                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                              In re A.P., 2012 IL App (3d) 110191




Appellate Court            In re A.P. and J.P., Minors (The People of the State of Illinois, Petitioner-
Caption                    Appellee, v. Lisa P., Respondent-Appellant).



District & No.             Third District
                           Docket No. 3-11-0191


Rule 23 Order filed        December 12, 2011
Motion to publish
allowed                    January 20, 2012
Opinion filed              January 20, 2012



Held                       The trial court’s adjudication that respondent’s children were neglected
(Note: This syllabus       due to an environment injurious to their welfare was reversed,
constitutes no part of     notwithstanding the fact that the youngest child suffered a burn on his
the opinion of the court   face from hot water while respondent’s boyfriend was preparing the child
but has been prepared      for a bath, since the boyfriend’s actions in leaving the child in the tub
by the Reporter of         with the water running were unintentional and not wilful, respondent had
Decisions for the          no previous reason to suspect her boyfriend would be neglectful in caring
convenience of the         for her children, and there was no indication she allowed him to be
reader.)
                           around her children after the incident or that she maintained a relationship
                           with him, and furthermore, the trial court erred in admitting records that
                           were not made in the regular course of the business of a hospital or
                           agency but, rather, were prepared in anticipation of litigation.
Decision Under             Appeal from the Circuit Court of Peoria County, Nos. 10-JA-338, 10-JA-
Review                     339; the Hon. Mark E. Gilles, Judge, presiding.



Judgment                   Reversed.


Counsel on                 Louis P. Milot, of Peoria, for appellant.
Appeal
                           Jerry Brady, State’s Attorney, of Peoria (Terry A. Mertel and Judith Z.
                           Kelly, 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 Wright concurred in the judgment and opinion.




                                             OPINION

¶1          Following an adjudication hearing, the trial court found that A.P. (age 3) and J.P. (age
        7) were neglected due to an environment injurious to their welfare (705 ILCS 405/2-3(1)(b)
        (West 2010)). At the subsequent dispositional hearing, the trial court found that the
        respondent, Lisa P., was a fit parent and closed the minors’ cases. On appeal, the respondent
        argues that: (1) the trial court’s finding that A.P. and J.P. were neglected minors was against
        the manifest weight of the evidence; and (2) the trial court erred in denying her motion in
        limine and admitting letters and reports from the Pediatric Resource Center (PRC). We
        reverse.

¶2                                              FACTS
¶3          On November 23, 2010, the State filed a juvenile petition alleging that A.P. was abused
        because, on August 17, 2010, the respondent’s boyfriend inflicted physical injury upon A.P.,
        by other than accidental means, in that he burned A.P. with hot water, causing second-degree
        burns. The State also alleged that both A.P. and J.P. were neglected in that their environment
        was injurious to their welfare because: (1) the respondent’s boyfriend had burned A.P.’s face
        with hot water by other than accidental means; (2) the burns to A.P.’s face could not have
        occurred absent abuse or neglect on the part of the boyfriend; and (3) the boyfriend initially
        lied to police but later admitted that he had left the minors unsupervised with the bathwater
        running while he went outside to smoke a cigarette. In her answer to the petition, the

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     respondent stipulated that her boyfriend initially lied but later admitted to leaving the minors
     unsupervised with the bathwater running.
¶4        Prior to the adjudication hearing, the respondent filed a motion in limine to exclude from
     evidence records from the PRC. The respondent argued that the records were not made in the
     regular course of business and were being introduced as a substitute for expert medical
     testimony. The respondent contended that the records were those of a consulting physician
     prepared in anticipation of litigation, which contained opinions or conclusions as to the
     source of injury to A.P. The trial court denied the motion in limine and admitted the PRC
     records into evidence.
¶5        According to the PRC records, the Department of Children and Family Services’ (DCFS)
     investigatory notes indicated that: (1) the respondent had stated that she was on her way
     home from a doctor’s appointment when her boyfriend called and told her that A.P. had
     burned his face in the bathtub; (2) the boyfriend told the respondent that the incident
     occurred while he was looking at himself in the mirror; (3) the respondent arrived 10 minutes
     later and took A.P. to the hospital; (4) DCFS investigators were unable to confirm the
     temperature of the water in the boyfriend’s home; (5) the respondent’s boyfriend was caring
     for his own 5- and 10-year-old children, in addition to A.P. and J.P., at the time of the
     incident; (6) the mother of the boyfriend’s 5-year-old child indicated that he was a good
     parent; (7) the boyfriend initially reported being in the bathroom at the time of the incident
     but later reported being in the den at the time of the incident, and then changed his story
     again to indicate that he was in front of the house when the incident occurred; (8) the
     boyfriend initially reported that the other children were in the basement at the time of the
     incident but later indicated that two of the other minors were in the den watching cartoons
     when A.P. was injured; (9) the boyfriend lied about the incident because he did not want the
     respondent to be mad at him; (10) when the incident occurred, the boyfriend heard A.P.
     scream, so he ran to the bathroom and found A.P. standing by the bathtub’s faucet; (11) the
     respondent had previously spoken to the boyfriend about the water in her home getting too
     hot when they washed their hands; (12) the boyfriend’s 10-year-old child reported that he
     was in the basement and the other children were in the den when the incident happened; and
     (13) after the incident, the 10-year-old child observed the respondent’s boyfriend applying
     ice to A.P.’s face. A time-temperature exposure chart in the PRC records indicated that water
     at a temperature of 140 degrees or higher would scald a child’s skin in one second or less.
¶6        The PRC records contained a report by Dr. Channing Petrak, in which she opined that
     A.P.’s burns were “most consistent with inflicted burns due to child physical abuse.” Petrak
     based her opinion upon the fact that A.P. had no burns on his hands or arms, which would
     have been expected because “children put their hands out to catch themselves when they
     fall.” Petrak noted that based on the measurements of the bathtub and A.P.’s height, “it is not
     probable that [A.P.] would have been able to fall and catch himself in a way that only his left
     side of his face, ear and back of his neck were burned.” Petrak further noted that if A.P. had
     tried to reach for toys “the faucet would have been on his right side, not his left,” and if A.P.
     had his head turned “to get only the left side of his face under the faucet, then it would be
     expected that the runoff of the water would have burned his left shoulder” and A.P. did not
     have burns on his left shoulder.

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¶7          The State also entered A.P.’s hospital records into evidence. A.P.’s emergency room
       (ER) records for August 17, 2010, indicated that the respondent reported to ER staff that her
       boyfriend was running bathwater when A.P. ran into the bathroom to get a toy and slipped
       and fell head first into the bathtub. The ER records indicated that A.P. had first- and second-
       degree scald burns to 8% of the left side of his head. The ER records noted that A.P.’s
       maternal grandmother stated that A.P. had previous visits to the ER for falls and cuts to his
       face, with the respondent’s boyfriend having been involved.
¶8          A.P.’s medical records, from July 28, 2009, and January 2, 2010, indicated that A.P.
       incurred a laceration to his lower lip after he slipped from the side of a bed and struck his lip
       on the bedrail, and he incurred a laceration to the left side of his forehead after he ran into
       a desk drawer at the respondent’s gym. There was no indication that the respondent’s
       boyfriend was involved in either of the previous incidents.
¶9          The respondent testified that on August 17, 2010, her boyfriend was babysitting the
       minors while she went to a doctor’s appointment. After her appointment, the respondent was
       returning to her boyfriend’s home when he called and said that A.P. had burned his face in
       the bathtub. The respondent arrived at her boyfriend’s home 10 minutes later and observed
       that A.P. had burns on the left half of his face that were “like a sunburn” and looked
       “superficial” on the “outside of his skin.” The respondent immediately transported A.P. to
       the ER.
¶ 10        The respondent testified that there had never been any incidents of abuse involving her
       boyfriend and the minors. She testified that A.P. had been taken to the hospital on two
       previous occasions. She described the first incident as occurring when A.P. was one year old,
       when he slipped off a bedrail and split his lip open at the home of the minors’ maternal
       grandmother. She described the second incident as occurring when A.P. was almost two
       years old, when he fell into a desk drawer and split his forehead open at her gym.
¶ 11        At the conclusion of the adjudication hearing, the trial court stated that it could not find
       by a preponderance of the evidence that A.P.’s injuries were caused by abuse. The trial court
       found that because the respondent’s boyfriend lied about what had occurred, it was “more
       likely than not [that] he was neglectful in watching [A.P.]” and “he was trying to defend
       himself with regard to his neglectful actions.” The trial court found that the minors were
       neglected due to an injurious environment because the respondent’s boyfriend was a “big
       part” of their environment if he was giving them baths.
¶ 12        At the subsequent dispositional hearing, the trial court found that the respondent was a
       fit parent and ordered that the minors’ cases be closed. The respondent appealed from the
       finding of neglect due to an injurious environment.

¶ 13                                       ANALYSIS
¶ 14       On appeal, the respondent contends that the trial court erred in admitting the PRC records
       into evidence and adjudicating the minors neglected. We agree.
¶ 15       Initially, we address respondent’s argument regarding the admission of the PRC records.
       The State argues that the PRC records were properly admitted as a business record under
       section 2-18(4)(a) of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/2-18(4)(a) (West

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       2010)). Section 2-18(4)(a) of the Act provides:
            “Any writing, record, photograph, or x-ray of any hospital or public or private agency,
            whether in the form of an entry in a book or otherwise, made as a memorandum or record
            of any condition, act, transaction, occurrence or event relating to a minor in an abuse or
            neglect or dependency proceeding, shall be admissible in evidence as proof of that
            condition, act, transaction, occurrence or event, if the court finds that the document was
            made in the regular course of the business of the hospital or agency and that it was in the
            regular course of such business to make it, at the time of the act, transaction, occurrence
            or event, or within a reasonable time thereafter.” (Emphasis added.) 705 ILCS 405/2-
            18(4)(a) (West 2010).
¶ 16        In this case, A.P. incurred a burn on August 17, 2010. He was immediately taken to the
       local emergency room and then transported to a burn unit at Memorial Medical Center in
       Springfield, Illinois. He was discharged the following day, August 18. The same day of his
       discharge from the hospital, DCFS referred A.P. to the PRC for an examination. On August
       19, 2010, A.P. was examined at the PRC as the result of the referral from DCFS. Dr.
       Channing Petrak examined A.P. and reviewed DCFS notes, photos taken by DCFS, and
       A.P.’s medical records. We note that the PRC examination was not part of A.P.’s follow-up
       medical care, as he was seen in follow-up at the Memorial Medical Center outpatient burn
       center on August 24, 2010, with the examination notes indicating his burns had healed well.
       It was not until three months later, on November 24, 2010, that Petrak issued a report and
       opined that A.P.’s burns were “most consistent with inflicted burns due to child physical
       abuse.” The PRC records and Petrak’s report were not made in the regular course of the
       business of a hospital or agency but rather appear to have been prepared in anticipation of
       litigation. Thus, the trial court abused its discretion by admitting them into evidence.
¶ 17        Next, we turn to the issue of whether the trial court erred in finding that the minors were
       neglected. A proceeding for adjudication of wardship is a significant intrusion into the
       sanctity of the family which should not be undertaken lightly. In re Arthur H., 212 Ill. 2d 441
       (2004). It is the burden of the State to prove its allegations of neglect by a preponderance of
       the evidence, meaning that the State must establish that the allegations of neglect are more
       probably true than not. Arthur H., 212 Ill. 2d 441. 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 (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.
¶ 18        Generally, neglect is the failure to exercise the care that circumstances justly demand and
       encompasses both wilful and unintentional disregard of a duty. In re N.B., 191 Ill. 2d 338
       (2000). Section 2-3 of the Act provides that a “neglected” minor includes “any minor under
       18 years of age whose environment is injurious to his or her welfare.” 705 ILCS 405/2-
       3(1)(b) (West 2010). An injurious environment does not have a fixed definition, requiring
       each case to be analyzed under its own unique circumstances. Arthur H., 212 Ill. 2d at 463.
       In general, however, the term “injurious environment” means a breach of a parent’s duty to
       ensure a safe and nurturing shelter for his or her children. Arthur H., 212 Ill. 2d at 463.
¶ 19        Here, the trial court determined that the boyfriend’s neglectful actions leading to A.P.’s


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       severe injuries and the fact that the boyfriend had lied about the incident was indicative of
       an injurious environment. In defining a neglected child in the Act, the legislature focused on
       the status of the child, giving consideration to the acts or omissions of the child’s parents or
       other individual responsible for the welfare of the child. Arthur H., 212 Ill. 2d at 462 (citing
       705 ILCS 405/2-3(1)(a) through (1)(d) (West 2000)). Only after the trial court has
       adjudicated a minor neglected does the court consider the actions of the parents. Arthur, 212
       Ill. 2d at 466-67; see 705 ILCS 405/2-21(1) (West 2010). Therefore, the only question to be
       resolved at an adjudicatory hearing is whether the child is neglected and not whether the
       parent is neglectful. Arthur H., 212 Ill. 2d at 466-67.
¶ 20        The trial court adjudicated the minors to be neglected due to an environment injurious
       to their welfare, even though the respondent had no previous reason to suspect that her
       boyfriend would act neglectfully in caring for them or his own children. Also, there is no
       indication that the respondent allowed her boyfriend to be around the minors after the
       incident or that she maintained any type of relationship with him. Effectively, the trial court’s
       determination was a per se finding of an injurious environment based upon the fact that A.P.
       was injured due to the boyfriend’s neglectful actions. As a matter of common sense, any
       mishap or injury incurred by a minor can be attributed to some neglectful action on the part
       of a caregiver. Such a broad definition of a “neglected minor” contradicts case law, which
       has established that neglect is to be determined on a case-by-case basis. See In re M.Z., 294
       Ill. App. 3d 581 (1998). It is clear from the record that the respondent’s failure to provide a
       safe environment for A.P. was unintentional and not wilful. “[A]ny allegation of
       unintentional disregard based on a baby-sitter’s inappropriateness as a caregiver cannot be
       deemed per se neglect; the State must prove by a preponderance of the evidence the neglect
       charged ***.” M.Z., 294 Ill. App. 3d at 599.
¶ 21        We must consider all the surrounding circumstances to determine whether the minors’
       environment was injurious to their welfare.1 The evidence showed that the respondent left
       A.P. and J.P. in the care of her boyfriend while she went to a doctor’s appointment. As
       previously noted, there was no indication that the respondent’s boyfriend could not provide
       a safe and nurturing shelter for the duration of the respondent’s doctor appointment. There
       was no indication that the respondent’s boyfriend ever harmed the minors in the past.
       Hospital records and the respondent’s testimony established that A.P.’s prior two injuries
       were accidents in which the respondent’s boyfriend had no involvement.
¶ 22        As for the incident at hand, it occurred when respondent’s boyfriend left the minors
       unsupervised with bathwater running. Although there was some speculation as to what may


               1
                 The State’s petition did not allege neglect based upon inadequate supervision pursuant to
       section 2-3(1)(d) of the Act, which enumerates 15 factors to be considered in determining whether
       a minor was left with inadequate supervision. See 705 ILCS 405/2-3(1) (West 2010). Therefore, we
       review this case solely to determine whether the trial court’s finding of neglect based upon an
       injurious environment was supported by the evidence. See In re J.B., 312 Ill. App. 3d 1140 (2000)
       (providing that the State’s failure to amend the petition to include allegations of inadequate
       supervision barred the trial court from entering a finding on any claims other than those alleged in
       the petition).

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       have occurred, there were no witnesses to the incident, and the trial court found that A.P.’s
       injuries were not the result of abuse. After A.P. was injured, the boyfriend immediately aided
       A.P. and called the respondent. The respondent arrived within 10 minutes and immediately
       brought A.P. to the ER. Therefore, the circumstances show that the respondent and her
       boyfriend reacted appropriately to the incident, providing immediate aid and medical care
       to A.P.
¶ 23       Additionally, the trial court’s finding that respondent’s boyfriend was a “big part” of the
       minors’ environment because he gave them baths on the day of the incident was merely
       speculative. Although the incident occurred in the boyfriend’s home, there was no evidence
       that the minors lived with him or of what type of involvement they may otherwise have had
       with him. Also, there was no indication that the minors were left in the boyfriend’s care after
       the incident. In viewing all the circumstances surrounding this case, we conclude that the trial
       court’s finding of neglect due to an injurious environment was against the manifest weight
       of the evidence.

¶ 24                                     CONCLUSION
¶ 25      For the foregoing reasons, the judgment of the Peoria County circuit court finding A.P.
       and J.P. to be neglected due to an injurious environment is reversed.

¶ 26      Reversed.




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