, but

acknowledged that Patterson was unemployed and did not support her financially. Watson

checked Darrion W.'s criminal background and found that he had six arrests between August

2005 and September 2007.

        The State also submitted Lori B.'s June 2006 parenting capacity assessment in connection

with D.J. According to that assessment, Lori B. claimed that she was living independently and

was not in a relationship, but the caseworker doubted those claims because when she called Lori

B. twice on her cell phone, a different man answered each time. Lori B. was in individual


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therapy since October 2005, and therapy reports indicated that she had neither taken full

responsibility for her failure to protect D.J. nor shown genuine remorse for that failure.

Moreover, she was unable or unwilling to discuss much of her past with the therapist. Her

dependent personality disorder diagnosis indicated that she would have difficulties becoming an

independent, self-functioning person without a relationship with a man, and might repeat a

pattern of selecting an abusive partner and prioritize that relationship above protecting her child.

Accordingly, the psychologist who completed the assessment recommended that Lori B. continue

in weekly individual therapy and complete parenting classes. The psychologist also

recommended that Lori B.'s progress be monitored carefully and that DCFS conduct random

visits to ensure that she lived alone.

        The State also submitted into evidence Lori B.'s client discharge summary, dated March

30, 2007, which indicated that she was transferred in June 2006 to licensed clinical social worker

Christine Schaefer and had attended weekly therapy inconsistently. Because Lori B. was

functioning well, therapy was decreased to bimonthly. According to Schaefer's report, as of

March 2007, Lori B. achieved her first goal of exploring her responsibility for D.J.'s abuse and

understood her role in the abuse by allowing Patterson to care for D.J. despite the signs of abuse.

She achieved the second goal–resolving her grief surrounding separation from D.J.–to the best of

her ability. She was upset that the court determined D.J. would not be returned to her, but used

therapy to process further, accepted the determination, and thought it was okay that D.J. would

stay with his foster family. She made no progress on the third goal–attempting to resolve her

past trauma–because she was not able to deal with her own past and it affected her current


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functioning. Schaefer recommended that individual therapy stop for now and referred Lori B. to

a community resource for further therapy if needed. According to her discharge summary, Lori

B. was diagnosed with adjustment disorder with depressed mood, chronic, and dependent

personality disorder with borderline features. She received a planned discharge from counseling

services because she was "not able to benefit from further service," and the service evaluation

was categorized as "successful."

       The State also submitted Lori B.'s psychological evaluation, done in October 2005 by Dr.

Paul Linden, a clinical psychologist. Dr. Linden reported that Lori B.'s full-scale IQ tested at 82,

in the low average range of intellectual functioning. She met the DSM-IV criteria for dependent

personality disorder with borderline features. She used denial to such an extent that she had very

poor judgment. Because she viewed herself as unattractive and defective, her fear of rejection

and criticism led her to seek out individuals with obvious character flaws. Her self-esteem

deficits caused her to be dependent on others and cling to dysfunctional relationships. She

needed to be referred to a highly qualified mental health professional with experience in working

with individuals with severe character disorders. Her severe characterological issues prevented

her from demonstrating reasonable judgment and interfered with her capacity to protect herself or

her child from others. Dr. Linden opined that Lori B. would be unable to care for D.J. until she

successfully addressed her issues in therapy. Furthermore, Dr. Linden noted that extensive

therapy for two to three years would likely be required.

       The parties stipulated that DCFS investigator Watson would testify that D.J. was found

abused and neglected, including physical and sexual abuse; that a June 2006 parenting capacity


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assessment indicated Lori B. was unable to accept full responsibility for her part in D.J.'s abuse;

that she failed to successfully complete her recommended services, including individual therapy;

and that she and Darrion W. resided together.

       Lori B. submitted into evidence the affidavit of Dr. Linden dated February 4, 2008, which

stated that his October 2005 evaluation of her was outdated. Due to the amount of time that had

passed since the 2005 evaluation, Dr. Linden had no current opinion concerning the risk Lori B.'s

personality characteristics posed for M.W.

       The court found M.W. neglected due to an injurious environment, but found that the State

did not meet its burden concerning the allegation of abuse due to a substantial risk of physical

injury. The court noted that when M.W. was taken into protective custody, Lori B. had not

successfully completed individual therapy and other recommended services. Furthermore, the

court noted that although Dr. Linden could not testify that Lori B. currently had the same

psychiatric issues that were identified in 2005, Dr. Linden's concerns from 2005 were valid,

needed to be addressed, and the recommended therapeutic services needed to be completed.

                                      D. Disposition Hearing

       The case then proceeded to a disposition hearing in April 2008 to determine whether it

was in the best interests of M.W. to be made a ward of the court.

       The State submitted into evidence the 46-page, January 2008 integrated assessment

report, which was prepared by licensed clinical social worker Kevin McMahon based on

interviews he and DCFS caseworker Javonna Smith conducted with the parties. McMahon and

Smith also reviewed numerous records. The report contained detailed information concerning


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(1) the DCFS case involving D.J.; (2) the parents' interviews, personal histories, education and

cognitive functioning, criminal background, work histories, relationships, current living

situations, substance use, hobbies, support systems, parenting abilities, medical conditions, and

mental and emotional health; (3) M.W.'s health condition, development, history, and interaction

with caretakers; (4) the family's functioning factors; and (5) recommendations.

       According to the report, Lori B. showed limited awareness of the dynamics of her

relationship with D.J.'s abuser and, thus, was unlikely to recognize a similar dynamic in any

future relationship. She lacked an empathic understanding of her own experiences and those of

her child. Due to the deeply rooted nature of her vulnerability and anxiety concerning her own

childhood, she might not make sufficient timely progress in therapy to meet M.W.'s

developmental needs. M.W. was in foster care, attended daycare, and had visitation with Lori B.

every day. The foster mother indicated that M.W. could be difficult to soothe at times. She

described him as a somewhat fussy, unpredictable and demanding baby. The report concluded

that the prognosis for the family's reunification, as of January 2008, was poor. Lori B. had not

yet mastered her internal issues. Although she might benefit from engaging in recommended

services, the entrenched nature of her difficulties and her limited insight over the past two years

made it highly unlikely that she could make sufficient progress in time to meet M.W.'s

developmental needs.

       The State also submitted a February 2008 general counseling quarterly report, which

showed that Lori B. had attended sessions inconsistently. Lori B. had made some connections

between her own childhood experiences and her own parenting, and her therapist recommended


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that she continue to attend weekly counseling on time and consistently.



       The State also submitted letters written by DCFS caseworker Smith in February and

March of 2008 to Lori B. and Darrion W. The letters indicated that respondents failed to provide

dates to meet to discuss reunification with M.W. and that Darrion W. could no longer have

unsupervised visits with M.W. due to Darrion W.'s outstanding criminal issues.

       At the hearing, Smith testified that she had been assigned to M.W.'s case since September

2007. In accordance with her assessed services, Lori B. attended weekly domestic violence

services and individual counseling twice a week, complied with monthly random urine testing,

and visited M.W. When the domestic violence services assessment was completed, the service

provider would make a recommendation regarding whether Lori B. needed further services

through their program. Because Lori B. needed more than just basic counseling, she was recently

referred to John Stokes for psychotherapy twice a week. Smith testified that Lori B. was

affectionate with M.W. and acted appropriately during their visits. Moreover, M.W. seemed to

feel secure with her, and they had an emotional attachment. From October 2007 to mid-March

2008, Lori B. had seen M.W. every day, unsupervised, for five hours per day, longer on

weekends and holidays, and there had been no unusual incidents. However, after DCFS

investigated Darrion W.'s criminal record and found recent arrests for nonviolent crimes, Lori

B.'s visits with M.W. since mid-March were restricted to supervised visits. That restriction was

based on concerns about her judgment because she had failed to protect D.J. from her past

paramour and failed to disclose negative information concerning Darrion W.'s recent arrests.


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       Smith testified that Darrion W. failed to comply with his assessed services, including

attending individual therapy and domestic violence counseling, and engaging in intensive

outpatient drug treatment. He had not contacted the foster parent concerning visitation and failed

to maintain contact with Smith. Lori B. claimed that she and Darrion W. had separated and were

no longer living together. Smith, however, had not been able to verify that information, and Lori

B. could not provide a forwarding address for Darrion W.

       Smith testified that M.W.'s current foster home was safe and appropriate and DCFS

recommended that he be adjudged a ward of the court and not returned to Lori B. yet because she

needed to be involved in services longer. DCFS would be better able to make a decision once the

recently involved therapists and professionals could assess Lori B.'s situation and make a

recommendation. DCFS was concerned about M.W.'s safety because Lori B.'s relationships

impaired her judgment. Smith stated that reunification of M.W. with Lori B. or Darrion W. was

a reasonable goal, and a return home under an order of protection might be possible if sufficient

progress was made over the next few months. Lori B. had steady employment as a certified

nursing assistant, possessed basic child-rearing skills, and had the appropriate space and

equipment to care for M.W. in her home. The only issue hindering M.W.'s return home was

DCFS's concern about Lori B.'s judgment with respect to significant others. Because a return-

home recommendation was based on the trust relationship between the caseworker and the

family, it was a major concern that Lori B. could not provide DCFS with Darrion W.'s address,

and DCFS could not contact him to get his address.

       The trial judge informed the parties that he was considering splitting custody and


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guardianship of M.W., giving custody to Lori B. and guardianship to DCFS, while reserving

ruling on whether Lori B. was fit, willing and able to care for and protect M.W. DCFS, however,

objected, stating that, as M.W.'s guardian, it would not choose to place him with Lori B. at that

time. The trial judge asked whether Lori B.'s individual psychotherapy would continue in place

if she was found fit and M.W. was returned to her. The trial judge also was concerned that a

child as young as M.W. should benefit from being with his caregiver as much as possible, which

was difficult to accomplish given the realities of agencies with limited staff attempting to provide

supervised visits for a minimum of an hour a week. The Public Guardian and DCFS informed

the judge that Lori B. was having visitation with M.W. every day and DCFS would continue to

provide and pay for the services listed in Lori B.'s service plan even if M.W. was returned home

under an order of protection.

       The trial court found that it was in M.W.'s best interest to be adjudged a ward of the

court. The court also found Lori B. fit, able and willing to care for M.W., but found Darrion W.

unable to care for him. The court vacated temporary custody and returned M.W. to the care and

custody of Lori B. under an order of protective supervision, which required, inter alia, that Lori

B. attend domestic violence counseling and individual psychotherapy sessions and follow all

recommendations. Darrion W.'s visitation with M.W. would be supervised by DCFS until he

engaged in services, and Lori B. was not permitted to supervise visits between Darrion W. and

M.W.. The Public Guardian asked for a stay of the judgment pending appeal, but the court

denied that request.

       The Public Guardian immediately filed a notice of appeal and emergency motion for a


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stay, which this court granted on the same day, pending a response by Lori B. to the motion and

further order of this court. Thereafter, this court allowed the stay pending resolution of this

appeal. This court ordered that M.W. remain in the custody of DCFS with supervised visits only.

                                           II. ANALYSIS

       Following the filing of a petition for wardship by the State and the placement of a child in

temporary custody, the circuit court conducts an adjudicatory hearing to determine whether the

allegations of the petition that a minor is abused, neglected or dependent are supported by a

preponderance of the evidence. 705 ILCS 405/1-3(1), 2-21 (West 2006). "Preponderance of the

evidence is that amount of evidence that leads a trier of fact to find that the fact at issue is more

probable than not." In re K.G., 288 Ill. App. 3d 728, 735 (1997).

       The best interest of the child is the paramount consideration whenever a petition for

adjudication of wardship or any proceeding is brought under the Juvenile Court Act of 1987 (705

ILCS 405/1-1 et seq. (West 2006)). In re K.G., 288 Ill. App. 3d at 735. At the adjudicatory

stage, the court must focus solely on whether the child has been neglected or abused, not upon

whether the parents were neglectful or abusive. 705 ILCS 405/1-3(1) (West 2006); see In re

Arthur H., 212 Ill. 2d 441, 465 (2004).

       If the State satisfies its burden of proof, the circuit court proceeds to a disposition hearing

to determine whether it is consistent with the health, safety and best interests of the minor and the

public to make the minor a ward of the court, and to determine what order of disposition should

be made in respect to the minor so adjudged. 705 ILCS 405/1-3(6), 2-22 (West 2006).

       A trial court's finding of abuse or neglect is entitled to great deference on appeal and will


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be disturbed only if it is found to be against the manifest weight of the evidence. In re A.D.W.,

278 Ill. App. 3d 476, 482 (1996). A trial court's finding is against the manifest weight of the

evidence if a review of the record clearly demonstrates that the opposite result would be the

proper one. In re T.B., 215 Ill. App. 3d 1059, 1062 (1991). The great deference afforded to the

trial court is warranted due to its superior position to observe the witnesses, assess credibility and

weigh the evidence. In re T.B., 215 Ill. App. 3d at 1062.

                                   A. Substantial Risk of Injury

       On appeal, the Public Guardian and State contend that the State proved by a

preponderance of the evidence that M.W. was abused due to a substantial risk of physical injury,

and the trial court's ruling to the contrary was against the manifest weight of the evidence.

Specifically, they note that Lori B. did not complete individual therapy, which stopped in March

2007 when she surrendered her parental rights to D.J. She was about four months pregnant with

M.W. at the time. On her discharge summary, her therapist still diagnosed her with adjustment

disorder with depressed mood, chronic, and dependent personality disorder with borderline

features. Because Lori B.'s therapy stopped, she did not resolve the psychiatric issues that

prevented her from protecting D.J. from physical and sexual abuse and, thus, did not become a

strong or capable parent for M.W. The Public Guardian and State assert the evidence established

that M.W. was exposed to a substantial risk of physical injury.

       A neglected minor includes any minor under 18 years of age whose environment is

injurious to his or her welfare. 705 ILCS 405/2-3(1)(b) (West 2006). Neglect is defined as the

failure to exercise the care that circumstances justly demand and encompasses both willful and


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unintentional disregard of parental duty. In re Arthur H., 212 Ill. 2d at 463. The term is not one

of fixed and measured meaning, and it takes its content from the specific circumstances of each

case. In re Arthur H., 212 Ill. 2d at 463. An 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 his or her children. In re Arthur H., 212 Ill. 2d at

463.

       An abused minor includes any minor under 18 years of age whose parent creates a

substantial risk of physical injury to such minor by other than accidental means which would be

likely to cause death, disfigurement, impairment of emotional health, or loss or impairment of

any bodily function. 705 ILCS 405/2-3(2)(ii) (West 2006). Specific intent to hurt the child does

not need to be established to prove abuse. In re F.S., 347 Ill. App. 3d 55, 63 (2004). Cases

involving abuse, neglect and wardship are sui generis; each case must be decided on its own

distinct set of facts and circumstances. In re J.P., 294 Ill. App. 3d 991, 1002 (1998).

       The allegations against Lori B. were based on a theory of anticipatory neglect, whereby

the State seeks to protect not only children who are the direct victims of neglect or abuse, but

also those who have a probability to be subject to neglect or abuse because they reside with an

individual who has been found to have neglected or abused another child. In re Arthur H., 212

Ill. 2d at 468. The theory of anticipatory neglect flows from the injurious environment concept

set forth in the Juvenile Court Act. In re Arthur H., 212 Ill. 2d at 468. There is no per se rule

that the neglect of one child conclusively establishes the neglect of another child in the same

household. In re Arthur H., 212 Ill. 2d at 468. Rather, such neglect should be measured by the


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circumstances surrounding the sibling, and the care and condition of the child in question. In re

Arthur H., 212 Ill. 2d at 468. Although 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, it does not

constitute conclusive proof of the neglect of another minor. In re Arthur H., 212 Ill. 2d at 468.

Each case must be reviewed according to its own facts. In re Arthur H., 212 Ill. 2d at 468-69.

       Here, the State did not establish by a preponderance of the evidence that M.W. was

exposed to a substantial risk of physical injury. M.W. lived for the first month of his life at home

with respondents without incident. He appeared healthy and well cared for, and Lori B. had all

the items necessary for his care. Furthermore, both Lori B.'s unsupervised and supervised visits

with M.W. were appropriate and without incident. Although she did not successfully complete

individual therapy, she did engage in the recommended services until the court determined that

the goal for D.J. was no longer to be returned home to her. When she surrendered her rights to

him, therapy was discontinued because she was not able to benefit from further services.

Moreover, respondent Darrion W. had no history of any type of violent behavior. Patterson, the

perpetrator of D.J.'s injuries, was incarcerated and no longer involved with Lori B. The trial

court was well aware of the facts concerning the severe abuse Patterson inflicted on D.J. and was

well within its discretion to decide that Lori B.'s history and psychological issues put M.W. in an

environment that was injurious to his health and welfare, but did not rise to the level of a

substantial risk of physical injury. The trial court's finding was not against the manifest weight

of the evidence.

                                        B. Fitness Finding


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        Next, the Public Guardian and State contend the trial court's ruling that Lori B. was able

to care for and protect M.W. was contrary to the manifest weight of the evidence where M.W.

was found neglected due to an injurious environment and Lori B. needed to make progress in

therapy. We agree.

        If a child has been found neglected or abused, the court proceeds to a disposition hearing

to determine whether it is consistent with the health, safety and best interests of the child and the

public that he be made a ward of the court. 705 ILCS 405/2-21(2), 2-22 (West 2006). If the

child is made a ward of the court, the court may order him to continue in his parents' custody;

place him–inter alia–with a suitable relative or in the care of DCFS; restore custody to his

parents; or order him partially or completely emancipated. 705 ILCS 405/2-23(1)(a) (West

2006). However, custody of the child shall not be restored to any parent whose acts or omissions

formed the basis of the court's finding of neglect or abuse until (1) a hearing is held on the issue

of the child's best interests and the fitness of the parent to care for the child without endangering

his health or safety, and (2) the court enters an order that the parent is fit to care for the child.

705 ILCS 405/2-23(1)(a) (West 2006).

        Here, the evidence established that Lori B. was unable, for some reason other than

financial circumstances alone, to safely care for and protect M.W. and that reunification was not

in his best interest. DCFS recommended that Lori B. needed to complete therapy before M.W.

would be safe in her care. The caseworker testified that although the return home goal was

reasonable and it was conceivable that M.W. could be returned to Lori B. if she made sufficient

progress in her services, she had not made sufficient progress as of the date of the disposition


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hearing. During the first quarter of 2008, she attended therapy inconsistently, and she and

Darrion W. had failed to contact the caseworker about meeting to discuss reunification with

M.W. Furthermore, Lori B. was still being assessed for domestic violence services at the time of

the disposition hearing. Moreover, Lori B. was referred just that week to a more experienced

therapist for psychotherapy because the nature, duration and extent of her issues went beyond her

first therapist's reach.

        The evidence showed that Lori B. and M.W. had an emotional bond, Lori B. cared for

him and interacted with him appropriately, and she had the capacity to feed, clothe and shelter

him. However, Lori B. had failed to protect her older son from severe physical and sexual abuse

by her previous paramour, and her unresolved psychological issues from her own past trauma

raised concerns about her judgment in relationships and capacity to protect M.W. Specifically,

the evidence established that Lori B. saw the signs of D.J.'s abuse over a period of time but failed

to report it or remove him from her paramour's care. Then, she lied to the police and medical

personnel in an attempt to protect her paramour.

        The doctor's and therapists' evaluations consistently stated that Lori B. needed to fully

deal with her own history of trauma so that she could become an independent, self-functioning

person, capable of protecting herself and her child from others rather than seeking and clinging to

dysfunctional relationships. Her psychological assessments established that she had a dependent

personality disorder with borderline features. Contrary to respondents' assertion, that personality

disorder diagnosis was current for M.W.'s case where therapist Schaefer's analysis was done in

March 2007, just five months before M.W. was born. Furthermore, Dr. Linden did not disavow


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his October 2005 evaluation of Lori B. Rather, he simply did not opine about the risks her

personality characteristics posed for M.W. due to the two-year passage of time. He did not

disavow or express any doubt about the validity of the dependent personality diagnosis at the

time he made it. In addition, the January 2008 integrated assessment report concluded that

reunification of the family at that time was poor based on the entrenched nature of Lori B.'s

difficulties, her failure to master her internal issues, and her limited insight concerning the events

over the past two years.

       The trial judge stated that the abuse suffered by D.J. was the worst the judge had seen for

such a young child. Moreover, the judge acknowledged that Lori B. still needed to make

progress in individual psychotherapy and domestic abuse counseling. Although the judge was

concerned that supervised visits might not afford M.W. ample contact with Lori B. to nurture

their bond, the evidence established that Lori B. had daily visitation with him. Furthermore, Lori

B. was responsible for the lack-of-trust issue that led DCFS to change her visits from

unsupervised to supervised. Specifically, she was not forthcoming about her knowledge of the

recent arrests of Darrion W., who failed to participate in individual therapy, domestic abuse

counseling, and drug treatment. In addition, DCFS doubted Lori B.'s veracity concerning

Darrion W.'s residence.

       The trial court's decision finding Lori B. fit and returning M.W. to her under an order of

protection was against the manifest weight of the evidence where M.W. was neglected due to an

injurious environment and Lori B. had not made sufficient progress in therapy and counseling to

deal with the psychiatric disorder that had prevented her from protecting D.J. We therefore


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reverse the trial court's disposition hearing order, enter a finding that Lori B. was unable to parent

M.W., and vacate the order of protection under which he was returned home. In addition, we

enter a disposition order placing M.W. in the guardianship and custody of the DCFS

Guardianship Administrator.

                                        III. CONCLUSION

       We affirm the trial court's order finding M.W. neglected due to an injurious environment,

but reverse its order finding Lori B. fit, willing and able to care for and protect him. We enter a

finding that Lori B. was unable to parent M.W., and place him in the guardianship and custody of

the DCFS Guardianship Administrator.

       Affirmed in part and reversed in part.

       TULLY and GALLAGHER, JJ., concur.




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                     REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                             (Front Sheet to be Attached to Each Case)



                                         In re M.W., a Minor,

                                        Respondent-Appellant

                                 (The People of the State of Illinois,

                                         Petitioner-Appellant,

                                                    v.

                                       Lori B. and Darrion W.,

                                       Respondents-Appellees).

                                             No. 1-08-0981

                                        Ap pellate Co urt of Illinois
                                     First District, FIFTH DIVISION

                                            October 31, 2008


                Jus tice M arga ret O 'Ma ra Frossard authore d the opinion of the co urt:

                              Justice Tu lly and Justice Ga llagher co ncur.


                            Ap peal from the Circuit Court of Cook C ounty.
                            The Hon. Maxwell Griffin, Jr., Judge Presiding.


                      COUNSEL FOR MINOR-RESPONDENT-APPELLANT
                 Robert F. Harris, Cook County Public Guardian, Chicago, IL 60612
                OF CO UNSEL: Kass A. Plain, Susan S. W igoda and Jean M. Agathen


                          COUN SEL FOR RESPO NDENTS-APPELLEES
              Legal Assistance Foundation of Metropolitan Chicago, Chicago, IL 60604
            OF CO UNSEL: Steven L. Pick, Sara B. Block, Richard Cozzola and Jack Block




                                  (USE REVERSE SIDE IF NEEDED)




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