Opinion
5-21-0330 5-21-0331 5-21-0332
05-03-2022
In re Mi.R., D.S., and Ma.R., Minors v. Erin R., Respondent-Appellant The People of the State of Illinois, Petitioner-Appellee,
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Saline County. No. 21-JA-15 No. 21-JA-16 No. 21-JA-18 Honorable Todd D. Lambert, Judge, presiding.
JUSTICE VAUGHAN delivered the judgment of the court. Justices Cates and Wharton concurred in the judgment.
ORDER
VAUGHAN JUSTICE
¶ 1 Held: We affirm the trial court's adjudicatory order, as the court's finding that the minor children were neglected due to an injurious environment was not against the manifest weight of the evidence. We also affirm the court's dispositional order, as its finding that the respondent-mother was unable, for some reason other than financial circumstances alone, to care for the minors was not against the manifest weight of the evidence.
¶ 2 The respondent, Erin R., appeals the adjudicatory order of the Saline County circuit court finding that her minor children, Mi.R., D.S., and Ma.R., were neglected due an injurious environment as well as evidentiary issues made during that hearing. Erin also appeals the court's dispositional order in which the court found that Erin was unable, for some reason other than financial circumstances alone, to care for, protect, train, or discipline the children. For the following reasons, we affirm.
This appeal was accelerated under Supreme Court Rule 311(a) (eff. July 1, 2018). Pursuant to that rule, the appellate court must, except for good cause shown, issue its decision in an accelerated case within 150 days of the filing of the notice of appeal. Ill. S.Ct. R. 311(a)(5) (eff. July 1, 2018). Here, respondent filed her notice of appeal on October 20, 2021. Thereafter, respondent's counsel requested two extensions to file his opening brief, which this court granted. Therefore, the deadline to file a reply brief (although respondent chose not to file one) was set for March 30, 2022, which was 9 days after the 150-day period expired. Under these circumstances, we find good cause to issue our decision after the 150-day deadline.
¶ 3 I. BACKGROUND
¶ 4 Erin is the biological mother of twins, Mi.R. and Ma.R., born February 12, 2021, A.S., born May 17, 2018, and D.S., born August 11, 2004. Neither A.S. nor the children's biological fathers are parties to this appeal and will only be discussed as necessary to provide relevant background for the issues presented.
¶ 5 On April 29, 2021, Erin's mother, Brenda, called the Illinois Department of Children and Family Services (DCFS) hotline and asserted that Erin left the minor children in the care of an elderly lady who was not capable of properly caring for the children. Brenda advised DCFS that three hours earlier, Erin told the babysitter that she was going to Walmart and would be back in an hour. Attempts to page Erin at Walmart were unsuccessful and Brenda stated that she had also contacted the sheriff's department. Brenda also advised DCFS that when she went into Erin's bedroom to gather diapers and some of the children's items, she saw suspicious items in Erin's open dresser drawer including a smoking pipe, a tin can, a white tube, green and black tobacco, and a needle. Brenda photographed the items and sent the photographs to DCFS. Brenda also advised DCFS that Erin was previously diagnosed with anxiety and depression.
¶ 6 On May 4, 2021, the State filed petitions for adjudication of wardship for each minor child, alleging that the minors' environment was injurious to their health because Erin had a history of substance abuse and tested positive for amphetamine and methamphetamine on April 29, 2021 (count I), and that the minors were left in the care of an elderly lady who was not capable of properly caring for the children (count II). The trial court found probable cause and granted temporary custody to DCFS.
¶ 7 On June 21, 2021, DCFS filed a family service plan which noted mother's absence at her house when the hotline call was made, drug paraphernalia found at the home, prior DCFS involvement when the twins were born, and domestic violence issues. Erin was required to perform an integrated assessment, a mental health assessment, a substance abuse assessment, and follow the recommendations that stemmed from the assessments.
¶ 8 The adjudicatory hearing was held on August 24, 2021. The State called Christine Owens, an investigator for DCFS, who was assigned the case following the hotline call. She testified that when Erin was asked to take a random drug test, she was very hesitant. Erin told her that the test would be positive for marijuana but was unsure what else would show as positive. Ms. Owens testified that the test was positive for methamphetamine and amphetamine. Ms. Owens stated that when Erin was advised of the results, she stated that she was possibly drugged the night before by a man at her house. Ms. Owens further testified that D.S. told her there was domestic violence in the home between his mother and a friend, and one time he had to get in between them and make the man leave. At that time, D.S. indicated that he was scared of the people in the home. Ms. Owens further testified that Erin was trembling and crying when Ms. Owens was leaving. Ms. Owens stated that she tried to persuade Erin to obtain an order of protection, but Erin refused due to concerns of the repercussions that would stem from that request. Thereafter, the State rested.
¶ 9 Erin's counsel called D.S. to testify, but D.S.'s father objected because D.S. was a minor, the party's child, and felt it was inappropriate. The court asked why Erin wished to call D.S. and Erin's counsel responded that D.S. should be allowed to testify as to his presence in the house and because D.S. "had more knowledge of what was going on in the home than any other person." When asked if that included Erin, her counsel replied, "Yes." Thereafter, the court suggested they start with Erin's testimony and see if they still needed D.S. to testify. The court further advised that it was denying the petition as to count II because there was no evidence presented for that count.
¶ 10 Erin took the stand and testified that her children were removed while she was shopping at Walmart. Erin stated it was her first time using this babysitter, who was a grandmother of 12, and that the woman was older but not elderly. Erin stated the babysitter arrived at 11 a.m. Erin returned to the home shortly after 5:30 p.m. and testified that she was at Walmart the entire time. Erin admitted that she had one random drug test and stated at the time of the test, she was taking over-the-counter cold medicine for a head cold along with prescriptions that included Clonazepan for anxiety, Effexor for depression, Imitrex for migraines, and amoxicillin. She stated it was her belief that the medications caused the positive test for methamphetamine. Thereafter, the State objected as to foundation and the court sustained the objection. Erin denied ever telling anyone at DCFS that she had a history of drug abuse and denied having such history. She testified that she took methamphetamine "in the way, way, way past" prior to her children's births. She believed she was a minor at the time and was currently 37 years old. She admitted smoking marijuana regularly for migraines.
¶ 11 Erin's mother, Brenda, also testified on behalf of Erin. She stated Erin was a wonderful mother. She had never known Erin to do anything to abuse or neglect the children and denied any knowledge of Erin having a history of drug abuse. On cross-examination, Brenda admitted making the call to DCFS on April 29, 2021; she stated that she made the call because she was upset over someone else babysitting the children. She denied having concerns about the babysitter and stated that she overreacted to seeing someone else there. Brenda denied remembering what was said during the DCFS hotline call. She agreed that she provided photographs to DCFS about the drug paraphernalia but stated she did not know what drug paraphernalia was. She stated that she only sent a picture of a small tin on Erin's bed and denied providing information regarding a smoking pipe, a white tube, green and black tobacco, or needles. She stated that Erin told her later the tobacco was marijuana. Brenda did not recall mentioning the pipe or the needles to DCFS. She also denied making any statements to the investigator that expressed concern that Erin was using amphetamine or methamphetamine. She did not recall telling DCFS that the babysitter could not take care of herself, let alone the children, but stated she may have made a comment that the babysitter was an elderly woman. Brenda stated she was unaware of any male, other than the children, that lived in the house. Thereafter, Erin's counsel advised the court they had no other witnesses and rested.
¶ 12 The State recalled Ms. Owens who confirmed that Brenda was the party who called the DCFS hotline and provided DCFS with the photographs from Erin's dresser. She stated there were three or four photographs that included pictures of a white pipe, needles, and a tin can that had brown stuff in it with a white cube on the lid. Ms. Owens confirmed that Brenda told DCFS that the items were in an open dresser drawer. Ms. Owens clarified that the needles were syringes, not sewing needles, and stated there was also a photograph of aluminum foil which taken together, based on her training and experience, told her there was substance abuse in the home. On cross-examination from Erin's counsel, Ms. Owens stated that copies of the photographs were emailed to the assistant state's attorney and copies of the photographs were downloaded and included with her report.
¶ 13 Following closing arguments, the trial court again advised the parties that it was dismissing count II, but found count I was different, stating:
"We have a positive drug test that has not been sufficiently explained away. The idea that someone may have drugged the mother and that's how the test turned out positive is watered down by the findings of the grandmother of the drug paraphernalia in the form of a drug pipe, syringe needles and foil in the mom's dresser in her bedroom. I don't believe for one second that she was unknowingly drugged, and she's had prior meth use in the past. All of that leads me in the direction of my finding that the State has proven by a preponderance of the evidence that the mother, in fact, tested positive for amphetamine and had a history of substance abuse. Using meth as a minor is history of substance abuse. The grandmother had real concerns, although her testimony today is not that reliable because I think she's trying to beg off of her prior statements and the Court looks down on that attempt."
¶ 14 The trial court found that count I of the petition for adjudication of wardship was proven. Thereafter, the court admonished the parents to cooperate with DCFS, comply with their service plan, correct the conditions that led to the children being in care, or the failure to do so could result in the loss of their parental rights.
¶ 15 On September 3, 2021, a dispositional report prepared by Caritas Family Solutions (Caritas) was submitted to the court. The report noted that Erin was unemployed, had three previous charges (but no convictions) for drugs, fraud, and alcohol, and four previous investigations with DCFS, three of which involved the current case. The report stated that Erin denied having drug paraphernalia in her home. The report revealed that Erin was sent for random drug testing at Harrisburg Medical Center and tested positive twice for methamphetamine. Erin advised Caritas that the positive results were due to her medications but provided no additional information regarding that claim to the agency. The report further noted that Erin missed her last two drug tests and recommended that Mi.R., D.S., and Ma.R. remain in DCFS care.
¶ 16 The dispositional hearing was held on September 21, 2021. The State called Kadie Lind, the lead child welfare specialist for Caritas, who prepared the dispositional report. The majority of her testimony addressed the fathers. With regard to Erin, Ms. Lind confirmed that Erin completed her mental health and substance abuse assessments, but the recommendations related thereto had not yet been received. She also stated that Erin signed up for parenting classes, but the caseworker had not received any documentation related to that either.
¶ 17 Following the hearing, the trial court found that A.S.'s father was a nonoffending parent and was fit, able, and willing to provide care for the child. Thereafter, A.S. was placed with the father and the case was closed. As to D.S., the trial court found the father was not fit, willing, or able to care for the child. The court recommended counseling for D.S. to address the issues between him and his father. As to the twins, the court found no parent who was fit, willing, and able to care for the children at that time. The court then directly addressed Erin and stated:
"I would respect you more if you came in this courtroom and said, Judge, I've got a drug problem, I'm willing to work on it, I'm willing to do whatever I've got to do and I'm going to get on top of it and I'm going to do whatever services you want me to do and this is going to turn out great instead of making excuses why you continue to test positive for methamphetamine and why you refuse to go, or at least, you missed your last two drug drops after you tested positive on a couple of occasions for meth, and trying to make excuses for that. I think you you've got a
drug problem. It should be *** no secret to you right now that I think you have a drug problem. And if there was any question in your mind let me just tell your right now I think you do. Is it a big, bad drug problem? I don't know, but I think you're using[, ] and you need to stop. You need to do whatever treatment you need *** to stop using for the benefit of your children and for the benefit of you. But excuses aren't getting you anywhere in this Court. You need to attack your service plan with all the vigor that you have so that you can get your services done so that we can get your kids home to you as quickly as possible. But right now[, ] it is in their best interests for them to be made wards of the Court due to the lingering issues that surround you. So that's the order of the Court. [A.S.] is going with her father, the case is going to be closed. The other three children will be wards of the Court. That will be the order of the Court."
¶ 18 The trial court issued a dispositional order finding that Erin was unable, for reasons other than financial circumstances alone, to care for, protect, train, or discipline the minor children. The court found that reasonable efforts were made to prevent or eliminate the need for removal of the children, but the goals related those efforts had not been achieved. The court also found that appropriate services aimed at family preservation and family reunification were unsuccessful, noting that Erin needed to complete her services. The trial court ordered the three minor children to remain in the custody of DCFS. The trial court also ordered the parents to obtain drug/alcohol assessments, submit to random drug screens, refrain from alcohol, cannabis, and controlled substances, establish and maintain an appropriate, clean, healthy, and stable residence, and notify their caseworkers of any change in the number or identity of persons living in the residence. On October 20, 2021, Erin appealed.
¶ 19 II. ANALYSIS
¶ 20 On appeal, Erin contends that the trial court's finding that the State carried its burden of proof to find the children neglected was in error as were the trial court's evidentiary rulings issued during the adjudicatory hearing. Erin also argues that the trial court's finding that the State met its burden of proof during the dispositional hearing, as well as the trial court's three findings related to her, were in error.
¶ 21 Before we address the merits of Erin's appeal, we must note that respondent's brief was woefully inadequate. Despite listing six issues for review, the brief contained only four pages of argument. Of those four, the first page, and the top of the second page, related solely to the standard of review. The fourth page quoted a portion of section 2-18 of the Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2020)) and concluded by claiming error in the court's orders and evidentiary rulings. The remaining argument, which consisted of less than two pages, failed to delineate which issue was being addressed, cite to the record, or contain any legal citation in support of any argument made. In some circumstances, the brief merely stated a fact and provided no argument. Further, respondent's statement of facts was argumentative and failed to provide critical facts underlying this case.
¶ 22 All of these failings are in contravention of Illinois Supreme Court Rule 341 (h). Ill. S.Ct. R. 341(h) (eff. Oct. 1, 2020). Illinois Supreme Court Rule 341(h)(6) requires the appellant to include a statement of facts outlining the pertinent facts accurately. Ill. S.Ct. R. 341(h)(6) (eff. Oct. 1, 2020). Illinois Supreme Court Rule 341(h) (7) requires that the appellant's brief contain an argument section "which shall contain the contentions of the appellant and the reasons therefor, with citations of the authorities and the pages of the record relied on." Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Here, respondent's counsel violated both sections (h)(6) and (h)(7) by failing to provide all the relevant facts in this case and by failing to cite to the record for any statement made in the argument section of the brief. "The Illinois Supreme Court Rules are not suggestions; they have the force of law" and require compliance. Szczeniak v. CJC Auto Parts, Inc., 2014 IL App (2d) 130636, ¶ 8 (citing People v. Campbell, 224 Ill.2d 80, 870 (2006)). When a brief fails to comply with Rule 341, "we may strike the statement of facts or dismiss the appeal should the circumstances warrant." Id. (citing Hall v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151, ¶ 9). Given the extremely important nature of this case, and because we have thoroughly reviewed the record and discerned all the pertinent facts necessary to review this appeal, we will neither strike counsel's statement of facts nor dismiss the appeal. However, we decline to address any argument that could have been made regarding the evidentiary issues and find the argument was forfeited pursuant to Rule 341(h)(7). Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020) ("Points not argued are forfeited ***."). We also strongly admonish counsel to carefully follow the supreme court rule requirements in future appeals. We now turn to the merits of this appeal.
¶ 23 A. Neglect
¶ 24 Erin first argues that the trial court's ruling that the minor children were neglected was against the manifest weight of the evidence. In support, it would appear that Erin is claiming that neglect should not have been found because the grandmother overreacted to finding someone other than her babysitting the children, Erin only tested positive once for methamphetamine, and the positive test was caused by either someone drugging her the night before or was a false positive due to medications Erin was taking.
¶ 25 "In any proceeding initiated under the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2020)), the paramount concern is the best interests of the child." In re Daniel G, 2021 IL App (1st) 210640, ¶ 51 (citing In re N.B., 191 Ill.2d 338, 343 (2000)). Following the filing of a petition for wardship by the State and placement of the children into temporary custody, the trial court will conduct an adjudicatory hearing to determine whether the allegations of the petition that the minors are abused, neglected, or dependent are supported by a preponderance of the evidence. 705 ILCS 405/2-14, 1-3 (West 2020). This burden of proof lies with the State. In re L.H., 384 Ill.App.3d 836, 841 (2008)." 'Preponderance of the evidence is that amount of evidence that leads a trier of fact to find that the fact at issue is more probable than not.'" In re Daniel G, 2021 IL App (1st) 210640, ¶ 58 (quoting In re KG., 288 Ill.App.3d 728, 735 (1997)). On review, we give the trial court's determination of abuse or neglect great deference, and we will not reverse the findings unless they are against the manifest weight of the evidence. In re D.M., 258 Ill.App.3d 669, 672 (1994). A finding is against the manifest weight of the evidence "only if the opposite conclusion is clearly evident." In re Edward T., 343 Ill.App.3d 778, 794 (2003).
¶ 26 An abused minor includes "any minor under 18 years of age or a minor 18 years of age or older for whom the court has made a finding of probable cause to believe that the minor is abused, neglected, or dependent under subsection (1) of Section 2-10 prior to the minor's 18th birthday whose environment is injurious to his or her welfare." 705 ILCS 405/2-3(1) (b) (West 2020)." [T]he term 'injurious environment' has been recognized by our courts as an amorphous concept that cannot be defined with particularity." In re Arthur H., 212 Ill.2d 441, 463 (2004). "In general, however, the term 'injurious environment' has been interpreted to include 'the breach of a parent's duty to ensure a "safe and nurturing shelter" for his or her children.'" Id. (quoting In re N.B., 191 Ill.2d at 346, quoting In re M.K., 271 Ill.App.3d 820, 826 (1995)). Evidence of repeated use of a "controlled substance, as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act, in the presence of the minor or a sibling of the minor is prima facie evidence of neglect." 705 ILCS 405/2-18(2)(g) (West 2020)." 'Repeated use', for the purpose of this subsection, means more than one use of a controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act." Id. Methamphetamine is one such controlled substance. 720 ILCS 570/102(f), 206(d)(2) (West 2020).
¶ 27 While mother claims the circuit court's finding of neglect was unsound, the poorly developed argument relies on facts that are unsupported by the record and fails to address critical facts borne out at the hearing. The State's petitions alleged, inter alia, that the children's environment was injurious to their health because Erin had a history of substance abuse and tested positive for amphetamine and methamphetamine on April 29, 2021.
¶ 28 At the adjudicatory hearing held on August 24, 2021, Ms. Owens confirmed that Erin tested positive for methamphetamine and amphetamine on April 29, 2021. She also confirmed that drug paraphernalia was found in the home as evidenced by the photographs sent by Erin's mother, Brenda, to DCFS. While the State's evidence was countered by Erin's testimony providing alternative explanations for the positive drug test and denials of current drug abuse, the court was not required to, and did not, accept Erin's testimony as credible. People v. Vazquez, 315 Ill.App.3d 1131, 1133 (2000).
¶ 29 Here, the trial court observed the witnesses, heard their testimony, and made credibility determinations related thereto. More specifically, the trial court found that the positive drug test was not "sufficiently explained away." The court also expressed concern with Brenda's findings of "drug paraphernalia in the form of a drug pipe, syringe needles and foil in the mom's dresser in her bedroom." The trial court also found Erin's claim of being unknowingly drugged was no more credible than Brenda's hearing testimony.
¶ 30 A trial court is in the best position to make credibility determinations. In re D.W., 386 Ill.App.3d 124, 136 (2008). While we agree that one positive test for a controlled substance may be insufficient to make a prima facie case of neglect, here the positive test was made in conjunction with findings of drug paraphernalia, including a pipe, needles, and foil, in the house which, based on testimony at the hearing, were consistent with substance abuse. We further note that at the time of the hotline call, two of the minor children were old enough to find and either unknowingly ingest, or intentionally use, the materials found in Erin's top dresser drawer. As such, we find that the trial court's finding of neglect stemming from an injurious environment, in that mother had a positive drug test and had a history of substance abuse, was proven by a preponderance of the evidence and should be affirmed.
¶ 31 B. Mother's Inability to Care For and Protect the Children
¶ 32 Here, Erin claims that the State failed to show by a preponderance of the evidence that Erin was unable, for some reason other than financial circumstances alone, to care for, protect, train, or discipline the children. Erin also claims, as two additional issues, that the trial court erred by finding reasonable efforts were made to prevent or eliminate the need for the children's removal, but the goals associated with those efforts had not yet been achieved and that appropriate services aimed at family preservation and family reunification were unsuccessful because Erin needed to complete her services.
¶ 33 Under the Act, the dispositional hearing focuses on "whether it is in the best interests of the minor *** that he be made a ward of the court, and, if he is to be made a ward of the court, the court shall determine the proper disposition best serving the health, safety and interests of the minor." 705 ILCS 405/2-22(1) (West 2020). "The party requesting a finding that a parent is unable to care for, protect, train or discipline her children must establish the parent's inability by a preponderance of the evidence." In re Kelvion V., 2014 IL App (1st) 140965, ¶ 23. A dispositional order will be reversed only if the trial court's "findings of fact are against the manifest weight of the evidence or if the trial court committed an abuse of discretion by selecting an inappropriate dispositional order." (Internal quotation marks omitted.) In re Stephen K, 373 Ill.App.3d 7, 25 (2007). An abuse of discretion occurs when the trial court's ruling is arbitrary, fanciful, or unreasonable or when no reasonable person would accept the view adopted by the court. In re Jason B., 2020 IL App (1st) 200356, ¶ 44.
¶ 34 On appeal, Erin claims that she had only one positive drug test which was "not her fault" because it was a "false positive or was due to a combination of the numerous medications she took for anxiety and depression." However, we note that the claim is undermined by Erin's statements following the positive drug test which claimed she may have been drugged by a man in her house the night before. Upon careful review of the evidence presented at the dispositional hearing, as well as the reports admitted into evidence, we cannot find that the trial court's finding that custody and guardianship of the children should remain with DCFS was an abuse of discretion.
¶ 35 In support of its finding that Erin was "unable for some reason other than financial circumstances alone to care for, protect, train, or discipline the minor(s)," the trial court found that reasonable efforts had been made "to prevent or eliminate the need for removal of the minor(s) from the home" but the goals related to those efforts had not been achieved. We find this conclusion is supported by the two additional drug tests that were positive for methamphetamine (bringing the total of positive tests up to three) as well as Erin's failure to appear for two additional drug tests. One of the reasons the children were removed from the home was Erin's initial positive drug test and the drug paraphernalia found in her bedroom dresser drawer. Additional positive drug tests and a failure to submit to random drug testing does not extinguish the concerns that formed the basis of the children's removal. As such, the trial court's finding that reasonable efforts were made "to prevent or eliminate the need for removal of the minor(s) from the home" is not against the manifest weight of the evidence.
¶ 36 The trial court also found that appropriate services aimed at family preservation and family reunification were unsuccessful because "mother needs to complete services." Here, there is no dispute that despite Erin's completion of the assessments, the recommendations stemming from those assessments had not been received, say nothing of completed. As such, the trial court's finding is not against the manifest weight of the evidence, and we find that the trial court did not err in finding that Erin was unable, for reasons other than financial circumstances alone, to care for, protect, train, or discipline her children.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated herein, we affirm the trial court's findings that the minor children were neglected by reason of an injurious environment and that Erin was unable, for reasons other than financial circumstances alone, to care for, protect, train, or discipline her children.
¶ 39 Affirmed.