                                        2016 IL App (1st) 153662




                                                                     SIXTH DIVISION
                                                                     August 12, 2016

No. 1-15-3662




In re                                               )      Appeal from the Circuit Court
                                                    )      of Cook County.
ANIYLAH B., a Minor,                                )
                                                    )
        Respondent-Appellee                         )      No. 14 JA 1448
                                                    )
(The People of the State of Illinois,               )
                                                    )
        Petitioner-Appellee,                        )      Honorable
                                                     )     Richard A. Stevens,
        v.                                           )     Judge Presiding.
                                                    )
Latasha C.,                                         )
                                                    )
        Respondent-Appellant).                      )



                JUSTICE HALL delivered the judgment of the court, with opinion.

                Presiding Justice Rochford and Justice Delort concurred in the judgment and
opinion.


                                                 OPINION
     No. 1-15-3662


¶1         The respondent, Latasha C. (Latasha), appeals from an order of the circuit court of Cook

        County finding Aniylah B. (Aniylah), a neglected minor based on an injurious environment.

        On appeal, Latasha contends (1) the trial court erred when it took judicial notice of the

        transcript and exhibits admitted at a prior proceeding for temporary custody in the

        adjudication proceedings and (2) the trial court’s finding that Aniylah was neglected based

        on an injurious environment was against the manifest weight of the evidence. Latasha does

        not challenge the trial court’s dispositional order in this appeal.

¶2                                                BACKGROUND

¶3         Latasha and Marland B. (Marland) were married in April 2013. 1 Prior to their marriage,

        Latasha gave birth to the couples’ children, Marlaisa B. and India B. Latasha had a son,

        Latristan C-H., from a prior relationship. The couple’s third child, Aniylah, was born on

        November 26, 2014.

¶4         On December 8, 2014, the State filed a petition for adjudication of wardship alleging that

        Aniylah was a neglected minor, being a minor under the age of 18 years whose environment

        was injurious to her welfare (705 ILCS 405/2-3(1)(b) (West 2012)). The petition further

        alleged that Aniylah was an abused minor in that a family member or a person residing in the

        same home as Aniylah created a substantial risk of harm to her (705 ILCS 405/2-3(2)(ii)

        (West 2012)). The petition contained the following factual allegations:

                      “[Latasha] has three other minors who are in [the Department of Children and

                  Family Services] custody with findings of physical abuse, abuse and/or neglect

                  having been entered. [Latasha and Marland] have prior indicated reports for

                  substantial risk of physical injury and cuts, welts and bruises. [Marland] has been


           1
               Marland is not a party to this appeal.
                                                        2
     No. 1-15-3662


               convicted of aggravated battery to a child for beating [Aniylah’s] sibling. Parents

               have not made substantial progress in services offered to assist them in reunifying

               with [Aniylah’s] siblings. [Marland] is currently incarcerated.”

¶5         A temporary custody hearing was held on December 8, 2014. The trial court granted

        temporary custody of Aniylah to the Department of Children and Family Services (DCFS).

        The order was entered without prejudice. Latasha was allowed supervised visitation with

        Aniylah.

¶6         On April 21, 2015, a contested hearing was held to resolve the issue of Aniylah’s

        temporary custody. Following the hearing, the trial court determined that while reasonable

        efforts had been made to address the problems that led to Aniylah’s siblings being placed in

        DCFS’s custody, Latasha’s efforts had not been sufficient to eliminate the urgent and

        immediate necessity for Aniylah’s removal from her custody. The trial court awarded

        temporary custody of Aniylah to DCFS.

¶7         Prior to the adjudication hearing on the petition for wardship of Aniylah, the State filed a

        motion requesting that the trial court take judicial notice of all non-hearsay sworn testimony

        from the April 21, 2015, temporary custody hearing and certain of the State’s exhibits

        admitted into evidence at that hearing. The State prepared a redacted transcript of the April

        21, 2015, hearing. Latasha filed objections to several portions of the redacted transcript on

        the grounds of hearsay and inaccuracies in the transcription. Latasha also objected to

        testimony addressing Aniylah’s best interests as irrelevant as it was not at issue in an

        adjudication proceeding. Latasha objected to the admission of the October 1, 2014, DCFS

        service plan and the admission of the September 10, 2014, Cook County Juvenile Court

        Clinic Report (CCJC report), containing an evaluation of Aniylah’s sibling, India B., on the


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       No. 1-15-3662


          grounds of hearsay. Latasha also maintained that the documents’ probative value to the issue

          of abuse or neglect suffered by Aniylah was outweighed by the unfair prejudice to Latasha

          that would result from their admission into evidence at the adjudicatory hearing.

¶8           On October 26, 2015, prior to the start of the adjudicatory hearing, the trial court heard

          argument on the State’s motion for judicial notice and Latasha’s objections. The State had

          further redacted the April 21, 2015, transcript, removing the hearsay testimony objected to by

          Latasha. The trial court acknowledged that best interests was not the evidentiary standard

          applicable to an adjudicatory hearing, but the court ruled that the testimony was relevant as it

          provided factual information regarding the risk to the minors and explained why DCFS

          removed Aniylah from Latasha’s custody. The court sustained Latasha’s objections to the

          inaccuracies in the transcript, which were then corrected.

¶9           Turning to the State’s exhibits, the trial court ordered the State to lay a foundation for the

          admission of the DCFS October 1, 2014, service plan, and for the admission of the

          September 10, 2014, CCJC report. Latasha stipulated to the foundation for their admission

          but did not withdraw her unfair prejudice objections.

¶ 10         The trial court granted the State’s motion and took judicial notice of the October 1, 2014,

          service plan, the September 10, 2014, CCJC report, and the redacted transcript, and admitted

          them into evidence in the adjudication hearing. The court overruled Latasha’s objections

          based on the unfair prejudice, stating that as the trier of fact it was “clearly capable of not

          being overly prejudiced by the statements contained in these exhibits.” The court stated it

          would accord less weight to those statements in the October 1, 2014, service plan and the

          September 10, 2014, CCJC report that constituted hearsay or double hearsay.




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       No. 1-15-3662


¶ 11         At the adjudication hearing, the State presented the testimony of Debra Woodson, a

          DCFS supervisor, and Amy Gordon, a DCFS caseworker. Their testimony is summarized

          below.

¶ 12         In April 2012, Ms. Woodson was assigned to Latasha’s case, which at that time

          concerned abuse and neglect of her minor children, Latristan C-H., Marlaisa B. and later,

          India B., who was born in November 2012. 2 Prior to Aniylah’s birth on November 26, 2014,

          Ms. Woodson received an e-mail from Latasha’s attorney, Steven Pick, informing her that

          Latasha’s unborn child would be under the short-term guardianship of Ollie Wright. On

          December 1, 2014, Ms. Woodson received voicemails from Latasha and attorney Pick

          informing her that Aniylah was with Latasha, and they were at Ms. Wright’s home in Detroit,

          Michigan. Through the DCFS authorities in Michigan, Ms. Woodson verified that Aniylah

          was at Ms. Wright’s residence. Ms. Woodson confirmed that Marland began serving his

          sentence for battery to a child on November 18, 2014.

¶ 13         Ms. Gordon testified that Latristan C-H. and Marlaisa B. came into the DCFS system in

          2012, based on allegations of physical abuse to Latristan C-H. When India B. was born on

          November 29, 2012, she too was brought into the DCFS system since Latasha had not

          completed her services. In October 14, 2014, Ms. Gordon prepared a service plan for the

          three minors. The plan rated Latasha unsatisfactory in that she lacked an understanding of the

          effect of domestic violence on her family, she did not take advantage of the services available

          to her and had not come to terms with the original reason the case came into the system. The

          goal for Latristan C-H. and Marlaisa B. was changed from a return home to termination of

          parental rights, while the goal for India B. remained a return home.


             2
              The minors’ names are spelled differently throughout the record.
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       No. 1-15-3662


¶ 14          Ms. Gordon focused on Latasha’s ability to keep Aniylah safe. Latasha showed poor

          judgment in light of her refusal to acknowledge the fact of prior domestic violence between

          Marland and her, Marland’s anger issues, and that Latasha had remained married to

          Marland. 3 Moreover, Latasha was still in therapy, was not consistently participating in drug

          testing, and her participation in the domestic violence services was superficial. As of

          December 8, 2014, when the question of temporary custody for Aniylah was being

          addressed, Latasha’s visitation with India B. remained supervised because she still had not

          demonstrated that India B. would be safe with her.

¶ 15          After the State and Aniylah’s attorney and guardian ad litem rested, Latasha moved for

          the admission of three exhibits in her case: a November 19, 2014, letter to Ms. Gordon and

          Ms. Woodson from attorney Pick, informing them of Latasha’s care plan for the child she

          was expecting; a printout of a December 2, 2014, e-mail sent by attorney Pick to Ms. Gordon

          and Ms. Woodson, explaining that Aniylah was now in Illinois due to Latasha having to

          testify in a lawsuit; and the short-term guardianship document, executed by Latasha and

          Marland on November 12, 2014, appointing Ollie Wright, guardian for Aniylah.

¶ 16          Following closing arguments, the trial court found that the State had met its burden of

          proof for a finding of neglect based on an injurious environment, but not for abuse based on

          substantial risk of injury. The court explained that the finding of neglect was based on the

          theory of anticipatory neglect, which is applicable when a newborn child’s previously born

          siblings are in DCFS guardianship or custody, and the parent or parents have not made




              3
               During the adjudication hearing, Latasha’s attorney informed the trial court that Latasha and
       Marland were now divorced. No date was given, and no documentation was introduced at the hearing
       evidencing a judgment for dissolution of the parties’ marriage.
                                                        6
       No. 1-15-3662


          sufficient progress in reunification with those children or to at least have unsupervised visits

          with them.

¶ 17         The court rejected the argument that anticipatory neglect was not applicable because

          Marland was incarcerated prior to Aniylah’s birth and no allegations of abuse had been made

          against Latasha. The court had to determine if Aniylah would be safe with Latasha. The

          September 10, 2014, CCJC report raised serious concerns about Latasha’s judgment and

          questioned her ability to protect India B., who was then just under 2 years old. The court did

          not consider the trip to and from Michigan in its determination of neglect, stating that the

          finding was really based on “the fact that [Latasha] hadn’t made sufficient progress in the

          reunification services for Latristan, Marlisa and India to be adequately able to, in this Court’s

          belief, protect the newborn Aniylah” even though Marland, the perpetrator of the abuse was

          incarcerated prior to her birth.

¶ 18         Latasha appeals the trial court’s October 26, 2015, order finding Aniylah to be a

          neglected minor.

¶ 19                                             ANALYSIS

¶ 20                   I. Admission of the State’s Exhibits and the Transcript From the Temporary

                                               Custody Hearing

¶ 21                                         A. Standard of Review

¶ 22         We review the admission of evidence at an adjudicatory hearing for an abuse of

          discretion. In re A.W., 231 Ill. 2d 241, 253-54 (2008). The admission of evidence by the trial

          court will not be reversed absent an abuse of discretion. In re A.W., 231 Ill. 2d at 254. A trial

          court abuses its discretion when its ruling is fanciful, unreasonable, or when no reasonable

          person would adopt the trial court’s view. In re D.M., 2016 IL App (1st) 152608, ¶ 15.


                                                       7
       No. 1-15-3662


¶ 23                                            B. Discussion

¶ 24         Latasha maintains, first, that “in a matter as constitutionally significant as the custody of

          one’s child, the transcript of a temporary custody hearing should not be admissible in an

          adjudicatory hearing. This is because the evidence and findings are not relevant to the trial

          court’s determination at the adjudication.” The transcript and exhibits from the April 21,

          2015, temporary custody hearing were admitted pursuant to section 2-18(6) of the Juvenile

          Court Act of 1987 (Act) (705 ILCS 405/2-18(6) (West 2012)). Section 2-18(6) provides as

          follows:

                 “In any hearing under this Act, the court may take judicial notice of prior sworn

                 testimony or evidence admitted in prior proceedings involving the same minor if (a)

                 the parties were either represented by counsel at such prior proceedings or the right to

                 counsel was knowingly waived and (b) the taking of judicial notice would not result

                 in admitting hearsay evidence at a hearing where it would otherwise be prohibited.”

                 705 ILCS 405/2-18(6) (West 2012).

          In addition, the rules of evidence in civil proceedings are applicable to adjudication hearings.

          See 705 ILCS 405/2-18(1) (West 2012). Both section 2-18(1) and section 2-18(6) provide

          significant protection to assure only the admission of relevant and competent evidence from a

          prior proceeding at the adjudication hearing.

¶ 25         Next, Latasha maintains that the trial court abused its discretion when it admitted hearsay

          testimony from the transcript of the April 21, 2015, hearing on temporary custody of

          Aniylah.

¶ 26         All of the parties were represented by counsel at the April 21, 2015, hearing. In its

          motion pursuant to section 2-18(6) of the Act, the State requested that the trial court take


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       No. 1-15-3662


          judicial notice of all “nonhearsay sworn testimony” from the April 21, 2015, hearing. The

          State redacted all the hearsay testimony from the transcript to which Latasha objected.

          Therefore, Latasha has forfeited any further hearsay objection to the admission of the April

          21, 2015, transcript. In re William H., 407 Ill. App. 3d 858, 869-70 (2011).

¶ 27         Next, Latasha maintains that the transcript testimony discussing Aniylah’s best interests

          was error because the minor’s best interests was not the evidentiary standard applicable to the

          adjudicatory hearing, and, therefore, its admission was irrelevant and unfairly prejudicial to

          Latasha. In considering Latasha’s objections, the trial court acknowledged best interests was

          not the applicable standard at the adjudicatory hearing. The court overruled Latasha’s

          objections to the best interests testimony finding that it explained why DCFS took the actions

          it did in seeking immediate custody of Aniylah. The trial court’s ruling was not so

          unreasonable as to constitute an abuse of discretion.

¶ 28         Next, Latasha maintains the admission of the entire April 21, 2015, transcript prejudiced

          her because a significant portion of the hearing concerned the short-term guardianship of

          Aniylah by Ms. Wright and whether that plan was violated by Latasha. Latasha argues that

          both the State and Aniylah’s guardian ad litem referred to that testimony in their closing

          arguments and the trial court considered this testimony in its determination. However, the

          court specifically stated that it was not considering Latasha’s trips to and from Michigan in

          its determination of anticipatory neglect.

¶ 29         Next, Latasha maintains that the admission of the DCFS October 1, 2014, service plan

          and the September 10, 2014, CCJC report for India B. was error because both exhibits

          contained hearsay and pertained to Aniylah’s siblings, and, therefore, were irrelevant and

          were unfairly prejudicial to her.


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       No. 1-15-3662


¶ 30         Client service plans are admissible under section 2-18(4)(a) of the Act, a variation of the

          business record exception to the hearsay rule. In re A.B., 308 Ill. App. 3d 227, 235-36 (1999);

          705 ILCS 405/2-18(4)(a) (West 2012). In addition, Latasha stipulated to the foundation

          necessary for the admission of the exhibits and preserved only her objection based on unfair

          prejudice. Moreover, section 2-18(3) of the Act provides that:

                 “In any hearing under this Act, proof of the abuse, neglect or dependency of one

                 minor shall be admissible evidence on the issue of abuse, neglect or dependency of

                 any other minor for whom the respondent is responsible.” 705 ILCS 405/2-18(3)

                 (West 2012).

¶ 31         The fact that the exhibits referred to Aniylah’s siblings and were prepared before her

          birth did not render them irrelevant or untimely. Both exhibits contained evidence as to

          Latasha’s inability to protect her children from abuse and therefore were relevant to whether

          Latasha was capable of protecting her newborn, Aniylah, in light of her failure to do so with

          her other children. Moreover, there was testimony that as of December 8, 2014, when the

          issue of temporary custody of Aniylah was first before the trial court, Latasha’s visits with

          India were still required to be supervised, almost two years after India was placed in DCFS

          custody.

¶ 32         Latasha’s reliance on In re J.C., 2012 IL App (4th) 110861, and In re J. G., 298 Ill. App.

          3d 617 (1998) is misplaced as neither case supports her argument that the transcript and

          exhibits from a temporary custody hearing should not be admissible at the adjudicatory

          hearing. In In re J.C., the reviewing court held that the entire DCFS case file could not be

          admitted under section 2-18(4)(b) of the Act. Under that section, “[a]ny indicated report filed

          pursuant to the Abused and Neglected Child Reporting Act shall be admissible in evidence.”


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       No. 1-15-3662


           705 ILCS 405/2-18(4)(b) (West 2010); 325 ILCS 5/1 et seq. (West 2010). The court

           determined that the evidence contained far more information than was necessary to show

           evidence of an “indicated report” and more information than was relevant to the allegations

           against the respondent mother. Therefore the admission of the entire DCFS file was

           erroneous. In re J.C., 2012 IL App (4th) 110861, ¶ 24. In In re J.G., the reviewing court held

           that section 2-18(4)(a), under which admission of records relating to a minor could be

           admitted in an abuse or neglect proceeding, did not permit the trial court to take judicial

           notice of the entire court file. In re J.G., 298 Ill. App. 3d at 629.

¶ 33           Neither In re J.C., nor In re J.G., concerned the admission of transcripts and exhibits

           from a prior hearing under section 2-18(6) of the Act. 4 Moreover, in In re J.G., the court

           recommended a procedure similar to that followed by the State in this case, i.e., the State

           should make a proffer of the material requested to be noticed and giving defense counsel

           time to object to the request. In re J.G., 298 Ill. App. 3d at 629. In any event, such an error

           does not require reversal. Despite the alleged error in the admission of the evidence, in light

           of the sufficiency of the remaining evidence and the lack of prejudice to the party, this court

           affirmed the finding of neglect (In re J.C., 2012 IL App (4th) 110861, ¶ 33) and the findings

           of unfitness and termination of parental rights (In re J.G., 298 Ill. App. 3d at 629).

¶ 34           None of the trial court’s rulings in connection with the admission of the evidence from

           the April 21, 2015, temporary custody hearing were arbitrary, fanciful, or so unreasonable

           that they amounted to an abuse of discretion. We conclude that the trial court did not abuse




               4
                 Based on In re J.C. and In re J.G., Latasha asks that this court similarly interpret section 405/2-
       18(4)(b) as prohibiting the taking of judicial notice of testimony and exhibits from a temporary custody
       hearing. That section was not at issue in the present case. Latasha’s reference should have been to section
       405/2-18(6), providing for judicial notice of evidence from prior proceedings.
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       No. 1-15-3662


          its discretion in the admission of the redacted transcript and the exhibits from the April 21,

          2015, temporary custody hearing at the adjudication hearing.

¶ 35                                    II. Sufficiency of the Evidence

¶ 36                                        A. Standard of Review

¶ 37         A trial court’s ruling regarding neglect or abuse will not be disturbed unless it is against

          the manifest weight of the evidence. In re Zion M., 2015 IL App (1st) 151119, ¶ 27. A

          finding is against the manifest weight of the evidence only if the opposite conclusion is

          clearly evident. In re Zion M., 2015 IL App (1st) 151119, ¶ 27.

¶ 38         Under the manifest weight of the evidence standard, the reviewing court gives deference

          to the trial court as the finder of fact since it is in the best position to observe the conduct and

          the demeanor of the parties and the witnesses and has a degree of familiarity with evidence

          that a reviewing court cannot possibly obtain. In re A.W., 231 Ill. 2d 92, 102 (2008). As the

          reviewing court, we must not substitute our judgment for that of the trial court regarding the

          credibility of the witnesses, the weight to be given the evidence, or the inferences to be

          drawn. In re A.W., 231 Ill. 2d at 102.

¶ 39                                               B. Discussion

¶ 40         Latasha maintains that the evidence was insufficient for a finding of anticipatory neglect

          in that (1) Aniylah was not yet born at the time of the incident that lead to the removal of her

          siblings from Latasha; (2) Marland, not Latasha, was the perpetrator of the abuse, and he had

          been removed from the home due to his three-year prison sentence and the couple’s divorce;

          (3) Latasha was involved in and compliant with the court-ordered services; and (4) Aniylah

          was born healthy and without special needs, indicating that Latasha received the necessary

          and proper prenatal care.


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       No. 1-15-3662


¶ 41         It is the State’s burden to prove by a preponderance of the evidence that the minor was

          neglected. In re Zion M., 2015 IL App (1st) 151119, ¶ 31. Preponderance of the evidence is

          defined as “ ‘[e]vidence which is of greater weight or more convincing than the evidence

          which is offered in opposition to it.’ ” Board of Education of the City of Chicago v. Johnson,

          211 Ill. App. 3d 359, 364 (1991) (quoting Black’s Law Dictionary 1064 (5th ed. 1979)). The

          preponderance standard of proof “allocates the risk of error roughly equally between the

          litigants [citation], reflecting the view that the interests at stake are of relatively equal

          societal importance [citation].” In re D.T., 212 Ill. 2d 347, 362 (2004).

¶ 42         In the present case, Aniylah was found to be a neglected minor based on an injurious

          environment. While neglect has been defined as the failure to exercise the care that

          circumstances justly demand, our supreme court has recognized that the meaning of neglect

          is fluid, which takes in unintentional as well as intentional disregard of duty. In re Arthur H.,

          212 Ill. 2d 441, 463 (2004). Whether neglect exists depends on the circumstances. In re

          Arthur H., 212 Ill. 2d at 463. Likewise, the term “injurious environment,” 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 (quoting In re N.B., 191 Ill. 2d 338, 346 (2000), quoting In re M.K., 271 Ill. App. 3d 820,

          826 (1995)). Accordingly, “[c]ases involving allegations of *** neglect are sui generis, and

          must be decided based upon their unique facts.” In re Zion M., 2015 IL App (1st) 151119,

          ¶ 31; see In re N.B., 191 Ill. 2d at 346 (neglect and injurious environment rulings are fact-

          driven).

¶ 43         In the present case, the trial court’s finding that Aniylah was a neglected minor was

          premised on the theory of anticipatory neglect. “Under the anticipatory neglect theory, the


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       No. 1-15-3662


          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, or in

          the future may reside, with an individual who has been found to have neglected or abused

          another child.” In re Arthur H., 212 Ill. 2d at 468. “Although the neglect of one child does

          not conclusively show the neglect of another child, the neglect of one minor is admissible as

          evidence of the neglect of another minor under a respondent’s care.” In re Zion M., 2015 IL

          App (1st) 151119, ¶ 30.

¶ 44         “ ‘To determine whether a finding of anticipatory neglect is appropriate, the trial court

          should consider the current care and condition of the child in question and not merely the

          circumstances that existed at the time of the incident involving the child’s sibling.’ ” In re

          Zion M., 2015 IL App (1st) 151119, ¶ 30 (quoting In re J.P., 331 Ill. App. 3d 220, 235

          (2002)). Under the theory of anticipatory neglect, where there is evidence of prior neglect by

          the parents, the trial court should not be deterred from acting until another child is injured. In

          re Arthur H., 212 Ill. 2d at 477.

¶ 45         This case began in 2012 with allegations of physical abuse of Latristan C-H. by Marland

          resulting in the removal of Latristan C-H. and Marlaisa B. from Marland’s and Latasha’s

          custody. Upon the birth of India in November 2012, she too was removed from their custody.

          The record reflects that in April 2013, after the three minors had been removed from their

          custody, Latasha and Marland were married. By the time of Aniylah’s birth, two years after

          her siblings were removed, Latasha remained in therapy, was not consistently participating in

          drug testing, and her participation in the domestic violence services was superficial.

          Significantly, Latasha still failed to appreciate the harm domestic violence did to her

          children. Just two months prior to Aniylah’s birth, the DCFS October 14, 2014, service plan


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          found Latasha’s progress was unsatisfactory and changed the goal for Latristan C-H. and

          Marlaisa B. from a return home to termination of parental rights. As of December 8, 2014,

          when Aniylah was only two weeks old, Latasha’s weekly visitation with India B. was still

          supervised because she had not demonstrated that India would be safe with her.

¶ 46         After careful consideration of the evidence in this case, we conclude that the trial court’s

          determination that the State had proved by a preponderance of the evidence that Aniylah was

          a neglected minor due to her injurious environment was not against the weight of the

          evidence. As the opposite conclusion is not clearly evident, the trial court’s finding of neglect

          is affirmed.

¶ 47                                           CONCLUSION

¶ 48         The judgment of the circuit court is affirmed.

¶ 49         Affirmed.




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