                         No. 3--09--1028
_________________________________________________________________
Filed June 10, 2010
                              IN THE

                     APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                             A.D., 2010

In re R.W.,                   )    Appeal from the Circuit Court
                              )    of the 10th Judicial Circuit,
     a Minor                  )    Peoria County, Illinois,
                              )
(The People of the State of   )
Illinois,                     )
                              )
     Petitioner-Appellee,     )    No. 09--JA--166
                              )
     v.                       )
                              )
Rebekah W.,                   )    Honorable
                              )    Kim L. Kelley,
     Respondent-Appellant).   )    Judge, Presiding.
_________________________________________________________________

     JUSTICE McDADE delivered the opinion of the court:
_________________________________________________________________

     The trial court adjudged the minor, R.W., daughter of the

respondent, Rebekah W., to be neglected because of an environment

injurious to her welfare (705 ILCS 405/2--3(1)(b) (West 2008)).

On appeal, the respondent argues that the court's decision to

adjudge the child neglected was against the manifest weight of

the evidence.    We reverse and remand.

                             BACKGROUND

     R.W. was born on April 18, 2002.     On June 26, 2009, the

Department of Children and Family Services (DCFS) filed a

petition alleging that the minor was neglected because of an

injurious environment, based on allegations:

     ?A)   THERE HAVE BEEN TWO (2) PRIOR REPORTS TO DCFS FOR DIRTY
HOUSE CASES WHICH WERE UNFOUNDED AND A THIRD WAS CALLED IN MAY OF

2009, AND WHEN DCFS WENT TO THE HOME ON MAY 12, 2009 THE MOTHER

WAS OUTSIDE, SAW THE WORKER AND RAN INSIDE AND REFUSED ENTRY AND

WHEN DCFS WENT BACK ON MAY 22, 2009 THE MOTHER CAME OUT AND

REFUSED ENTRY INTO THE HOME AND THE MOTHER ALLOWED ENTRY AFTER

MAY 22, 2009 AND THE UPSTAIRS HAD BEEN CLEANED BUT WHEN THE

WORKER TRIED TO GET INTO THE BASEMENT THEERE [sic] WAS NO WAY TO

GET DOWN THE STAIRS AS IT WAS PACKED FULL OF ITEMS; AND

     B) THER [sic] MOTHER IS A HOARDER WITH JUNK THROUGHOUT THE

BACKYARD AND DCFS IS UNABLE TO ASCERTAIN THE CFONDITION [sic] OF

THE BASEMENT DUE TO NO ACCESS AVAILABLE BECAUSE OF THE NUMEROUS

ITEMS; HOWEVER, THE MINOR REPORTS THAT SHE PLAYS IN THE BASEMENT

IN THE DIRTY WATER; AND

     C) ON MAY 13, 2009, THE MOTHER WAS FINED BY CODE ENFORCEMENT

FOR THE CONDITIONS OF THE HOME; AND

     D) THE MOTHER REFUSES TO COOPERATE WITH DCFS."

     The court held the adjudication hearing on October 1, 8, and

15, 2009.    The respondent testified that, on March 16, 2000,

after she married R.W.'s father, Rusty W., she moved into the

home where he had been residing in Peoria Heights.

     Rusty W. stated that after R.W.'s birth in 2002, the

respondent's tendency to hoard items inside and outside the house

increased.   The porch and backyard became cluttered with items,

many of which were duplicates and some of which were broken.

When Rusty W. would attempt to throw away the duplicate and

broken items, the respondent would become upset with him and


                                  2
would attempt to retrieve the items he had thrown away.   Rusty W.

testified that the couple separated in April 2007, when he moved

out of the house.   The respondent testified that some of the

items in the backyard belonged to Rusty W., who had not removed

these belongings after the separation.

     The respondent stated that in April and December 2008, DCFS

workers came to her home with complaints about the house.    Raelyn

Galassi, a DCFS investigator, testified that the two DCFS reports

in 2008 that the house was cluttered and unsafe were later

determined to be unfounded after the respondent "cleaned up the

home."

     Cary Wamsley testified that he was the code enforcement

officer and building inspector for the Village of Peoria Heights.

He said that in October 2008, he had written the respondent a

warning for a code violation concerning items stored on the front

porch of the residence.

     Galassi said that DCFS received a complaint on April 22,

2009, that "[t]here were concerns about the condition of the

[respondent's] home, that there were rats outside and possibly

inside of the home, that there was water in the basement and ***

possibly some mold."   Consequently, Galassi talked with R.W. at

her school about the condition of the residence.   According to

Galassi, "[R.W.] stated that there was water in the basement on

the floor, that it was *** brown, dirty water, and that she would

play in it."

     Wamsley said that, on an unspecified date, he had received a


                                 3
complaint from one of the respondent's neighbors "stating they

saw rodents coming from the [respondent's] property."

Consequently, Wamsley went to the respondent's home on May 7,

2009, when he wrote the respondent a warning concerning the large

amount of debris in the backyard and the driveway, tall grass and

weeds in the backyard, debris stored on the front porch, and

plastic covering the openings of the porch.    Photographs were

admitted in evidence showing these conditions.    The warning also

noted that the garbage and debris in the backyard was a hazard

for rodent infestation.   Because no one answered the door of the

residence, Wamsley left the warning on the door.

     Galassi stated that another DCFS worker went to the home on

May 8, 2009, but no one was home.     Galassi went to the house on

May 11, 2009, and no one answered the door.    When Galassi learned

that R.W. was at home because she was sick on May 12, 2009,

Galassi went to the home again.   After Galassi parked her car,

she saw the respondent come out of the house and "tie a dog up

outside."   When Galassi got out of her car, the respondent came

out of the house, retrieved the dog, and went back inside the

home.   When Galassi knocked on the door several times, no one

answered.   Galassi observed that "[t]here was plastic that was

covering like half of the porch and then there was just a lot of

garbage and *** stuff piled up on the porch."    Galassi stated

that later on May 12, the respondent called her and said that she

could return and look at the house.    Galassi told the respondent

that she would return to the house on May 13, 2009.


                                  4
     Galassi testified that when she returned on May 13, she was

accompanied by Wamsley.    Wamsley testified that he had returned

to the house on May 13 to follow up on the warning he had written

on May 7.   On this occasion, Wamsley observed that the backyard

was "[b]asically full of debris, garbage, junk, toys[,] plastic

containers, cardboard boxes, debris strewn everywhere, tall grass

and weeds."   On May 13, Wamsley issued a citation to the

respondent, fining her for failing to clean up the items that he

had noted in the May 7 warning.    A copy of the citation was

admitted in evidence.

     Galassi testified, that on May 13, she saw that there were

several items stacked against the interior walls of the house.

On this date, both Wamsley and Galassi were unable to view the

basement because of the large number of items stacked in the

basement's stairway.    Galassi testified, however, that the

upstairs of the house was clean.       Wamsley stated that the blocked

basement stairway was a safety hazard because it prevented access

to the furnace and water heater in case of a fire.      When Galassi

told the respondent that she needed to view the basement, the

respondent agreed to cooperate.    Galassi told the respondent that

she would return on May 22, 2009, to inspect the basement.

     The respondent testified that on May 14, 2009, with the help

of a friend, she cleared the stairs to the basement.      She said

that on May 15 and 16, 2009, she cleared the debris from the

backyard.   The respondent testified that thereafter, she kept the

backyard mowed.   The respondent also stated that in May 2009


                                   5
water temporarily leaked into the basement because there had been

excessive rainfall that spring.    The respondent said that she and

her friends mopped up the water in the basement.

     Wamsley testified that on May 18, 2009, he returned to the

home and found that the backyard had been cleaned up and that the

home had no code violations.    We note that Wamsley did not

testify that he had ever observed either rats or evidence of rats

on the respondent's property.

     When Galassi returned on May 22, the respondent said that,

on the advice of her attorney, she would not allow Galassi to

inspect the home without a search warrant.    Following the

respondent's refusal to allow Galassi to inspect the home,

Galassi presented Rusty W. with a DCFS safety plan that provided

for the removal of R.W. from the respondent's care and prohibited

Rusty W. from allowing R.W. to have contact with the respondent.

We note that the record shows that DCFS took this action without

having asked the trial court for either an emergency shelter care

hearing (see 705 ILCS 405/5--501 (West 2008)) or any other order

concerning R.W.'s custody.

     Both Tina McKean and Sandra Lukehart testified for the

respondent.   Both women testified that they had helped the

respondent clean and organize the house, including the basement.

Both women testified that there was standing water in the

basement that sometimes was clear and sometimes was muddy or

dirty.   The women also testified that they helped the respondent

mop up the water.


                                  6
     At the conclusion of the adjudication hearing, the court

announced its decision.   The court considered that the respondent

had a history of DCFS involvement, including two unfounded

reports.   The court found that the residence lacked a suitable

environment for the minor, which DCFS had brought to the

respondent's attention on numerous occasions.   The court noted

that, although the respondent took corrective actions on various

occasions, the environmental problems were recurring.

     The court observed that Wamsley had given the respondent an

opportunity to correct the unsafe conditions in and around the

house before citing her for code violations.    The court further

observed that the respondent had refused DCFS entry to the house

on May 22, 2009.    The court noted that the basement stairway had

been blocked with items on at least one occasion, which was an

unsafe condition.   The court considered Rusty W.'s testimony that

the respondent was a hoarder, which was corroborated by

photographs of the porch and the backyard, as well as the

testimony of several witnesses.

     The court found that R.W.'s report to Galassi that she had

played in dirty water in the basement was ?corroborated? by the

testimony of the respondent's witnesses that, at times, there was

dirty water in the basement.   The court found that, considering

the totality of the circumstances, the State had proved by a

preponderance of the evidence that R.W. was neglected because of

an injurious environment.

     The court issued its dispositional order on November 12,


                                  7
2009.    In the order, the court found both the respondent and

Rusty W. dispositionally fit and made both of them guardians of

R.W.    The court made R.W. a ward of the court, assigned tasks to

R.W.'s parents, and ordered that R.W. receive counseling.     The

respondent appealed, without having filed a posttrial motion.

                              ANALYSIS

       The respondent contends that the court's decision to adjudge

R.W. to be neglected was against the manifest weight of the

evidence.

       A child may be found neglected if her environment is

injurious to her welfare.    705 ILCS 405/2--3(1)(b) (West 2008).

On appeal, a trial court's finding of neglect will not be

reversed unless it was against the manifest weight of the

evidence.    In re Faith B., 216 Ill. 2d 1, 832 N.E.2d 152 (2005).

A court's ruling is against the manifest weight of the evidence

only if the opposite conclusion is clearly evident.     Faith B.,

216 Ill. 2d 1, 832 N.E.2d 152.

       Generally, the neglect of a juvenile is defined as a failure

to exercise the care that the circumstances warrant.    In re

Arthur H., 212 Ill. 2d 441, 819 N.E.2d 734 (2004).    Neglect

includes wilful as well as unintentional disregard of duty and

takes its meaning from the context of the surrounding

circumstances.    Arthur H., 212 Ill. 2d 441, 819 N.E.2d 734.

Although an injurious environment does not have a fixed

definition, it includes the breach of a parent's duty to ensure a

safe and nurturing environment for the minor.    Arthur H., 212


                                  8
Ill. 2d 441, 819 N.E.2d 734.

     We observe that the neglect statute at issue is contained

within the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1--1 et

seq. (West 2008)).    The stated purpose of the Act is, in

pertinent part:

          (1) *** to secure for each minor subject hereto such

     care and guidance, preferably in his or her own home, as

     will serve the safety and moral, emotional, mental, and

     physical welfare of the minor and the best interests of the

     community; to preserve and strengthen the minor's family

     ties whenever possible, removing him or her from the custody

     of his or her parents only when his or her safety or welfare

     or the protection of the public cannot be adequately

     safeguarded without removal ***. ***

          (2) In all proceedings under this Act the court may

     direct the course thereof so as promptly to ascertain the

     jurisdictional facts and fully to gather information bearing

     upon the current condition and future welfare of persons

     subject to this Act.     This Act shall be administered in a

     spirit of humane concern, not only for the rights of the

     parties, but also for the fears and the limits of

     understanding of all who appear before the court.

          (3) ***

                                 * * *

                  (c) The parents' right to the custody of their

          child shall not prevail when the court determines that


                                   9
          it is contrary to the health, safety, and best

          interests of the child.

          (4) This Act shall be liberally construed to carry out

     the foregoing purpose and policy."    (Emphasis added)   705

     ILCS 405/1--2 (West 2008.)    See also In re O.S., 364 Ill.

     App. 3d 628, 848 N.E.2d 130 (2006).

In other words, one purpose of the Act is to assist parents who

have engaged in allegedly flawed parenting so that their flaws

may be corrected while ensuring that their children are safe and

adequately cared for.

     In this case, we note that there were no prior adjudications

and there were no court orders requiring respondent’s cooperation

with DCFS.   We also note that by the time DCFS filed the neglect

petition on June 26, 2009, the problems regarding R.W.'s

environment, which were alleged to have occurred in May 2009,

were no longer problems.   Indeed, on the day it was filed most of

the allegations of the petition were either outright false or

misleading because of significant factual omissions.     In fact,

the Act had worked as it was intended, inasmuch as the respondent

had been apprised of problems with the porch, basement and

backyard that may have placed her child at risk, and she had

remedied the problems.   Specifically, there had been two earlier

allegations of a dirty house that were determined to be unfounded

because the respondent had cleaned up the house.    Following this

third allegation of a dirty house, the respondent and her friends

cleaned and organized the house, including the basement, as well


                                  10
as the backyard.   Although there was evidence there had been

clutter in the backyard, the respondent testified that some of

this clutter belonged to Rusty W., who had not removed it

following the couple's separation.   Moreover, the record shows

that by the time the petition was filed, the backyard clutter had

been cleaned up and other problems with the house had been

remedied.

     Although Galassi testified that R.W. reported that she

played in dirty water in the basement, DCFS was unable to confirm

this allegation because of the items blocking the basement

stairway -- a condition that has been corrected.   Nonetheless,

there was testimony that the water was caused by excessive spring

rain and that it had been mopped up by the respondent and her

friends before the petition was filed.

     We acknowledge that the record shows that the respondent was

fined for code violations, as alleged in the neglect petition.

However, Wamsley's testimony showed that the conditions resulting

in the fine had been cleaned up more than a month before the

petition was filed.

     We further observe that there was no evidence of the

respondent's lack of cooperation with DCFS, as was alleged in the

petition.   Although the respondent initially refused DCFS entry

to the home on May 12, 2009, when her daughter was home sick, she

called Galassi later that day and allowed entry the following

day. The respondent also told Galassi that she could enter the

home on May 22, 2009, but, on her attorney's advice, she later


                                11
withdrew her earlier consent to a search of her home without a

warrant.   DCFS elected not to get a warrant, choosing instead to

go behind respondent’s back to execute a ?safety plan? with the

husband who was divorcing her - - a plan that removed the child

from the mother without any court involvement.

     We note that the respondent had a constitutional right to

withdraw her earlier consent and to insist that DCFS obtain a

warrant.   See People v. Prinzing, 389 Ill. App. 3d 923, 907

N.E.2d 87 (2009); People v. Baltazar, 295 Ill. App. 3d 146, 691

N.E.2d 1186 (1998).   The exercise of the respondent's

constitutional right, on the advice of counsel, to be free from a

warrantless search of her home could not be construed as lack of

cooperation with DCFS, particularly since she was under no court-

ordered obligation to cooperate at that time.

     In summary, all of the allegations of an injurious

environment in the neglect petition had been cleaned up before

the petition was filed.   Consequently, we hold that the trial

court's finding of neglect was against the manifest weight of the

evidence because the opposite conclusion was clearly evident from

the record.   See Faith B., 216 Ill. 2d 1, 832 N.E.2d 152.   The

court’s observation that this had been a recurring problem does

not make a fear of relapse more than speculative.   Furthermore,

this finding was contrary to one of the purposes of the Act.     See

705 ILCS 405/1--2 (West 2008); O.S., 364 Ill. App. 3d 628, 848

N.E.2d 130.

                            CONCLUSION

                                12
       For the foregoing reasons, we reverse the judgment of the Peoria County circuit court

adjudging R.W. to be neglected and remand the cause for further proceedings consistent with this

opinion.

       Reversed and remanded.

       WRIGHT, J., concurs.

       JUSTICE SCHMIDT, dissenting:

       The record shows that respondent keeps a filthy house and a rodent-infested yard. When

cited by authorities, she temporarily corrects things and then the conditions recur. There is a child

living under these conditions. The majority holds that no reasonable person could find these facts

create an injurious environment for a child.

       The idea of the Act is to help respondent learn appropriate parenting skills. Parenting

skills include housekeeping skills. The majority's conclusion "that this had been a recurring

problem does not make a fear of relapse more than speculative" defies common sense. Slip op. at

12.

       With respect to respondent's failure to allow DCFS to confirm the condition of the

basement, the majority points out that there is no court order requiring respondent to do so. It

was alleged that respondent failed to cooperate with DCFS. There is no allegation that

respondent was guilty of contempt of court for violating a court order. By way of example, there

is also no court order in effect requiring the respondent to feed her minor child. The absence of a

prior court order has nothing to do with whether or not the child was neglected or whether the

respondent was cooperating or otherwise taking appropriate action toward the care of the child.

       The court's finding of neglect is supported by the evidence. It is undoubtedly the first step

toward helping respondent develop appropriate parenting skills for the safety and welfare of her
child. This is consistent with the intent of the Act. Without the neglect finding, the court is

powerless to help respondent or the child.

       The majority's finding that no reasonable person could find that a parent who keeps a child

in a filthy home is not guilty of neglect by virtue of providing an injurious environment defies all

reason. What happens to this child when the code enforcement officer or others fail to observe

the conditions? The respondent obviously needs help with parenting skills. The trial court put the

wheels in motion to provide her with that help. The majority has put a stop to that.

       The majority substitutes its judgment for that of the trial court. This ignores the

appropriate standard of review. I, therefore, dissent.




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