                                 No. 3-06-0425
______________________________________________________________________________

                               APPELLATE COURT OF ILLINOIS

                                        THIRD DISTRICT

                                    A.D., 2007
______________________________________________________________________________
                                     Filed October 18, 2007.
In Re C.S., a Minor                  )       Appeal from the Circuit Court
                                     )       for the 10th Judicial Circuit,
                                     )       Peoria County, Illinois,
The People of the State of Illinois  )
                                     )
        Petitioner-Appellee,         )       05-JA-163
                                     )
v.                                   )
                                     )       Honorable David J. Dubicki
Natalie S.,                          )       Judge, Presiding.
                                     )
        Respondent-Appellant.        )
______________________________________________________________________________

            MODIFIED UPON DENIAL OF PETITION FOR REHEARING
             JUSTICE McDADE delivered the opinion of the court:
______________________________________________________________________________

       Following a hearing in the circuit court of Peoria County, C.S. was found to be a

neglected and dependent minor. Respondent mother, Natalie S., was subsequently found unfit.

Respondent mother, Natalie S., raises the following questions on appeal: (1) Did the trial court

err in denying her motions for a mental examination? (2) Was there sufficient evidence to support

the finding of neglect? and (3) Did the trial court exceed its jurisdiction in finding respondent

unfit? Upon review, we reverse and remand for further proceedings.

                                               FACTS

       C.S. was born on July 3, 2005. On August 1, 2005, the State filed a two-count petition

for adjudication of wardship, alleging that C.S. was neglected pursuant to section 2-3(1)(b) of the
Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-3(1)(b) (West 2006)) and was dependent

pursuant to section 2-4(1)(b) of the Act (705 ILCS 405/2-4(1)(b) (West 2006)). In count I of the

petition, the State alleged that the minor’s environment is injurious to her welfare in that

respondent suffers from psychological problems and is under the guardianship of the State of

Illinois. In count II of the petition, the State alleged that C.S. is a dependent minor in that she is

without proper care due to respondent’s mental disability.

        On January 3, 2006, respondent filed a petition for mental examination to determine both

her fitness to stand trial on the State’s charges and to obtain a current and complete diagnosis

concerning her alleged psychiatric condition. The trial court summarily denied respondent’s

petition. At the adjudication hearing on January 23, 2006, appointed counsel for respondent

made a subsequent oral motion for a mental examination of respondent. Upon hearing argument,

the trial court again denied respondent’s motion.

        During the adjudicatory hearing, the State sought to introduce respondent’s medical

records. Exhibit 3 consisted of notations prepared by Dr. Patella-Kobler stating that the

respondent admitted that she knew she was pregnant in January but she did not seek prenatal care

because of the cost and because she did not know prenatal care was important. She admitted she

did not tell the doctor she was pregnant even though she had been warned multiple times not to

get pregnant. Dr. Patella-Kobler also noted that the respondent did not seem to understand how

much care a newborn requires. Exhibit 3 was admitted into evidence over respondent’s

foundational and relevance objections. Likewise, respondent objected to the State’s exhibit 5,

which consisted of medical records from Methodist Medical Center. Exhibit 5 contains a

summary report referencing a consultation Dr. Thena Poteat had with respondent at Methodist.


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The summary report states in pertinent part:

               “Dr. Poteat determined that the patient had schizophrenia with

               possible schizoaffective disorder and determined that the patient

               was not able to adequately care for her newborn baby. ”

Dr. Poteat’s conclusion is based on the fact that respondent failed to obtain proper prenatal care

for her unborn child and failed to cease taking her psychotropic medication while pregnant. The

report also indicates, however, that respondent is “at her baseline and * * * stable psychiatrically

on her current psychotropic medication regimen.” It is unclear when this report was prepared.

Exhibit 5 was also admitted into evidence over respondent’s foundational and relevance

objections.

       Terri Kopeny of the Office of the State Guardian was the State’s sole witness at the

adjudicatory hearing. Kopeny testified that the State of Illinois had guardianship over respondent.

Kopeny worked with respondent for about eight years and would visit her at home monthly for

about 10 minutes. She noted that respondent lived with her parents and she stated that the home

was a safe environment. The only time Kopeny has had to help respondent with making decisions

is when she applied to get a medical card. She added that respondent is employed at Marshall

Fields and takes her medication as prescribed. Despite this testimony and her admitted inability to

provide any information about respondent’s day-to-day decision-making skills, Kopeny testified

that she would be concerned about respondent’s ability to care for C.S.

       Respondent testified on her own behalf at the adjudicatory hearing. She stated that Dr.

Poteat had only met with her one time shortly after she gave birth to C.S. C.S. was not present

during this encounter. Respondent also noted that she had attended the University of Iowa for


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about three years.

        Following argument, the trial court entered an adjudicatory order finding Counts I and II

of the State’s petition proven by a preponderance of the evidence. In coming to this conclusion,

the court relied heavily upon respondent’s alleged failure to provide sufficient prenatal care.

Specifically, the court stated:

                “[The attorney for respondent] seems to make the argument that

                the mother can do whatever she wants to do while pregnant. It’s

                her fetus, so to speak, and if she wishes to not take care of it, then

                the State has nothing to do with it. I don’t believe that that

                argument is correct. She may choose to do what she wishes to do

                with it, with the fetus, but you know, there are times, I mean

                specifically by statute, if a mother ingests cocaine or whatever, and

                it winds up in the urine or meconium of the child, that’s an

                automatic basis for neglect. * * * I think when you look at -- she

                was told repeatedly that, you know, if there’s a possibility you

                become pregnant, you should not be on these medications, and I

                think that shows the fact that she continued to take them, that the

                child had to be on watch afterwards, that shows a lack of awareness

                and lack of appreciation as to the appropriate prenatal care and

                obviously leads to, I think a strong inference that she would not

                have the judgment to provide postnatal care.”

        At the May 15, 2006, dispositional hearing, Jennifer Keith, the caseworker testified that


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she asked Terri Kopeny to sign a release, as guardian of respondent’s person, so that respondent

could obtain a parenting capacity assessment. Kopeny refused to sign the release, insisting that

respondent is unable to parent due to her mental illness. Kopeny concluded that social services

would be unnecessary and not beneficial. Keith, however, in her dispositional report dated April

18, 2006, recommended that respondent receive a psychiatric evaluation from her current

psychiatrist, Dr. Nawas, and that respondent receive a parenting capacity assessment and job

training.

          Upon the conclusion of the dispositional hearing, the trial court found respondent unfit

and determined that it was in the best interests of the minor to be made a ward of the court. The

court also ordered the Office of the State Guardian to execute all authorizations and releases with

regard to the respondent’s psychiatric treatment and evaluation. The court ordered respondent to

continue her psychiatric treatment and ordered a separate psychiatric exam. It also ordered a

parenting capacity assessment and job training. This appeal followed.

                                              ANALYSIS

          Respondent first argues that the trial court erred in denying her two requests for a mental

examination prior to and at the beginning of the adjudicatory hearing. Respondent asserts that the

examination was necessary in order to obtain a complete and current diagnosis relating to her

alleged psychiatric condition. Respondent maintains that only after such diagnosis had been made

would it be possible to assess and determine the validity of the State’s neglect and dependancy

charges. Resolution of respondent’s claim on this issue requires an examination of the statutory

procedures established in the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West

2006)).


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        The purpose of an adjudicatory hearing is to determine whether the factual allegations in

the dependancy and neglect petition are supported by a preponderance of evidence. 705 ILCS

405/2-18(1) (West 2006). Once a child has been adjudicated abused or neglected, the trial court

must determine whether the parent is unfit to have physical custody of the child and whether, as a

consequence of any unfitness, it is in the best interests of the child to be made a ward of the

court. 705 ILCS 405/2-22(1) West 2006). A trial court may place the minor in the custody of a

suitable relative or commit the minor to an agency for care and services if the trial court

determines that the parents “[a]re unfit or are unable, to care for, protect, train or discipline the

minor or are unwilling to do so, and that the health, safety, and best interest of the minor will be

jeopardized if the minor remains in the custody of his or her parents, guardian or custodian * * *.”

705 ILCS 405/2-27(1) (West 2006). The standard of proof in a trial court’s finding of unfitness

that does not result in complete termination of all parental rights is a preponderance of the

evidence. In re April C., 326 Ill. App. 3d 245, 257, 760 N.E.2d 101, 110 (2001).

        Here, the State has brought a two-count complaint alleging that C.S. is a neglected and

dependent minor. The sole basis for this complaint rests in the allegation that respondent is

mentally disabled and suffers from psychological problems. Respondent has denied these

allegations. Before the commencement of the adjudicatory hearing on these allegations,

respondent twice petitioned the trial court (once in a written motion and once orally) to order a

mental examination for her so that a current and complete evaluation could be established as to

her psychological fitness. Both these motions were denied. We find that this was error.

        Under the circumstances of this case, when the State begins neglect or dependency

proceedings on the sole ground that respondent is mentally disabled and suffers from


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psychological problems, we find that it would be both reasonable and practical to grant

respondent’s petition for a mental examination. In such a case, a mental examination protects the

accuracy and fairness of the adjudication by ensuring that both the parties and the court have a

current and complete diagnosis of respondent’s mental condition. Without such an updated

diagnosis, the risk that a parent might be erroneously deprived of her custodial rights is

substantially increased. Perhaps more importantly, however, is the fact that the trial court’s denial

of respondent’s requests for a mental examination in effect stripped her of the opportunity to

develop any meaningful evidence to challenge the State’s allegations. We find the State’s

response that respondent could have paid for her own examination to be nothing short of

disingenuous in light of the fact that respondent had already been deemed indigent.

        We believe that in cases where the State’s sole basis for the asserted neglect is grounded

in its allegation of the mother’s claimed mental disability, it stands to reason that the availability of

a current and complete mental examination would not only significantly improve the ability of the

trial court to correctly rule on the validity of the State’s allegations, but would also allow

respondent an opportunity to present the trial court with additional, and clearly relevant, evidence,

perhaps from expert witnesses, concerning her mental state, and more importantly, her ability to

care for, support and provide for C.S. Overall, allowing for a mental examination at this stage

and in these circumstances provides the trial court with a clearer understanding of the

respondent’s capabilities and of the best available avenues along which to proceed. Accordingly,

the availability of a mental examination before the adjudicatory hearing would significantly

enhance compliance with the statute, which provides that the purpose of an adjudicatory hearing

is to determine whether the factual allegations in the dependancy and neglect petition are


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supported by a preponderance of evidence.

       Here, the trial court rejected the respondent’s requests for a mental examination before the

adjudicatory hearing, but ordered, sua sponte, a psychiatric examination of respondent after

finding her unfit. We find the procedure employed by the trial court to be counterintuitive. If the

questions before the court at the adjudicatory and dispositional hearings are: (1) whether the

minor is neglected on the basis of her parent’s mental disability; and (2) whether the respondent is

unfit on the basis of such alleged mental disability, it seems essential that the mental examination

should be completed before these questions are answered. In failing to do so, the trial court

effectively bars both parties from developing the complete and current evidence necessary to

answer these questions. We therefore conclude that the trial court erred in denying respondent’s

petitions for a mental examination. Because of this erroneous denial, this cause must be

remanded. For that reason, we do not reach the respondent’s arguments concerning the evidence

of neglect and jurisdiction.

       In coming to this conclusion we note that we have reviewed the First District’s decision in

In re Charles, 367 Ill. App. 3d 800, 856 N.E.2d 569 (2006), and find it distinguishable. There,

the State filed a juvenile neglect petition on the basis that the respondent suffered from

schizophrenia. Prior to the best interest hearing, the respondent requested a competency hearing

to determine her fitness to stand trial. The trial court denied the motion. Upon review, the First

District affirmed on the basis that delaying the best interest hearing, for a competency hearing,

would further delay a child’s interest in finding a permanent home and frustrate the State’s parens

patriae interest in promoting the welfare of the child. In re Charles, 367 Ill. App. 3d at 803-04,

856 N.E.2d at 573.


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       The situation before the First District in Charles is procedurally different from the case at

bar. As we have discussed, respondent here petitioned the trial court to order her mental

examination before the adjudicatory hearing. While we recognize the underlying purpose of a

juvenile proceeding is the protection of the child from neglect or abuse, the factors relied upon in

Charles, such as the interests of the child, are not elements to be considered during the

adjudicatory hearing. Because none of these interests were at issue when petitioner requested her

examination, we find the holding in Charles distinguishable.

                                          CONCLUSION

       While we recognize that there is no statute or court rule requiring a trial court to order a

mental examination before conducting an adjudicatory hearing and that in most cases the absence

of such a rule is fully warranted, we believe that such an examination is necessary in the case

where the respondent requests an exam and the State’s entire juvenile neglect petition rests solely

upon the allegation that the respondent is mentally disabled or suffers from psychological

problems. We therefore reverse the trial court’s finding of neglect and dependency in regard to

C.S. and also its finding of unfitness in regard to respondent, and we remand this cause to the trial

court with instructions that a mental examination and parenting assessment of the respondent be

undertaken prior to a new adjudicatory hearing.

       Reversed and remanded.

       SCHMIDT, J., concurs.

       JUSTICE WRIGHT specially concurring:

       I specially concur with the majority decision because I believe there has been a denial of

procedural due process for the mother in this case. On appeal, respondent mother argues the


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circuit court violated her procedural due process rights by denying her the opportunity to be

examined by an impartial psychiatric expert prior to the neglect and dependency hearings. I agree.

        There is precedent in the case law for the court to order the State to bear the cost of

providing an expert for the purpose of protecting the mother’s procedural due process rights

when the State’s expert is biased. Our supreme court has recognized that the appointment of an

expert, at the State’s expense, is necessary in certain situations. A person attempting to show their

own recovery from sexual dangerousness may have a psychiatric expert appointed when it is clear

the State’s experts will not be providing an unbiased opinion of the mental status of the sexually

dangerous person. People v. Burns, 209 Ill. 2d 551, 574 (2004). An analogy may be drawn in

those situations involving the recovery petitions of sexually dangerous persons.

        In this case, the State relied upon the testimony of Terri Kopeny, mother’s State guardian,

as their sole witness during the adjudicatory hearing. However, the appointed State guardian

ignored the mother’s wishes to undergo a parenting evaluation and refused to consent to a

parenting capacity assessment requested by the minor’s caseworker, Ms. Keith, from Kid’s Hope

United. The guardian’s bias in favor of the State’s position is very evident from the record. The

State guardian formulated her own determination that the mother was unfit and halted the flow of

neutral information that may have assisted the court. The State guardian’s refusal to cooperate

prevented mother from presenting a defense to the State’s allegations of neglect and dependency.

In my opinion, a neutral expert is the key to fundamental fairness and due process in this unique

case.

        I have serious concerns that the guardian did not possess the authority to refuse

permission to consent to medical or psychological care and may have acted beyond the scope of


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her authority as guardian of the estate only. The Letters of Office issued to the Office of State

Guardian, reviewed by the circuit court in camera, are captioned “Plenary Guardian of the Estate

of A Disabled Person.”

       It is feasible, based on the record, the Office of State Guardian only controlled the

mother’s financial resources as payee for her Social Security benefits. The lack of clarity on this

issue permeates every level of the circuit court’s analysis. A clear determination of the scope of

guardianship should be a primary concern after remand.

       The requested evaluation should be completed at the State’s expense and the mother’s

consent to those procedures should be validated.

       For the foregoing reasons, I specially concur.




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