                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                              In re J.B., 2013 IL App (3d) 120137




Appellate Court            In re J.B., S.B., and R.B., Minors (The People of the State of Illinois,
Caption                    Petitioner-Appellee, v. Lorenzo B., Respondent-Appellant).



District & No.             Third District
                           Docket No. 3-12-0137


Rule 23 Order filed        December 18, 2012
Motion to publish
allowed                    February 28, 2013
Opinion filed              February 28, 2013


Held                       The trial court’s findings that three minors were neglected due to an
(Note: This syllabus       injurious environment were upheld based on the evidence that respondent
constitutes no part of     engaged in sexual intercourse with one and attempted to sexually assault
the opinion of the court   another, notwithstanding his contention that he was intoxicated during the
but has been prepared      incidents, since that admission supported the findings, and the fact that
by the Reporter of         the officers who investigated the matter did not have recordings of
Decisions for the          respondent’s statements did not render their testimony incredible.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Peoria County, Nos. 11-JA-118, 11-JA-
Review                     119, 11-JA-120; the Hon. Mark E. Gilles, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Timothy D. McCarthy, of Peoria, for appellant.
Appeal
                            Jerry Brady, State’s Attorney, of Peoria (Terry A. Mertel and Justin A.
                            Nicolosi, both of State’s Attorneys Appellate Prosecutor’s Office, of
                            counsel), for the People.


Panel                       JUSTICE McDADE delivered the judgment of the court, with opinion.
                            Justices O’Brien and Schmidt concurred in the judgment and opinion.




                                              OPINION

¶1          The State filed a petition alleging that J.B., S.B., and R.B. were neglected minors due to
        an injurious environment based on allegations that Lorenzo B., the respondent, sexually
        assaulted B.B., his 13-year-old daughter who is not involved in the instant juvenile case, and
        Sierra B., another minor female. The court found that the State had proven the allegations
        in the petitions and adjudicated the minors neglected. The court subsequently found the
        respondent dispositionally unfit and made the minors wards of the court. The respondent
        appeals, contending that the trial court erred when it found that the minors were neglected
        because the police investigated the allegations of abuse months after the abuse occurred, the
        respondent’s admissions of the abuse were not recorded, and there was no physical evidence
        of the abuse. We affirm.

¶2                                               FACTS
¶3          The State filed separate but identical juvenile petitions alleging that J.B., a male born
        September 6, 2001, S.B., a female born May 21, 2006, and R.B., a female born November
        2, 2009, were neglected due to an injurious environment. In count I of the petitions, the State
        specifically alleged that the respondent was a “child sex offender in that” on March 9, 2011,
        he exposed his penis to his daughter B.B., grabbed her hand and pulled it toward his penis,
        and in April 2010 he placed his penis in the vagina of Sierra B., a 12- or 13-year-old girl who
        was in the foster care of his mother. In count II, the State alleged that the respondent reported
        a problem with alcohol and mental health issues.
¶4          The cause proceeded to an adjudicatory hearing in December 2010 and January 2011.
        Carla Allen testified that she was a Department of Children and Family Services investigator.
        She interviewed the respondent in connection with the alleged sexual assault of B.B.
        According to Allen, the respondent acknowledged that he had a substance abuse problem and
        that he consumed “a fifth of alcohol every day and [took] Ecstasy approximately every other
        day.”


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¶5         Peoria police officer Craig Johnson testified that he investigated an allegation of sexual
       assault involving the respondent and Sierra B. Johnson stated that he interviewed the
       respondent about this allegation on March 29, 2011. The respondent reported that on the
       night of the incident, he was drinking heavily and decided to spend the night at his mother’s
       residence. At some point, he woke up to Sierra standing over him. He asked her for “some
       pussy” and she sat down. The respondent placed his fingers in Sierra’s vagina and said that
       “[s]he liked it[,] so he then inserted his penis into her vagina. The respondent eventually
       realized that he was not acting properly, so he stopped. At the time of the incident, the
       respondent believed that Sierra was 15 or 16 years old; however, she was only 12 years old.
       His mother and other foster children were in the home at the time this incident occurred.
¶6         Johnson further testified that his interview with the respondent was not recorded because
       the respondent refused recording. The respondent did not appear intoxicated during the
       interview, and he spoke clearly. There was no physical evidence of the assault other than a
       possible test for sexually transmitted diseases. Johnson acknowledged that the incident
       occurred in the summer of 2010, and that he did not investigate it until March 29, 2011, due
       to his caseload and because Sierra requested to speak with a female detective.
¶7         Peoria police officer Tim Turner testified that he interviewed the respondent on March
       14 and 29, 2011, pursuant to the allegation of sexual assault of B.B. that occurred on March
       9, 2011. During their conversation on March 14, the respondent denied the incident with B.B.
       and stated that he would not participate in such conduct with his daughter.
¶8         According to Turner, during the March 29 interview, the respondent reported seeing
       “shadows” who would tell him to jump from his window and “land in a puddle or he would
       go to hell.” The only time the shadows would leave the respondent alone was if the
       respondent was drunk. Turner reported that at the time of the incident involving B.B., the
       respondent was on a “three-day drinking binge.” The respondent explained that on the night
       of the incident B.B. and another minor entered his room and asked for money. He “[k]icked
       them out of the room,” and shut the door; however, B.B. picked the lock and reentered the
       room. At that point, the respondent “pulled his erect penis through the slot in his underwear
       but covered it with his left hand.” The respondent was unsure if B.B. saw his penis, but he
       grabbed her hand and pulled it toward his penis. B.B. pulled her hand away and the
       respondent looked at her face and “realized what he was doing to his daughter.” He then put
       B.B. out of his room. The respondent told Turner that B.B. did not touch his penis, and he
       did not intend to have sexual intercourse with her. The respondent did not realize what he
       was doing at that time and said that the incident only occurred because he was drunk. There
       were other children present in the home at the time this incident occurred.
¶9         Turner testified that the respondent was not intoxicated at the time of the interview and
       that he refused consent for Turner to record it. Turner did not have any physical evidence of
       the sexual assault against B.B.
¶ 10       The court found that the State had proven the allegations in count I of the petition and
       that J.B., S.B., and R.B. were neglected minors due to an injurious environment. At the
       subsequent dispositional hearing, the court made the minors wards of the court, named the
       children’s mother as guardian, and found that the respondent was a dispositionally unfit


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       parent. The respondent appeals from the court’s finding that the children were neglected.

¶ 11                                         ANALYSIS
¶ 12       On appeal, the respondent contends that the trial court’s determination that the State
       proved the allegations in the juvenile petitions was against the manifest weight of the
       evidence. In support of this assertion, the respondent contends that the testimony of Johnson
       and Turner was not credible because Johnson’s investigation of the allegation occurred
       months after the incident and neither officer recorded the interview of the respondent. The
       respondent also asserts that the State did not show physical evidence of either assault. The
       respondent does not challenge the court’s finding of dispositional unfitness. The State asserts
       that the court properly judged the credibility of the officers and that the State’s evidence was
       sufficient to prove the allegations in the juvenile petition.
¶ 13       Here, the court found that J.B., R.B., and S.B. were neglected minors due to an injurious
       environment. See 705 ILCS 405/2-3(1)(b) (West 2010). Neglect occurs when a parent fails
       to exercise the care justly demanded by the circumstances and includes willful and
       unintentional disregard of the parent’s duties. In re K.B., 2012 IL App (3d) 110655. The term
       “neglect” does not have one fixed meaning, but it takes its content from the specific facts and
       circumstances of each case. In re Arthur H., 212 Ill. 2d 441 (2004). “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.’ ” K.B., 2012 IL App (3d) 110655, ¶ 16 (quoting In re M.W., 386 Ill. App.
       3d 186, 197 (2008)).
¶ 14       The burden is on the State to prove an allegation of neglect by a preponderance of the
       evidence. Arthur H., 212 Ill. 2d 441. A reviewing court will not disturb a trial court’s finding
       of neglect unless it was against the manifest weight of the evidence. Arthur H., 212 Ill. 2d
       441. A determination is against the manifest weight of the evidence only when the opposite
       conclusion is clearly evident from the record or the determination is arbitrary, unreasonable,
       or not based on the evidence presented. In re C.N., 196 Ill. 2d 181 (2001).
¶ 15       We conclude that the trial court’s finding that the minors were neglected due to an
       injurious environment was not against the manifest weight of the evidence. Here, the
       evidence indicated that the respondent admitted that he engaged in sexual intercourse with
       Sierra B., and that he exposed his erect penis to B.B. and pulled her hand toward it. While
       the fact that an individual has been convicted of a sex offense against a minor, in itself, is
       insufficient to create a finding of neglect due to an injurious environment as a matter of law
       (see K.B., 2012 IL App (3d) 110655), in this case, the respondent engaged in an act of sexual
       intercourse and attempted to sexually assault his daughter at a time when other minors were
       present in the home. This conduct is sufficient to support a finding that his actions created
       an injurious environment and a resultant finding of neglect. We do not believe the
       respondent’s admission that he was intoxicated during these incidents excuses his behavior;
       rather, his admissions concerning the extent of his substance abuse provide additional
       support for the trial court’s decision.
¶ 16       We acknowledge the evidence in the record that several months elapsed between the

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       incident involving Sierra B. and the investigation of it by the Peoria police department.
       However, this fact does not negate the credibility of Johnson, a determination that properly
       lies with the trial court. See In re T.B., 215 Ill. App. 3d 1059 (1991) (the trial court is in a
       superior position to observe the witnesses, assess their credibility and weigh the evidence).
       Additionally, both Johnson and Turner testified that the respondent refused the recording of
       their interviews of him. While the officers did not have a recording to buttress their
       testimony, the absence of such tapes did not render their testimony incredible. Likewise, the
       absence of any physical evidence of the sexual assaults did not indicate that the assaults did
       not occur. The trial court was free to accept Johnson’s and Turner’s unrebutted testimony
       that the respondent confirmed that both of the alleged incidents had, in fact, occurred without
       any corroborating physical evidence. In fact, there would not be any physical evidence of the
       respondent’s assault on B.B., as this incident involved an attempted touching, an occurrence
       that would not necessarily leave a physical injury.
¶ 17        Thus, overall, the trial court’s finding of neglect is supported by the record, and therefore,
       it is not against the manifest weight of the evidence.

¶ 18                                      CONCLUSION
¶ 19       For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

¶ 20       Affirmed.




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