                                        2016 IL App (1st) 160680
                                              No. 1-16-0680
                                                                        Fifth Division
                                                                    November 4, 2016
     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

                                                    )
     In re D.Q. and J.C., Minors                    )   Appeal from the Circuit Court
                                                    )   of Cook County.
     (The People of the State of Illinois,          )
            Petitioner-Appellee,                    )   No. 15 JA 599-600
                                                    )
     v.                                             )   The Honorable
                                                    )   Rena M. Van Tine,
     Sabrina V.,                                    )   Judge Presiding.
            Respondent-Appellant).                  )
                                                    )
     ______________________________________________________________________________

                PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
                Justices Lampkin and Reyes concurred in the judgment and opinion.

                                                OPINION

¶1          The instant appeal arises from the juvenile court’s entry of an adjudication order finding

        three-year-old D.Q. and one-year-old J.C. abused and neglected due to (1) an injurious

        environment and (2) substantial risk of physical injury, and making them wards of the court.

        Respondent Sabrina V., the children’s mother, argues that the primary evidence against her

        consisted of a video in which she is shown repeatedly striking D.Q. with a stick, which was

        improperly admitted into evidence and, accordingly, there was no evidence to support the

        juvenile court’s findings. For the reasons that follow, we affirm.
     No. 1-16-0680


¶2                                            BACKGROUND

¶3           On June 15, 2015, the State filed two petitions for adjudication of wardship, requesting

         that D.Q. and J.C. be adjudicated wards of the court; the State also filed motions for

         temporary custody the same day. The adjudication petition relating to D.Q. claimed that D.Q.

         was a female minor born on March 13, 2012, and was neglected under section 2-3(1)(b) of

         the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/2-3(1)(b) (West 2014))

         in that “she [was] a minor under 18 years of age whose environment [was] injurious to her

         welfare.” The adjudication petition also claimed that D.Q. was abused under section 2-3(2)(i)

         of the Juvenile Court Act (705 ILCS 405/2-3(2)(i) (West 2014)) in that her parent “[i]nflicts,

         caused to be inflicted, or allows to be inflicted upon her physical injury, by other than

         accidental means, which caused death, disfigurement, impairment of physical or emotional

         health, or loss or impairment of any bodily function” and further claimed that D.Q. was

         abused under section 2-3(2)(ii) of the Juvenile Court Act (705 ICLS 405/2-3(2)(ii) (West

         2014)) in that her parent “[c]reates 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.”

¶4           The facts in the petition underlying all three claims set forth above were the same.

         According to the petition, on May 24, 2015, a video of respondent repeatedly hitting D.Q.

         with a spatula and stick was turned over to “police personnel.” 1 In the video, respondent was

         observed striking D.Q. on various parts of her body while dragging her across the floor.




             1
              Testimony at the adjudication hearing establishes that the video was taken to the River Grove
     police department.
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     No. 1-16-0680


         Additionally, respondent and D.Q.’s father 2 had a history of domestic violence with each

         other in D.Q.’s presence. According to the petition, there was a no contact order between

         respondent and D.Q., and an order of protection which prohibited the father from having

         contact with D.Q.

¶5           The adjudication petition relating to J.C. was similar, claiming that J.C. was a male minor

         born on January 26, 2015, and was neglected under section 2-3(1)(b) of the Juvenile Court

         Act in that “he [was] a minor under 18 years of age whose environment [was] injurious to his

         welfare.” The adjudication petition also claimed that J.C. was abused under section 2-3(2)(ii)

         of the Juvenile Court Act in that his parent “[c]reates a substantial risk of physical injury to

         the 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.” The underlying facts of J.C.’s claims were identical to those alleged in D.Q.’s

         petition. 3 J.C.’s petition also alleged that his putative father 4 was currently incarcerated and

         that paternity had not been established.

¶6           After a temporary custody hearing on June 16, 2015, at which the parties stipulated to the

         facts alleged in the State’s petitions for adjudication of wardship, the juvenile court found

         probable cause that both children were abused and/or neglected and that an immediate and

         urgent necessity existed to support their removal from the home. The court granted


             2
                The petition for adjudication of wardship named Christopher Q., D.Q.’s father, in addition to
     respondent. However, Christopher Q. is not a party to the instant appeal. Accordingly, we relate facts
     concerning him only where necessary to the understanding of respondent’s appeal.
              3
                Under the Juvenile Court Act, proof of the abuse or neglect of one minor is admissible evidence
     of the abuse or neglect of any other minor for whom the respondent is responsible. 705 ILCS 405/2-18(3)
     (West 2014). Thus, the allegations of abuse and neglect with respect to J.C. were based on the facts
     underlying the allegations of abuse and neglect as to D.Q.
              4
                The petition for adjudication of wardship named Elvin C., J.C.’s putative father, in addition to
     respondent. However, Elvin C. is not a party to the instant appeal. Accordingly, as is the case with D.Q.’s
     father, we relate facts concerning him only where necessary to the understanding of respondent’s appeal.
                                                          3
     No. 1-16-0680


        temporary custody of both children to the Department of Children and Family Services

        (DCFS) guardianship administrator, with the right to place the children and with the authority

        to consent to major medical care on their behalf.

¶7         On November 9, 2015, the State filed a motion to continue the trial date due to the State’s

        “ongoing efforts to obtain evidence and information that would allow the People to locate the

        source of the video referenced in the petition,” including outstanding subpoenas for

        telephone subscriber information, metadata analysis of the video files, and a new individual

        with possible knowledge of the video source. On November 10, 2015, the juvenile court took

        the motion under advisement, and the parties proceeded with an adjudication hearing.

¶8         The State’s first witness was Christopher Q., D.Q.’s father, who testified that the DVD

        marked as People’s Exhibit 1 contained “a video of [respondent] abusing my daughter

        [D.Q.]” Christopher testified that he was able to identify the woman in the video as

        respondent, based on “[h]er body type, her voice, height, just[—]it’s her.” He further testified

        that he recognized D.Q. in the video based on “her physical appearance, her—her size, her

        voice, the sound of—the sound of her cheeks. It’s my daughter. I know my daughter.” He

        testified that he had observed both respondent and D.Q. numerous times in the past, and had

        known respondent since 2011. Christopher testified that there was no doubt in his mind as to

        who was on the video “[b]ecause *** I’m absolutely familiar with their appearance and how

        they sound and *** how they look.”

¶9         Christopher testified that he became aware of the video when he received it on his cell

        phone from respondent’s mother. After viewing the video, he brought it to the River Grove

        police department. Christopher was not present when the video was made and did not know




                                                     4
       No. 1-16-0680


          when it was taken or who recorded it. He testified that the video he received on his cell

          phone and the video he reviewed in court were “the same exact video.”

¶ 10         The State next called respondent as a witness, but respondent refused to testify and

          asserted her Fifth Amendment privilege against self-incrimination with respect to all

          questions concerning the case; respondent only answered questions identifying herself as the

          mother of D.Q. and J.C.

¶ 11         The State’s next witness was Alicia Pickett, a child protection investigator with DCFS,

          who testified that she was assigned to the children’s case in May 2015 and met with D.Q. on

          May 27, 2015, at approximately 4 p.m. at her maternal grandmother’s place of employment.

          While D.Q.’s grandmother was present in the vicinity, she was not present during the

          conversation that Pickett had with D.Q. Pickett testified that she asked D.Q. her name and

          age, and D.Q. responded with her name and that she was three years old, and then showed

          Pickett a tea set she had received; Pickett described D.Q. as a “happy, happy kid.” Pickett

          asked D.Q. what happened when she did not listen to her mother, and D.Q. responded “that

          Mom had hit her in the face.” Pickett asked D.Q. what respondent had hit her with, and D.Q.

          responded “a stick.” Pickett asked D.Q. why respondent had hit her with a stick, and D.Q.

          responded that it was because D.Q. was crying. Pickett did not observe any marks or bruises

          on D.Q. at the time. On cross-examination, Pickett testified that she did not know what day

          or time D.Q.’s statements referred to or any of the context surrounding what happened.

¶ 12         Pickett testified that she also had a conversation with respondent on May 27, 2015, at

          approximately 4:30 p.m. at her mother’s place of employment, the same location at which

          Pickett had spoken with D.Q. Respondent and Pickett were the only ones present for the




                                                     5
       No. 1-16-0680


           conversation. Pickett read respondent the CANTS report, 5 and respondent denied hitting

           D.Q. with a spatula. Respondent told Pickett that she “never knew about this videotape and

           that she hired an attorney to see what’s going on at the River Grove Police Department.”

           Respondent told Pickett that in the past, she had suffered from postpartum depression and

           “may have tapped [D.Q.] on the hand” when disciplining her.

¶ 13           After Pickett’s testimony, the State renewed its motion for a continuance for the purpose

           of further searching for the source of the video, but the motion was denied. The State then

           called its next witness, Ida Lane, a DCFS investigator assigned to the children’s case. Lane

           testified that in May or June 2015, she viewed the video and identified D.Q. as the child on

           the video and respondent as the woman depicted in the video. Lane testified that, on the

           video, she observed D.Q. being struck with a round sticklike object and then later hit with a

           spoon or spatula. She also heard D.Q. saying “Stop mommy” on the video. Lane testified that

           she used the video’s contents as a basis for the indicated finding of abuse and found the video

           to be very concerning “[b]ecause [of] the baby’s pleas and the way she was crying, the way

           she was being grabbed by Mom.” Lane further explained that “[s]he was crying really loudly,

           and [respondent] walked into a room, told her to stay in the corner. The baby came out,

           proceeded in the room. She came back out, grabbed her by her arm and was hitting her again

           with that spoon, that spatula or whatever.”

¶ 14           Lane testified that she spoke with Christopher Q. over the telephone on June 10, 2015, at

           approximately 10 a.m. concerning the video. Christopher informed Lane that he had received

           the video from respondent’s mother and took it to the police. Christopher further informed



               5
                 According to the public guardian’s brief, a CANTS report “is a child abuse and neglect tracking
       report. The initial CANTS form is a notification of a report of suspected child abuse/neglect, and it
       explains DCFS’s child abuse/neglect investigation process.”
                                                           6
       No. 1-16-0680


          Lane that respondent and D.Q. were depicted on the video and that D.Q. was living with

          respondent at that time.

¶ 15         Lane also testified that she spoke with respondent on June 12, 2015, in an empty juvenile

          court courtroom. Lane asked respondent who took the video, and respondent “said that [it

          was] someone who she thought was her friend.” Lane asked respondent the person’s name,

          but respondent refused to identify the person who took the video. Respondent also told Lane

          that the video was taken in April 2015 at the apartment in which she was then living with her

          two children. Lane asked respondent “[w]hy did she hit the baby like that,” but respondent

          did not answer. On cross-examination, Lane testified that during her conversation with

          respondent, respondent denied hitting D.Q.

¶ 16         On cross-examination and redirect examination, Lane testified as to the contents of

          records that she reviewed in the course of her investigation. On cross-examination, Lane

          testified that D.Q. denied any abuse by respondent when she was evaluated at a hospital on

          May 27, 2015. On redirect examination, Lane testified that her review of medical records

          during the course of her investigation indicated that during a victim sensitive interview

          conducted with D.Q., D.Q. stated that respondent hit her with a stick on her leg and that, as a

          result of that, “[t]he cop took mommy.” In that same statement, D.Q. stated that respondent

          hit her “[l]ots of times” and that there was a yellow mark on her leg; she stated that the

          conduct occurred at respondent’s home.

¶ 17         The State then called as a witness Maxine Morgan, a child development aid with DCFS,

          who testified that she spoke with D.Q. at Morgan’s place of employment on June 10, 2015,

          and heard her use a curse word, which she “wasn’t expecting a three-year old to say.” D.Q.

          also told Morgan that “Elvie” “hit [her] in the stomach” and pulled a gun. Morgan forwarded


                                                       7
       No. 1-16-0680


          this conversation to Lane and Lane’s supervisor. On cross-examination, Morgan testified that

          she did not ask D.Q. who “Elvie” was or when this incident occurred. She further testified

          that her responsibilities as a child development aid were to assist the caseworker when

          children were in the office and take possession of the children until they were ready to leave;

          she also transported them to the hospital for an initial health screening and then to their

          placement. Morgan was not aware of the reason the case came into the system at the time that

          the children came to the office.

¶ 18         After Morgan’s testimony, the State offered the video into evidence. Respondent’s

          attorney objected due to lack of a foundation and the juvenile court overruled the objection

          and admitted the video into evidence.

¶ 19         The video depicts a woman and a small girl, who is crying. The woman follows the girl

          into what appears to be a bathroom, where the girl crouches down, away from the woman.

          The woman, holding what appears to be a wooden spatula or spoon in her hand, uses the

          object to strike the girl’s body several times. The woman then drags the girl into the hallway,

          where she stands the girl in the corner, near the doorway of another room. The girl leaves the

          corner, but the woman pulls her back. While the girl stands in the corner, the woman goes

          into the next room, then returns shortly thereafter, holding a different object in her hand. The

          woman again grabs the girl, then hits the girl with the object. The girl is crying throughout,

          and it appears that dialogue is spoken, but this court’s video equipment was unable to play

          the audio of the video.

¶ 20         On November 10, 2015, the juvenile court found that the State had satisfied its burden of

          proof in showing that both children were abused and neglected and that the conduct towards

          them constituted neglect due to an injurious environment and abuse due to a substantial risk


                                                       8
       No. 1-16-0680


           of physical injury. The court also found that, with respect to D.Q., the State had satisfied its

           burden of proof as to physical abuse and that respondent inflicted upon D.Q. physical injury

           which would be likely to cause impairment of emotional health, “at the very minimum.”

           Furthermore, in light of the video, the court found that it was “going to amend the petition to

           conform with the proofs and also find that the State has proved an excessive corporal

           punishment count as well as to [D.Q.]”6 The juvenile court further found that there was no

           indication that the video had been edited or spliced, and no evidence suggesting that such

           actions had occurred. Accordingly, the juvenile court entered an adjudication order finding

           D.Q. to be abused or neglected due to (1) an injurious environment, (2) physical abuse, (3)

           substantial risk of physical injury, and (4) excessive corporal punishment. The court also

           entered an adjudication order finding J.C. abused or neglected due to (1) an injurious

           environment and (2) substantial risk of physical injury. In both orders, the court found that

           the above was the result of abuse or neglect inflicted by respondent.

¶ 21           On February 8, 2016, the juvenile court entered a dispositional order finding it in D.Q.’s

           best interest to be adjudged a ward of the court and finding both respondent and D.Q.’s father

           unable for some reason other than financial circumstances alone to care for, protect, train, or

           discipline her. The court ordered D.Q. placed in the custody of the DCFS guardianship

           administrator with the right to place her. The court entered an identical dispositional order

           with respect to J.C. and his parents. The court also entered a permanency order setting an

           initial permanency goal of return home within five months. This appeal follows.

               6
                  Under the Juvenile Court Act, the juvenile court “may allow amendment of the petition to
       conform with the evidence at any time prior to ruling.” 705 ILCS 405/2-13(5) (West 2014). We thus
       interpret the juvenile court’s statement to mean that it was permitting the State to amend the petition in
       accordance with section 2-13(5). We note that respondent did not object to a finding of abuse on this basis
       before the juvenile court and does not make any argument on appeal concerning the juvenile court’s
       authority to enter the finding, other than the argument concerning the admission of the video, which is
       applicable to all counts of the petition.
                                                           9
       No. 1-16-0680


¶ 22                                           ANALYSIS

¶ 23         On appeal, the sole issue raised by respondent concerns the admission of the video into

          evidence. Respondent claims that the juvenile court erred in admitting the video into

          evidence due to a lack of foundation and, since the court’s findings relied on the video,

          respondent argues that the court’s findings that the children had been abused and neglected

          were against the manifest weight of the evidence.

¶ 24         “A proceeding for adjudication of wardship ‘represents a significant intrusion into the

          sanctity of the family which should not be undertaken lightly.’ ” In re Arthur H., 212 Ill. 2d

          441, 463 (2004) (quoting In re Harpman, 134 Ill. App. 3d 393, 396-97 (1985)). It is the

          State’s burden to prove allegations of neglect or abuse by a preponderance of the evidence. In

          re A.P., 2012 IL 113875, ¶ 17. “In other words, the State must establish that the allegations

          of neglect [or abuse] are more probably true than not.” In re A.P., 2012 IL 113875, ¶ 17.

          With respect to the admission of evidence, we must determine whether the juvenile court

          abused its discretion in admitting the video into evidence, and we will not reverse the

          juvenile court’s admission of evidence absent an abuse of its discretion. In re A.W., 231 Ill.

          2d 241, 254 (2008). “ ‘Under this standard, an abuse occurs when the [juvenile] court’s

          ruling is fanciful, unreasonable or when no reasonable person would adopt the [juvenile]

          court’s view.’ ” In re D.M., 2016 IL App (1st) 152608, ¶ 15 (quoting People v. Taylor, 2011

          IL 110067, ¶ 27).

¶ 25         In the case at bar, the evidence at issue is a video that allegedly shows respondent

          repeatedly striking D.Q. with several objects. Our supreme court has found that “videotapes

          are admissible on the same basis as photographs” (People v. Taylor, 2011 IL 110067, ¶ 27),

          and they “may be admitted if properly authenticated, which is an evidentiary question”


                                                     10
       No. 1-16-0680


          (Taylor, 2011 IL 110067, ¶ 27). Our supreme court explained that while photographic

          evidence was historically admitted solely as demonstrative evidence, “[m]ost jurisdictions

          now allow photographs and videotapes to be introduced as substantive evidence so long as a

          proper foundation is laid.” Taylor, 2011 IL 110067, ¶ 32. A proper foundation may be laid

          “by someone having personal knowledge of the filmed object, [who can testify] that the film

          is an accurate portrayal of what it purports to show.” People ex rel. Sherman v. Cryns, 203

          Ill. 2d 264, 283-84 (2003). Additionally, video evidence may be admitted under the “silent

          witness” theory, under which “a witness need not testify to the accuracy of the image

          depicted in the photographic or videotape evidence if the accuracy of the process that

          produced the evidence is established with an adequate foundation.” Taylor, 2011 IL 110067,

          ¶ 32. In the case at bar, we cannot find that the juvenile court abused its discretion in

          admitting the video under either basis.

¶ 26         First, after viewing the video, Christopher Q., D.Q.’s father, positively identified both

          respondent and D.Q. as the woman and child in the video, as did Ida Lane, the DCFS

          investigator assigned to the children’s case. Thus, although they did not observe the incident

          depicted on the video, two people with personal knowledge of both respondent and D.Q.

          testified that the video was an accurate portrayal of the two individuals depicted on the video.

          Additionally, Lane testified that she spoke with respondent on June 12, 2015, in an empty

          juvenile court courtroom, where respondent informed Lane that the incident had occurred in

          April 2015. Lane further testified that respondent identified the location of the video as her

          former apartment, and told Lane that the video was taken by “someone who [respondent]

          thought was her friend.” Thus, through Lane’s testimony, respondent admitted to having

          personal knowledge of the incident depicted in the video and to being present at the time that


                                                      11
       No. 1-16-0680


           the video was taken. 7 In addition, D.Q. told Pickett that her mother struck her with a stick.

           Consequently, the juvenile court did not abuse its discretion in its determination that the State

           had presented an adequate foundation for admission of the video.

¶ 27           Furthermore, even under the “silent witness” theory, under which “a witness need not

           testify to the accuracy of the image depicted in the photographic or videotape evidence if the

           accuracy of the process that produced the evidence is established with an adequate

           foundation” (Taylor, 2011 IL 110067, ¶ 32), we cannot find that the juvenile court’s

           admission of the video constituted an abuse of discretion. Our supreme court has instructed

           that factors that may be considered when determining the reliability of the process by which

           a videotape was produced include (1) the device’s capability for recording and its general

           reliability; (2) competency of the operator; (3) proper operation of the device; (4) showing

           the manner in which the recording was preserved (chain of custody); (5) identification of the

           persons, locale, or objects depicted; and (6) explanation of any copying or duplication

           process. Taylor, 2011 IL 110067, ¶ 35. Our supreme court has “emphasize[d] that this list of

           factors is nonexclusive. Each case must be evaluated on its own and depending on the facts

           of the case, some of the factors may not be relevant or additional factors may need to be




               7
                 The State and the public guardian also argue that respondent’s invocation of the Fifth
       Amendment privilege during her testimony permit us to treat respondent’s answers as admissions to the
       questions asked. See Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (“the Fifth Amendment does not
       forbid adverse inferences against parties to civil actions when they refuse to testify in response to
       probative evidence offered against them”); People v. 1,124,905 U.S. Currency & One 1988 Chevrolet
       Astro Van, 177 Ill. 2d 314, 332 (1997). However, “although a court may draw a negative inference from a
       party’s refusal to testify, it is not required to do so.” People v. Whirl, 2015 IL App (1st) 111483, ¶ 107. In
       the case at bar, the juvenile court’s admission of the video into evidence was proper, regardless of
       whether a negative inference would have been appropriate and we consequently have no need to decide
       the issue. We further note that there was no objection during the hearing concerning the admissibility of
       respondent’s statements during the conversation with Lane other than a relevance objection, and
       respondent makes no argument concerning the admissibility of her statements on appeal.
                                                            12
       No. 1-16-0680


          considered. The dispositive issue in every case is the accuracy and reliability of the process

          that produced the recording.” Taylor, 2011 IL 110067, ¶ 35.

¶ 28         Here, as noted, after viewing the video, Christopher Q. positively identified both

          respondent and D.Q. as the woman and child in the video, as did Lane. Thus, the camera used

          to record the video was clearly operational at the time and was able to record sufficiently

          clearly so that the individuals in the video were identifiable, as were their actions. Our

          supreme court has found that such evidence is sufficient to adequately demonstrate that the

          camera was able to record and was generally operating properly. See Taylor, 2011 IL

          110067, ¶ 39 (“As one court has stated, ‘[t]he fact that the tape[] exist[s] at all is evidence

          that the tape recorder was functional and that [the operator] knew how to operate it.’

          [Citation.] Moreover, ‘the evidence showed that the camera was working at least well enough

          for the events and persons portrayed thereon to be recognizable.’ [Citations.] The State

          adequately demonstrated the camera and system were able to record and were generally

          operating properly.”). Christopher also testified that he received the video from respondent’s

          mother and that, after viewing the video, he took it to the River Grove police department. He

          further testified that the video he received on his cell phone and the video played in court

          were “the exact same video.” Thus, Christopher’s testimony verified that the same video he

          received was played in court, demonstrating the authenticity of the recording. Finally, the

          juvenile court found that there was no evidence that the video had been altered or tampered

          with such that it would be rendered unreliable or untrustworthy. Consequently, we cannot

          find that the juvenile court abused its discretion in admitting the video into evidence. Since

          there was no error in the admission of the evidence, we do not find respondent’s argument




                                                      13
       No. 1-16-0680


          that the admission of the video rendered the juvenile court’s findings against the manifest

          weight of the evidence and, accordingly, affirm the juvenile court’s adjudication findings.

¶ 29                                            CONCLUSION

¶ 30         For the reasons set forth above, the juvenile court did not abuse its discretion in admitting

          the video of respondent striking her daughter into evidence. Therefore, the juvenile court’s

          adjudication findings are affirmed.

¶ 31         Affirmed.




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